Legal Framework for Nuclear Security: Upgrading, Streamlining, and Enforcement

1. Legal Framework for Nuclear Security: Upgrading, Streamlining, and Enforcement By Igor Khripunov Conference on “The 2012 Seoul Nuclear Security Summit and Next Generation Nuclear Security” 2 November 2011, Seoul, ROK

2. International Legal Framework • Although nuclear security is primarily a national responsibility, the international framework is designed to achieve sustainability, consistency, and coordination in meeting nuclear-related threats • Unlike the fields of nuclear safety and nonproliferation, no single international instrument establishes the basic legal regime for addressing nuclear security or terrorism • Having been developed in a number of forums and rapidly evolving threat environment, this framework reflects a number of inconsistencies, overlaps, duplication and gaps

3. Washington Nuclear Security Summit: Communiqué and Work Plan • International Convention for the Suppression of Acts of Nuclear Terrorism • Achieve universality as soon as possible • Assist states, as appropriate and upon their request, to implement it • Encourage discussions among State parties to consider measures for its effective implementation (article 20) • Convention on the Physical Protection of Nuclear Material • Work towards its universal adherence and accelerate the ratification process of the 2005 Amendment • Call on all states to act In accordance with the objective and purpose • Assist states, as appropriate and upon their request, to implement

4. Washington Security Summit: Communiqué and Work Plan • UNSCR 1540 • Support the continued dialogue between the UNSCR 1540 Committee and states as well as strengthen international cooperation • Support the activities of the UNSCR 1540 Committee to promote full implementation • Note the outcome of the Comprehensive Review including the consideration of the establishment of a voluntary fund • Recognize the importance of evaluating and improving physical protection system to ensure the participating countries are capable of achieving the objectives of IAEA Nuclear Security Series documents and INFCIRC/225 • Encourages states to provide technical assistance New Developments: Adoption of UNSCR 1977, extension of UNSCR 1540 by 10 years, establishment of Voluntary Fund, recognition of the 2010 NSS and others.

5. Challenges • Slow ratification and lack of universality • Substantive and procedural discrepancy • Obligations subject to conflicting interpretations • Insufficient monitoring • Inadequate domestic implementation • Poor vertical and horizontal coordination • Emerging “grey zone” between binding (hard) and nonbinding (soft) instruments • Overlap between safety and security instruments

6. Legal Framework: Three Interacting Clusters

7. Legal Framework: Three Interacting Clusters Traditional binding instruments • Under IAEA auspices: • 1980 Convention on Physical Protection of Nuclear Materials (CPPNM) • 2005 Amendment to CPPNM (not in force, 47 ratifications) • 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (other safety related instruments) • Under UN General Assembly auspices: • 1997 International Convention for the Suppression of Terrorist Bombing • 2005 International Convention fro the Suppression of Acts of Nuclear Terrorism (and others under UNGA and specialized agencies) • Under UN Security Council auspices (Chapter VII) • UNSCR 1373 (2001) • UNSCR 1456 (2003) • UNSCR 1540 (2004) • UNSCR 1977 (2011)

8. Legal Framework: Three Interacting Clusters Complementary nonbinding • Global Initiative to Combat Nuclear Terrorism (GICNT) (82 partners) • Proliferation Security Initiative (98 states endorsed SIP) • Nuclear Suppliers Group (47 members) • G8 Global Partnership • Communiqué and the Work Plan of the Nuclear Security Summit, April 2010 (47 participating states) • Political declarations of national leaders in the uni- and multilateral contexts

9. Legal Framework: Three Interacting Clusters Recommendatory nonbinding • UN General Assembly and Security Council Resolutions • 2004 Code of Conduct on the Safety and Security of Radioactive Sources (IAEA) • 2005 Guidance on the Import and Export of Radioactive Sources (IAEA) • 1999 INFCIRC 225/Rev.5 (corr.), The Physical Protection of Nuclear Materials and Nuclear Facilities (IAEA) • Nuclear Security Series documents (IAEA)

10. Legal Framework: Conceptual Solutions • Need to provide compelling evidence that nuclear terrorism is real and consequences of one single act will plunge the entire world into a long-term crisis • Need to provide incentives for some countries to cooperate in strengthening nuclear security architecture by identifying synergies between nuclear security measures and national development goals • Need to rationalize the existing legal framework by acting upon and strengthening the measures already in place rather that launching new ambitious initiatives Goal: A comprehensive nuclear security regime based on shared threat perception, clear mandate and enforceable standards

11. Legal Framework: Solutions • 1. Consider provisional application of the 2005 Amendment to the CPPNM pending its formal entry into force • Though provisional application of the 2005 Amendment is not envisaged in its text, many other legal instruments have the provision • The relevant clause of the provisional application would be Article 25.1 (b) of the 1969 Vienna Convention on the Law of Treaties • A group of states could issue a statement of their intention to apply the Amendment provisionally either at a free-standing meeting or at a relevant forum, such as the IAEA General Conference

12. Legal Framework: Solutions • 2. Consider conducting combined review meetings of the CPPNM and Nuclear Terrorism Convention • These two key conventions have parallel provisions, the NTC having been modeled on the CPPNM but without a specific provision mandating a review meeting • All states adhering to the NTC have also adhered to the CCPNM • The joint review to be initiated by the IAEA as the CPPNM depository will contribute to more predictable, transparent and coordinated implementation

13. Legal Framework: Solutions • 3. Evaluate implications of the UNSCR 1540 extension by ten years and adoption of UNSCR 1977 for nuclear security and counterterrorism. • National Implementation Plans (on a voluntary basis) • Cooperation with International, regional, and sub-regional organizations • Funding mechanisms • “In-kind” contributions or cost-free training and expertise • Recognition of the importance of the Washington Nuclear Security Summit for UNSCR 1540 implementation.

14. Legal Framework: Solutions • 4. Identify specific synergies in key nuclear safety and nuclear security instruments in order to ensure mutual reinforcement and coordinated implementation • Convention on Early Notification of a Nuclear Accident • Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency • Convention on Nuclear Safety • Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management

15. Legal Framework: Solutions • Determine the relevance of other thirteen counterterrorism conventions and protocols to nuclear security and counterterrorism and coordinate their implementation/ratification/universality with all depositories including UN specialized agencies • The September 2010 ICAO Beijing Convention and Protocol: • Article 1 (1) • Article 1 (3)

16. Legal Framework: Solutions • 6. Determine the relevance of other thirteen counterterrorism conventions and protocols to nuclear security and counterterrorism and coordinate their implementation/ratification/universality with all depositories including UN specialized agencies • The 2005 Protocol to the 1988 IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (2005 SUA Protocol) Protocol • Protocol covers “any explosive, radioactive material or BCN (biological, nuclear, chemical) weapons in a manner that causes or likely to cause death or serious injury or damage” • Protocol entered into force 28 July 2010

17. Legal Framework: Solutions • 7. Optimize the balance and interaction between the binding and nonbinding elements of the legal framework and promote, where appropriate, “hardening” of individual “soft” arrangements. • The Code of Conduct on the Safety and Security of Radioactive Sources • In his Prague April 2009 address President Obama proposed to “institutionalize” the Code (he also referred to the need for institutionalizing PSI) • Most state parties have made commitments to its implementation • Over the last two years there have been discussions to turn the Code into a binding legal instrument

18. Legal Framework: Solutions • 8. Consider options for introducing into the international legal framework clear and specific provisions that would encourage rendering comprehensive and readily available assistance to victims of nuclear terrorism with a view to facilitating their transition to dignified and fruitful life • UN Global Counter-Terrorism Strategy (2006) • Fukushima Lessons

19. Legal Framework: Solutions • 9. Develop a consensus to strengthen the nuclear security mandate of the International Atomic Energy Agency as the first step toward authorizing the Agency to get access to and verify the nuclear security efforts of member states IAEA guidance in nuclear security is still provided only upon request as it does not have the authority to verify the physical protection in states • IAEA has not been able to establish a baseline global security standard to be compiled by all state parties • IAEA security activity relies almost exclusively on extra-budgetary contributions to the voluntary Nuclear Security Fund (about $30 million per year)