ARCHIVED — Regulations Implementing the United Nations Resolution on Eritrea

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Vol. 144, No. 10 — May 12, 2010

Registration

SOR/2010-84 April 22, 2010

UNITED NATIONS ACT

P.C. 2010-479 April 22, 2010

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 1907 (2009) on December 23, 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 Implementing the United Nations Resolution on Eritrea.

REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTION ON ERITREA

INTERPRETATION

Definitions

1. The following definitions apply in these Regulations.

“arms and related material”
« armes et matériel connexe »

“arms and related material” means any type of weapon, ammunition, military vehicle or military or paramilitary equipment, and includes their spare parts.

“Canadian”
« Canadien »

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

“Committee of the Security Council”
« Comité du Conseil de sécurité »

“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 (1992) of April 24, 1992.

“designated person”
« personne désignée »

“designated person” means a person that has been designated by the Committee of the Security Council under paragraph 15 of Security Council Resolution 1907.

“Eritrea”
« Érythrée »

“Eritrea” means the State of Eritrea and includes its political subdivisions.

“Minister”
« ministre »

“Minister” means the Minister of Foreign Affairs.

“person” « personne »

person” means an individual, corporation, trust, partnership, fund, unincorporated association or organization or foreign state.

“property”
« bien »

“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.

“Security Council Resolution 1907”
« résolution 1907 du Conseil de sécurité »

“Security Council Resolution 1907” means Resolution 1907 (2009) of December 23, 2009, adopted by the Security Council of the United Nations.

“technical assistance”
« aide technique »

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

“technical data”
« données techniques »

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

“working day”
« jour ouvrable »

“working day” means a day that is not Saturday or a holiday.

APPLICATION

Application

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

PROHIBITIONS

Export to Eritrea — Canadians

3. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

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

(b) provide or transfer, directly or indirectly, technical or financial assistance related to military activities or to the provision, manufacture, maintenance or use of arms and related material, wherever situated, to any person in Eritrea.

Export to Eritrea — vessel or aircraft

4. It is prohibited for the owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, or the operator of an aircraft registered in Canada to knowingly permit their vessel or aircraft to be used by any person in carrying out any of the activities referred to in paragraph 3(a) or (b).

Export to designated person — Canadians

5. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

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

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

Export to designated person — vessel or aircraft

6. It is prohibited for the owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, or the operator of an aircraft registered in Canada to knowingly permit their vessel or aircraft to be used by any person in carrying out any of the activities referred to in paragraph 5(a) or (b).

Import from Eritrea — Canadians

7. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly import, buy or procure, directly or indirectly, from any person in Eritrea or any citizen of Eritrea, any of the following items or forms of assistance, wherever situated or originating:

(a) arms and related material; or

(b) technical or financial assistance related to military activities or to the provision, manufacture, maintenance or use of arms and related material.

Import from Eritrea — vessel or aircraft

8. It is prohibited for the owner or master of a Canadian vessel, as defined in section 2 of the Canada Shipping Act, 2001, or the operator of an aircraft registered in Canada to knowingly permit their vessel or aircraft to be used by any person to import, buy or procure from any person in Eritrea or any citizen of Eritrea any of the items or forms of assistance referred to in paragraph 7(a) or (b), wherever situated or originating.

Freezing of assets

9. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly

(a) deal directly or indirectly in any property that is in Canada and that is owned or controlled, directly or indirectly, by a 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); or

(d) make any property or any financial or other related service available, directly or indirectly, to or for the benefit of a designated person.

Assisting prohibited act

10. It is prohibited for any person in Canada or any Canadian outside Canada to knowingly do anything that causes, assists or promotes, or is intended to cause, assist or promote, any act or thing prohibited by any of sections 3 to 9.

DUTY TO DETERMINE

Determination

11. Each of the following persons must determine on a continuing basis whether they are in possession or control of property that is owned or controlled, directly or indirectly, by a designated person:

(a) authorized foreign banks, as defined in 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, as defined in subsection 2(1) of the Insurance Companies Act, in respect of their insurance business in Canada;

(d) companies, provincial companies and societies, as defined in 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

Disclosure

12. (1) Every person in Canada and every Canadian outside Canada must 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 designated person; and

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

Immunity

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

PETITION TO REVOKE DESIGNATION

Petition

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

Decision

(2) The Minister must notify the petitioner, within 60 days after the day on which the petition is received, of his or her decision on whether to submit the petition to the Committee of the Security Council.

Subsequent petition

(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

Mistaken identity

14. (1) A person claiming not to be a designated person may apply to the Minister for a certificate stating that they are not such a person.

Certificate — time frame

(2) If it is established that the applicant is not a designated person, the Minister must issue a certificate to the applicant within 15 working days after the day on which the application is received.

Basic or extraordinary expenses

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 meeting basic or extraordinary expenses or if it is the subject of a judicial, administrative or arbitral lien or judgment or a hypothec, mortgage, charge, security interest or prior claim.

Issuance of certificate

(2) The Minister must issue a certificate if it is established, in accordance with Security Council Resolution 1907, 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 or 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 the day on which the application is received, 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 the day on which the application is received, 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 or a hypothec, mortgage, charge, security interest or prior claim, within 90 working days after the day on which the application is received, if the lien, judgment, hypothec, mortgage, charge, security interest or prior claim was entered before December 23, 2009, is not for the benefit of a 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.

Exclusion certificate

16. No person contravenes these Regulations by doing an act or thing prohibited by any of sections 3 to 10 if, before the person does that act or thing, the Minister issues a certificate to the person stating that

(a) Security Council Resolution 1907 does 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.

APPLICATION PRIOR TO PUBLICATION

Application

17. 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

Registration

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 and the heavy loss of human life and widespread material damage resulting from the conflict in this country. Resolutions 1425 (2002), 1725 (2006), 1744 (2007), 1772 (2007) and 1844 (2008) subsequently strengthened and created a number of exceptions to the arms embargo.

During 2009, there was increased focus on Eritrea’s destabilizing role in Somalia, and its violation of the embargo. In July 2009, the Monitoring Group for Somalia reported to Security Council members that Eritrea was supporting armed opposition groups in Somalia and proposed a list of names to be subject to targeted sanctions which included some Eritrean nationals. The Intergovernmental Authority on Development (an Eastern African regional organization) and the African Union have also called for sanctions on the Government of Eritrea.

Additionally, on January 14, 2009, the UN Security Council adopted Resolution 1862 demanding that Eritrea withdraw its troops from the areas it occupied when, in June 2008, border clashes between Eritrea and Djibouti erupted. To date, Eritrea has not withdrawn its troops and continues to deny this border dispute and any involvement in Somalia.

Consequently, on December 23, 2009, the UN Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1907 determining that Eritrea’s actions undermine peace and reconciliation in Somalia and that the dispute between Djibouti and Eritrea constitutes a threat to international peace and security. Resolution 1907 demands that Eritrea immediately comply with Resolution 1862 and that all states, in particular Eritrea, cease any support of armed opposition groups in Somalia.

Resolution 1907 also imposes sanctions against Eritrea and persons designated by a committee of the Security Council. These sanctions are binding upon all states pursuant to Article 25 of the Charter of the United Nations and, therefore, Canada must implement them domestically. The Regulations Implementing the United Nations Resolution on Eritrea (the Regulations) are appropriately made under the legislative authority of the United Nations Act and are necessary to incorporate these sanctions into Canadian domestic law.

Description and rationale

The Security Council imposed the following sanctions in Resolution 1907:

  • a prohibition on the export of arms and related material to Eritrea;
  • a prohibition on the export of arms and related material to persons designated, in accordance with paragraph 15 of Resolution 1907, by the UN sanctions committee established to oversee the sanctions against Somalia and now Eritrea (the 751 Committee);
  • a prohibition on the provision to Eritrea and to persons designated by the 751 Committee, of technical, training, 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, training, 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 as Canada has minimal trade relations with Eritrea. Canadian merchandise exports to Eritrea totalled $2.4 million in 2009 and consisted of dried legumes, iron and steel products, base metal tools and cutlery, and machinery. There is significant interest in Canada in the mineral resource potential in Eritrea and cumulative assets to date from Canada in the mineral sector in Eritrea are approximately $155 million. However, as the sanctions against Eritrea are related to arms and related materials and assistance regarding military activities, first order impacts will not affect Canadian mining investments in Eritrea. Second order impacts or retaliatory measures against Canadian investment in the country are possible but unlikely as the Eritrean government itself benefits from these investments.

The Regulations will come 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), 1425 (2002), 1725 (2006), 1744 (2007), 1772 (2007), 1844 (2008), 1862 (2009) and 1907 (2009) are available at www.un.org/documents/scres.htm.

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

Consultation

The Department of Foreign Affairs and International Trade drafted the Regulations having consulted 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, Export Development Canada, the Department of National Defence, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service. International consultation was not undertaken.

Implementation, enforcement and service standards

Compliance is ensured by the Royal Canadian Mounted Police and the Canada Border Services Agency. In accordance with section 3 of the United Nations Act, any person who contravenes the Regulations is liable upon summary conviction to a fine of not more than $100,000 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 of not more than 10 years.

Contacts

Brent Clute
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: 613-996-3864
Fax: 613-992-2467
Email: Brent.Clute@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
Tel: 613-992-6296
Fax: 613-992-2467
Email: Sabine.Nolke@international.gc.ca

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