Regulations Amending the Special Economic Measures (Burma) Regulations: SOR/2022-8

Canada Gazette, Part II, Volume 156, Number 4

Registration
SOR/2022-8 January 28, 2022

SPECIAL ECONOMIC MEASURES ACT

P.C. 2022-43 January 28, 2022

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, pursuant to subsections 4(1) footnote a, (1.1) footnote b, (2) and (3) of the Special Economic Measures Act footnote c, makes the annexed Regulations Amending the Special Economic Measures (Burma) Regulations.

Regulations Amending the Special Economic Measures (Burma) Regulations

Amendments

1 The definition pension in section 1 of the Special Economic Measures (Burma) Regulations footnote 1 is repealed.

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

Designated person

2 A person whose name is listed in the schedule is a person who is in Burma, or is a national of Burma who does not ordinarily reside in Canada, and in respect of whom the Governor in Council, on the recommendation of the Minister, is satisfied that there are reasonable grounds to believe is

3 (1) Paragraph 3(a) of the Regulations is replaced by the following:

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

(3) Paragraphs 3(c) and (d) of the Regulations are replaced by the following:

(4) Paragraph 3(e) of the French version of the Regulations is replaced by the following:

4 Subsections 16(3) and (4) of the Regulations are repealed.

5 Section 17 of the Regulations is replaced by the following:

Mistaken identity

17 (1) A person whose name is the same as or similar to the name of a designated person and who claims not to be that person may apply to the Minister in writing for a certificate stating that they are not that designated person.

Determination by Minister

(2) Within 30 days after receiving the application, the Minister must,

6 Part 2 of the schedule to the Regulations is amended by adding the following after item 70:

Application Before Publication

7 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

8 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, under the direction of Senior General Min Aung Hlaing, Commander in Chief of the Myanmar Armed Forces (Tatmadaw), the Myanmar military 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 South East Asian Nations (ASEAN) to engage the regime in inclusive dialogues toward peace, the Tatmadaw have not altered course. Violence is in fact escalating while alleged gross human rights abuses are steadily rising. The regime’s latest tactic of using the justice system to eliminate democratic opposition is exacerbating the current situation while causing long-term damage to the rule of law, perception of the national justice system, and any potential return to democracy in Myanmar. The situation constitutes an ongoing grave breach of international peace and security and is worsening domestic, regional, and international crisis. Escalating violence, severe human rights violations, humanitarian impacts on the most vulnerable, spillover into neighbouring countries hosting those fleeing violence, and the lack of tangible movement toward peace merit further coercive action.

Background

Following the coup launched in February 2021, the Tatmadaw moved quickly to imprison the NLD’s political leaders, effectively removing them from the national political scene, as well as pro-democracy activists, civil society, journalists, and human rights defenders. Popular resistance emerged, including mass national protests and a Civil Disobedience Movement (CDM), both of which prevented the Tatmadaw from consolidating power. The Tatmadaw and other security forces hindered protests using intentional and disproportionate lethal force documented on publicly available video.

Violence between armed opposition groups, known as the People’s Defence Forces (PDFs), has proliferated. Meanwhile, long-standing conflicts between the Tatmadaw and Ethnic Armed Organizations (EAOs) continue. The National Unity Government (NUG) is increasingly shifting toward armed opposition, forming a command and control structure to coordinate the hundreds of PDFs and field their own armed forces.

The Tatmadaw continues to impose systematic violence against the civilian population (arbitrary arrests, torture, and killing) detailed in the UN Special Rapporteur’s August 2021 report on violence in Myanmar. The outgoing UN Secretary General’s Special Envoy to Myanmar, Christine Schraner Burgener, asserted in October 2021 that the situation in Myanmar had descended into a state of civil war. Atrocities have increased notably in the latter quarter of 2021. The military launched a major operation in the northwest of the country targeting local PDFs and their civilian support resulting in severe violence against the civilian population in the region. The military burned an estimated 600 buildings (private businesses, homes and churches); shelled villages; and attacked and killed many civilians including women, children and humanitarian aid workers. Canada has responded with multiple joint statements with allies by condemning the violence and raising alarm on the likelihood of further atrocities in the absence of accountability.

As of early January 2022, violence footnote 2 associated with the coup has resulted in the following, with the accompanying humanitarian disaster growing daily.

Table 1: Record of the violence associated with the coup of February 1, 2021
Violence associated with the coup Number of people affected
Civilians killed 1 450
Civilians arbitrarily detained 11 390
Civilians currently arbitrarily detained 8 437
Military members killed 6 850
Military members injured 1 930
Number of internally displaced persons since the coup 295 700
Number of refugees in neighbouring countries 22 000

The regime has also opened a new front in their fight against the democratic opposition. Many of those detained, including senior democratically elected leaders, are now being brought to trial and sentenced. While ostensibly couched in the rule of law, the charges and trials are politically motivated, and proceedings are conducted in a manner designed to secure conviction in clear violation of the right to a fair trial. This abuse of the rule of law is only possible with the active involvement and complicity of the most senior members of Myanmar’s justice system. The regime’s intent is clear: to eliminate democratic opposition and stifle dissent, using the rule of law and courts to lend a false air of impartiality and legitimacy to what are unfair and contrived proceedings. The ultimate impact, beyond the human rights violations, will be an intentionally undemocratic, uneven playing field if or when the regime holds elections in 2023, as promised.

The military coup also threatens regional peace and security with regard to organized crime, drug trafficking, and other illicit industries. The Tatmadaw has long been complicit in Myanmar’s illegal drug, timber, gems and jade mining, which attract organized criminal syndicates and incentivize corruption across the region. In the absence of domestic oversight or accountability in Myanmar, these industries, and the associated corruption they generate, are growing to new heights.

The situation constitutes a clear ongoing grave breach of international peace and security and is worsening serious international crisis. Escalating violence, severe human rights violations, humanitarian impacts on the most vulnerable, spillover into neighbouring countries hosting those fleeing violence, and the lack of tangible movement toward peace merit further coercive action.

Canada has taken a multipronged response to the crisis in Myanmar. Canada has refused to legitimize the regime or engage with the regime’s government officials, except on specific topics in an ASEAN context or where it is critical to the delivery of essential services to vulnerable populations. Canada has pushed for international condemnation, action and attention, calling on the regime to halt violence, release those arbitrarily detained, engage genuinely with ASEAN, and permit full and unrestricted humanitarian access. This is supplemented by the pressure of three previous rounds of coordinated sanctions with Canada’s allies and parallel support to accountability efforts for past and ongoing crimes through international justice mechanisms. Canada also provides humanitarian support and development programming to support vulnerable and conflict-affected populations. Canada has engaged through various bilateral and multilateral fora to develop and maintain pressure and attention on the crisis, while working to maintain development programming to provide life-saving care and treatment to vulnerable populations, including through its COVID-19 response. With sustained, concerted and coordinated pressure, combined with efforts to incentivize cooperation, the aim is for the regime to reverse course, engage with international peace efforts, and ultimately return to peace, democracy, prosperity and stability. This is likewise intended to address the grave breach of international peace the situation represents and resulting serious international crisis. Canada is committed to coordination and solidarity with key allies to better achieve these objectives.

Canada has been strongly engaged in diplomatic efforts related to the situation in Myanmar through bilateral and multilateral channels to coordinate actions. On February 18, 2021, Canadian sanctions against 9 individuals responsible for the coup were announced. This was followed by another round on May 17, 2021, against 16 individuals and 9 entities, and a third round on December 10 against 4 entities. All rounds were developed and implemented in close coordination with the United Kingdom and the United States.

Since 2007, Canada has maintained sanctions on Myanmar individuals and entities under the Special Economic Measures (Burma) Regulations (the Regulations).

The Regulations prohibit persons (individuals and entities) in Canada and Canadians outside Canada from conducting the following activities with listed persons:

Objective

Description

The Regulations Amending the Special Economic Measures (Burma) Regulations (the amendments) add three individuals linked to the regime to the schedule of the Regulations.

Regulatory development

Consultation

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 names of the listed persons targeted by sanctions would have likely 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 sanctions will serve to put pressure on the Tatmadaw 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 Tatmadaw 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 Tatmadaw to accept accountability for their actions, additional sanctions send an important message from Canada and incentivize the Tatmadaw to change its behaviour.

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.

Small business lens

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. To facilitate compliance by small businesses, Global Affairs Canada is in the process of conducting enhanced outreach with stakeholders to better inform them of changes to the Regulations. This includes updates to the sanctions website as well as the creation of the sanctions hotline.

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.

One-for-one rule

The one-for-one rule does not apply to the amendments, as they do not impose an incremental administrative burden on businesses.

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 who are members of the Myanmar military (Tatmadaw), military-appointed high-level officials, and/or persons engaged in activities that have contributed to the grave breach of international peace and security that has occurred in Myanmar, rather than on 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 Special Economic Measures (Burma) Permit Authorization Order. As such, these new sanctions are likely to have limited impact on the citizens of Myanmar.

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.

Contact

Graham Dattels
Director
Southeast Asia, Division II
Southeast Asia, Oceania, APEC and ASEAN Bureau
Email: graham.dattels@international.gc.ca