Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2023-13
Canada Gazette, Part II, Volume 157, Number 4
SOR/2023-13 January 27, 2023
SPECIAL ECONOMIC MEASURES ACT
P.C. 2023-14 January 27, 2023
Whereas the Governor in Council is of the opinion that the situation in Burma constitutes a grave breach of international peace and security that has resulted or is likely to result in a serious international crisis;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations under subsections 4(1)footnote a, (1.1)footnote b, (2)footnote c and (3) of the Special Economic Measures Act footnote d.
Regulations Amending the Special Economic Measures (Burma) Regulations
1 Paragraph 4(a) of the Special Economic Measures (Burma) Regulations footnote 1 is replaced by the following:
- (a) export, sell, supply, ship, transport or otherwise deal in arms and related material or aviation fuel, wherever situated, destined for Burma or any person in Burma;
2 Part 2 of the schedule to the Regulations is amended by adding the following after item 89:
- 90 Htein Win
- 91 Htin Latt Oo
- 92 Than Hteik
- 93 Nyunt Win Swe
- 94 Phone Myat
- 95 Thet Pon
Application Before Publication
3 For the purpose of paragraph 11(2)(a) of the Statutory Instruments Act, these Regulations apply according to their terms before they are published in the Canada Gazette.
Coming into Force
4 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
On February 1, 2021, the Myanmar Armed Forces (Tatmadaw) initiated a military coup against the democratically elected National League for Democracy (NLD) government.
Despite condemnation by the international community, repeated calls to halt violence, and efforts led by the Association of Southeast Asian Nations (ASEAN) to engage the regime in inclusive dialogues toward peace, the Myanmar military regime has not altered course. Violence is in fact escalating while gross human rights and humanitarian law violations are increasing in number and severity.
Violence, severe human rights violations, humanitarian impacts on the most vulnerable, spillover into neighbouring countries by those fleeing violence, and the lack of tangible movement toward peace merit further coercive action.
On February 1, 2021, the Tatmadaw deposed the civilian government, forming the State Administration Council (SAC) and arrested the democratically elected civilian leadership, protesters, journalists, and pro-democracy activists. To date, the regime has failed to fully consolidate its power, and violent resistance across the country has grown, pushing Myanmar close to failed state status and economic collapse, reversing previous democratic and economic gains, with accelerating armed conflicts. This situation makes the prospect of a safe, voluntary, and dignified return of the displaced Rohingya people extremely unlikely. People’s Defense Forces (PDFs) have been formed locally throughout the country and are engaging in guerrilla-style fighting against the regime. Ethnic Armed Organizations (EAO) are also continuing decades-long conflicts with the security forces. Political opposition has crystallized around a National Unity Government (NUG), which has formed a shadow government and is vying for international recognition, recently moving from political into armed resistance. Gross and systematic human rights violations continue with unchecked impunity as the SAC escalates violence against its own population to exterminate resistance and assert its authority.
The situation, including escalating armed conflict and severe human rights violations, constitutes an ongoing grave breach of international peace and security and a worsening international crisis. It has spilled over into neighbouring countries, in particular those hosting the forcibly displaced. As of January 13, 2023, violence associated with the coup has resulted in the following, with the accompanying humanitarian disaster growing daily:
|Violence associated with the coup||Number of people affected|
|Civilians killed by regime||2 730|
|Civilians arbitrarily detained||17 217|
|Civilians currently arbitrarily detained||13 446|
|Military members killed||22 855|
|Military members injured||5 813|
|Number of internally displaced persons since the coup||1 100 000|
|Number of refugees in neighbouring countries||72 000|
The Tatmadaw has a well-documented history of targeting civilians for decades, consistently using aerial bombardment from combat helicopters, fighter jets, and artillery, as well as ground armoured vehicles. In recent months, however, attacks against civilians have escalated with recent reports stating airstrikes increased from 104 in all of 2021 to 243 in the first 11 months of 2022. Overstretched by renewed fighting, the Myanmar military regime relies on airstrikes to penetrate areas where it cannot easily operate and is making regular use of internationally acquired aircraft, combat helicopters, armoured personnel vehicles, and missiles to carry out attacks targeting civilians in violation of international humanitarian and criminal law.
Indiscriminate bombing by the regime has destroyed homes, religious buildings, schools and medical facilities, among other civilian infrastructure. In the vast majority of documented cases, only civilians appear to have been present at the location of the strike at the time of the attack. An egregious illustration of this trend was the September 16, 2022, attack on a school in the Sagaing Region during which 11 children were killed and 17 other people — 14 students and 3 teachers — were injured. Regime troops carried out the air raid alleging that resistance fighters were at the village school.
The Myanmar military regime is also increasingly using airpower as punishment against EAO units, including those that are actively resisting the regime and cooperating with the NUG or PDFs. Notably, on October 23, 2022, the military regime conducted an air strike on a gathering marking the 62nd anniversary of the Kachin Independence Organisation (KIO), an EAO, in Hpakant Township in Kachin State, killing at least 62 people (including civilians) and injuring at least 100, many of whom were subsequently denied medical care. This attack represents the single most fatal attack committed by the military regime since the coup. This incident makes the prospect of peaceful dialogue between the military regime and KIO-allied EAOs even more remote.
Peace efforts have been led by ASEAN with international backing, including from Canada, following ASEAN’s April 2021 Five-Point Consensus, which established a roadmap to peace in Myanmar. Implementation of the Five-Point Consensus has stalled in the face of regime intransigence.
Canada has taken a multipronged response to the crisis in Myanmar and continues to be strongly engaged in diplomatic efforts to resolve the situation in Myanmar through bilateral and multilateral channels.
- To put additional pressure on the military regime to change its behaviour, including to immediately and genuinely engage with ASEAN-led peace efforts, immediately halt violence, engage in inclusive peace dialogues, and grant unrestricted humanitarian access.
- To reduce access by the military regime to key resources needed to continue to conduct air strikes against the civilian population of Myanmar.
- To communicate a clear message to the military regime, and to those who support it, that Canada will not accept their disregard for the will and democratic rights of the people of Myanmar, and their actions which constitute a grave breach of international peace and security resulting in a serious international crisis.
- To align with similar actions taken by international partners to present a unified international front.
The Regulations Amending the Special Economic Measures (Burma) Regulations add six individuals that are part of the military regime, and a prohibition on the export, sale, supply or shipment of aviation fuel to Myanmar to the Schedule of the Regulations.
Global Affairs Canada engages regularly with relevant stakeholders, including civil society organizations and cultural communities, and other like-minded governments regarding Canada’s approach to sanctions implementation.
With respect to the amendments, public consultation would not have been appropriate, as publicizing the commodity targeted by sanctions would have potentially resulted in asset flight prior to the coming into force of the amendments.
Modern treaty obligations and Indigenous engagement and consultation
An initial assessment of the geographical scope of the initiative was conducted and did not identify any modern treaty obligations, as the amendments do not take effect in a modern treaty area.
Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.
Benefits and costs
Application of sanctions will serve to put pressure on the military regime to change its behaviour, and demonstrate Canada’s readiness to impose real costs on those working to obstruct or undermine international efforts to resolve the crisis in Myanmar. This will further demonstrate that those who support the regime will face consequences. The sanctions communicate a clear message that Canada will not accept that actions constituting a grave breach of international peace and security resulting in a serious international crisis continue to take place in Myanmar at the hands of the military with impunity. As efforts to date have not convinced the military to accept accountability for their actions, additional sanctions send an important message from Canada and incentivize the regime to change its behaviour.
The impact of these new measures on Canadian businesses would be minimal, as all energy exports to Myanmar, according to Statistics Canada, amounted to only $75,600 and $77,900 in 2020 and 2021, respectively. Global Affairs Canada continues to engage with Canadian companies active in Myanmar to ensure they understand the situation on the ground, their obligations under Canadian law, the Government of Canada’s expectations with respect to responsible business practices abroad, and the potential legal and reputational risk of doing business in Myanmar.
Canadian banks and financial institutions are required to comply with the sanctions. They will do so by adding the new prohibitions to their existing monitoring systems, which may result in a minor compliance cost.
The amendments will create additional costs for businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, costs will likely be low, as it is unlikely that Canadian businesses have dealings with the newly listed persons.
The socio-economic impact of the prohibition on the export of aviation fuel on the general civilian population in Myanmar is expected to be minimal by design, with little adverse humanitarian impact. Organizations consulted as part of the risk assessment process confirmed this and unanimously supported a suspension on aviation fuel as reducing the Myanmar military’s ability to use air power would outweigh any negative consequences a suspension could cause.
Canada’s export prohibition would send a strong signal to stakeholders within Myanmar and the boarder international community. The symbolic value of the prohibition would further bolster Canada’s credibility with pro-democracy actors in Myanmar and the region who have been advocating for stronger measures from Canada and like-minded states. Canada’s action would also provide good company for other countries, like-minded or otherwise, considering similar measures which, taken together, would have powerful consequences for the military regime.
Small business lens
The amendments could create additional costs for small businesses seeking permits that would authorize them to carry out specified activities or transactions that are otherwise prohibited. However, costs will likely be low, as it is unlikely that Canadian small businesses have or will have dealings with the newly listed individuals and entities. As it is unlikely that Canadian businesses have dealings in these sectors, no significant loss of opportunities for small businesses is expected as a result of the amendments.
In addition, on April 9, 2021, Canada issued a business advisory in order to help ensure Canadian companies, including small businesses, are aware of heightened commercial and reputational risks of doing business in Myanmar. The advisory also outlined the Government of Canada’s expectations with respect to responsible business practices abroad, and recommended that Canadian companies undertake thorough, responsible business conduct due diligence, including closely examining their supply chains to determine whether their activities support military-owned conglomerates or their affiliates.
The permitting process for businesses meets the definition of “administrative burden” in the Red Tape Reduction Act and would need to be calculated and offset within 24 months. However, the amendments address an emergency circumstance and are therefore exempt from the requirement to offset administrative burden and regulatory titles under the one-for-one rule.
Regulatory cooperation and alignment
While the amendments are not related to a work plan or commitment under a formal regulatory cooperation forum, they align with actions taken by like-minded partners.
Strategic environmental assessment
The amendments are unlikely to result in important environmental effects. In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus (GBA+)
The focus of the amendments is on specific individuals and entities that are members of the Myanmar military and persons engaged in activities that have contributed to the grave breach of international peace and security that has occurred in Myanmar, rather than against the citizens of Myanmar as a whole. This results in minimizing collateral effects to those dependent on those individuals.
Exemptions are included in the Regulations, including, among others, to allow for the delivery of humanitarian assistance to provide some mitigation of the impact of sanctions on vulnerable groups. The Minister of Foreign Affairs can also issue permits pursuant to the Order. As such, these new sanctions are likely to have limited impacts on the citizens of Myanmar.
The six individuals proposed to be added to the Regulations are current senior officials within the military regime. They are linked, in particular, to the trend of air strikes and other attacks on civilian populations costing dozens of civilian lives, including those of women and children. The prohibition on the export, sale, supply or shipment of aviation fuel to Myanmar will limit regime access to a critical resource enabling its continued use of air strikes against the civilian population of Myanmar.
The prohibition responds to the growing and credible calls from key partners for the international community to take concerted actions in response to the growing violence. The Myanmar military relies on aviation fuel to power the aircraft used in these attacks, a type of fuel that foreign and domestic companies supply, import, handle, store and distribute. Preventing the sale or transfer of aviation fuel would be crucial to inhibiting the military regime’s ability to continue to carry out such attacks and is consistent with Canada’s ongoing efforts to halt the flow and transfer of arms and related goods into Myanmar.
On December 9, 2022, Canada imposed sanctions on 12 individuals and 3 entities, which included an entity, the Asian Sun Group, directly involved in the aviation fuel supply chain to the Myanmar military regime. These measures were very well received by the international community, in particular civil society organizations active in Myanmar and Myanmar’s pro-democracy opposition movement. Both public and private accolades have been directed at Canada as the first in the world to target the Myanmar military’s aviation fuel supply chain. Numerous leading non-governmental organizations have further called on Canada and like-minded states to enact a full-scale ban on the export of aviation fuel to entities in Myanmar to prevent the regime from carrying out repeated aerial attacks against the people of Myanmar.
This further reinforces efforts under the United Nations General Assembly (UNGA) Resolution 75/287, under which Canada has called on all United Nations member States to prevent the sale and transfer of arms, military equipment, materiel, dual-use equipment, and technical assistance to Myanmar. These amendments to the Regulations strengthen Canada’s commitments in this regard, and strongly encourage concerted international action.
These sanctions show solidarity with like-minded countries, which have already imposed similar restrictions on individuals. Similar prohibitions on aviation fuel are expected.
Implementation, compliance and enforcement, and service standards
Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. In accordance with section 8 of the Special Economic Measures Act, every person who willfully contravenes the Special Economic Measures (Burma) Regulations is liable, upon summary conviction, to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both; or, upon conviction on indictment, to imprisonment for a term or not more than five years.
Southeast Asia Division II
Southeast Asia, Oceania, APEC and ASEAN Bureau
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