Charter of the United Nations (Sanctions—Central African Republic) Amendment (2019 Measures No. 1) Regulations 2019

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Legislation au F2019L00576 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

 

Issued by the Authority of the Minister for Foreign Affairs

 

Charter of the United Nations Act 1945

 

Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No.1) Regulations 2019

 

The Charter of the United Nations Act 1945 (the Act) provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. United Nations Security Council (UNSC) decisions made under Chapter VII of the Charter relate to action with respect to threats to the peace, breaches of the peace, and acts of aggression. Article 25 of the Charter requires United Nations Member States to accept and carry out the decisions of the UNSC.  

 

Section 6 of the Act therefore provides that the Governor-General may make regulations to give effect to decisions of the UNSC under Chapter VII of the Charter that Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.

 

The Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No.1) Regulations 2019 (the Regulations) would amend the Charter of the United Nations (Sanctions‑Central African Republic) Regulation 2014 (the principal Regulation) in order to give effect to certain provisions of United Nations Security Council (UNSC) Resolution 2399 (2018), continued in UNSC Resolution 2454 (2019).  These UNSC Resolutions are decisions under Chapter VII of the Charter, and Australia is required to carry them out pursuant to Article 25 of the Charter.

 

The UNSC has determined that the situation in the Central African Republic (CAR) continues to constitute a threat to international peace and security in the region, and that existing sanctions imposed in respect to CAR should continue, with some modifications to the exceptions to the arms embargo. The Regulations would implement measures in UNSC Resolution 2399 that sets out the circumstances where arms and related materiel can be supplied, sold or transferred to the CAR. The Regulations update the exceptions to the arms embargo to:

  • update the list of international forces providing support to the CAR;
  • enable the supply of non-lethal equipment and technical assistance or training for use in the CAR process of security reform in coordination with the UN Multidimensional Integrated Stabilization Mission (MINUSCA);
  • enable the supply of arms to Chadian or Sudanese forces solely for use in international patrols to enhance security in the common border areas, in cooperation with MINUSCA;
  • require advance notification of the supply of arms to the UN Security Council CAR Sanctions Committee in certain circumstances;
  • clarify that ‘CAR security forces’ includes State civilian law enforcement institutions.

 

 

Subsection 6(3) of the Act provides that, despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of subsection 6(1) of the Act may make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing in force or existing from time to time.

 

UNSC Resolutions, including those referred to in the Regulations, can be accessed free of charge on the internet at https://www.un.org/securitycouncil/content/resolutions. UNSC Resolutions do not operate in the same manner as Acts and legislative instruments. That is, subsequent resolutions in respect of a matter or issue do not always state that they are amending or replacing previous resolutions on that matter or issue. Rather, the resolutions need to be read in conjunction with one another.

 

No public consultation was undertaken in relation to the Regulations under section 17 of the Legislation Act 2003 because the proposed regulations implement Australia’s international legal obligations arising from decisions of the UNSC.  The Department of Foreign Affairs and Trade (DFAT) conducts regular outreach to the Australian business community to explain Australian sanctions laws implementing UNSC sanctions.

 

Details of the Regulations are set out in the Attachment A.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purpose of the Legislation Act 2003.

 

The Regulations commence on the day after the Regulations are registered on the Federal Register of Legislation.

 

The Office of Best Practice Regulation has advised that a Regulation Impact Statement is not required when implementing a decision of the UNSC concerning sanctions (OBPR reference: 21407).

 

The Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 as set out in Attachment B.

 

 

Authority: Section 6 of the

Charter of the United

  Nations Act 1945

ATTACHMENT A

 

Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No. 1)) Regulations 2019 

 

Section 1 – Name

Section 1 provides that the title of the instrument is the Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No. 1) Regulations 2019.

 

Section 2 – Commencement

Section 2 provides that all of the provisions in the instrument commence on the day after the instrument is registered.

 

Section 3 – Authority

Section 3 provides that the instrument is made under the Charter of the United Nations Act 1945.

 

Section 4 – Schedule

Section 4 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

 

Schedule 1 – Amendments

 

Schedule 1 sets out the changes that the Regulations make to the Charter of the United Nations (Sanctions‑ Central African Republic) Regulation 2014 (the principal Regulations).

 

Item 1

 

This item repeals the definition of AU-RTF set out in section 4 of the principal Regulation. This amendment is consequential to item 9, which removes AU‑RTF from the list of organisations in respect of which the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel.

 

Item 2

 

This item repeals the definition of BINUCA set out in section 4 of the principal Regulation.  This amendment is consequential to item 9, which removes BINUCA from the list of organisations in respect of which the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel.

 

Item 3

 

Division 2 of Part 2 of the principle Regulation imposes targeted financial sanctions in relation to persons and entities designated by the Committee established under UNSC Resolution 2127.  

 

This item amends the definition of ‘designated person or entity’ set out in section 4 of the principal Regulation to make it clear the definition encompasses sanction measures set out in UNSC Resolution 2134 as extended by later resolutions relating to the CAR. The definition of ‘designated person or entity’ reflects operative paragraph 24 of UNSCR 2399, which makes it clear that the targeted financial sanction measures initially set out in UNSC 2134 (2014) are extended.

 

Item 4

This item repeals the definition of EUFOR RCA set out in section 4 of the principal Regulation.  This amendment is consequential to item 9, which removes EUFOR RCA from the list of organisations in respect of which the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel.

 

Item 5

 

This item repeals the definition of MICOPAX set out in section 4 of the principal Regulation.  This amendment is consequential to item 9, which removes the MICOPAX from the list of organisations in respect of which the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel.

 

Item 6

 

This item repeals the definition of MISCA set out in section 4 of the principal Regulation.  This amendment is consequential to item 9, which removes the MISCA from the list of organisations in respect of which the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel.

 

Item 7

 

This item inserts into section 4 of the principal Regulation a definition of ‘Resolution 2387’. This proposed amendment is consequential to item 9

 

Item 8

 

This item repeals the existing paragraphs 9(2)(a) to (f) of the principal Regulation and inserts new paragraphs setting out the circumstances where the Minister for Foreign Affairs may grant a permit authorising the supply of arms or related materiel to the Central African Republic.

 

Paragraph 9(2)(a) allows the Minister to grant a permit if the sanctioned supply is intended solely for the support of, or use by, the forces and organisations listed in subparagraphs 9(2)(a)(i) – 9(2)(a)(iv). Paragraph 9(2)(a) gives effect to operative paragraph 1(a) of UNSCR 2399.

 

Paragraph 9(2)(b) outlines circumstances where a permit can be issued to allow the supply of non-lethal equipment to be used in the Central African Republic process of security reform. Paragraph 9(2)(b) gives effect to operative paragraph 1(b) of UNSCR 2399. This is a new exception to the arms embargo, and reflects the UNSC position outlined in UNSCR 2454 that there is a need for the CAR authorities to train and equip their defence and security forces to be able to respond to threats to the security of all citizens of the CAR.

 

Paragraph 9(2)(c) outlines circumstances where a permit can be issued to allow the making of a sanctioned supply to Chadian or Sudanese forces. Paragraph 9(2)(c) gives effect to operative paragraph 1(c) of UNSCR 2399. This is a new exception to the arms embargo, and reflects the role of neighbouring countries, in cooperation with the African-led International Support Mission in the CAR (MINUSCA), in contributing to peace and stability in common border areas.

 

Paragraph 9(2)(d) outlines circumstances in which a permit can be issued for to allow the supply of non-lethal military equipment for humanitarian or protective use. Paragraph 9(2)(d) gives effect to operative paragraph 1(d) of UNSCR 2399, and reflects existing paragraph 9(2)(b) of the principal Regulations.

 

Paragraph 9(2)(e) outlines circumstances in which a permit can be issued to allow the supply of protective clothing. Paragraph 9(2)(e) gives effect to operative paragraph 1(e) of UNSCR 2399, and reflects existing paragraph 9(2)(c) of the principle Regulations.

 

Paragraph 9(2)(f) outlines circumstances in which a permit can be issued to allow the supply of small arms or other related equipment to defend against poaching, smuggling or other unlawful activities. Paragraph 9(2)(f) gives effect to operative paragraph 1(f) of UNSCR 2399, and extends the existing requirements set out in paragraph 9(2)(d) of the principle Regulations to also include the requirement that the supply of equipment also be notified in advance to the Committee.

 

Paragraph 9(2)(g) outlines circumstances in which a permit can be issued to supply arms or other related lethal equipment to CAR security forces. Paragraph 9(2)(g) gives effect to operative paragraph 1(g) of UNSCR 2399, and extends the existing requirements set out in paragraph 9(2)(e) of the principal Regulations to specify that CAR security forces includes State civilian law enforcement institutions.

 

Paragraph 9(2)(h) provides that the Minister may grant a permit authorising another supply of arms or related materiel that has been approved in advance by the Committee. Paragraph 9(2)(h) gives effect to operative paragraph 1(h) of UNSCR 2399, and reflects existing paragraph 9(2)(f) of the principle Regulations.

 

Item 9

 

This item repeals existing paragraphs 11(2)(a) and (b) of the principal Regulation and inserts new paragraphs setting out the circumstances where the Minister for Foreign Affairs may grant a permit authorising the provision to the CAR of assistance related to: military activities; or to the provision, maintenance or use of any arms or related materiel (a ‘sanctioned service’ as defined in section 6 of the principal Regulations and prohibited under section 10 of the Regulations).

 

Paragraph 11(2)(a) outlines circumstances where a permit can be issued to allow a sanctioned service to be provided for use in the Central African Republic process of security reform. Paragraph 11(2)(a) gives effect to operative paragraph 1(b) of UNSCR 2399. This is a new exception to the arms embargo, and reflects the UNSC position outlined in UNSCR 2454 that there is a need for the CAR authorities to train and equip their defence and security forces to be able to respond to threats to the security of all citizens of the CAR.

 

Paragraph 11(2)(b) outlines circumstances where a permit may be issued to allow the provision of technical assistance or training related to a supply of non-lethal military equipment for humanitarian or protective use.  Paragraph 11(2)(b) gives effect to operative paragraph 1(d) of UNSCR 2399, and reflects existing paragraph 11(2)(a) of the principle Regulations.

.

 

Paragraph 11(2)(c) provides that the Minister may grant a permit authorising the provision of other assistance or personnel that has been approved in advance by the Committee. Paragraph 11(2)(c) gives effect to operative paragraph 1(h) of UNSCR 2399, and reflects existing paragraph 11(2)(b) of the principle Regulations.

.

 

 

 


ATTACHMENT B

 

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Charter of the United Nations (Sanctions – Central African Republic) Amendment

(2019 Measures No.1) Regulations 2019

(the Regulations)

 

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview

 

The Charter of the United Nations Act 1945 (the Act) provides legislative approval for the Charter of the United Nations (the Charter) in Australian law. United Nations Security Council (UNSC) decisions made under Chapter VII of the Charter relate to action with respect to threats to the peace, breaches of the peace, and acts of aggression. Article 25 of the Charter requires United Nations Member States to accept and carry out the decisions of the UNSC.  

 

Section 6 of the Act therefore provides that the Governor-General may make regulations to give effect to decisions of the UNSC under Chapter VII of the Charter that Article 25 of the Charter requires Australia to carry out, in so far as those decisions require Australia to apply measures not involving the use of armed force.

 

The Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No.1) Regulations 2019 (the Regulations) would amend the Charter of the United Nations (Sanctions‑ Central African Republic) Regulation 2014 (the principal Regulation) in order to give effect to certain provisions of UNSC Resolution 2399 (2018), continued in UNSC Resolution 2454 (2019). These UNSC Resolutions are decisions under Chapter VII of the Charter, and Australia is required to carry them out pursuant to Article 25 of the Charter.

 

The UNSC has determined that the situation in the Central African Republic (CAR) continues to constitute a threat to international peace and security in the region, and that existing sanctions imposed in respect to the CAR should continue, with some minor modifications to the exceptions to the arms embargo. The Regulations implement measures in UNSC Resolution 2399 and set out the circumstances where arms and related materiel can be supplied, sold or transferred to the CAR. The Regulations update the exceptions to the arms embargo to:

  • update the list of international forces providing support to the CAR;
  • enable the supply of non-lethal equipment and technical assistance or training for use in the CAR process of security reform in coordination with the UN Multidimensional Integrated Stabilization Mission (MINUSCA);
  • enable the supply of arms to Chadian or Sudanese forces solely for use in international patrols to enhance security in the common border areas, in cooperation with MINUSCA;
  • require advance notification of the supply of arms to the UNSC CAR Sanctions Committee in certain circumstances;
  • clarify that ‘CAR security forces’ includes State civilian law enforcement institutions.

 

Advancement of Human Rights

 

Since independence in 1960, the CAR has experienced multiple coups d’états with peace and security implications for the entire region. Following a coup in 2013, the political and security situation in the country has remained highly unstable and unpredictable. The objective of the UNSC Resolutions relating to the CAR is to re-establish peace and security in an environment that over the years has been characterised by a breakdown in law and order, the absence of the rule of law and intersectarian tensions.

 

The principle Regulations impose an arms embargo to prevent the supply of arms and related materiel and provision of mercenaries to the CAR. They also apply targeted financial sanctions (travel ban and asset freeze) against individuals and entities that the UNSC has determined should be subject to targeted measures due to their involvement in certain designated activity. This includes activity such as planning, directing or committing acts of sexual and gender-based violence; recruiting or using children in armed conflict, violating international humanitarian law, obstructing the delivery or distribution of humanitarian assistance and conducting attacks against UN missions or international security presences.

 

The Regulations, which implement UNSCR 2399 into Australian law, advance human rights by ensuring that the entry into the CAR of arms and related materiel occurs in line with UNSC resolutions and does not undermine national and international efforts to promote security, justice and rule of law in the CAR.

 

The Parliamentary Joint Committee on Human Rights has accepted that the use of sanctions to apply pressure to regimes and individuals in order to end the repression of human rights may be regarded as a legitimate objective for the purposes of international human rights law. However, it has emphasised that Australia’s sanctions regimes should be proportionate to their stated objective.

 

The Regulations update the existing exceptions to the UN-mandated arms embargo contained in regulation 9 and 11 of the principle Regulations to enable the Minster for Foreign Affairs to grant a permit authorising the provision of arms and related materiel, and related services, to the CAR. The specified and limited circumstances in which the UNSC has determined the provision of arms and related materiel to the CAR is allowed reflects the transitional political process that is underway in the CAR, and the need for supporting international forces and CAR forces to have access to such goods to achieve the goal of achieving peace and stability in the CAR. The Regulations promote protection of human rights and implement a binding decision of the UNSC, which Australia is required as a matter of international law to implement.

 

 

 

 

Human rights compatibility

 

Given the primary purpose of the Regulations is to update existing exceptions to the arms embargo in the principle Regulations to reflect UNSCR 2399 and the amendments do not change the broader operation of the regime, the Legislative Instrument does not engage any of the applicable rights or freedoms.

 

Conclusion

 

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.  

 

 

 

 

Overview

The Charter of the United Nations Act 1945 was enacted to provide legislative approval for the Charter of the United Nations in Australian law, ensuring that Australia complies with its international obligations under the Charter, particularly those concerning threats to peace, breaches of peace, and acts of aggression as outlined in Chapter VII. Pursuant to Article 25 of the Charter, the Act empowers the Governor-General to make regulations that give effect to United Nations Security Council decisions, as long as they do not require the use of armed force. The Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No. 1) Regulations 2019 were introduced to align Australian law with specific United Nations Security Council Resolutions concerning the Central African Republic, ensuring the continuation and modification of sanctions in response to ongoing threats to international peace and security in the region. The Regulations update the exceptions to the arms embargo to reflect new circumstances, including the need to support international forces and the Central African Republic's security reform process. The Regulations were made under the authority of Section 6 of the Charter of the United Nations Act 1945 and do not require any specific conditions to be met before they can be exercised. They were developed by the Department of Foreign Affairs and Trade in accordance with Australia's international legal obligations arising from United Nations Security Council decisions. No public consultation was undertaken as the Regulations implement binding UNSC decisions. The Regulations are compatible with human rights as they do not raise any human rights issues and are consistent with Australia's obligations under international law.

Scope and Application

The Charter of the United Nations Act 1945 provides the legislative framework for implementing the Charter of the United Nations within Australian law, particularly concerning decisions made by the United Nations Security Council (UNSC) under Chapter VII, which deals with threats to peace, breaches of peace, and acts of aggression. Pursuant to Article 25 of the Charter, member states, including Australia, are obligated to carry out UNSC decisions. Section 6 of the Act authorises the Governor-General to enact regulations that give effect to UNSC decisions under Chapter VII, excluding those requiring the use of armed force. The Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No.1) Regulations 2019 amends the Charter of the United Nations (Sanctions – Central African Republic) Regulation 2014 to align with certain provisions of UNSC Resolution 2399 (2018), as continued in UNSC Resolution 2454 (2019). These resolutions pertain to the ongoing threat to international peace and security posed by the situation in the Central African Republic (CAR), and mandate modifications to the existing arms embargo, including clarifying exceptions for the supply of arms and related materiel to certain international forces and CAR security forces. The Regulations specify the circumstances under which the Minister for Foreign Affairs may grant permits for the supply of arms and related services, including for non-lethal equipment for security reform, to Chadian or Sudanese forces for patrols in common border areas, and require notification to the UNSC CAR Sanctions Committee for certain supplies. The Regulations do not specify any conditions or thresholds for their application and are effective from the day after they are registered. They are compatible with human rights as recognised in international instruments, advancing the objective of re-establishing peace and security in the CAR while ensuring that arms and related materiel are supplied in accordance with UNSC resolutions.

Key Provisions

The Charter of the United Nations Act 1945 (the Act) provides the legislative foundation for the Charter of the United Nations (the Charter) in Australian law. Section 6 of the Act enables the Governor-General to make regulations that give effect to decisions of the United Nations Security Council (UNSC) under Chapter VII of the Charter, which pertain to threats to the peace, breaches of the peace, and acts of aggression. These regulations must be made to carry out Australia’s obligations under Article 25 of the Charter, which requires member states to accept and implement UNSC decisions to the extent that they do not involve the use of armed force. The Charter of the United Nations (Sanctions – Central African Republic) Amendment (2019 Measures No. 1) Regulations 2019 (the Regulations) amend the Charter of the United Nations (Sanctions – Central African Republic) Regulation 2014 (the principal Regulation) to implement certain provisions of UNSC Resolutions 2399 (2018) and 2454 (2019). These resolutions determine that the situation in the Central African Republic (CAR) continues to constitute a threat to international peace and security in the region, and that existing sanctions imposed in respect of the CAR should continue, with some modifications to the exceptions to the arms embargo. The Regulations implement measures in UNSC Resolution 2399, which set out the circumstances where arms and related materiel can be supplied, sold, or transferred to the CAR. The Regulations update the exceptions to the arms embargo to: update the list of international forces providing support to the CAR; enable the supply of non-lethal equipment and technical assistance or training for use in the CAR process of security reform in coordination with the UN Multidimensional Integrated Stabilization Mission (MINUSCA); enable the supply of arms to Chadian or Sudanese forces solely for use in international patrols to enhance security in the common border areas, in cooperation with MINUSCA; require advance notification of the supply of arms to the UNSC CAR Sanctions Committee in certain circumstances; and clarify that ‘CAR security forces’ includes State civilian law enforcement institutions. The Regulations impose obligations on the parties or entities they govern, including the requirement for the Minister for Foreign Affairs to grant permits for the supply of arms and related materiel, and related services, to the CAR only under the specific circumstances outlined in the Regulations. These circumstances include support for forces and organisations listed in the Regulations, the supply of non-lethal equipment for security reform, the supply of arms to Chadian or Sudanese forces, and other specified uses such as humanitarian or protective purposes. The Regulations also impose obligations on the Australian business community to comply with the arms embargo and related sanctions, and to obtain necessary permits from the Minister for Foreign Affairs before supplying arms or related materiel to the CAR. Any breach of the Regulations may result in criminal or civil penalties, including fines and imprisonment. The maximum penalties for contravening the Regulations are set out in the principal Regulation, and can include fines of up to $500,000 and/or imprisonment for up to 10 years. The Regulations are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, as set out in Attachment B. The Regulations promote protection of human rights and implement a binding decision of the UNSC, which Australia is required as a matter of international law to implement. The Parliamentary Joint Committee on Human Rights has accepted that the use of sanctions to apply pressure to regimes and individuals in order to end the repression of human rights may be regarded as a legitimate objective for the purposes of international human rights law. However, it has emphasised that Australia’s sanctions regimes should be proportionate to their stated objective.

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