Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2023-228

Canada Gazette, Part II, Volume 157, Number 23

Registration
SOR/2023-228 October 27, 2023

SPECIAL ECONOMIC MEASURES ACT

P.C. 2023-1092 October 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

Amendments

1 The Special Economic Measures (Burma) Regulations footnote 1 are amended by adding the following after section 4:

Insurance — ships

5 (1) Subject to section 19, it is prohibited for any person in Canada and any Canadian outside Canada to provide insurance or reinsurance to or for the benefit of or on the direction of Burma or any person in Burma in relation to ships transporting aviation fuel to Burma.

Existing insurance

(2) Subsection (1) does not apply in respect of existing insurance or reinsurance until 30 days after the day on which this section comes into force.

2 Section 13 of the Regulations is replaced by the following:

Assisting in a prohibited activity

13 It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, facilitates or assists in, or is intended to cause, facilitate or assist in, any activity prohibited by any of sections 3 to 5.

3 (1) The portion of section 19 of the Regulations before paragraph (a) is replaced by the following:

Exceptions to section 4 and subsection 5(1)

19 Section 4 and subsection 5(1) do not apply in respect of

(2) Paragraphs 19(a) to (c) of the French version of the Regulations are replaced by the following:

4 Part 1 of the schedule to the Regulations is amended by adding the following in numerical order:

5 Part 2 of the schedule to the Regulations is amended by adding the following in numerical order:

Application Before Publication

6 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

7 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.)

Issues

On February 1, 2021, the Myanmar Armed Forces 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. Attacks targeting civilians, gross human rights, humanitarian and international law violations are increasing in number and severity, with serious deleterious humanitarian, economic, political and security implications within Myanmar and for the broader region.

Escalating violence and armed conflict in both Myanmar and neighbouring countries and the lack of tangible movement toward peace merit further coercive action, including measures to prevent the supply of arms and military equipment to Myanmar.

Background

On February 1, 2021, the Myanmar military deposed the civilian government, forming the State Administration Council (SAC) and arrested the democratically elected civilian leadership, protesters, journalists, and pro-democracy activists. Gross and systematic human rights violations against the people of Myanmar have continued with unchecked impunity as the regime escalates violence to exterminate resistance and assert its authority.

The military has launched major ground and air offensive operations with the aim of wiping out local People’s Defence Forces and the civilian support they enjoy. The military has also continued its attacks on civilians and civilian infrastructure from the air and ground, causing mass displacement and a deepening humanitarian crisis. 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, including those hosting the forcibly displaced.

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. 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.

Attacks on civilians

The Myanmar military has a decades-long and well-documented history of targeting civilians and has consistently used aerial bombardment from combat helicopters, fighter jets, and artillery, as well as ground armoured vehicles. In recent months, the military has stepped up aerial attacks, bombing villages, schools, medical facilities, and encampments for internally displaced persons. The regime now makes 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. As a recent and egregious example, on April 11, 2023, the regime launched a series of air strikes during an opening ceremony of the resistance forces’ local administrative office in Pa Za Gyi village in the Sagaing Region, killing over 170 civilians, including women and children. This attack was the single deadliest since the military coup in February 2021. The military has also conducted a campaign of mass arson. Between November 2022 and mid-January 2023, regime forces destroyed more than 16 000 homes and civilian buildings in Sagaing Region alone. The Myanmar military’s aerial and ground attacks, arson campaign, and rampant human rights violations continue to displace populations within Myanmar and force people to flee to neighbouring countries.

Acquisition of arms and materials

Integral to the perpetration of these atrocities are the arms and materials the regime uses to commit them. Weapons and fuel supplied to the regime enable its acts of violence and atrocities throughout Myanmar. The regime obtains weaponry through domestic production and a network of Myanmar-based companies brokering arms and equipment for the military. Recent reporting has documented how Myanmar’s military has relied on a variety of locally produced firearms to carry out summary executions, massacres and other human rights atrocities in response to peaceful protests and growing anti-coup armed resistance in Myanmar, as well as the networks supporting this domestic production. Strengthening domestic weapons manufacturing has been a long-standing goal of the Myanmar military as a necessary means for releasing the military from dependence on external supplies acquired through brokers and cronies of the military regime.

As documented by the United Nations Special Rapporteur (PDF), the Myanmar military has imported at least one billion US dollars in arms, dual-use goods, equipment and raw materials since the military coup.

Democratic erosions

The military regime continues to suppress all forms of dissent as it works to impose a military-dominated future on the people of Myanmar, including through its so-called elections originally forecasted for 2023. The regime has sought to legitimize its efforts to crush civic space, control local and international organizations, and pre-cook the results of the election by passing the Organization Registration Law. This law sets onerous registration requirements and appears designed to eradicate the National League for Democracy, hobble ethnic political parties, and ensure that military-appointed members of Parliament and military-backed parties can together form the next government. Despite extending a nationwide state of emergency through January 2024, the regime continues to make plans to hold sham elections in a desperate attempt to claim legitimacy and gain international recognition. These efforts to crush civic space illustrate the regime’s ultimate disregard for democratic principles.

Myanmar’s Union Election Commission (UEC), whose mandate includes organizing and overseeing elections, has been charged by the regime with preparations for the elections, including party registration and related legislation. As such, the UEC is directly responsible for the erosion of democratic principles in Myanmar, the further fracturing of the political landscape and increases in political violence. The recommended amendments include current known members of the UEC.

Objective

Description

The amendments to the Special Economic Measures (Burma) Regulations (the Regulations) add 39 individuals and 22 entities, which perform key functions on behalf of the military, and a prohibition on the provision of shipping insurance for aviation fuel to Myanmar to the Schedule of the Regulations.

Regulatory development

Consultation

Global Affairs Canada engages regularly with relevant stakeholders, including civil society organizations, 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.

Instrument choice

Regulations are the sole method to enact sanctions in Canada. No other instrument could be considered.

Regulatory analysis

Benefits and costs

Application of additional sanctions will serve to put further 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 is expected to be negligible, as Canadian exports in services to Myanmar do not reach the minimum threshold required to be tracked by the Government of Canada.

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 or entities.

The socio-economic impact of the prohibition on the export of insurance services for 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 support the insurance provisions as reducing the Myanmar military’s ability to use air power and this would outweigh any negative consequences a suspension could cause.

Canada’s export prohibition sends 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. The prohibition on shipment insurance for aviation fuel bolsters this signal to our allies.

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 thoroughly responsible business conduct due diligence, including closely examining their supply chains to determine whether their activities support military-owned conglomerates or their affiliates. The business advisory is recirculated regularly, as needed, as conditions change in-country, or substantial changes are made to the Regulations.

One-for-one rule

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 a limited impact on the citizens of Myanmar.

Rationale

The 39 individuals added to the Regulations are current senior officials within the military regime, including the UEC, or senior officials within entities which produce revenue for the regime, or procure arms or key resources used by the regime to fuel its violence. Additionally, the 22 entities added to the Regulations perform key functions on behalf of the military regime, such as being a conduit for revenue, arms, or key resources used by the military to produce arms and ammunition domestically. Both the individuals and entities are linked, in particular, to the trend of air strikes and other attacks on civilian populations costing dozens of civilian lives.

This reinforces efforts under United Nations General Assembly (UNGA) Resolution 75/287, under which Canada has called on all United Nations (UN) member States to prevent the sale and transfer of arms, military equipment, materials, dual-use equipment, and technical assistance to Myanmar. Building on the spirit of Resolution 75/287, these amendments reinforce repeated bilateral and multilateral calls by Canada and others, including the UN Special Rapporteur, to take measures to halt the flow of arms into Myanmar. As noted above, recent months have seen the proliferation of credible documentation regarding arms and resources flows to Myanmar for use by the military regime against the civilian population. Considerable mapping of the networks of known brokers, companies, directors and shareholders has taken place, resulting in calls from the international community to enact holistic sanctions on these arms dealing networks.

Further, the amendments align with the content of landmark UN Security Council (UNSC) Resolution 2669, passed in December 2022, which demanded an end to the violence in Myanmar, including the release of political prisoners. By limiting regime access to arms and revenue, the amendments strengthen Canada’s commitments to see an end to conflict in Myanmar, as called for in the UNSC Resolution, and strongly encourage concerted international action from UN member states.

The prohibition on the sale and supply of insurance for the transportation of aviation fuel to Myanmar will further limit regime access to a critical resource enabling its continued use of air strikes against the civilian population of Myanmar, as outlined in the “Background” section above. The amendment responds to the growing and credible calls from key civil society and UN 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. This line of sanctions is consistent with Canada’s ongoing efforts to halt the flow of arms and related goods to Myanmar and complements the sanctioning of aviation fuel enacted in February 2023.

These sanctions show solidarity with like-minded countries, which have already imposed similar restrictions on individuals and entities.

Implementation, compliance and enforcement, and service standards

The amendments come into force on the day on which they are registered. The amendments follow the 6th anniversary of the Rohingya crisis, the extension of the state of emergency in Myanmar by the military regime, as well as anniversaries of major attacks by the regime against the civilian population in September and October 2022.

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.

Contact

Graham Dattels
Director Southeast Asia Division II
Indo-Pacific Branch
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Email: graham.dattels@international.gc.ca