Regulations, 2005

L.N. 213 of 2005

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

United Nations Sanctions

(The Democratic Republic of the Congo) (Amendment)

Regulations, 2005

IN EXERCISE of the powers conferred by article 3 of the National

Interest (Enabling Powers) Act, the Prime Minister has made the

following regulations>-

The title of these regulations is the United Nations Sanctions

(The Democratic Republic of the Congo) (Amendment) Regulations,

2005 and they shall be read and construed as one with the United Nations

Sanctions (The Democratic Republic of the Congo) Regulations, 2003,

hereinafter referred to as “the principal regulations”.

Regulation 3 of the principal regulations shall be amended as

follows>-

(a) for the marginal note thereto, there shall be substituted

the words “Text of Resolutions”<

(b) the whole regulation shall be renumbered as sub-

regulation (1) thereof< and

(c) immediately after sub-regulation (1) as renumbered,

there shall be added the following new sub-regulation>

“(2) For the purpose of article 3 (4) of the Act,

Resolution number 1596 (2005) adopted by the Security

Council of the United Nations on the 18 th April, 2005 is

published in the English language in the Second Schedule to

these regulations.”.

Regulation 4 of the principal regulations shall be amended as

follows>-

(a) in sub-regulation (1) thereof, immediately after the words

“the provision of any assistance,” there shall be added the words

“including financing and financial assistance,” and for the words

from “to foreign and Congolese” to “and All-inclusive agreement,

in” there shall be substituted the words “to any recipient in the

territory of”< and

(b) immediately after sub-regulation (2) thereof, there shall

be added the following new sub-regulation>-

“(3) Any person designated as acting in violation of

the provisions of sub-regulation (1) hereof who is not a

Maltese national, shall be prevented entry into or transit

through Malta during such time as the provisions of the said

sub-regulation are still in force.”.

Regulation 5 of the principal regulations shall be renumbered Renumbers

regulation 5

as regulation 6 thereof.

of the principal

regulations.

Immediately after regulation 4 of the principal regulations, Adds regulation 5 to

the principal

there shall be added the following new regulation>-

regulations.

5. (1) Any funds, other financial assets and economic

resources which are in Malta and which are owned or

controlled directly or indirectly by designated persons

pursuant to regulation 4 (3) hereof, or that are held by entities

owned or controlled directly or indirectly by any persons

acting on their behalf or at their direction, shall be immediately

frozen.

(2) Such funds, financial assets or economic

resources shall be prevented from being made available by

any person in Malta to or for the benefit of such persons or

entities.

(3) The provisions of this regulation do not apply

to funds, other financial assets and economic resources that

have been determined by the authorities of Malta>

(a) to be necessary for basic expenses, including

payment for foodstuffs, rent or mortgage, medicines and

medical treatment, taxes, insurance premiums, and public

utility charges, or exclusively for payment of reasonable

professional fees and reimbursement of incurred

expenses associated with the provision of legal services,

or fees or service charges for the routine holding or

maintenance of frozen funds, other financial assets and

economic resources, after due notification of the intention

to authorize, where appropriate, access to such funds,

other financial assets and economic resources, and in

the absence of a negative decision the foregoing shall

be effected within four working days of such notification<

(b) to be necessary for extraordinary expenses,

provided that such determination has been notified and

approved< or

(c) to be the subject of a judicial, administrative

or arbitral lien, or of a judgement, in which case the funds,

other financial assets and economic resources may be

used to satisfy that lien or judgement>

Provided that such lien or judgement was entered prior

to the 18 th April, 2005 and that they are not for the benefit of

a person referred to in sub-regulation (1) hereof or an

individual or entity identified as a designated person and

notified as such.”.

Immediately after the First Schedule to the principal

regulations, there shall be added the following new schedule>-

“SECOND SCHEDULE

(Regulation 3)

Resolution 1596 (2005)

Adopted by the Security Council at its 5163rd meeting,

on 18 April 2005

The Security Council,

Recalling its resolutions concerning the Democratic Republic of the Congo, in

particular resolutions 1493 of 28 July 2003, 1533 of 12 March 2004, 1552 of 27 July

2004, 1565 of 1 October 2004 and 1592 of 30 March 2005, and recalling also the

statements by its President concerning the Democratic Republic of the Congo, in

particular on 7 December 2004,

Reiterating its serious concern regarding the presence of armed groups and

militias in the Eastern part of the Democratic Republic of the Congo, particularly in

the provinces of North and South Kivu and in the Ituri district, which perpetuate a

climate of insecurity in the whole region,

Welcoming the fact that some of these groups and militias have started to

submit an inventory of arms and related materiel in their possession, as well as their

location, with a view to their participation in the programmes of disarmament, and

encouraging those who have not yet done so rapidly to do so,

Expressing its readiness to review the provisions of its resolutions 918 of

17 May 1994, 997 of 9 June 1995 and 1011 of 16 August 1995 in a broader

perspective, taking into account the implications of continued instability in the

Eastern part of the Democratic Republic of the Congo for peace and security in the

Great Lakes Region of Africa,

Condemning the continuing illicit flow of weapons within and into the

Democratic Republic of the Congo, and declaring its determination to continue

closely monitoring implementation of the arms embargo imposed by resolution 1493

of 28 July 2003,

Recalling the importance for the Government of National Unity and Transition

to implement without delay the integration for which it bears responsibility of the

armed forces of the Democratic Republic of the Congo, by continuing to work

within the framework of the Joint Commission on Security Sector Reform, and

encouraging the donor community to provide coordinated financial and technical

assistance for this task,

Commending the efforts made by the Secretary-General, the African Union

and other actors concerned to restore peace and security in the Democratic Republic

of the Congo and welcoming in this regard the Declaration adopted in Dar es

Salaam on 20 November 2004 at the conclusion of the first summit of the

International Conference on Peace, Security, Democracy and Development in the

Great Lakes Region of Africa,

Taking note of the reports of the Group of Experts established by paragraph 10

of resolution 1533, dated 15 July 2004 (S/2004/551) and 25 January 2005

(S/2005/30), transmitted by the Committee established in accordance with paragraph

8 of that resolution (hereafter the Committee), and of their recommendations,

Noting that the situation in the Democratic Republic of the Congo continues to

constitute a threat to international peace and security in the region,

Acting under Chapter VII of the Charter of the United Nations,

1. Reaffirms the measures established by paragraph 20 of resolution 1493,

dated 28 July 2003, and extended until 31 July 2005 by resolution 1552, dated

27 July 2004, decides that these measures shall from now on apply to any recipient

in the territory of the Democratic Republic of the Congo, and reiterates that

assistance includes financing and financial assistance related to military activities;

2. Decides that the measures above shall not apply to

(a) Supplies of arms and related materiel or technical training and assistance

intended solely for support of or use by units of the army and police of the

Democratic Republic of the Congo, provided that the said units

– have completed the process of their integration, or

– operate under the command, respectively, of the état-major intégré of the

Armed Forces or of the National Police of the Democratic Republic of the

Congo, or

– are in the process of their integration, in the territory of the Democratic

Republic of the Congo outside the provinces of North and South Kivu and the

Ituri district,

(b) Supplies of arms and related materiel as well as technical training and

assistance intended solely for support of or use by the United Nations Organization

Mission in the Democratic Republic of the Congo (MONUC),

(c) Supplies of non-lethal military equipment intended solely for

humanitarian or protective use, and related technical assistance and training, as

notified in advance to the Committee in accordance with paragraph 8 (e) of

resolution 1533;

3. Requests MONUC, within its existing capabilities and without prejudice

to the performance of its current mandate, and the Group of Experts referred to in

paragraph 21 below to continue to focus their monitoring activities in North and

South Kivu and in Ituri;

4. Decides that all future authorized shipments of arms and related materiel

consistent with such exemptions noted in paragraph 2 (a) above shall only be made

to receiving sites as designated by the Government of National Unity and

Transition, in coordination with MONUC, and notified in advance to the

Committee;

5. Demands that all parties other than those referred to in paragraph 2 (a)

above with military capabilities in Ituri, in North Kivu or in South Kivu, help the

Government of National Unity and Transition implement its commitments regarding

disarmament, demobilization and reintegration of foreign and Congolese

combatants, and regarding security sector reform;

6. Decides that, during the period of enforcement of the measures referred

to in paragraph 1 above, all governments in the region, and in particular those of the

Democratic Republic of the Congo and of States bordering Ituri and the Kivus, shall

take the necessary measures

– To ensure that aircraft operate in the region in accordance with the Convention

on International Civil Aviation, signed in Chicago on 7 December 1944, in

particular by verifying the validity of documents carried in aircraft and the

licences of pilots,

– To prohibit immediately in their respective territories operation of any aircraft

inconsistent with the conditions in that Convention or the standards established

by the International Civil Aviation Organization, in particular with respect to

the use of falsified or out-of-date documents, and to notify the Committee, and

to maintain such prohibition until the Committee is informed by States or by

the Group of Experts that these aircraft meet the said conditions and standards

set forth in Chapter V of the Chicago Convention and determines that they will

not be used for a purpose inconsistent with the resolutions of the Security

Council,

– To ensure that all civilian and military airports or airfields on their respective

territories will not be used for a purpose inconsistent with the measures

imposed by paragraph 1 above;

Further decides that each government in the region, in particular those of

States bordering Ituri and the Kivus, as well as that of the Democratic Republic of

the Congo, shall maintain a registry for review by the Committee and the Group of

Experts of all information concerning flights originating in their respective

territories en route to destinations in the Democratic Republic of the Congo, as well

as flights originating in the Democratic Republic of the Congo en route to

destinations in their respective territories;

Calls upon the Government of National Unity and Transition to

strengthen the monitoring of the activity of all airports and airfields, in particular

those located in Ituri and in the Kivus, to ensure in particular that only customs

airports are used for international air service, and requests MONUC, in airports and

airfields where it has a permanent presence, to cooperate within its existing

capability with the competent Congolese authorities, with a view to enhancing the

capability of those authorities to monitor and control the use of airports;

Recommends in this context to States in the region, and in particular to

those parties to the Declaration adopted in Dar es Salaam on 20 November 2004, to

promote regional cooperation in the field of air traffic control;

Decides that, during the period of enforcement of the measures referred

to in paragraph 1 above, the Government of the Democratic Republic of the Congo

on the one hand, and those of States bordering Ituri and the Kivus on the other hand,

shall take the necessary measures

– To strengthen, as far as each of them is concerned, customs controls on the

borders between Ituri or the Kivus and the neighbouring States,

– To ensure that all means of transport on their respective territories will not be

used in violation of the measures taken by Member States in accordance with

paragraph 1 above, and notify MONUC of such actions,

and requests MONUC and the United Nations Operation in Burundi (ONUB), in

accordance with their respective mandates, to provide assistance to this end, where

they have a permanent presence, to the competent customs authorities of the

Democratic Republic of the Congo and of Burundi;

Reiterates its call upon the international community, in particular the

specialized international organizations concerned, notably the International Civil

Aviation Organization and the World Customs Organization, to provide financial

and technical assistance to the Government of National Unity and Transition with a

view to helping it exercise effective control over its borders and its airspace, and

invites in this regard the International Monetary Fund and the World Bank to

provide assistance with a view to evaluating and improving the performance and

enhancing the capacity of the Customs of the Democratic Republic of the Congo;

Urges all States to conduct inquiries into the activities of their nationals

who operate or are associated with the operation of aircraft or other means of

transport such as those referred to in paragraphs 6 and 10 above used for the transfer

of arms or related materiel in violation of the measures imposed by paragraph 1

above, and if necessary to institute the appropriate legal proceedings against them;

Decides that, during the period of enforcement of the measures referred

to in paragraph 1 above, all States shall take the necessary measures to prevent the

entry into or transit through their territories of all persons designated by the

Committee as acting in violation of the measures taken by Member States in

accordance with paragraph 1 above, provided that nothing in this paragraph shall

oblige a State to refuse entry into its territory to its own nationals;

Decides that the measures imposed by the previous paragraph shall not

apply where the Committee determines in advance and on a case-by-case basis that

such travel is justified on the grounds of humanitarian need, including religious

obligation, or where the Committee concludes that an exemption would further the

objectives of the Council’s resolutions, that is peace and national reconciliation in

the Democratic Republic of the Congo and stability in the region;

Decides that all States shall, during the period of enforcement of the

measures referred to in paragraph 1 above, immediately freeze the funds, other

financial assets and economic resources which are on their territories from the date

of adoption of this resolution, which are owned or controlled, directly or indirectly,

by persons designated by the Committee pursuant to paragraph 13 above, or that are

held by entities or controlled, directly or indirectly, by any persons acting on their

behalf or at their direction, as designated by the Committee, and decides further that

all States shall ensure that no funds, financial assets or economic resources are made

available by their nationals or by any persons within their territories, to or for the

benefit of such persons or entities;

Decides that the provisions of the previous paragraph do not apply to

funds, other financial assets and economic resources that

(a) have been determined by relevant States to be necessary for basic

expenses, including payment for foodstuffs, rent or mortgage, medicines and

medical treatment, taxes, insurance premiums, and public utility charges, or for

payment of reasonable professional fees and reimbursement of incurred expenses

associated with the provision of legal services, or fees or service charges, in

accordance with national laws, for routine holding or maintenance of frozen funds,

other financial assets and economic resources, after notification by the relevant

States to the Committee of the intention to authorize, where appropriate, access to

such funds, other financial assets and economic resources and in the absence of a

negative decision by the Committee within four working days of such notification,

(b) have been determined by relevant States to be necessary for

extraordinary expenses, provided that such determination has been notified by the

relevant States to the Committee and has been approved by the Committee, or

(c) have been determined by relevant States to be the subject of a judicial,

administrative or arbitration lien or judgement, in which case the funds, other

financial assets and economic resources may be used to satisfy that lien or

judgement provided that the lien or judgement was entered prior to the date of the

present resolution, is not for the benefit of a person or entity designated by the

Committee pursuant to paragraph 15 above, and has been notified by the relevant

States to the Committee;

Decides that, no later than 31 July 2005, it shall review the measures set

forth in paragraphs 1, 6, 10, 13 and 15 above, in the light of progress accomplished

in the peace and transition process in the Democratic Republic of the Congo, in

particular with regard to the integration of the Armed Forces and of the National

Police;

Decides that the Committee shall undertake, in addition to the tasks listed

in paragraph 8 of resolution 1533, those hereafter

(a) to designate persons and entities with respect to the measures set forth in

paragraphs 6, 10, 13 and 15 above, including aircraft and airlines, and regularly to

update its list,

(b) to seek from all States concerned, and particularly those in the region,

information regarding the actions taken by them to enforce the measures imposed by

paragraphs 1, 6, 10, 13 and 15 above, and any further information it may consider

useful, including by providing all States with an opportunity to send representatives

to meet the Committee to discuss in more detail any relevant issues,

(c) to call upon all States concerned, and particularly those in the region, to

provide the Committee with information regarding the actions taken by them to

investigate and prosecute as appropriate individuals designated by the Committee

pursuant to subparagraph (a) above,

(d) to consider and decide on requests for the exemptions set out in

paragraphs 14 and 16 above,

(e) to promulgate guidelines as may be necessary to facilitate the

implementation of paragraphs 6, 10, 13 and 15 above;

Demands that all parties and all States cooperate fully with the work of

the Group of Experts referred to in paragraph 21 below and of MONUC, and that

they ensure

– the safety of their members,

– unhindered and immediate access for the members of the Group of Experts, in

particular by supplying them with any information on possible violations of

the measures taken by Member States in accordance with paragraphs 1, 6, 10,

13 and 15 above, and by facilitating access of the Group of Experts to persons,

documents and sites it deems relevant to the execution of its mandate;

Requests all States concerned, in particular those in the region, to report

to the Committee, within forty-five days from the date of adoption of this resolution,

on the actions they have taken to implement the measures imposed by paragraphs 6,

10, 13 and 15 above, and authorizes the Committee thereafter to request from all

Member States any information it may consider necessary to fulfil its mandate;

Requests the Secretary-General, in consultation with the Committee, to

re-establish, within thirty days from the date of adoption of this resolution, and for a

period expiring on 31 July 2005, the Group of Experts referred to in paragraph 10 of

resolution 1533 with the addition of a fifth expert for financial issues, and requests

further that the Secretary-General provide the Group of Experts with the necessary

resources to fulfil its mandate;

Requests the Group of Experts above to report to the Council in writing

before 1 July 2005, through the Committee, including on the implementation of the

measures set forth in paragraphs 1, 6, 10, 13 and 15 above;

Decides to remain seized of the matter.