Recent Changes to Export Control Regulations Concerning Türkiye

February 16, 2024

On January 29, 2024, Canada made amendments to Notice to Exporters Serial No. 992 issued on April 16, 2020 (Serial No. 992) concerning its export and brokering policies for items listed on the Export Control List and the Brokering Control List destined for Türkiye (Serial No. 1108).

Background: Temporary Suspension and Presumptive Denial for Group 2 Items

On April 16, 2020, in response to Türkiye’s military incursion into Syria that began on October 11, 2019, Canada temporarily suspended the issuance of all new export permits for the export of items listed in Group 2 to the Export Control List (i.e., controlled goods and technology including military and defence items) destined for Türkiye. This temporary suspension continued until January 29, 2024.

Between April 16, 2020 and January 29, 2024, applications for exports of Group 2 items to Türkiye underwent individual assessments to determine whether exceptional circumstances existed to justify the issuance of the permit, particularly in relation to NATO cooperation programs. 

Revocation of Presumptive Denial Policy (Serial No. 1108)

The latest update, Serial No. 1108, effective January 29, 2024, revokes the presumptive denial policy concerning Group 2 items.

Under the current policy outlined in Serial No. 1108, permit applications for all groups on the Export Control List and the Brokering Control List, including Group 2 items, will be reviewed on a case-by-case basis. This review will be conducted in line with Canada’s risk assessment framework, including a comprehensive evaluation against the Arms Trade Treaty (“ATT”) criteria, which are enshrined in the Export and Import Permits Act under Section 7.3. 

Global Affairs Canada initially implemented an enhanced risk assessment framework in September 2019 in preparation for Canada’s accession to the ATT. The risk assessment framework identifies the different elements to be considered, the relevant government experts to be consulted, and parameters for the identification of risks. Any concerns raised through this process are then closely evaluated, including whether a substantial risk exists with respect to any of the ATT criteria. The ATT criteria, which are enshrined under Section 7.3 of the Export and Import Permits Act, require the Minister of Foreign Affairs to consider whether the goods or technology for which an export permit is sought would: 

(a) would contribute to peace and security or undermine it; and

(b) could be used to commit or facilitate

(i) a serious violation of international humanitarian law,

(ii) a serious violation of international human rights law,

(iii) an act constituting an offence under international conventions or protocols relating to terrorism to which Canada is a party,

(iv) an act constituting an offence under international conventions or protocols relating to transnational organized crime to which Canada is a party, or

(v) serious acts of gender-based violence or serious acts of violence against women and children.

End Use Assurance Requirements and Ministerial Authority

End use assurance documents help prevent any violations of the ATT listed above. For exporters engaging in the export or brokering of any items listed on the Export Control List or the Brokering Control List, especially when the Turkish Armed Forces or other Turkish government entities (i.e., agency, subsidiary, or security service) are the final end users, stringent end-use assurance requirements must be met. These include: 

  • a statement from the Government of Türkiye clearly indicating whether the items will be re-exported or transferred to a non-NATO country (excepting Ukraine) whether that item is to be re-exported or transferred from Türkiye in its original form, or incorporated into a weapons system; 
  • the end-use assurance requirements identified in sections E.4.2. and E. 7.2 of the Export and Brokering Controls Handbook outlined below.

End-use assurances are an essential part of export permit applications. There are several types of end-use assurance documents identified under sections E.4.2 and E.7.2. of the Export and Brokering Controls Handbook. Exporters must submit at least one end-use assurance document with their export permit application but are encouraged to include more documents, if available. Ultimately, the end use assurances listed below, regardless of their type, provide information to Global Affairs Canada on the quantity and value of the goods or technology that will be exported from Canada, describe the end-use of the items in the final destination country, and confirm that items will not be diverted to uses other than those stated in the export permit application. The different types of end-use assurances are as follows:

1. End-use certificates are official documents issued by the final destination government. Such certificates provide assurance to Canadian authorities that the foreign government accepts any responsibility if and when the exported goods have been diverted to illegitimate end-uses, not otherwise identified in the end-use certificate.

2. End-use statements serve the same purpose as end-use certificates but are signed by the consignee or the foreign party or parties to whom the Canadian exporter will be shipping the goods directly. Such statements are often issued when an official document from the final destination government is not available. In particular, such statements indicate whether the intended end-use of the goods is civilian (commercial) or military.

3. International import certificates are documents issued by the final destination government to the final consignee, which, in turn, is provided to the exporter. Like end-use certificates, international import certificates provide assurance to Canadian authorities that the exported goods will not be diverted to illegitimate end uses. Typically, these documents are valid for a period of 6 months.

4. Import licenses are issued by the final destination government when imports of the items proposed for export from Canada are controlled in the final destination country. If required, such licenses are issued to the final consignee who provides it to the Canadian exporter.

5. Informal end-use assurance documents are additional supporting documents which are not mandatory but are suggested to be included with export permit applications. Some examples of these include:

a. a copy of the sales contract between the applicant or exporter and the purchaser

b. a copy of the service contract between the applicant or exporter and the purchaser

c. a copy of the commercial invoice; and

d. a copy of the letter of credit or other financial documentation identifying the Canadian and foreign financial institutions

6. End-use assurance for firearms, components, ammunition and explosives, which is a formal assurance such as import license or other proof that items will legally enter the country of destination. In addition, if such goods are transiting a third country, a proof of transit authorization may be required.

7. Delivery verification certifications comprise an official confirmation typically issued to the consignee by the government of final destination country that the exported goods have been delivered in accordance with the terms of the Canadian export permit and/or the foreign-issued International Import Certificate.

For any legal advice concerning export permit applications, including end-use assurance requirements, or concerning defence contracting or procurement issues with the Canadian government, contact Cassidy Levy Kent (Canada) LLP.