On July 28, 2017, Global Affairs Canada issued a statement of concern relating to escalating violence in eastern Saudi Arabia. In the Statement entitled " Canada concerned by escalating tensions in eastern Saudi Arabia", Global Affairs stated:
"Canada is concerned by the escalating violence in eastern
Saudi Arabia, which has resulted in civilian and security force
casualties. We recognize that Saudi Arabia faces security
challenges, but we urge local authorities to work with all
communities to defuse tensions. All such challenges must be
addressed in a manner that abides by international human rights
law.
"In light of recent executions and the decision of the
supreme court of Saudi Arabia to uphold the death sentences of 14
individuals, Canada reiterates its firm opposition to the death
penalty, in all cases, everywhere.
"Canada will continue to closely monitor the situation.
Canadians expecting to travel to the region are advised to check
Travel Advice and Advisories (www.Travel.gc.ca) for the latest
information."
The words and phrases "Saudi Arabia" and "civilian casualties" and "human rights laws" were enough to trigger renewed questions about the Government of Canada's export controls polices and approvals of export permits for certain military equipment and technology to certain countries. The current situation in Saudi Arabia should bring to mind concerns raised only a year ago about whether Canada should approve export permits for military goods and technology destined for use in Saudi Arabia due to the human rights record of the Kingdom of Saudi Arabia.
Last year, Professor Turp commenced a judicial review of the
minister of Foreign Affairs' approval of export permits to
Saudi Arabia and attempted to halt the sale of certain General
Dynamics Land Systems Canada light armoured vehicles (LAVs) (see
Turp v. Minister of Foreign Affairs, 2017 FC 84). The
Court ultimately dismissed the application for judicial review on
the grounds that the Minister has legal authority to issue the
permits and had reasonably considered the relevant facts. We
wrote an article about the Federal Court of Canada decision in Turp
earlier this year - See
Canada's Minister of Foreign Affairs Has Broad Export Controls
Discretion Says Federal Court.
In 2016, Global Affairs posted a
March 21, 2016 "Secret" Memorandum for Action to the
Minister of Foreign Affairs regarding the sale of light
armoured vehicles to Saudi Arabia. It was posted on the
Global Affairs Canada web-site along with an
April 11, 2016 Notice. The Memorandum is significant
because it sets out the Canadian process for reviewing politically
sensitive export permits, such as those relating to LAV sales to
Saudi Arabia.
Fast forward to today. It should have been expected that
reporters and Amnesty International Canada (and other public
interest or activist organizations) would raise questions about
sales of Canadian goods to Saudi Arabia as soon as the news of the
violence in eastern Saudi Arabia broke. Where any Canadian goods
used by Saudi Arabia against its own citizens during the current
violence? Is there news media of the government actions and
what does the video, footage or photos indicate? Is there a
Canada connection - because you cannot do anything after the goods
have been sold and exported to Saudi Arabia?
Steven Chase is a reporter who has followed this issue closely for
Canada's Globe and Mail newspaper. I have spoken to
Steven Chase in the past about Canada's export controls laws. I
expected to see Steven Chase asking all the right questions of all
the right people. On July 28, 2017, Steven Chase and Robert
Fife published an online article entitled "
Ottawa calls for investigation into Saudi Arabia's apparent use
of Canadian-made armoured vehicles against citizens" in
which they detail their investigation into the use of Canadian made
LAVs and the government's statements in response to facts
uncovered. Steven Chase and Robert Fife write:
"Military equipment experts consulted by The Globe identified
the machines appearing in these videos and photos as Gurkha RPVs,
produced by Terradyne Armored Vehicles in Newmarket, Ont., just
north of Toronto."
Steven Chase and Robert Fife went straight to the office of
Canada's Minister of Foreign Affairs and were informed
that:
"The government is actively seeking more information about
Saudi Arabia's current efforts to deal with its security
challenges, the reports of civilian casualties, and the reports
that Canadian-made vehicles have been used by Saudi Arabia in its
current security operations," ... "Canada will review all
available information as it determines an appropriate course of
action."
Canada's CBC is also covering this story. Levon Sevunts
published an online article entitled "
Ottawa ready to review Saudi arms deal amid crackdown" in
which he writes about the following statements made by Global
Affairs spokesperson John Babcock:
" "Minister of Foreign Affairs Chrystia Freeland is
"deeply concerned about this situation and has asked officials
to review it immediately."
" "If it is found that Canadian exports have been used
to commit serious violations of human rights, the minister will
take action."
" "The end use and end user of exports, as well as
regional stability and human rights, are essential considerations
in the authorization of permits for the export of military goods
from Canada."
" "The government has expressed its concerns to the
Kingdom of Saudi Arabia that its internal security operations be
conducted in a manner consistent with international human rights
law."
Canadian aerospace and defence companies should expect changes to
Canada's export controls policies relating to military
equipment relating to sales to Saudi Arabia and other countries
with human rights abuse concerns. The human rights record of
a government is a consideration (behind the scenes) at Global
Affairs Canada, Export Controls Division, when reviewing export
permit applications. Most, if not all, exports of military
equipment require an export permit be obtained prior to the export
of the goods and technology. As is set out in great detail in
the Memorandum, exports permit applications are reviewed by a
number of Canadian government departments and political cases end
up on the Minister's desk (with a research memo and
recommendations attached).
There are questions whether foreign subsidiaries or sister
companies of Canadian companies are restricted by Canada's
Export and Import Permits Act (the legislation setting out
Canada's export prohibitions and requirements to obtain an
export permit). Changes to Canada's export controls laws
are currently before the government. See
" "
Canada's Arms Trade Treaty Legislation Will Create Arms
Brokering Rules and Change Export and Import Permits
Act"
" "
Canada's Standing Committee on Foreign Affairs and
International Development Amends Canada's Magnitsky
Act"
" "
Canada's Standing Committee on Foreign Affairs and
International Development Makes 13 Economic Sanctions
Recommendations"
" "
Canada Has Made Important Changes To The Export Controls List and
Export Controls Guide: It is Time To Update Company Compliance
Programs"
What the news reports and scrutiny by human rights organizations tell Canadian export controls experts and Canadian companies who make and sell aerospace and defence equipment and technology is that the spotlight has a stronger light now (more than ever before).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.