Nuclear Law Institute Baden, Austria, 28 th September 2012 The International Legal Framework for Nuclear Security Anthony Wetherall Legal Officer Office of Legal Affairs International Atomic Energy Agency I Legal Basis for Mandate and Activities Nuclear Security Scope of Presentation II Int l Nuclear Security Legal Instruments and Guidance Documents a. instruments b. UN instruments c. IMO instruments d. ICAO instruments 1
PART I Legal Basis for Nuclear Security Mandate and Activities working definition of nuclear security ( programmatic) 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. Advisory Group on Nuclear Security January 2002 2
Legal Basis for NS Mandate & Functions Statute Policymaking Organs Int l Instruments Objective Functions..of the Board of Governors General Conference Functions Recognised Role Depositary Party PART II Int l Nuclear Security Legal Instruments and Guidance Documents 3
www.ola.iaea.org OBSERVATION Multiple pieces: no single int l instrument or initiative addressing nuclear security in a comprehensive manner 4
INT L LEGAL FRAMEWORK FOR NUCLEAR SECURITY Legally Binding Legally Non-binding UN IMO ICAO General Assembly Security Council POST 2001 DEVELOPMENTS Sept. 2006 - UN Global Counter Terrorism Strategy UNSCR 1373 UNSCR 1540 UN - Nuclear Terrorism CPPNM Amendment INFCIRC/225 /Revision 5 NTC 2001 2003 2004 2005 2010 March 2002 1 st nuclear security plan of activities R. Sources Code R. Sources Import/ Export IMO - SUA & Protocols ICAO - Beijing SUA 5
Early Notification & Assistance s CPPNM CPPNM Amendment INFCIRC/225/ Revision 5 Code of Conduct and Guidance BINDING INSTRUMENTS NON-BINDING INSTRUMENTS 1 Nuclear Terrorism CPPNM Early Notification & Assistance (NTC) s UNTC Legislative History & Status Scope & Salient Provisions Key Points 6
KEY POINTS Post-Chernobyl s Establish the legal framework for the int l () EPR system That system is supplemented by practical arrangements and mechanisms (on notification (IEComm), assistance (RANET), co-op. op. (J-PLAN) etc.), including, the s IEC That system is responsive to the changing environment: nuclear security incidents (not covered by the Early Notification ) 13 2 Legislative History & Status Nuclear Terrorism CPPNM (NTC) UNTC Scope & Salient Provisions Key Points 7
3-fold scope of application Physical protection (PP) of nuclear material (NM) Prevent & combat specified offences Int l coop. & info. exchange PP of NM PP of specified Categories (in Annex II) of NM used for peaceful purposes & at specified Levels (in Annex I (such as constant surveillance by escorts and close comm. with response forces )) during int l transport (& incidental storage) BUT not during domestic use, storage & transport Annex I level assurances of protection of NM during 16 int l transport for: exports; imports; transit (by non- SPs); & int l transport between domestic locations 8
Prevent & combat specified offences: NM make punishable specified intentional acts as offences applicable to NM in domestic use, storage & transport a) unlawful receipt, possession, use, transfer, alteration, disposal or dispersal which causes or is likely to cause death, serious injury or substantial property damage b) theft /robbery c) embezzlement or fraudulent obtaining d) a demand by threat or use of force/intimidation e) a threat to use to cause death, serious injury or substantial property damage; or a threat of theft/robbery to compel a person, state or IGO to do or refrain from doing f) an attempt to commit (a)-(c) (c) g) participation g) participation in (a)-(f) (f) 17 Prevent & combat specified offences make the offences punishable by appropriate penalties taking into account their grave nature establish jurisdiction; take such measures to establish jurisdiction over the offences detain; prosecute or extradite ( aut judicare ) alleged offenders dedere aut 18 9
Int l coop. & info. exchange central authority/ point of contact for PP and recovery/response to be made known in recovery & protection of stolen NM by info. sharing in return of stolen/missing unlawfully taken NM guidance on design, maintenance & improvement of PP systems of NM in int l transport 19 greatest measure of criminal proceedings assistance, incl. supply of evidence KEY POINTS First and only int l legally binding undertaking on the PP of NM used for peaceful purposes (not RM or facilities) One of the int l counter terrorism legal instruments Primary focus is PP of NM during int l transport but offences & int l coop provisions What material to protect rather than the precise details of how to protect it >>> INFCIRC/225 225... (SEE FOLLOWING.PPT BY MUHAMMAD KHALIQ, ) 10
3 Legislative History & Status UNTC Nuclear Terrorism CPPNM Amendment (NTC) Scope & Salient Provisions Key Points extended 3-fold scope of application PP of NM/NFs Prevent & combat specified offences Int l coop. & info. exchange 11
PP of NM/ NFs now includes PP of NM used for peaceful purposes in domestic use, storage and transport and of NFs used for peaceful purposes new core undertaking to establish, implement and maintain a PP regime applicable to NM/ NFs, incl. establish an appropriate legislative and regulatory framework; establish an authority for implementation apply insofar as is reasonable and practicable a number 23 apply insofar as is reasonable and practicable a number of Fundamental Principles of PP of NM/ NFs (SEE FOLLOWING.PPT BY MUHAMMAD KHALIQ, ) Prevent & combat specified offences a) [ ] or substantial damage to the environment ; and b)- c) [ ] d) unlawful carrying, sending, or moving of NM into/out of a State (nuclear smuggling/illicit trafficking) e) an act against an NF or interfering with operation: intent to cause or likely to cause death, serious injury or substantial damage to property or environment f) a demand by threat or use of force/intimidation g) a threat to: (i) use to cause [ ] substantial damage to environment; to commit (e); or (ii) to commit (b)-(e) (e) to compel h) an attempt to commit (a)-(e) (e) i) participation in (a)-(h) (h); and j) an act of organization or direction to 24 commit (a)-(h) (h) k) intentional contribution to (a)-(h) (h) by group of persons acting with a common purpose: with aim of furthering criminal activity/purpose by (a)-(g) (g); or made in knowledge of group s intention to commit (a)-(g) (g) 12
Int l cooperation & info. exchange matters within extended scope to the max. extent feasible in case of credible threat of or actual sabotage of NM/NFs guidance on design, maintenance & improvement of national PP systems on NF & NM in domestic use, storage & transport 2 5 KEY POINTS Common 3-foldscope just an extension: PHYSICAL PROTECTION CPPNM & A/CPPNM OFFENCES INT L COOP. 13
KEY POINTS Adopted in 2005 but still some way off from entry into force (2/3rds of CPPNM Parties needed): all CPPNM Parties join the Amendment ASAP act in accordance with its object and purpose until in force all Member States join the CPPNM and Amendment ASAP General Conference Resolution GC(56) (2012) CPPNM & 2005 AMENDMENT: STATUS This map was produced as a reference aid only. The boundaries and names shown and the designations used on this map do not necessarily imply official endorsement or acceptance by the. CPPNM Parties - 145 A/CPPNM Parties - 55 Non-parties 14
4 5 Legislative History & Status Beijing SUA & Protocol Scope & Salient Provisions Key Points KEY POINTS First time cross-over: over: nuclear safety and security Does not specify acts to be established as offences Legally non-binding int l instrument BUT [ ] Supported by political commitments - presently 111+ for the Code and 70+ for its supplementary Guidance Supported by meetings on implementation although no formal binding peer review process 15
6 SUA Treaties & Protocols INFCIRC/225/Revision 5 Legislative History & Status Scope & Salient Provisions Key Points (SEE FOLLOWING.PPT BY MUHAMMAD KHALIQ, ) KEY POINTS Per se non-binding/ mandatory int l recommendations Yet widely recognized/national implementation, bilateral agreements, P&S Agreements) Protection against unauthorized removal of NM Protection against sabotage of NM/NFs and mitigation/minimization of radiological consequences 16
UN INFCIRC/22 Nuclear Terrorism 5/Rev.5 Terrorist Bombings 1540 (2004) UNTC 1373 (2001) CONVENTIONS SECURITY COUNCIL RESOLUTIONS 7 Legislative History & Status Terrorist Bombings Scope & Salient Provisions Key Points 17
8 UNTC UNTC Nuclear Terrorism CPPNM Conventio Nuclear Amendment Terrorism n (NTC) (NTC) Legislative History & Status Scope & Salient Provisions Key Points 9 10 Security Council SUA Treaties & Protocols Legislative History & Status Scope & Salient Provisions Key Points 1373 (2001) threats to int l peace & security by terrorist acts 1540 (2004) non-proliferation of WMD & non-state actors 18
2005 SUA and 2005 SUA Fixed Platforms Protocol 2010 Beijing SUA 11 12 Legislative History & Status 2005 SUA & Protocols Scope & Salient Provisions Key Points 19
13 2010 Beijing SUA Legislative History & Status Scope & Salient Provisions Key Points www.ola.iaea.org 20
Safety Security Safeguards 3S Comprehensive Approach... National Implementing Legislation Basic Concepts NS Substantive Elements incl. Criminalisation Int l Coop. 21
2010 2003 www.ola.iaea.org Thank you for your attention Anthony Wetherall Legal Officer Nuclear and Treaty Law Section Office of Legal Affairs Offices Reporting to the Director General Tel: 0043 (0)1 1 2600 21511 Email: a.wetherall@iaea.org 22