Regulations Amending Certain Regulations Made Under the United Nations Act: SOR/2023-134

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-134 June 19, 2023

UNITED NATIONS ACT

P.C. 2023-581 June 16, 2023

Whereas the Security Council of the United Nations, acting under Article 41 of the Charter of the United Nations, adopted Resolution 2615 (2021) on December 22, 2021 and Resolution 2664 (2022) on December 9, 2022;

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, makes the annexed Regulations Amending Certain Regulations Made Under the United Nations Act under section 2 of the United Nations Act footnote a.

Regulations Amending Certain Regulations Made Under the United Nations Act

Regulations Implementing the United Nations Resolutions on Taliban, ISIL (Da’esh) and Al-Qaida

1 The Regulations Implementing the United Nations Resolutions on Taliban, ISIL (Da’esh) and Al-Qaida footnote 1 are amended by adding the following after section 2:

Exception — humanitarian assistance in Afghanistan

2.1 (1) Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Afghanistan by

Exception — humanitarian assistance in other states

(2) Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in foreign states other than Afghanistan by

Cessation of effect

(3) Subsection (2) ceases to have effect in respect of the provision, processing or payment of funds, other financial assets or economic resources and the provision of goods and services to a person referred to in subparagraph 2(d)(ii) on the later of December 9, 2024 and the day on which paragraph 1 of Resolution 2664 (2022), adopted by the Security Council on December 9, 2022, or any resolution that replaces that paragraph, ceases to have effect.

Regulations Implementing the United Nations Resolutions on Sudan

2 The Regulations Implementing the United Nations Resolutions on Sudan footnote 2 are amended by adding the following after section 2:

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Sudan by

Regulations Implementing the United Nations Resolutions on Iraq

3 The Regulations Implementing the United Nations Resolutions on Iraq footnote 3 are amended by adding the following after section 5:

5.1 Section 5 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Iraq by

Regulations Implementing the United Nations Resolutions on the Democratic Republic of the Congo

4 The Regulations Implementing the United Nations Resolutions on the Democratic Republic of the Congo footnote 4 are amended by adding the following after section 2:

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in the Democratic Republic of the Congo by

Regulations Implementing the United Nations Resolutions on the Democratic People’s Republic of Korea (DPRK)

5 Section 5 of the Regulations Implementing the United Nations Resolutions on the Democratic People’s Republic of Korea (DPRK) footnote 5 is replaced by the following:

Exception — diplomatic missions

5 Sections 2 and 4 do not apply to an activity that is intended solely for the support of diplomatic or consular missions in the DPRK and that is conducted by or in coordination with the United Nations, even if that activity involves the Foreign Trade Bank of the DPRK or the Korea National Insurance Corporation.

Exception — humanitarian assistance

5.1 Sections 2 and 4 do not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in the DPRK by

Exception — advance approval

5.2 Sections 2 and 4 do not apply to an activity if the Committee of the Security Council has approved the activity in advance.

Regulations Implementing the United Nations Resolutions on Iran

6 The Regulations Implementing the United Nations Resolutions on Iran footnote 6 are amended by adding the following after section 3:

Exception — humanitarian assistance

3.1 Section 3 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Iran by

Regulations Implementing the United Nations Resolution on Lebanon

7 The Regulations Implementing the United Nations Resolution on Lebanon footnote 7 are amended by adding the following after section 7:

7.1 Nothing in these Regulations prohibits the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Lebanon by

Regulations Implementing the United Nations Resolutions on Somalia

8 The Regulations Implementing the United Nations Resolutions on Somalia footnote 8 are amended by adding the following after section 2:

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Somalia by

Regulations Implementing the United Nations Resolutions and Imposing Special Economic Measures on Libya

9 The Regulations Implementing the United Nations Resolutions and Imposing Special Economic Measures on Libya footnote 9 are amended by adding the following after section 3:

Exception — humanitarian assistance

3.1 Section 3 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Libya by

Regulations Implementing the United Nations Resolutions on the Central African Republic

10 The Regulations Implementing the United Nations Resolutions on the Central African Republic footnote 10 are amended by adding the following after section 2:

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in the Central African Republic by

Regulations Implementing the United Nations Resolutions on Yemen

11 Section 3 of the Regulations Implementing the United Nations Resolutions on Yemen footnote 11 is replaced by the following:

Prohibited activities

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

Exception — humanitarian assistance

3.1 Section 3 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Yemen by

Exception — interest

3.2 Section 3 does not prohibit the payment of interest or other earnings if the payment is the result of a dealing or transaction that occurred before the designated person referred to in that section became a designated person. However, that payment then becomes subject to section 3.

Regulations Implementing the United Nations Resolutions on South Sudan

12 Section 2 of the Regulations Implementing the United Nations Resolutions on South Sudan footnote 12 is replaced by the following:

Prohibited activities

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

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in South Sudan by

Exception — interest

2.2 Section 2 does not prohibit the payment of interest or other earnings if the payment is the result of a dealing or transaction that occurred before the designated person referred to in that section became a designated person. However, that payment then becomes subject to section 2.

Regulations Implementing the United Nations Resolutions on Mali

13 Section 3 of the Regulations Implementing the United Nations Resolutions on Mali footnote 13 is replaced by the following:

Prohibited activities

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

Exception — humanitarian assistance

3.1 Section 3 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Mali by

Exception — interest

3.2 Section 3 does not prohibit the payment of interest or other earnings if the payment is the result of a dealing or transaction that occurred before the designated person referred to in that section became a designated person. However, that payment then becomes subject to section 3.

Regulations Implementing the United Nations Resolution on Haiti

14 Section 2 of the Regulations Implementing the United Nations Resolution on Haiti footnote 14 is replaced by the following:

Prohibited activities

2 It is prohibited for any person in Canada and any Canadian outside Canada to knowingly

Exception — humanitarian assistance

2.1 Section 2 does not prohibit the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs in Haiti by

Exception — interest

2.2 Section 2 does not prohibit the payment of interest or other earnings if the payment is the result of a dealing or transaction that occurred before the designated person referred to in that section became a designated person. However, that payment then becomes subject to section 2.

Coming into Force

15 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

Recently adopted United Nations Security Council Resolutions (UNSCR) 2615 (2021) and 2664 (2022) present an opportunity for Canada to amend fourteen (14) sets of regulations under the United Nations Act (UNA) to include an exception for humanitarian assistance. The aim of these amendments is to enhance and streamline Canada’s implementation of its international legal obligations under Chapter VII of the Charter of the United Nations.

Background

Canada’s UN obligations

As a Member State of the United Nations (UN), and pursuant to article 25 of the Charter of the United Nations, Canada is legally obligated to implement binding decisions of the United Nations Security Council (UNSC) taken under Chapter VII. These binding decisions by the UNSC include measures other than the use of force (sanctions) to maintain or restore international peace and security where a threat to the peace, breach of the peace or act of aggression exists.

Canadian implementation of UNSC Resolutions (UNSCRs) on sanctions

The UNSC passes resolutions, developed by specific Committees, to impose UN sanctions measures. Global Affairs Canada coordinates with the Department of Justice to implement these resolutions into domestic law through the development of regulations under the UNA.

Presently, Canada has 15 sets of sanctions regulations under the UNA:

If a person in Canada or Canadian abroad determines that an activity or transaction they wish to carry out is prohibited under Canada’s UNA sanctions, they may apply for a certificate seeking Ministerial authorization for that activity. The UNA provides the Minister of Foreign Affairs with the authority to issue the certificate if the UNSC did not intend that such an activity be prohibited, or if the UNSC or a sanctions Committee of the UNSC has approved the activity in advance.

UNSCRs 2615 and 2664

On December 22, 2021, the UNSC unanimously adopted Resolution 2615, which created a new carve-out in the UN sanctions regime against the Taliban to permit the processing of payments of funds, other financial assets, economic resources, and provision of goods and services needed to support humanitarian assistance delivery to Afghanistan.

On December 9, 2022, the UNSC adopted Resolution 2664 with 14 votes in favour and one abstention (India), creating a carve-out for the delivery of humanitarian assistance in all current UN sanctions regimes that impose asset freezes. While this carve-out is indefinite for the majority of UN sanctions, the resolution explicitly indicates that the carve-out is only applicable for a two-year period for UN sanctions regime against ISIL (Da’esh) and Al-Qaida, with a possibility of extension.

There is a great deal of overlap between UNSCR 2615 and UNSCR 2664. However, UNSCR 2615 applies to a broader range of providers and is limited to the UN sanctions regime against the Taliban. In contrast, UNSCR 2664 applies to all sanctions regimes but applies to a more limited range of providers, and is time-limited specifically for the UN sanctions regime against ISIL (Da’esh) and Al-Qaida.

The texts of Security Council Resolutions 2615 (PDF) (2021) and 2664 (PDF) [2022] are available online.

Objective

These regulatory amendments aim to

Description

The Regulations Amending Certain Regulations Made Under the United Nations Act (the Regulations) amend thirteen (13) country-specific UNA Regulations (Central African Republic, Democratic People’s Republic of Korea, Congo, Haiti, Iran, Iraq, Lebanon, Libya, Mali, Somalia, South Sudan, Sudan, and Yemen). These amendments introduce the humanitarian assistance-related carve-out outlined in UNSC 2664, specifically permitting the provision, processing or payment of funds, other financial assets or economic resources or the provision of goods and services that are necessary to ensure the timely delivery of urgently needed humanitarian assistance or to support other activities related to basic human needs, if provided by

In addition, this proposal would amend the Regulations Implementing United Nations Resolutions on Taliban, ISIL (Da’esh) and Al-Qaida to implement the same humanitarian assistance-related carve-out from UNSCR 2664 as outlined above, in relation to sanctions measures imposed against ISIL (Da’esh) and Al-Qaida. However, this amendment would come with an expiration date of December 9, 2024, unless otherwise renewed by the UNSC.

Finally, the proposal would further amend the Regulations Implementing United Nations Resolutions on Taliban, ISIL (Da’esh) and Al-Qaida to implement the humanitarian assistance-related carve-out from UNSCR 2615, in relation to sanctions measures imposed against the Taliban. This amendment is virtually identical to the amendments outlined above, but includes one additional group of providers that is unique to this specific amendment:

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 specific proposed amendments, no specific external outreach was conducted. Canada is obliged to implement the binding elements of the Security Council resolutions related to the Regulations as a member of the United Nations. Through participation in externally organized events, Global Affairs Canada has heard that stakeholders, including humanitarian organizations, would welcome an explicit humanitarian assistance-related carve-out in Canada’s UNA regulations. According to stakeholders, these amendments would eliminate confusion and reduce the need for stakeholders to seek out a certificate for activities already excepted under UNSCRs 2615 or 2664.

Modern treaty obligations and Indigenous engagement and consultation

An assessment has been conducted and no modern treaty implications have been identified.

Instrument choice

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

Regulatory analysis

Benefits and costs

Canadian banks and financial institutions are required to comply with the sanctions. They will do so by adjusting existing prohibitions in their existing monitoring systems to account for the humanitarian exception. This would result in minor costs to update processes and safeguard documents.

Canadians undertaking activities that are no longer prohibited as a result of this humanitarian exception will benefit from a reduced burden associated with certificate applications. Prior to these amendments, organizations seeking exceptions to carry out activities listed under UNSCRs 2615 or 2664 would seek legal advice, and if appropriate, apply to the Minister of Foreign Affairs for a certificate. As a result of these amendments, these stakeholders would see a reduction in these activities.

Further, implementing a humanitarian assistance-related carve-out per UNSCRs 2615 and/or 2664 through amendments to UNA regulations would result in a reduction of work for the government and more efficient allocation of resources associated with the processing of applications. The current ministerial certificate process involves a thorough application review and assessment by the Department’s sanctions, geographic, and legal divisions. This includes several rounds of consultations, drafting, approvals, and at times, further correspondence with the applicants. To date, all humanitarian certificate applications under the UNA have been granted. A humanitarian assistance-related carve-out will help streamline the delivery humanitarian assistance in countries where it is needed.

Small business lens

Analysis under the small business lens concluded that the proposed amendments will not impact Canadian small businesses. Organizations seeking to undertake humanitarian activities listed under UNSCRs 2615 or 2664 all have been non-profit organizations and do not meet the definition of a business. Banks and financial institutions impacted (as described under the Benefits and Costs section) are large enough to not meet the definition of a small business (any business, including its affiliates, that has fewer than 100 employees or less than $5 million in annual gross revenues).

One-for-one rule

The one-for-one rule does not apply as there is no incremental change in administrative burden on business. To date, all applications for certificates for humanitarian exceptions have been submitted by stakeholders who engage in non-profit activities for a public purpose, which do not meet the definition of “business” under the Red Tape Reduction Act. The expectation is that this would continue to be the case, as any stakeholder who meets the definition of “business” would not be an eligible entity under the UNSCRs for a humanitarian exception, and would therefore be subjected to the same certificate requirements as before.

Regulatory cooperation and alignment

The Regulations align with Security Council Resolutions 2615 (2021) and 2664 (2022) and are made to fulfill Canada’s obligation to implement all measures taken by the Security Council under Chapter VII of the Charter of the United Nations.

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 subject of economic sanctions has previously been assessed for effects on gender and diverse peoples. Although intended to facilitate a change in behaviour through economic pressure on individuals and entities in foreign states, sanctions under the United Nations Act can nevertheless have an unintended impact on certain vulnerable groups and individuals.

The implementation of the resolutions in Canada’s regulations could indirectly benefit groups that are adversely affected by existing UNA sanctions. For example, a recent UN Women report stated that in humanitarian emergencies, women and girls are among the most vulnerable. When crises strike, gender inequalities are often exacerbated. These include increased levels of gender-based violence, exclusion from life-saving services and decision-making processes due to discriminatory social norms, such as food hierarchies, and limited mobility to get help due to physical insecurity. By removing barriers to the provision of humanitarian assistance, UNSCRs 2664 and 2615, and Canada’s implementation of them, could indirectly contribute to alleviating gender inequalities.

Rationale

The amendments to the Regulations enhance and streamline Canada’s implementation of its obligations under the Charter of the United Nations by incorporating Security Council Resolutions 2615 (2021) and 2664 (2022).

As it stands, if a person in Canada or Canadian abroad determines that an activity or transaction they wish to carry out is prohibited under Canada’s UNA sanctions, they may choose to apply for a certificate seeking Ministerial authorization for that activity. Authorizing certificates for prohibited activities is an exceptional act under the discretion of the Minister of Foreign Affairs. There is no guarantee that an application for a certificate will be approved. Applicants are urged to not undertake any activities prohibited by sanctions until Ministerial authorization has been granted. The certificate process is meant to help mitigate unintended consequences of Canada’s UNA sanctions, including humanitarian consequences that, as a result of UNSCRs 2615 and 2664, would automatically be exempt.

The amendments implementing the humanitarian assistance-related carve-out into UNA regulations would reduce the need for organizations to apply for certificates and add efficiencies to the process of administering humanitarian assistance.

Implementation, compliance and enforcement, and service standards

The amendments come into force on the day they are registered.

Canada’s sanctions regulations are enforced by the Royal Canadian Mounted Police and the Canada Border Services Agency. Anyone who contravenes the Regulations is liable, upon conviction, to the punishments set out in section 3 of the United Nations Act (namely, on 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 on conviction on indictment, to imprisonment for a term of not more than 10 years).

Contact

Sanctions Policy and Operations Division
Global Affairs Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2
Telephone: 343‑203‑3975/1‑833‑352‑0769
Email: sanctions@international.gc.ca