Economic Sanctions and Gross Violations of Human Rights: Recommendations for Amending Canada s Special Economic Measures Act Submission to the House of Commons Standing Committee on Foreign Affairs and International Development By Dr. Meredith B. Lilly Associate Professor and Simon Reisman Chair in International Affairs Norman Paterson School of International Affairs Carleton University
Economic Sanctions and Gross Violations of Human Rights: Recommendations for Amending Canada s Special Economic Measures Act As the Standing Committee on Foreign Affairs and International Development undertakes its statutory review of the Special Economic Measures Act (SEMA), and considers amendments to address gross violations of internationally recognized human rights, I offer the Committee four recommendations for consideration. These suggestions are based on several years of direct experience advising the Government on the imposition of economic sanctions via SEMA as well as recent work as an Associate Professor at Carleton University s Norman Paterson School of International Affairs. First, I outline two issues with respect to potential amendments to SEMA to address gross violations of human rights. I then identify two issues pertaining to the relationship between SEMA and travel bans imposed under Canada s Immigration and Refugee Protection Act. ADDRESSING GROSS VIOLATIONS OF HUMAN RIGHTS VIA SEMA The United Nations has long considered the gross violations of internationally accepted human rights 1 as an acceptable rationale for imposing economic sanctions, as have the United States and the European Union (Hufbauer et al, 2007). As the Committee considers whether Canadian legislation should also encompass such violations, I outline several issues for consideration. 1. Unilateral vs. Multilateral Action As the Committee is aware, paragraph 4(1) of SEMA (1992) allows Canada to act unilaterally to impose sanctions in the absence of action by the UN Security Council. This section of the Act allows Canada to introduce economic sanctions in two ways: either as a member of an international organization of states (such as the Commonwealth [Rossignol, 1996]) that has called upon its members to impose economic sanctions against a foreign state; or unilaterally, provided that the Governor in Council is satisfied that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis. For example, in 2014-15, this unilateral provision allowed Canada to act via an informal coalition of willing states namely the United States and the European Union to impose sanctions against Russia and pro-russian forces over the crisis in Ukraine. Since the UN could not respond to that international crisis due to Russia s veto at the Security Council, and given that Canada was not a member of an organization of states that was willing to act, Canada would not have had the legislative authority to act without the SEMA provisions as written. Through this example, we can see how SEMA provisions enabling Canada to act unilaterally have been usefully applied, even though Canada acted multilaterally in practice. In considering whether to add gross violations of internationally recognized human rights to the rationale for SEMA, a similar logic would presumably be applied. Canada would have the authority to act unilaterally, but would seek to join a coalition of willing states to impose 1 The concept of gross violations of human rights is now well defined in the literature, meaning that Canadian legislation likely does not need to further define it. Economic Sanctions and Gross Violations of Human Rights Meredith Lilly, PhD pg.1
sanctions, and only in the absence of a recognized multilateral forum for action. Canada has rarely, if ever, acted in a truly unilateral fashion to invoke sanctions under SEMA. It is not recommended that the addition of human rights violations to the legislation be used as a rationale for now doing so. Recommendation: Should Parliament approve amendments to include gross violations of human rights to the rationale in SEMA, it is recommended that Canada continue to act multilaterally whenever possible, including through informal coalitions of like-minded states. 2. Adjusting Canada s Justification for Invoking Sanctions in the Absence of an International Crisis Second, the existing legislation allows Canada to act unilaterally when a serious breach of international peace and security has occurred and when a serious international crisis is likely to result. Therefore, the purpose of adding gross violations of human rights as a rationale for invoking SEMA must be to allow Canada to act when a grave breach of international peace and security has not occurred and when an international crisis is not likely to result (since gross human rights violations that could result in a serious international crisis such as genocide are already captured under the existing legislation). It is important to be clear about this because it suggests that the inclusion of gross human rights violations in SEMA would then lower the threshold for Canadian intervention against foreign states. Therefore, if this new human rights justification for imposing sanctions is included in the Act, then the Committee may also wish to define whether to set a new threshold for Canada s intervention. If Parliament wishes to maintain a broad stance in the legislation, the text could be as simple as indicating that the Governor in Council be of the opinion that a gross violation of human rights has occurred that shocks the international community (Baek, 2008). Alternately, Parliament may opt to impose a more narrow threshold for Canadian intervention. For example, in his private member s bill C-267, Mr. James Bezan (2016) has recommended linking sanctions for gross human rights violations to the activities of the individuals whose rights have been violated, namely those (a) seeking to expose illegal activity by their governments or who are (b) human rights or civil society activists. Whether the Committee chooses to support Mr. Bezan s recommendations or not, it is necessary to further define the circumstances in which gross violations of human rights by a foreign state would trigger Canadian intervention. Recommendation: Should Parliament approve amendments to include gross violations of human rights to the rationale in SEMA, it is recommended that the text also reference a threshold for Canadian intervention. 3. Travel Bans for Sanctioned Individuals A third issue that pertains to SEMA more broadly is with respect to travel bans. Changes made to the Immigration and Refugee Protection Act (IRPA) several years ago allow the Minister of Immigration, Refugees and Citizenship to use public policy considerations to deny entry to Canada by foreign nationals who have been subject to economic sanctions by Canada (Citizenship and Immigration Canada, 2016). The Minister can also ban individuals identified under the Freezing Assets of Corrupt Foreign Officials Act (FACFOA). The travel bans are Economic Sanctions and Gross Violations of Human Rights Meredith Lilly, PhD pg.2
limited to specific foreign nationals, such as senior government officials, their family members, or those acting on behalf of the government. Separately, and unrelated to economic sanctions, these public policy considerations also give the Minister of Immigration the authority to ban individuals who promote terrorism, violence and criminal activity (for example, hate speech proponents) or who pose a public health risk to Canada. It is likely due to this other set of considerations that the Minister s authority to issue travel bans remains discretionary. This means that the Minister must individually approve each travel ban exercised under these provisions, regardless of the rationale. In the case of economic sanctions, this discretionary authority could result in inconsistent implementation of Canadian policy if the Minister of Foreign Affairs lists a foreign national for economic sanctions but the Immigration Minister either declines to issue a travel ban for that person or fails to do so promptly. Despite this potential for inconsistency, the two Ministers and their respective departments can in practice coordinate their activities to ensure that both travel bans and sanctions are implemented concurrently. Nevertheless, given that there is no convincing rationale that the Canadian government would want to impose economic sanctions against an individual yet still allow that person to travel to Canada, the Government may wish to strengthen the language under IRPA to remove the Minister of Immigration s discretion in this area. Instead, it is recommended that the Government make travel bans automatic for individuals listed under SEMA. It should also be clearly noted that such bans only impact targeted senior officials and their associates from foreign states, thereby ensuring that general citizens and business travellers from those countries seeking to visit Canada would not be impacted by strengthening the IRPA legislation in this way. Recommendation: That the Government consider amending the Immigration and Refugee Protection Act and Guidelines for the Negative Discretion Authority to make travel bans to Canada automatic for designated foreign nationals who are subject to economic sanctions under SEMA. 4. Travel Bans as an Alternative to Economic Sanctions In the case that the Minister of Foreign Affairs opts not to impose economic sanctions against individuals for gross violations of human rights (either because Parliament decides not to proceed with amendments to SEMA or because the legislation is amended but the Minister opts not to use his legislative powers), the Committee may wish to consider ways that the Minister of Immigration, Refugees and Citizenship could use travel bans more liberally to address human rights violations globally. Under section 35 of IRPA (2001), persons can already be found inadmissible to Canada who have engaged in gross human rights violations of human rights. Use of these provisions could be applied more liberally in future. While travel bans on their own obviously represent a weaker diplomatic response than economic sanctions, Canada may wish to issue travel bans early as part of a broader diplomatic strategy to gradually escalate pressure against a foreign state. Issuing travel bans alone could also be an effective strategy for signalling to Canadians and the broader international community Canada s opposition to human rights abuses globally (Doxey 2009). Economic Sanctions and Gross Violations of Human Rights Meredith Lilly, PhD pg.3
Recommendation: That the Government consider a more liberal application of existing provisions in the Immigration and Refugee Protection Act to ban human rights violators from entering Canada. CONCLUSION AND SUMMARY OF RECOMMENDATIONS This brief has offered four recommendations to the Standing Committee on Foreign Affairs and International Development associated with its statutory review of the Special Economic Measures Act. Should the Committee proceed with including gross violations of human rights to SEMA, I believe these recommendations will improve the clarity of the Act and the effectiveness of the provisions when exercised. In addition, I suggest that the Government link any changes it considers for SEMA to travel bans under the Immigration and Refugee Protection Act. Doing so will improve consistency of practice across federal government departments and will offer a broader government strategy on Canada s defence of human rights internationally. Restated below are the four recommendations outlined in this brief: 1: Should Parliament approve amendments to include gross violations of human rights to the rationale in SEMA, it is recommended that Canada continue to act multilaterally whenever possible, including through informal coalitions of like-minded states. 2: Should Parliament approve amendments to include gross violations of human rights to the rationale in SEMA, it is recommended that the text also reference a threshold for Canadian intervention. 3: That the Government consider amending the Immigration and Refugee Protection Act and Guidelines for the Negative Discretion Authority to make travel bans to Canada automatic for designated foreign nationals who are subject to economic sanctions under SEMA. 4. That the Government consider a more liberal application of existing provisions in the Immigration and Refugee Protection Act to ban human rights violators from entering Canada. About the Author Meredith Lilly, PhD, holds the Simon Reisman Chair in International Affairs at Carleton University (2016-2021). Dr. Lilly is an award-winning researcher and public policy expert. She served as Foreign Affairs and International Trade Advisor to Canada s Prime Minister from 2013-2015. She has extensive experience in free-trade negotiations and international trade, public policy development, executive branch decision making, international security matters, and Canada-US relations. In 2014, she was listed among the Top 100 people influencing Canadian foreign policy by Power and Influence Magazine. Dr. Lilly holds a Postdoctoral Certificate in Economics from McMaster University (2011), a PhD in Health Services Research from the University of Toronto (2008) and an Honours Bachelor of Arts in International Development from the University of Toronto (1998). Economic Sanctions and Gross Violations of Human Rights Meredith Lilly, PhD pg.4
References Baek, B. S. (2008). Economic Sanctions Against Human Rights Violations. Cornell Law School Inter-University Graduate Student Conference Papers. Paper 11. Retrieved from http://scholarship.law.cornell.edu/lps_clacp/11 Bill C-267: Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnisty Law) (2016). 1 st reading, May 5, 2016, 42 nd Parliament, 1 st session. Retrieved from http://www.parl.gc.ca/housepublications/publication.aspx?language=e&mode=1&docid =8236905. Citizenship and Immigration Canada (2016, September 1). Guidelines for the Negative Discretion Authority. Retrieved from http://www.cic.gc.ca/english/department/lawspolicy/g-nda.asp Doxey, Margaret (2009). Reflections on the sanctions decade and beyond. International Journal. Spring: 539-549. Hufbauer, G. C., Schott, J. J., Elliott, K. A., & Oegg, B. (2007). Economic Sanctions Reconsidered: Third Edition. Peterson Institute for International Economics. Immigration and Refugee Protection Act, Statutes of Canada (2001, c.27). Retrieved from http://laws.justice.gc.ca/eng/acts/i-2.5/ Rossignol, M. (1996). Sanctions: The Economic Weapon in the New World Order. Ottawa: Library of Parliament. Special Economic Measures Act, Statutes of Canada (1992, c. 17). Retrieved from http://lawslois.justice.gc.ca/eng/acts/s-14.5/ Economic Sanctions and Gross Violations of Human Rights Meredith Lilly, PhD pg.5