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Dec 31, 2015

Physical Protection Convention Amendment to Enter Into Force With Hopes It Will Prevent a Black Swan Nuclear Event

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“There once was a time when the world thought that swans were only white. Then in 1697 the Dutch explorer, Willem de Vlaming, discovered black swans on the west coast of Australia. He took two specimens back to Europe and the zoology world said of course, it was obvious black swans would exist.”16

This was the opening section of Australian Foreign Minister Julie Bishop’s address to the 2014 Nuclear Security Summit in The Hague, The Netherlands.17  The Minister continued that today, “a black swan event is a metaphor for an event that is highly improbable, highly unlikely, highly unusual, and yet, should it occur, it may be said that in hindsight it may have been foreseen.” She said, “Our presence in The Hague should be seen in the context of a black swan event, a nuclear terrorist attack, that may be unlikely, improbable, unthinkable. However, we cannot allow a failure of imagination to ignore the possibility of such a catastrophic event.”

With the aim of preventing a nuclear security-related black swan event, global leaders met again in April 2016 in Washington D.C. for the final Nuclear Security Summit. Since US President Obama launched his nuclear security initiative in Prague in 2009, a multifaceted approach to global nuclear security issues has been pursued. One focus has been to strengthen the international legal basis for nuclear security, including achieving the entry into force of the Amendment to the Convention on the Physical Protection of Nuclear Material (CPPNM Amendment). At the end of the Nuclear Security Summit, it was announced that this objective has been fulfilled, and the CPPNM Amendment will enter into force for all contracting states within a few months.

The Convention on the Physical Protection of Nuclear Material (CPPNM) was signed in 1980 and, in 2005, a Diplomatic Conference was held to strengthen the CPPNM. The result was the CPPNM Amendment. However, ratification of the CPPNM Amendment by two-thirds of the contracting parties to the CPPNM was required to bring the CPPNM Amendment into force. Prior to the Nuclear Security Summit, the White House said that over 80 countries had ratified the CPPNM since 2009. On April 1, 2016, it was announced that as a result of 10 new ratifications in the lead-up to and during the final Nuclear Security Summit, the CPPNM Amendment reached the 102 ratifications needed to bring it into force.18  The CPPNM will enter into force on May 8, 2016.

Together with the International Convention on Suppression of Acts of Nuclear Terrorism and certain UN Security Council resolutions, the CPPNM and CPPNM Amendment contain the primary international obligations in the area of nuclear security. The CPPNM, as amended, is intended “to achieve and maintain worldwide effective physical protection of nuclear material used for peaceful purposes and of nuclear facilities used for peaceful purposes; to prevent and combat offences relating to such material and facilities worldwide; as well as to facilitate co-operation among States Parties to those ends.”19  The scope of the CPPNM is restricted to nuclear material used for peaceful purposes while in international nuclear transport,20 while the CPPNM Amendment expands the application of the CPPNM to nuclear facilities and material in peaceful domestic use, storage and transport.21 Together, the CPPNM and CPPNM Amendment require contracting parties to:22

  • Physical protection regime: Establish, implement and maintain an appropriate physical protection regime applicable to nuclear material and nuclear facilities under its jurisdiction, with the aim of protecting against theft, ensuring measures are in place to locate any missing or stolen nuclear material, protect nuclear material and facilities against sabotage and mitigate any radiological consequences of sabotage. This commitment includes establishing a legal and regulatory framework to govern physical protection and requires application of specific levels of physical protection (with such levels being set out in Annexes I and II). In implementing these obligations, contracting parties are to apply, if reasonable and practicable, a set of “Fundamental Principles of Physical Protection of Nuclear Material and Nuclear Facilities.” These “Fundamental Principles” are introduced via the CPPNM Amendment and include principles relating to the responsibilities of the State and the license holders, security culture, defense in depth, quality assurance and confidentiality.23
  • Import and export assurances: Undertake not to export or import nuclear materials or to allow transit through their territories of such materials unless they have received assurances that these materials will be protected during international transport in accordance with the levels of protection determined by the Convention.
  • Criminalize acts: Criminalize specified acts, including unlawful possession or transport of nuclear material, theft, using or threatening to use nuclear material to cause harm and interfering with operations of nuclear facilities with the intent to cause harm. Each contracting party is to establish jurisdiction over these offences in the following circumstances (i) where the offence is committed in its territory or on board a ship or aircraft registered in the state; (ii) where the alleged offender is a national of the state; (iii) where the alleged offender is present in its territory and is not extradited; or (iv) when the state is involved in international nuclear transport as the exporting or importing state (optional).
  • Prosecution and extradition: Prosecute or extradite those accused of committing such acts. Importantly, the offences listed in the CPPNM, as amended, will be deemed to be included as extraditable offences in any extradition treaty existing between contracting parties. The CPPNM Amendment strengthens the extradition provision by stating that none of the offences are regarded as a political offence and, as such, a request for extradition cannot be refused solely on the grounds that it concerns a political offence.24

In 2009 in Prague, President Obama classified the risk of nuclear terrorism, however unlikely to occur, as the most immediate and extreme threat to global security. Upon entry into force of the CPPNM Amendment, international nuclear security obligations will be further strengthened, with hopes they will aid in the prevention of a nuclear security-related “black swan event.”

16 Australia’s Foreign Minister’s address to the 2014 Nuclear Security Summit in The Hague, The Netherlands. Available at: http://foreignminister.gov.au/speeches/Pages/2014/jb_sp_140325.aspx?w=tb1CaGpkPX%2FlS0K%2Bg9ZKEg%3D%3D
17 Available at: http://foreignminister.gov.au/speeches/Pages/2014/jb_sp_140325.aspx?w=tb1CaGpkPX%2FlS0K%2Bg9ZKEg%3D%3D
18 In 2016, 10 States ratified the 2005 Amendment to the CPPNM allowing it to reach the required two-thirds necessary to enter into force: Azerbaijan (Mar 31), Cameroon (Apr 1), Côte d'Ivoire (Feb 10), Kuwait (Apr 1), Marshal Islands (Mar 30), Montenegro (Apr 1), New Zealand (Mar 18), Pakistan ( Mar 24), Paraguay (Mar 11) and Serbia (Mar 30).
19 Article 1.A, Unofficial English version of the text of the Convention on the Physical Protection of Nucleal Material, adopted on 26 October 1979, reflecting the Amendment adopted by the States Parties to the Convention on 8 July 2005, produced by the IAEA.
20 Article 2.1, CPPNM.
21 Article 3, CPPNM Unofficial Consolidated Text produced by the IAEA, available at: https://ola.iaea.org/ola/documents/ACPPNM/Unofficial-consolidated-text-English.pdf
22 Article 2A, CPPNM Consolidated Text.
23 Article 2A.3, CPPNM Consolidated Text.
24 CPPNM Amendment para.10, inserting a new art.11A.

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