ARCHIVED — Regulations Amending the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea

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Vol. 143, No. 17 — August 19, 2009

Registration

SOR/2009-232 July 30, 2009

UNITED NATIONS ACT

P.C. 2009-1268 July 30, 2009

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1874 (2009) on June 12, 2009;

And whereas it appears to the Governor in Council to be necessary to make regulations for enabling the measures set out in that Resolution 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 Amending the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea.

REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA

AMENDMENTS

1. The title of the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea (see footnote 1) is replaced by the following:

REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA (DPRK)

2. (1) The definitions “armoured combat vehicles”, “attack helicopters”, “battle tanks”, “combat aircraft”, “Democratic People’s Republic of Korea”, “large-calibre artillery systems”, “missiles and missile systems”, “resources contributing to the Democratic People’s Republic of Korea’s weapons programme”, “Security Council Resolution” and “warships” in section 1 of the Regulations are repealed.

(2) The definitions “arms and related material”, “Committee of the Security Council” and “designated person” in section 1 of the Regulations are replaced by the following:

“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)

“Committee of the Security Council” means the Committee of the Security Council of the United Nations established under paragraph 12 of Security Council Resolution 1718. (Comité du Conseil de sécurité)

“designated person” means a person that has been designated by the Committee of the Security Council or by the Security Council of the United Nations under paragraph 8(d) of Security Council Resolution 1718 as being engaged in or providing support for, including through illicit means, the DPRK’s nuclear-related, other weapons of mass destruction-related and ballistic missile-related programmes. It also includes any person designated by the Committee of the Security Council under paragraph 12(e) of Security Council Resolution 1718. (personne désignée)

(3) Section 1 of the Regulations is amended by adding the following in alphabetical order:

“DPRK” means the Democratic People’s Republic of Korea and includes its political subdivisions. (RPDC)

“resources contributing to the DPRK’s weapons programme” means all items, materials, equipment, goods and technology that appear on the lists set out in the Security Council of the United Nations documents S/2006/814, S/2006/815, S/2006/ 853, S/2006/853/Corr.1 and S/2009/205 and in the International Atomic Energy Agency documents INFCIRC/254/Rev.7/ Part 2 and INFCIRC/254/Rev.9/Part 1. It includes any other items, materials, equipment, goods and technology identified for the purpose of subparagraph 8(a)(ii) of Security Council Resolution 1718 by the Committee of the Security Council or by the Security Council of the United Nations. (ressources contribuant au programme d’armement de la RPDC)

“Security Council Resolution 1718″ means Resolution 1718 (2006) of October 14, 2006 adopted by the Security Council of the United Nations. (résolution 1718 du Conseil de sécurité)

“Security Council Resolution 1874″ means Resolution 1874 (2009) of June 12, 2009 adopted by the Security Council of the United Nations. (résolution 1874 du Conseil de sécurité)

“Security Council Resolutions” means Security Council Resolution 1718 and Security Council Resolution 1874. (résolutions du Conseil de sécurité)

3. Section 4 of the Regulations is replaced by the following:

4. No owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, and no operator of an aircraft registered in Canada shall knowingly carry, cause to be carried or permit to be carried arms and related material, resources contributing to the DPRK’s weapons programme or luxury goods, wherever situated, destined for any person in the DPRK.

4. The portion of section 5 of the Regulations before paragraph (a) is replaced by the following:

5. No person in Canada and no Canadian outside Canada shall knowingly import or procure any of the following items, wherever situated, from any person in the DPRK or any citizen of the DPRK:

5. Section 6 of the Regulations is replaced by the following:

6. No owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, and no operator of an aircraft registered in Canada shall knowingly carry, cause to be carried or permit to be carried arms and related material or resources contributing to the DPRK’s weapons programme, wherever situated, destined for any person in Canada and procured from any person in the DPRK or any citizen of the DPRK.

6.1 No person in Canada and no Canadian outside Canada shall knowingly engage in any financial transaction related to the provision, manufacture, maintenance or use of arms and related material whose export, sale, supply, transfer or shipment is prohibited by section 3.

6.2 No person in Canada and no Canadian outside Canada shall knowingly engage in any financial transaction related to the provision, manufacture, maintenance or use of arms and related material whose import or procurement is prohibited by section 5.

6.3 (1) No person in Canada and no Canadian outside Canada shall knowingly provide a vessel that is registered in the DPRK with goods, materials or services for the vessel’s operation or maintenance, including in respect of stevedoring and lighterage, if there are reasonable grounds to believe that the vessel is carrying

(a) arms and related material;

(b) resources contributing to the DPRK’s weapons programme;

(c) luxury goods; or

(d) technical data related to the provision, manufacture, maintenance or use of arms and related material or of resources contributing to the DPRK’s weapons programme.

(2) Subsection (1) does not apply if the goods, materials or services are necessary for humanitarian purposes.

6. Paragraph 9(d) of the French version of the Regulations is replaced by the following:

d) de mettre sciemment des biens ou des services financiers ou services connexes à la disposition, directement ou indirectement, d’une personne désignée ou d’en permettre l’utilisation à son profit.

7. The Regulations are amended by adding the following after section 11:

11.1 The Minister of Public Safety and Emergency Preparedness and the Minister of National Defence are authorized to disclose information to the Minister for the application of paragraph 15 of Security Council Resolution 1874.

11.2 The Minister is authorized to disclose information collected under section 11.1 to the Committee of the United Nations Security Council for the application of paragraph 15 of Security Council Resolution 1874.

8. Subsection 12(2) of the Regulations is replaced by the following:

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

9. Subsection 13(2) of the English version of the Regulations is replaced by the following:

(2) The Minister shall notify the petitioner, within 60 days after receiving the petition, of his or her decision whether or not to submit the petition to the Security Council of the United Nations or to the Committee of the Security Council, as the case may be.

10. (1) Subsection 15(1) of the Regulations is replaced by the following:

15. (1) A person whose property has been affected by the application of section 9 may apply to the Minister for a certificate to exempt property from the application of that section if the property is necessary for basic or extraordinary expenses or if it is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest.

(2) The portion of subsection 15(2) of the Regulations before paragraph (b) is replaced by the following:

(2) The Minister shall issue a certificate, if it is established, in accordance with Security Council Resolution 1718, that the property is necessary for basic or extraordinary expenses or that the property is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest,

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

(3) Paragraph 15(2)(b) of the English version of the Regulations is replaced by the following:

(b) in the case of extraordinary expenses, within 30 days after receiving the application, if the Committee of the Security Council approved the release of the property; and

(4) Paragraph 15(2)(c) of the Regulations is replaced by the following:

(c) in the case of property that is the subject of a judicial, administrative or arbitral lien or judgment, a hypothec, prior claim, mortgage, charge or security interest, within 90 days after receiving the application, if the lien, judgment, hypothec, prior claim, mortgage, charge or security interest was entered prior to October 14, 2006 and is not for the benefit of a designated person.

(5) Section 15 of the Regulations is amended by adding the following after subsection (2):

(3) The Minister shall notify the Committee of the Security Council or the Security Council of the United Nations, as the case may be, of a certificate issued under paragraph (2)(c).

11. The Regulations are amended by adding the following after section 15:

15.1 (1) Sections 3, 4, 6.1 and 7 do not apply in respect of small arms and light weapons and related material.

(2) A person wishing to export, sell, supply, transfer or ship, directly or indirectly, small arms and light weapons and related material to the DPRK shall notify the Minister at least 30 days before the anticipated day of the export, sale, supply, transfer or shipment.

(3) At least five days before the day of the export, sale, supply, transfer or shipment, the Minister shall notify the Committee of the Security Council of that export, sale, supply, transfer or shipment.

12. Paragraph 16(a) of the Regulations is replaced by the following:

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

13. The Regulations are amended by replacing “Democratic People’s Republic of Korea” with “DPRK” in the following provisions:

(a) the portion of section 3 before paragraph (a);

(b) paragraph 3(b);

(c) paragraph 5(b); and

(d) sections 7 and 8.

COMING INTO FORCE

14. 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 June 12, 2009, the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1874 (2009) imposing additional sanctions against the Democratic People’s Republic of Korea (DPRK). The sanctions strengthen and modify measures that had been imposed by the Security Council in Resolution 1718 (2006). Resolution 1874 (2009) is in response to a nuclear test conducted by the DPRK on May 25, 2009, which violated Resolution 1718 (2006), and missile activities that the Security Council determined constitute a clear threat to international peace and security.

The Standing Joint Committee for the Scrutiny of Regulations has also identified several minor technical amendments to be made to the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea.

The Regulations Amending the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea are necessary for Canada to fulfil its international legal obligation to implement the decisions of the Security Council in Resolution 1874 (2009) and to give effect to the recommendations of the Standing Joint Committee for the Scrutiny of Regulations.

Description and rationale

Security Council Resolution 1718 (2006) imposed an embargo on the sale or supply of arms and related material, resources contributing to the DPRK’s weapons programme or the transfer of related technical assistance, and prohibited the export of luxury goods to the DPRK, with certain exceptions. Resolution 1718 (2006) further imposed a travel ban and assets freeze against persons designated by the United Nations Sanctions Committee (1718 Committee) established to oversee the embargo against the DPRK. As a member of the United Nations, Canada is legally obliged, pursuant to Article 25 of the Charter of the United Nations, to apply binding decisions of the Security Council, in accordance with Article 41 of Chapter VII of the Charter of the United Nations. The United Nations Act constitutes the appropriate legislative authority to implement these decisions.

Canada has implemented its international obligations under Resolution 1718 (2006) by introducing, pursuant to section 2 of the United Nations Act, the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea, which came into force on November 9, 2006 (P.C. 2006-1312, SOR/2006-287). The implementation of the travel ban imposed by Resolution 1718 (2006) is ensured in Canada under provisions of the Immigration and Refugee Protection Act.

Noting that the nuclear test and missile activities carried out by the DPRK have further generated increased tension in the region the UN Security Council determined that the situation continues to constitute a threat to international peace and security. Accordingly, the Security Council adopted Resolution 1874 (2009) to modify and strengthen the measures imposed against the DPRK by

  • Expanding the arms embargo to include all arms and related materials, with the exception of the export, sale, supply, transfer or shipment of small arms and light weapons;
  • Expanding the prohibition on the provision, to any person in the DPRK, of technical assistance related to arms and related materials;
  • Creating a prohibition on financial transactions related to the provision, manufacture, maintenance or use of arms or related material;
  • Expanding the list of sanctioned items, materials, equipment, goods and technology which could contribute to the DPRK’s nuclear-related, ballistic missile-related or other weapons of mass destruction-related programmes and activities; and
  • Requiring States to prohibit the provision of refuelling and other services to DPRK vessels believed to contain sanctioned cargo.

The Regulations implement these measures in domestic law. The Regulations also give effect to changes recommended by the Standing Joint Committee for the Scrutiny of Regulations that are linguistic and technical in nature.

Sanctions against the DPRK have been in place since October 2006 and impacts on international competitiveness should be limited insofar as the sanctions must be implemented by all UN Member States. Statistics indicate that trade with the DPRK is minimal, consisting primarily of scrap metal, metallic powders and some fruits, nuts and animal food preparations, none of which are prohibited by the sanctions imposed by Resolutions 1718 (2006) or 1874 (2009).

These Regulations came into force upon registration, and will be tabled forthwith before Parliament as is required under section 4 of the United Nations Act.

The Security Council resolutions relevant to the Regulations, and information concerning the work of the Security Council Committee established pursuant to Resolution 1718 (2006) to oversee the relevant sanctions measures, including listings, are available at: www.un.org/sc/committees/1718/index.shtml.

Consultation

The Department of Foreign Affairs and International Trade drafted the Regulations Amending the Regulations Implementing the United Nations Resolution on the Democratic People’s Republic of Korea in collaboration with the Department of Justice, the Department of Finance, the Canada Border Services Agency, the Department of National Defence, the Royal Canadian Mounted Police, Transport Canada and the Canadian Security Intelligence Service.

Implementation, enforcement and service standards

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

Contacts

Sean Fraser
Legal Officer
United Nations, Human Rights and Economic Law Division
Department of Foreign Affairs and International Trade
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 613-995-3589
Fax: 613-992-2467
Email: Sean.Fraser@international.gc.ca

Sabine Nölke
Director
United Nations, Human Rights and Economic Law Division
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

Footnote 1
SOR/2006-287