ARCHIVED — Regulations Implementing the United Nations Resolutions on Somalia

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Vol. 143, No. 7 — April 1, 2009

Registration

SOR/2009-92 March 12, 2009

UNITED NATIONS ACT

P.C. 2009-395 March 12, 2009

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 733 (1992) on January 23, 1992, Resolution 751 (1992) on April 24, 1992, Resolution 1356 (2001) on June 19, 2001, Resolution 1425 (2002) on July 22, 2002, Resolution 1725 (2006) on December 6, 2006, Resolution 1744 (2007) on February 20, 2007, Resolution 1772 (2007) on August 20, 2007 and Resolution 1844 (2008) on November 20, 2008;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in those resolutions to be effectively applied;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Foreign Affairs, pursuant to section 2 of the United Nations Act (see footnote a), hereby makes the annexed Regulations Implementing the United Nations Resolutions on Somalia.

REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON SOMALIA

INTERPRETATION

1. The following definitions apply in these Regulations.

“arms and related material” means any type of weapon, ammunition, military vehicle or military or paramilitary equipment, and includes their spare parts. (armes et matériel connexe)

“Canadian” means an individual who is a citizen within the meaning of the Citizenship Act or a body corporate incorporated by or continued under the laws of Canada or a province. (Canadien)

“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 11 of Security Council Resolution 751. (Comité du Conseil de sécurité)

“Minister” means the Minister of Foreign Affairs. (ministre)

“paragraph 3 designated person” means a person that has been designated and listed by the Committee of the Security Council under paragraphs 3 and 11 of Security Council Resolution 1844. (personne désignée en vertu du paragraphe 3)

“paragraph 8 designated person” means a person that has been designated and listed by the Committee of the Security Council under paragraphs 8 and 11 of Security Council Resolution 1844. (personne désignée en vertu du paragraphe 8)

“person” means an individual, a body corporate, a trust, a partnership, a fund, an unincorporated association or organization or a foreign state. (personne)

“property” means property of every description and documents relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, and includes any funds, financial assets or economic resources. (bien)

“Security Council Resolution 751” means Resolution 751 (1992) of April 24, 1992, adopted by the Security Council of the United Nations. (résolution 751 du Conseil de sécurité)

“Security Council Resolution 1725” means Resolution 1725 (2006) of December 6, 2006, adopted by the Security Council of the United Nations. (résolution 1725 du Conseil de sécurité)

“Security Council Resolution 1744” means Resolution 1744 (2007) of February 20, 2007, adopted by the Security Council of the United Nations. (résolution 1744 du Conseil de sécurité)

“Security Council Resolution 1772” means Resolution 1772 (2007) of August 20, 2007, adopted by the Security Council of the United Nations. (résolution 1772 du Conseil de sécurité)

“Security Council Resolution 1844” means Resolution 1844 (2008) of November 20, 2008, adopted by the Security Council of the United Nations. (résolution 1844 du Conseil de sécurité)

“Security Council Resolutions” means Resolution 733 (1992) of January 23, 1992, Resolution 751 (1992) of April 24, 1992, Resolution 1356 (2001) of June 19, 2001, Resolution 1425 (2002) of July 22, 2002, Resolution 1725 (2006) of December 6, 2006, Resolution 1744 (2007) of February 20, 2007, Resolution 1772 (2007) of August 20, 2007 and Resolution 1844 (2008) of November 20, 2008, adopted by the Security Council of the United Nations. (résolutions du Conseil de sécurité)

“Somalia” means the Somali Republic and includes its political subdivisions. (Somalie)

“technical assistance” means any form of assistance, such as providing instruction, training, consulting services or technical advice or transferring know-how or technical data. (aide technique)

“technical data” includes blueprints, technical drawings, photographic imagery, computer software, models, formulas, engineering designs and specifications, technical and operating manuals and any technical information. (données techniques)

“working day” means a day that is not Saturday or a holiday. (jour ouvrable)

APPLICATION

2. These Regulations are binding on Her Majesty in right of Canada or a province.

PROHIBITIONS

3. No person in Canada shall knowingly

(a) export, sell, supply, transfer or ship, directly or indirectly, arms and related material, wherever situated, to any person in Somalia; or

(b) provide or transfer, directly or indirectly, technical, financial or other assistance related to military activities to any person in Somalia.

4. No person in Canada shall knowingly

(a) export, sell, supply, transfer or ship, directly or indirectly, arms and related material, wherever situated, to a paragraph 8 designated person; or

(b) provide or transfer, directly or indirectly, technical, financial or other assistance, including investment, brokering or other financial services, related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of arms and related material, to a paragraph 8 designated person.

5. No person in Canada and no Canadian outside Canada shall knowingly

(a) deal directly or indirectly in any property that is in Canada as at November 20, 2008 or at any time after that date and that is owned or controlled, directly or indirectly, by a paragraph 3 designated person or by a paragraph 8 designated person;

(b) enter into or facilitate, directly or indirectly, any financial transaction related to a dealing referred to in paragraph (a);

(c) provide any financial or other related service in respect of the property referred to in paragraph (a);

(d) make any property or any financial or other related service available, directly or indirectly, to a paragraph 3 designated person or to a paragraph 8 designated person;

(e) make any property or any financial or other related service available for the benefit of any person referred to in paragraph (d); or

(f) do anything that causes, assists or promotes, or is intended to cause, assist or promote, any act or thing prohibited by paragraphs (a) to (e).

6. No person in Canada shall knowingly do anything that causes, assists or promotes, or is intended to cause, assist or promote, any act or thing prohibited by sections 3 and 4.

DUTY TO DETERMINE

7. Each of the following persons must determine on a continuing basis whether it is in possession or control of property owned or controlled by a paragraph 3 designated person or by a paragraph 8 designated person:

(a) authorized foreign banks, within the meaning of section 2 of the Bank Act, in respect of their business in Canada or banks to which that Act applies;

(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations to which the Cooperative Credit Associations Act applies;

(c) foreign companies, within the meaning of subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;

(d) companies, provincial companies and societies, within the meaning of subsection 2(1) of the Insurance Companies Act;

(e) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act;

(f) companies to which the Trust and Loan Companies Act applies;

(g) trust companies regulated by a provincial Act;

(h) loan companies regulated by a provincial Act; and

(i) any person authorized under provincial legislation to engage in the business of dealing in securities or to provide portfolio management or investment counselling services.

DISCLOSURE

8. (1) Every person in Canada and every Canadian outside Canada shall disclose without delay to the Commissioner of the Royal Canadian Mounted Police

(a) the existence of property in their possession or control that they have reason to believe is owned or controlled by a paragraph 3 designated person or by a paragraph 8 designated person; and

(b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

(2) No person contravenes subsection (1) by disclosing in good faith under that subsection.

PETITION TO REVOKE DESIGNATION

9. (1) Any Canadian or person in Canada that is a paragraph 3 designated person or a paragraph 8 designated person may petition the Minister in writing to have that designation revoked.

(2) The Minister shall notify the petitioner, within 60 days after receiving the petition, of his or her decision on whether to submit the petition to the Committee of the Security Council.

(3) If there has been a material change in circumstances since the last petition was submitted, a person may submit another petition under subsection (1).

EXCEPTIONS

10. Section 3 does not apply to protective clothing, including flak jackets and military helmets, temporarily exported to Somalia by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel for their personal use only.

11. Section 3 does not apply to supplies of non-lethal military equipment intended solely for humanitarian or protective use, as approved in advance by the Committee of the Security Council.

12. Section 3 does not apply to supplies of arms and related material or technical assistance intended solely for the support of or use by the protection and training mission in Somalia established by the Intergovernmental Authority on Development (IGAD) and Member States of the African Union under paragraph 3 of Security Council Resolution 1725.

13. Section 3 does not apply to supplies of arms and related material or technical assistance intended solely for the support of or use by the African Union Mission in Somalia established under to Security Council Resolution 1744 and Security Council Resolution 1772.

14. Section 3 does not apply to supplies of arms and related material or technical assistance intended solely for the purpose of helping develop security sector institutions, consistent with the political process set out in paragraphs 1 to 3 of Security Council Resolution 1744 and in paragraphs 1 to 5 of Security Council Resolution 1772, and in the absence of a negative decision by the Committee of the Security Council in conformity with Security Council Resolution 1744 and Security Council Resolution 1772.

15. (1) A person claiming not to be a paragraph 8 designated person or a paragraph 3 designated person may apply to the Minister for a certificate stating that they are not such a person.

(2) If it is established that the applicant is not a paragraph 8 designated person or a paragraph 3 designated person, the Minister shall issue a certificate to the applicant within 15 working days after receiving the application.

16. (1) A person whose property has been affected by the application of section 5 may apply to the Minister for a certificate to exempt their property from the application of that section if that property is necessary for meeting basic or extraordinary expenses or if it is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, mortgage, charge, security interest or prior claim.

(2) The Minister shall issue a certificate, if it is established, in accordance with the Security Council Resolutions, that the property is necessary for meeting basic or extraordinary expenses or that the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, mortgage, charge, security interest or prior claim,

(a) in the case of property that is necessary for meeting basic expenses, within 15 working days after receiving the application, if the Committee of the Security Council did not refuse the release of the property;

(b) in the case of property that is necessary for meeting extraordinary expenses, within 30 working days after receiving the application, if the Committee of the Security Council has approved the release of the property; and

(c) in the case of property that is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, mortgage, charge, security interest or prior claim, within 90 working days after receiving the application, if the lien or judgment, hypothec, mortgage, charge, security interest or prior claim was entered before November 20, 2008, is not for the benefit of a paragraph 3 designated person or a paragraph 8 designated person and has been brought to the attention of the Committee of the Security Council or the Security Council of the United Nations by the Minister.

17. No person contravenes these Regulations by doing an act or thing prohibited by any of sections 3 to 6 if, before the person does that act or thing, the Minister issues a certificate to the person stating that

(a) the Security Council Resolutions do not intend that such an act or thing be prohibited; or

(b) the act or thing has been approved by the Security Council of the United Nations.

COMING INTO FORCE

18. 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.)

Issue and objectives

On January 23, 1992, the United Nations Security Council adopted Resolution 733 (1992) which ordered an immediate and complete embargo on all deliveries of weapons and military equipment to Somalia in response to the rapid deterioration of the situation in Somalia and the heavy loss of human life and widespread material damage resulting from the conflict in the country. Resolutions 1425 (2002), 1725 (2006), 1744 (2007) and 1772 (2007) subsequently strengthened and created a number of exceptions to the arms embargo. On November 20, 2008, the United Nations Security Council adopted Resolution 1844 (2008) imposing additional sanctions against Somalia in response to the acts of violence in Somalia and the recent increase in acts of piracy and armed robbery at sea against vessels off the coast of Somalia.

While the general arms embargo contained in Resolution 733 (1992) and subsequent resolutions was implemented through the existing provisions of the Export and Import Permits Act, the Regulations Implementing the United Nations Resolutions on Somalia (Regulations) are necessary in order for Canada to fulfill its international legal obligation to implement the additional sanctions imposed by the Security Council in Resolution 1844 (2008).

Description and rationale

Acting under Chapter VII of the Charter of the United Nations, the United Nations Security Council adopted resolutions 733 (1992), 751 (1992), 1356 (2001), 1425 (2002), 1519 (2003), 1676 (2006), 1725 (2006), 1744 (2007), 1772 (2007) and 1844 (2008), determining that the situation in Somalia constitutes a threat to international peace and security. As a member of the United Nations, Canada is legally obliged, pursuant to Article 25 of the Charter of the United Nations, to implement binding decisions of the Security Council in domestic law. The United Nations Act constitutes the appropriate legislative authority to implement these decisions.

Subject to certain exceptions, the Security Council imposed the following sanctions against Somalia

  • a prohibition on the export of arms and related material to any person in Somalia and to persons designated by the UN sanctions committee established to oversee the sanctions against Somalia (751 Committee) as a threat to the peace, security or stability of Somalia;
  • a prohibition on the provision, to any person in Somalia and to persons designated by the 751 Committee, of technical, financial or other assistance related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of arms and related material;
  • an assets freeze against persons designated by the 751 Committee; and
  • a travel ban against persons designated by the 751 Committee.

The Regulations implement in Canadian domestic law the arms embargo, the prohibition on the provision of technical, financial or other assistance related to military activities or to the supply, sale, transfer, manufacture, maintenance or use of arms and related material, and the assets freeze. Implementation of the travel ban is ensured in Canada under existing provisions of the Immigration and Refugee Protection Act.

These sanctions should have limited impact on international competitiveness insofar as the sanctions must be implemented by all United Nations Member States and Canadian exports to Somalia consist primarily of food products that would not be affected by the export ban.

These Regulations came into force upon their registration, and will be tabled forthwith before Parliament as is required under the United Nations Act.

Links to the text of Security Council resolutions 733 (1992), 751 (1992), 1356 (2001), 1425 (2002), 1519 (2003), 1676 (2006), 1725 (2006), 1744 (2007), 1772 (2007) and 1844 (2008) are available at http://www.un.org/documents/scres.htm.

Information concerning the work of the Security Council Committee charged with overseeing the sanctions against Somalia is available at http://www.un.org/sc/committees/751/index.shtml.

Consultation

The Department of Foreign Affairs and International Trade drafted the Regulations in collaboration with the Department of Justice, the Canada Border Services Agency, the Department of Finance Canada, the Office of the Superintendent of Financial Institutions Canada, Citizenship and Immigration Canada, the Department of National Defence, the Canadian International Development Agency, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service.

Implementation, enforcement and service standards

Compliance is ensured by the Royal Canadian Mounted Police and the Canada Border Services Agency. Any person who contravenes the provisions of the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act.

The costs relating to the making of these Regulations are minimal and will be covered by existing departmental resources.

Contacts

Curtis Schmeichel
Legal Officer
United Nations, Human Rights and Economic Law Division (JLH)
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-944-3055
Fax: 613-992-2467
Email: Curtis.Schmeichel@international.gc.ca

Sabine Nölke
Director
United Nations, Human Rights and Economic Law Division (JLH)
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-992-6296
Fax: 613-992-2467
Email: Sabine.Nolke@international.gc.ca

Footnote a
R.S., c. U-2