Canada's 'Unilateral' Sanctions Regime under Review: Extraterritoriality, Human Rights, Due Process, and Enforcement in Canada's Special Economic Measures Act

68 Pages Posted: 1 Mar 2017 Last revised: 29 Nov 2017

See all articles by Michael Nesbitt

Michael Nesbitt

University of Calgary, Faculty of Law

Date Written: November 1, 2017

Abstract

In the Fall of 2016, the House of Commons Standing Committee on Foreign Affairs and International Development began a critical review of Canada’s “unilateral” sanctions legislation, the Special Economic Measures Act (SEMA), which culminated in the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law). This resulted in the first legislative amendment to SEMA since 1992 when the legislation was first passed. While the impetus for the legislation re-evaluation was rightfully the debate around the so-called Sergei Magnitsky Laws — amendments that allow for the sanctioning of human rights abusers abroad particularly in Russia — Parliament should now go much further with regards to SEMA. It is time not only to amend SEMA to clarify that sanctions can be promulgated where gross human rights abuses are taking place abroad, but also to allow for “double” extraterritorial sanctions against covert “sanctions-busters.” That is, future legislative amendments should take account of modern business practice, recognize that Canada is a hub for sanctions-bust-ing, and close the loophole that currently exists in SEMA, preventing Canada from targeting companies in non-sanctioned countries in the business of transshipping goods between Canada and sanctioned countries. Moreover, the Parliamentary attention to economic sanctions is an opportunity to take a broader look at SEMA and particularly the practice of enacting and enforcing new sanctions. This paper recommends a sanctions coordination unit to ensure proper interdepartmental security cooperation on the SEMA sanctions file, coupled with proper governmental oversight or review, and statutorily- mandated review of all sanctions listings every two years. It is time to bring SEMA into the twenty-first century, and with it, government practice implementing and enforcing the legislation. This will require some changes to the legislation, but also a myriad of changes to government practice on the file.

Suggested Citation

Nesbitt, Michael, Canada's 'Unilateral' Sanctions Regime under Review: Extraterritoriality, Human Rights, Due Process, and Enforcement in Canada's Special Economic Measures Act (November 1, 2017). Ottawa Law Review, Vol. 48, No. 2, 2017. Available at SSRN: https://ssrn.com/abstract=2924259

Michael Nesbitt (Contact Author)

University of Calgary, Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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