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Chapter 65: Nuclear Energy: Security – International Legal Framework

August 9, 2013 4:11 am / Leave a comment

The risk that nuclear or other radioactive material could be used in malicious acts remains high and is regarded as a serious threat to international peace and security. It is well recognized that the responsibility for nuclear security rests entirely with each State and that appropriate and effective national systems for nuclear security are vital in facilitating the peaceful use of nuclear energy and enhancing global efforts to combat nuclear terrorism.

The International Atomic Energy Agency (IAEA) has provided assistance to States and supported their national efforts to establish and improve nuclear security
since the early 1970s. The focus of these efforts has always been to contribute to global efforts to achieve worldwide, effective security wherever nuclear or other radioactive material is in use, storage and/or transport, and of associated facilities, by supporting States, upon request, in their efforts to establish and maintain effective nuclear security through assistance in capacity building, guidance, human resource development, sustainability and risk reduction. The objective was also to assist adherence to and implementation of nuclear security related international legal instruments; and to strengthen the international cooperation and coordination of assistance given through bilateral programmes and other international initiatives in a manner which also would contribute to enabling the safe, secure and peaceful use of nuclear energy and of such applications with radioactive substances.

Lessons learned that apply at the international level include the following:

The existence of terrorist networks that operate internationally and the potential global consequences of a nuclear security event require a global response;
This response must rest on a solid foundation of preparedness, appropriate sharing of knowledge, experience and coordination among States and international organizations based on a comprehensive set of established standards and guidance to provide common references; and
Vigilance must be maintained and security regarded as work in progress recognizing changing risk assessments.

Here are the lessons that apply to the IAEA’s work:

Nuclear security is a long term effort and the Plan should adopt a long term perspective, identifying core activities while, at the same time, being kept under constant review to reflect changes in circumstances;
Priority should be given to the production of nuclear security guidance to assist States and to human resource development support;
Effective implementation of the security plan has to be based on systematic approaches using programmes designed to ensure sustainability of security improvements and to obtain strengthened capacities, building on regional and national infrastructures and capabilities; and
Strengthened coordination with other international organizations, initiatives and bilateral programmes is needed to avoid duplication of efforts or gaps.

The term “Nuclear Security” is generally accepted to mean “The prevention and detection of, and response to, theft, sabotage, unauthorized access, illegal transfer or other malicious acts involving nuclear material, other radioactive substances or their associated facilities.” While the ultimate responsibility for nuclear security within a State rests entirely with that State, the need for regional and international cooperation has become increasingly evident with the growing recognition that the ability to prevent, detect and respond to the threats to nuclear security within one State is affected by the adequacy and effectiveness of nuclear security measures taken by other States, particularly when nuclear material is transported across national frontiers. Since the early 1970s, the IAEA has been called upon to play an ever increasing role in assisting States, upon request, to strengthen their national legal infrastructures and physical protection systems, as well as to facilitate regional and international efforts to enhance nuclear security, including measures to protect against nuclear terrorism.

International conventions adopted under both IAEA and other auspices have also assigned a clear role and functions to the IAEA in the field of nuclear security and have been approved as such by the Board of Governors.

In particular, the Convention on the Physical Protection of Nuclear Material and the 2005 Amendment thereto, the Convention on Early Notification in the Event of a Nuclear Accident, the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, and the International Convention for the Suppression of Acts of

Nuclear Terrorism, have all assigned specific functions to the IAEA.

Non-binding legal instruments promulgated under IAEA auspices, including the Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities and the Code of

Conduct on the Safety and Security of Radioactive Sources, also illustrate the IAEA’s role in elaborating such guidance and confirm its role in assisting States, upon request, in implementing the recommendations contained therein. Thus, like the international legal framework for nuclear security, the IAEA’s nuclear security mandate is embodied in both binding and non-binding legal instruments adopted under both IAEA and other auspices.

OVERVIEW OF THE SALIENT PROVISIONS OF THE LEGAL FRAMEWORK:
1. LEGAL BINDING INTERNATIONAL INSTRUMENTS:

1.1.1 Primary Legal Instruments under the Auspices of the IAEA:

	No.	Description
1.1.1.1	a	Objectives of the CPPNM:
		To achieve and maintain worldwide effective physical protection of nuclear material used for peaceful purposes; to prevent and combat offences relating to such material; and to facilitate cooperation among States Parties to those ends. The Preamble expressly recognizes the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interest in the potential benefits to be derived from the peaceful applications of nuclear energy.
	b	Scope of the CPPNM:
		The obligations set out in the CPPNM apply to nuclear material used for peaceful purposes while in international nuclear transport and, with the exception of Articles 3, 4 and 5.3, also to domestic use, storage and transport. While the CPPNM applies only to nuclear material used for peaceful purposes, the final paragraph of the Preamble recognizes “the importance of effective physical protection of nuclear material used for military purposes” and understands “that such material is and will continue to be accorded stringent physical protection”.
	c	Obligations of States Parties:
		States Parties shall take steps to ensure that during international nuclear transport24, nuclear material within their territory or on board a ship or aircraft under their jurisdiction insofar as such ship or aircraft is engaged in the transport to or from that State; States Parties shall not import, export or authorize the import or export or the transit of nuclear material unless they have received assurances that such material will be protected during the international nuclear transport; States Parties shall identify and make known to each other directly or through the IAEA their central authority and point of contact having responsibility for physical protection of nuclear material and for coordinating recovery and response operations in the event of any unauthorized removal, use or alteration of nuclear material or in the event of a credible threat thereof; In the case of theft, robbery or any other unlawful taking of nuclear material or of a credible threat thereof, States Parties shall, in accordance with their national law, provide cooperation and assistance to the maximum feasible extent in the recovery and protection of such material to any State that so requests; States Parties shall cooperate and consult regarding guidance on the design, maintenance and improvement of systems of physical protection for nuclear material in international transport; States Parties shall protect the confidentiality of information received in confidence by virtue of the provisions of the CPPNM; Each State Party shall make certain offences punishable by appropriate penalties, which take into account their grave nature; Each State Party shall take such measures as necessary to establish its jurisdiction over certain offences when the offence is committed in the territory of that State or on board a ship or aircraft registered in that State or when the alleged offender is a national of that State or when the offender is present in its territory and it does not extradite him; The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State; Each State Party shall establish the relevant offences as extraditable offences; States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings; Each State Party shall inform the depositary of its laws and regulations, which give effect to the CPPNM; and The State Party where an alleged offender is prosecuted shall first communicate the final outcome of the proceedings to the States directly concerned and then to the depositary, who shall inform the States.

	No.	Description
1.1.1.2		The 2005 Amendment to the CPPNM:
	a	Objectives of the Amendment:
		To achieve and maintain worldwide effective physical protection of nuclear material and of nuclear facilities used for peaceful purposes; to prevent and combat offences relating to such material and facilities worldwide; and to facilitate cooperation among States Parties to those ends.
	b	Scope of the Amendment:
		Where the obligations for physical protection under the CPPNM covered nuclear material during international transport, the Amendment extends the scope of the CPPNM to also cover nuclear facilities and nuclear material in domestic use, storage and transport used for peaceful purposes, as well as sabotage. The scope of the Amendment is confined to nuclear material and facilities and does not extend to “all radioactive material and associated facilities”. Activities undertaken by military forces during an armed conflict or in the exercise of their official duties are expressly excluded from the scope of the Amendment. The Amendment also explicitly excludes nuclear material used or retained for military purposes and nuclear facilities containing such material.
	c	Obligations of States Parties:
		States Parties undertake to establish, implement and maintain a physical protection regime applicable to nuclear material and facilities under their jurisdiction, including: an appropriate legislative and regulatory framework for physical protection; a competent authority responsible for its implementation; and other administrative measures necessary for the physical protection of such material and facilities. In implementing the relevant obligations under the Amendment, each State Party shall apply, insofar as is reasonable and practicable, a number of Fundamental Principles of Physical Protection of Nuclear Material and Nuclear Facilities; States Parties undertake to institute new arrangements for cooperation, assistance and coordination amongst States and the IAEA, including points of contact; exchange of information with a view to protecting or recovering unlawfully taken nuclear material, in the case of a credible threat of sabotage of nuclear material or a nuclear facility or in the case of sabotage thereof; guidance in the area of physical protection of nuclear material in international transport; and guidance on the design, maintenance and improvement of national systems of physical protection of nuclear material in domestic use, storage and transport and of nuclear facilities; States Parties are also obliged to bring under their jurisdiction and make punishable under their national laws certain offences, including theft, robbery, smuggling of nuclear material or sabotage of nuclear facilities, as well as acts related to directing and contributing to the commission of such offences. It is worth noting in this context that a number of offences were extended to include “substantial damage to the environment”; States Parties undertake not to regard the offences described by the Amendment as being political offences for the purposes of extradition; and The Amendment also contains explicit confirmation that nothing in the Amendment shall affect the transfer of nuclear technology for peaceful purposes and to strengthen the physical protection of nuclear material and facilities.

	No.	Description
1.1.1.3		The Convention on Early Notification of a Nuclear Accident (Early Notification Convention):
	a	Objective of the Early Notification Convention:
		To provide a mechanism to exchange information on nuclear accidents as early as possible with a view to minimizing their transboundary radiological consequences.
	b	Scope of the Early Notification Convention:
		The Early Notification Convention applies in the event of any accident involving specified facilities or activities of a State Party from which a release of radioactive material occurs or is likely to occur and which has resulted or may result in an international transboundary release that could be of radiological safety significance to another State.
	c	Obligations of States Parties:
		In the event of an accident, the State Party where the accident has occurred must, directly or through the IAEA, forthwith notify States which are or may be physically affected, and the IAEA, of the accident, its nature, the time of its occurrence and its exact location, where appropriate, and must promptly provide those States and the IAEA with available information relevant to minimizing the radiological consequences in those States; and States Parties must notify the IAEA and other States Parties, directly or through the IAEA, of their competent authorities and points of contact responsible for issuing and receiving notification and information.

	No.	Description
1.1.1.4		The Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention):
	a	Objective of the Assistance Convention:
		The Assistance Convention sets out an international framework to facilitate prompt requests for and provision of assistance in the event of a nuclear accident or radiological emergency to minimize its consequences and to protect life, property and the environment from the effects of radioactive releases.
	b	Scope of the Assistance Convention:
		The Assistance Convention covers bilateral and multilateral assistance arrangements in connection with a nuclear accident or radiological emergency.
	c	Obligations of States Parties:
		States Parties must cooperate amongst themselves and with the IAEA to facilitate prompt assistance; When assistance is requested from a State Party, it must promptly notify the requesting State Party, directly or through the IAEA, whether it is in a position to render the assistance requested and of the scope and terms of the assistance that might be rendered; The requesting State is to provide local facilities and services for the proper and effective administration of the assistance. Also, it should ensure the protection of personnel, equipment and materials brought into its territory by or on behalf of the assisting party for such purposes; States Parties are obliged to notify the IAEA and other States Parties of their competent authorities and point of contact authorized to make and receive requests for and to accept offers of assistance; Unless otherwise agreed, the requesting State is to reimburse the assisting party for costs incurred for the services and for all expenses in connection with the assistance; The requesting State is to afford personnel of the assisting party and personnel acting on its behalf the necessary privileges, immunities and facilities for the performance of their assistance functions; The States Parties shall closely cooperate in order to facilitate the settlement of legal proceedings and claims; and Unless otherwise agreed, a requesting State shall provide certain compensation and indemnities in the event of death of or injury to persons, damage to or loss of property, or damage to the environment caused within its territory or other area under its jurisdiction or control in the course of providing the assistance requested.

No.

Description

1.1.2

Primary legal Instruments under the Auspices of the United Nations International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention):

a

Objective of the Nuclear Terrorism Convention:

While explicitly recognizing the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interests in the potential benefits to be derived from the peaceful application of nuclear energy, the Nuclear Terrorism Convention seeks to prevent and punish acts of nuclear terrorism.

b

Scope of the Nuclear Terrorism Convention:

The Nuclear Terrorism Convention has a broader scope than the CPPNM and the Amendment thereto to the extent that it criminalizes acts involving ‘radioactive material’, which includes not only nuclear material, but also other radioactive material, as defined by the Convention.

It also brings under its scope, nuclear material and facilities used or retained for military purposes, which are explicitly excluded from the scope of the CPPNM and of its 2005 Amendment.

c

Obligations of States Parties:

States Parties are obliged to establish their jurisdiction and to make the offences listed in Article 2 punishable under their domestic law and to provide for extradition or prosecution of alleged offenders under the principle of aut dedere aut judicare (extradite or prosecute);

States Parties are also obliged to cooperate and provide for mutual assistance, notably in relation to criminal investigations and extradition;

States Parties are obliged to take appropriate measures in order to inform, where appropriate, international organizations in respect of the commission of offences set forth in Article 2 as well as preparations to commit such offences about which they have learned;

States Parties shall inform the UN Secretary-General of their competent authorities and liaison points responsible for sending and receiving the information referred to in Article 7. The Secretary-General shall communicate such information regarding competent authorities and liaison points to all States Parties and the IAEA. Such authorities and liaison points must be accessible on a continuous basis;

States Parties shall make every effort to adopt appropriate measures to ensure the protection of radioactive material taking into account relevant IAEA recommendations and functions;

Upon seizing or otherwise taking control of radioactive material, devices or nuclear facilities, following the commission of an offence set forth in Article 2, the State Party in possession of such items shall (a) take steps to render harmless the radioactive material, device or nuclear facility; (b) ensure that any nuclear material is held in accordance with applicable IAEA safeguards; and (c) have regard to physical protection recommendations and health and safety standards published by the IAEA;

A State Party in possession of radioactive material, a device or nuclear facility may request the assistance and cooperation of other States Parties, in particular the States Parties concerned, and any relevant international organizations, in particular the IAEA. States Parties and the relevant international organizations are encouraged to provide assistance pursuant to this paragraph to the maximum extent possible; and

States Parties involved in the disposition or retention of radioactive material, a device or nuclear facility pursuant to the present article shall inform the Director General of the IAEA of the manner in which such an item was disposed of or retained.

No.

Description

1.1.3

Primary legal instruments under the auspices of the International Maritime Organization (IMO):

1.1.3.1

The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 SUA Convention):

1.1.3.2

The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, Rome, 1988 (1988 Fixed Platforms Protocol):

1.1.3.3

The 2005 Protocol to the Fixed Platforms Protocol:

a

Objective of the IMO Instruments:

The main purpose of the SUA Convention and the Protocols thereto is to suppress unlawful acts against ships and fixed platforms and to ensure that appropriate action is taken against alleged perpetrators.

b

The 2005 Protocols deal with nuclear material and explicitly refer to the NPT and to the IAEA safeguards agreements. The definitions of “source material” and “special fissionable material” are those set out in Article XX of the IAEA Statute.

c

Obligations of States Parties:

Under the 1988 IMO instruments, States Parties are obliged to include certain offences in their domestic legislation, to establish jurisdiction accordingly and to provide for prosecution or extradition of alleged offenders;

Pursuant to the 2005 Protocols, States Parties are obliged to criminalize additional offences, including the unlawful transportation of nuclear material on board a ship; specifically, any explosive device; nuclear weapons; any source material or special fissionable material knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; or any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a (nuclear) weapon, with the intention that it will be used for such purpose; and

The 2005 Protocol to the 1988 SUA Convention makes it an offence to transport a person on board a ship knowing that the person has committed an act that constitutes an offence set forth in the Protocol or an offence set forth in any treaty listed in the Annex to the Protocol.

No.

Description

1.1.4

UN Security Council resolutions adopted under Chapter VII of the UN Charter:-

Resolution 1373 (2001):

a

Objective of UNSCR 1373 (2001):

The primary focus of UNSCR 1373 (2001) is on preventing and suppressing the financing and preparation of any acts of terrorism. Acting under Chapter VII, the Security Council, inter alia, reaffirmed “Its unequivocal condemnation of the (11 September 2001) terrorist attacks” and expressed “its determination to prevent all such acts.” To that end, the Security Council called on “States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism.”

b

Obligations of States under Chapter VII of the UN Charter:

All States are obliged to prevent and suppress terrorist financing; criminalize funding of terrorism; freeze funds and financial assets of persons involved in terrorist acts; and prohibit making funds available for the benefit of persons committing terrorist acts:

All States are further obliged to refrain from any form of support to terrorists; take necessary steps to prevent terrorist acts; deny safe haven to terrorists or financers of terrorism; prevent terrorists from using their territories against other States; bring terrorists and those financing terrorism to justice with appropriate penalties; assist in criminal investigations and proceedings; prevent terrorist movement through border controls and controls of identity papers;

All States are called upon to, inter alia, become parties as soon as possible to the relevant international conventions and protocols relating to terrorism; and

The Security Council establishes and makes operational a committee to monitor implementation of UNSCR 1373 (2001) and to which States are required to report on the steps they have taken to implement the resolution.

No.

Description

1.1.4.1

Resolution 1540 (2004):

a

Objectives of UNSCR 1540 (2004):

The Security Council affirms “that proliferation of nuclear…weapons, as well as their means of delivery, constitute a threat to international peace and security” “its resolve to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear…weapons and their means of delivery…and “its support for multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear…weapons.”

The Security Council also expresses its grave concern about “the threat of terrorism and the risk that non-State actors may acquire, develop, traffic in or use nuclear…weapons and their means of delivery” and that “the threat of illicit trafficking in nuclear…weapons and their means of delivery, and related materials25, which adds a new dimension to the issue of proliferation of such weapons and also poses a threat to international peace and security.”

b

Obligations of States under Chapter VII of the UN Charter:

All States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear weapons and their means of delivery;

All States shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear weapons and their means of delivery, in particular for terrorist purposes, as well as ancillary crimes associated therewith;

All States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear weapons and their means of delivery, including by establishing appropriate controls over related materials such as effective measures to account for and secure such items in production, use, storage or transport; appropriate effective physical protection measures; appropriate effective border controls and law enforcement efforts; appropriate effective national export and transhipment controls over such items, and appropriate criminal or civil penalties for violations of such export controls;

All States are obliged to promote the universal adoption and full implementation of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear weapons; to adopt national rules and regulations to ensure compliance with their commitments under the key multilateral non-proliferation treaties; and to renew and fulfil their commitment to multilateral cooperation in particular within the framework of the IAEA;

All States are obliged to take cooperative action to prevent illicit trafficking in nuclear weapons, their means of delivery and related materials; and

The Security Council establishes and makes operational a committee to monitor implementation of UNSCR 1540 (2004) and to which States are required to report on the steps they have taken to implement the resolution.

1.2 LEGALLY NON-BINDING INTERNATIONAL INSTRUMENTS:

1.2.1 Non-binding instruments under the auspices of the IAEA:

No.

Description

1.2.1.1

Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Revision 5):

a

Objective of INFCIRC/225/Revision 5:

To achieve effective physical protection against the theft or unauthorized removal of nuclear material and against the sabotage of nuclear facilities by individuals or groups.

b

Recommendations to States:

The scope is the physical protection of nuclear material and of nuclear facilities for civil purposes. States may decide whether or not to extend the publication’s use to other purposes.

c

Recommendations to States:

The recommendations in INFCIRC/225/Revision 5 relate to: the objectives of a State’s physical protection regime; the elements of a State’s physical protection regime for nuclear material and nuclear facilities; the requirements for measures against unauthorized removal of nuclear material in use and in storage; the requirements for measures against sabotage of nuclear facilities and nuclear material in use and in storage; and the requirements for measures against unauthorized removal and sabotage of nuclear material during transport.

No.

Description

1.2.1.2

Code of Conduct on the Safety and Security of Radioactive Sources and supplementary Guidance on the Import and Export of Radioactive Sources:

a

Objectives of the Code and Guidance:

The objectives of the Code and Guidance are, through the development, harmonization and implementation of national policies, laws and regulations, and through the fostering of international cooperation, to (I) achieve and maintain a high level of safety and security of radioactive sources; (ii) prevent unauthorized access or damage to, and loss, theft or unauthorized transfer of such sources so as to reduce the likelihood of accidental harmful exposure to such sources or the malicious use of such sources to cause harm to individuals, society or the environment; and (iii) mitigate or minimize the radiological consequences of accidents or malicious acts involving a radioactive source.

b

Scope of the Code and Guidance:

The Code applies to all radioactive sources listed in Annex I that may pose a significant risk to individuals, society and the environment. The Code does not apply to nuclear material as defined in the CPPNM, except for sources incorporating plutonium-239. The Code does not apply to radioactive sources within military or defence programmes.

The Guidance applies to the Category 1 and 2 sources within the scope of the Code.

c

Recommendations to States:

The Code establishes guidance for each State regarding the legislation and regulations that should be in place.

It further recommends that the regulatory body be granted appropriate authority and resources, and sets out a number of functions that the regulatory body should have. The Code provides recommendations on the import and export of radioactive sources (supplemented by the Guidance).

In particular, the Code recommends that States:

Take appropriate measures to ensure the promotion of safety culture and of security culture with respect to radioactive sources and that any such sources within their territory, or under their jurisdiction or control, are safely managed and securely protected;

Have in place an effective national legislative and regulatory system of control over the management and protection of radioactive sources;

Ensure that appropriate facilities and services for radiation protection, safety and security are available to, and used by, the persons who are authorized to manage radioactive sources. Such facilities and services include searching for missing sources and securing found sources; intervention in the event of an accident or malicious act involving a radioactive source; calibration of radiation monitoring equipment, etc.;

Ensure that adequate arrangements are in place for appropriate training of the staff of its regulatory body, its law enforcement agencies and its emergency services organizations;

Establish a national register of radioactive sources. The information contained in that register should be appropriately protected. States should endeavour to harmonize the formats of their registers to facilitate efficiency in information exchange;

Ensure that information concerning any loss of control over radioactive sources or any incidents, with potential transboundary effects involving such sources, is provided promptly to potentially affected States through established IAEA or other mechanisms;

Promote awareness about orphan sources and emphasize to those dealing with radioactive sources their responsibilities for the safety and security of radioactive sources;

Define domestic threat, and assess vulnerability with respect to this threat for the variety of sources used within the territory, based on the potential for loss of control and malicious acts involving one or more radioactive sources;

Take appropriate measures consistent with national law to protect the confidentiality of any information that is received in confidence under the Code from another State or through participation in an activity carried out for implementation of the Code;

Under the Guidance, States are encouraged to fulfil various requirements for the export of Category 1 and Category 2 sources within the scope of the Code; and

States are also advised to nominate a point of contact for the purpose of facilitating the export and/or import of radioactive sources in accordance with the Code and the Guidance.

1.2.2 Non-binding instruments under the auspices of the United Nations:

No.

Description

1.2.2.1

The United Nations Global Counter-Terrorism Strategy (UNGCTS) (A/RES/60/288):

a

Objective of the UNGCTS:

A comprehensive strategy to fight terrorism strengthens the capacity of States and the role of the UN system to prevent and combat terrorism, and the rule of law, while also promoting fundamental human rights and the rule of law.

b

Scope of the UNGCTS:

The plan of action in the strategy consists of 50 numbered provisions arranged in the following main sections:

Measures to address the conditions conducive to the spread of terrorism;

Measures to prevent and combat terrorism;

Measures to build States’ capacity to prevent and combat terrorism and to strengthen the role of the United Nations system in this regard; and

Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.

Nuclear Security Measures set out in the UNGCTS

These measures are:

Prosecute or extradite perpetrators of terrorist acts;

Cooperate and coordinate in combating nuclear smuggling;

Improve border and customs controls;

Coordinate response to terrorist attacks;

Improve security and protection of vulnerable targets;

Encourage voluntary contributions for technical assistance;

Share best practices in counter-terrorism capacity building; and

Reform and modernize border management systems.

Resources:

IAEA Nuclear Security Plan 2010-2013; and

IAEA the International Legal Framework for Nuclear Security.

Peaceful ways to use Nuclear Energy

Yearly Archives: 2013

Chapter 65: Nuclear Energy: Security – International Legal Framework

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	No.	Description
1.1.2		Primary legal Instruments under the Auspices of the United Nations International Convention for the Suppression of Acts of Nuclear Terrorism (Nuclear Terrorism Convention):
	a	Objective of the Nuclear Terrorism Convention:
		While explicitly recognizing the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interests in the potential benefits to be derived from the peaceful application of nuclear energy, the Nuclear Terrorism Convention seeks to prevent and punish acts of nuclear terrorism.
	b	Scope of the Nuclear Terrorism Convention:
		The Nuclear Terrorism Convention has a broader scope than the CPPNM and the Amendment thereto to the extent that it criminalizes acts involving ‘radioactive material’, which includes not only nuclear material, but also other radioactive material, as defined by the Convention. It also brings under its scope, nuclear material and facilities used or retained for military purposes, which are explicitly excluded from the scope of the CPPNM and of its 2005 Amendment.
	c	Obligations of States Parties:
		States Parties are obliged to establish their jurisdiction and to make the offences listed in Article 2 punishable under their domestic law and to provide for extradition or prosecution of alleged offenders under the principle of aut dedere aut judicare (extradite or prosecute); States Parties are also obliged to cooperate and provide for mutual assistance, notably in relation to criminal investigations and extradition; States Parties are obliged to take appropriate measures in order to inform, where appropriate, international organizations in respect of the commission of offences set forth in Article 2 as well as preparations to commit such offences about which they have learned; States Parties shall inform the UN Secretary-General of their competent authorities and liaison points responsible for sending and receiving the information referred to in Article 7. The Secretary-General shall communicate such information regarding competent authorities and liaison points to all States Parties and the IAEA. Such authorities and liaison points must be accessible on a continuous basis; States Parties shall make every effort to adopt appropriate measures to ensure the protection of radioactive material taking into account relevant IAEA recommendations and functions; Upon seizing or otherwise taking control of radioactive material, devices or nuclear facilities, following the commission of an offence set forth in Article 2, the State Party in possession of such items shall (a) take steps to render harmless the radioactive material, device or nuclear facility; (b) ensure that any nuclear material is held in accordance with applicable IAEA safeguards; and (c) have regard to physical protection recommendations and health and safety standards published by the IAEA; A State Party in possession of radioactive material, a device or nuclear facility may request the assistance and cooperation of other States Parties, in particular the States Parties concerned, and any relevant international organizations, in particular the IAEA. States Parties and the relevant international organizations are encouraged to provide assistance pursuant to this paragraph to the maximum extent possible; and States Parties involved in the disposition or retention of radioactive material, a device or nuclear facility pursuant to the present article shall inform the Director General of the IAEA of the manner in which such an item was disposed of or retained.

	No.	Description
1.1.3		Primary legal instruments under the auspices of the International Maritime Organization (IMO):
1.1.3.1		The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988 SUA Convention):
1.1.3.2		The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, Rome, 1988 (1988 Fixed Platforms Protocol):
1.1.3.3		The 2005 Protocol to the Fixed Platforms Protocol:
	a	Objective of the IMO Instruments:
		The main purpose of the SUA Convention and the Protocols thereto is to suppress unlawful acts against ships and fixed platforms and to ensure that appropriate action is taken against alleged perpetrators.
	b	The 2005 Protocols deal with nuclear material and explicitly refer to the NPT and to the IAEA safeguards agreements. The definitions of “source material” and “special fissionable material” are those set out in Article XX of the IAEA Statute.
	c	Obligations of States Parties:
		Under the 1988 IMO instruments, States Parties are obliged to include certain offences in their domestic legislation, to establish jurisdiction accordingly and to provide for prosecution or extradition of alleged offenders; Pursuant to the 2005 Protocols, States Parties are obliged to criminalize additional offences, including the unlawful transportation of nuclear material on board a ship; specifically, any explosive device; nuclear weapons; any source material or special fissionable material knowing that it is intended to be used in a nuclear explosive activity or in any other nuclear activity not under safeguards pursuant to an IAEA comprehensive safeguards agreement; or any equipment, materials or software or related technology that significantly contributes to the design, manufacture or delivery of a (nuclear) weapon, with the intention that it will be used for such purpose; and The 2005 Protocol to the 1988 SUA Convention makes it an offence to transport a person on board a ship knowing that the person has committed an act that constitutes an offence set forth in the Protocol or an offence set forth in any treaty listed in the Annex to the Protocol.

	No.	Description
1.1.4		UN Security Council resolutions adopted under Chapter VII of the UN Charter:-
		Resolution 1373 (2001):
	a	Objective of UNSCR 1373 (2001):
		The primary focus of UNSCR 1373 (2001) is on preventing and suppressing the financing and preparation of any acts of terrorism. Acting under Chapter VII, the Security Council, inter alia, reaffirmed “Its unequivocal condemnation of the (11 September 2001) terrorist attacks” and expressed “its determination to prevent all such acts.” To that end, the Security Council called on “States to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism.”
	b	Obligations of States under Chapter VII of the UN Charter:
		All States are obliged to prevent and suppress terrorist financing; criminalize funding of terrorism; freeze funds and financial assets of persons involved in terrorist acts; and prohibit making funds available for the benefit of persons committing terrorist acts: All States are further obliged to refrain from any form of support to terrorists; take necessary steps to prevent terrorist acts; deny safe haven to terrorists or financers of terrorism; prevent terrorists from using their territories against other States; bring terrorists and those financing terrorism to justice with appropriate penalties; assist in criminal investigations and proceedings; prevent terrorist movement through border controls and controls of identity papers; All States are called upon to, inter alia, become parties as soon as possible to the relevant international conventions and protocols relating to terrorism; and The Security Council establishes and makes operational a committee to monitor implementation of UNSCR 1373 (2001) and to which States are required to report on the steps they have taken to implement the resolution.

	No.	Description
1.1.4.1		Resolution 1540 (2004):
	a	Objectives of UNSCR 1540 (2004):
		The Security Council affirms “that proliferation of nuclear…weapons, as well as their means of delivery, constitute a threat to international peace and security” “its resolve to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear…weapons and their means of delivery…and “its support for multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear…weapons.” The Security Council also expresses its grave concern about “the threat of terrorism and the risk that non-State actors may acquire, develop, traffic in or use nuclear…weapons and their means of delivery” and that “the threat of illicit trafficking in nuclear…weapons and their means of delivery, and related materials25, which adds a new dimension to the issue of proliferation of such weapons and also poses a threat to international peace and security.”
	b	Obligations of States under Chapter VII of the UN Charter: All States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear weapons and their means of delivery; All States shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear weapons and their means of delivery, in particular for terrorist purposes, as well as ancillary crimes associated therewith; All States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear weapons and their means of delivery, including by establishing appropriate controls over related materials such as effective measures to account for and secure such items in production, use, storage or transport; appropriate effective physical protection measures; appropriate effective border controls and law enforcement efforts; appropriate effective national export and transhipment controls over such items, and appropriate criminal or civil penalties for violations of such export controls; All States are obliged to promote the universal adoption and full implementation of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear weapons; to adopt national rules and regulations to ensure compliance with their commitments under the key multilateral non-proliferation treaties; and to renew and fulfil their commitment to multilateral cooperation in particular within the framework of the IAEA; All States are obliged to take cooperative action to prevent illicit trafficking in nuclear weapons, their means of delivery and related materials; and The Security Council establishes and makes operational a committee to monitor implementation of UNSCR 1540 (2004) and to which States are required to report on the steps they have taken to implement the resolution.

	No.	Description
1.2.1.1		Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Revision 5):
	a	Objective of INFCIRC/225/Revision 5:
		To achieve effective physical protection against the theft or unauthorized removal of nuclear material and against the sabotage of nuclear facilities by individuals or groups.
	b	Recommendations to States:
		The scope is the physical protection of nuclear material and of nuclear facilities for civil purposes. States may decide whether or not to extend the publication’s use to other purposes.
	c	Recommendations to States:
		The recommendations in INFCIRC/225/Revision 5 relate to: the objectives of a State’s physical protection regime; the elements of a State’s physical protection regime for nuclear material and nuclear facilities; the requirements for measures against unauthorized removal of nuclear material in use and in storage; the requirements for measures against sabotage of nuclear facilities and nuclear material in use and in storage; and the requirements for measures against unauthorized removal and sabotage of nuclear material during transport.

	No.	Description
1.2.1.2		Code of Conduct on the Safety and Security of Radioactive Sources and supplementary Guidance on the Import and Export of Radioactive Sources:
	a	Objectives of the Code and Guidance: The objectives of the Code and Guidance are, through the development, harmonization and implementation of national policies, laws and regulations, and through the fostering of international cooperation, to (I) achieve and maintain a high level of safety and security of radioactive sources; (ii) prevent unauthorized access or damage to, and loss, theft or unauthorized transfer of such sources so as to reduce the likelihood of accidental harmful exposure to such sources or the malicious use of such sources to cause harm to individuals, society or the environment; and (iii) mitigate or minimize the radiological consequences of accidents or malicious acts involving a radioactive source.
	b	Scope of the Code and Guidance:
		The Code applies to all radioactive sources listed in Annex I that may pose a significant risk to individuals, society and the environment. The Code does not apply to nuclear material as defined in the CPPNM, except for sources incorporating plutonium-239. The Code does not apply to radioactive sources within military or defence programmes. The Guidance applies to the Category 1 and 2 sources within the scope of the Code.
	c	Recommendations to States:
		The Code establishes guidance for each State regarding the legislation and regulations that should be in place. It further recommends that the regulatory body be granted appropriate authority and resources, and sets out a number of functions that the regulatory body should have. The Code provides recommendations on the import and export of radioactive sources (supplemented by the Guidance). In particular, the Code recommends that States: Take appropriate measures to ensure the promotion of safety culture and of security culture with respect to radioactive sources and that any such sources within their territory, or under their jurisdiction or control, are safely managed and securely protected; Have in place an effective national legislative and regulatory system of control over the management and protection of radioactive sources; Ensure that appropriate facilities and services for radiation protection, safety and security are available to, and used by, the persons who are authorized to manage radioactive sources. Such facilities and services include searching for missing sources and securing found sources; intervention in the event of an accident or malicious act involving a radioactive source; calibration of radiation monitoring equipment, etc.; Ensure that adequate arrangements are in place for appropriate training of the staff of its regulatory body, its law enforcement agencies and its emergency services organizations; Establish a national register of radioactive sources. The information contained in that register should be appropriately protected. States should endeavour to harmonize the formats of their registers to facilitate efficiency in information exchange; Ensure that information concerning any loss of control over radioactive sources or any incidents, with potential transboundary effects involving such sources, is provided promptly to potentially affected States through established IAEA or other mechanisms; Promote awareness about orphan sources and emphasize to those dealing with radioactive sources their responsibilities for the safety and security of radioactive sources; Define domestic threat, and assess vulnerability with respect to this threat for the variety of sources used within the territory, based on the potential for loss of control and malicious acts involving one or more radioactive sources; Take appropriate measures consistent with national law to protect the confidentiality of any information that is received in confidence under the Code from another State or through participation in an activity carried out for implementation of the Code; Under the Guidance, States are encouraged to fulfil various requirements for the export of Category 1 and Category 2 sources within the scope of the Code; and States are also advised to nominate a point of contact for the purpose of facilitating the export and/or import of radioactive sources in accordance with the Code and the Guidance.

	No.	Description
1.2.2.1		The United Nations Global Counter-Terrorism Strategy (UNGCTS) (A/RES/60/288):
	a	Objective of the UNGCTS:
		A comprehensive strategy to fight terrorism strengthens the capacity of States and the role of the UN system to prevent and combat terrorism, and the rule of law, while also promoting fundamental human rights and the rule of law.
	b	Scope of the UNGCTS:
		The plan of action in the strategy consists of 50 numbered provisions arranged in the following main sections: Measures to address the conditions conducive to the spread of terrorism; Measures to prevent and combat terrorism; Measures to build States’ capacity to prevent and combat terrorism and to strengthen the role of the United Nations system in this regard; and Measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism. Nuclear Security Measures set out in the UNGCTS These measures are: Prosecute or extradite perpetrators of terrorist acts; Cooperate and coordinate in combating nuclear smuggling; Improve border and customs controls; Coordinate response to terrorist attacks; Improve security and protection of vulnerable targets; Encourage voluntary contributions for technical assistance; Share best practices in counter-terrorism capacity building; and Reform and modernize border management systems.