NONPROLIFERATION AND PHYSICAL PROTECTION

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NON-PROLIFERATION AND PHYSICAL PROTECTION

• I. National Implementation of the Treaty on the
  Non-Proliferation of
• Nuclear Weapons (NPT)
• II. The Agencys (IAEA) Safeguards System
• III. National Implementation of the Convention on
  Physical
• Protection of Nuclear Material (CPPNM) and
  its Amendment
• Protocol
• IV. The Agencys Legislative Assistance
  Activities

Tufan HÖBEK Legal Counsellor Permanent Mission of
Turkey to the United Nations and other
International Organizations in Vienna..
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I. States Obligations Arising out of the
Non-Proliferation Treaty (NPT)

• A Brief History of and Facts about the Treaty
• Three Pillars of the Treaty
• Basic Commitments of a Non Nuclear Weapon State
  (NNWS) under the Treaty

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The Three Pillars of the NPT
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Basic Commitments of a Non-Nuclear Weapon State
under the NPT

• ...not to receive...nuclear weapons or other
  nuclear explosive devices or control over such
  weapons or explosive devices...
• not to manufacture or otherwise acquire
  nuclear weapons or other nuclear explosive
  devices
• and not to seek or receive any assistance in the
  manufacture of nuclear weapons or other nuclear
  explosive devices. (Art II)

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Basic Commitments of a NNWS (cont.)

• to accept safeguards, as set forth in an
  agreement with the IAEA, for the exclusive
  purpose of verification of the fulfilment of its
  obligations assumed under the NPT with a view to
  preventing diversion of nuclear energy from
  peaceful uses to nuclear weapons or other
  explosive devices. (Art.III/1)
• to conclude agreement with the IAEA to meet the
  requirements of this Article... (Art.III/4)

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Basic Commitments of a NNWS (cont.)

• not to provide
• source or special fissionable material, or
• equipment or material especially designed or
  prepared for the processing, use or production of
  special fissionable material,
• to any NNWS for peaceful purposes, unless the
  source or special fissionable material shall be
  subject to the safeguards of the IAEA. (Art.
  III/2)

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II. The Agencys (IAEA) Safeguards System

• International safeguards, as implemented by the
  IAEA, represent a key means of verifying the
  compliance by States with commitments not to use
  nuclear material or technology to develop nuclear
  weapons or other nuclear explosive devices.

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Definitions (INFCIRC/26)

• Agency safeguards means the measures pursuant to
  the Statute to prevent loss or diversion of
  materials, special equipment or principal nuclear
  facilities.
• Diversion means the use by a recipient State of
  fissionable or other materials, facilities or
  equipment supplied by the Agency so as to further
  any military purpose or in violation of any other
  condition prescribed in the agreement between the
  Agency and the State concerning the use of such
  materials, specialized equipment or principal
  nuclear facilities.

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Fundamental Objectives

• to help ensure that nuclear material is not
  diverted for use in the production of nuclear
  weapons or other nuclear explosive devices
• to enable the IAEA to review information, reports
  and records provided by or available in a State
  for the purpose of preventing the unauthorized
  use of nuclear material

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Foundations of the Safeguards System the IAEAs
Statute

• The Agency is authorized to apply safeguards, at
  the request of the Parties, to any bilateral or
  multilateral arrangement, or at the request of a
  State, to any of that States activities in the
  field of atomic energy (Art.III.A.5)
• Projects assisted by the IAEA are subjected to
  the Agencys safeguards to be specified in an
  agreement (Art.XI.F.4)

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Foundations of the Safeguards System the IAEAs
Statute (Cont.)

• The Agency is required to ensure that assistance
  provided by or through it is not used in such a
  way as to further any military purpose (Statute
  Art.II)
• The Agency is authorized to establish and
  administer safeguards to ensure that nuclear
  energy projects carried out by the IAEA or under
  its auspices do not further any military purpose
  (Art.III.A.5)

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Non-Proliferation Treaties and Agreements

• Treaty on the Non-Proliferation of Nuclear
  Weapons (Art.III.1 III.4)
• Regional treaties
• Tlatelolco Treaty (Latin America)
• Rarotonga Treaty (South Pacific)
• Bangkok Treaty (South East Asia)
• Pelidaba Treaty (Africa)
• Bilateral agreements

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Types of Safeguards Agreements

• Comprehensive Safeguards Agreements
  (INFCIRC/153-Corrected)
• - Small Quantities Protocol (SQP)
• Item Specific Safeguards Agreements
  (INFCIRC/66/Rev.2)
• Voluntary Offer Agreements
• Protocols Additional to Safeguards Agreements
• (INFCIRC/540-Corrected)

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Objective of Safeguads under a CSA

• Timely detection of diversion of significant
  quantities of nuclear material from peaceful
  nuclear activities to the manufacture of nuclear
  weapons or other nuclear explosive devices or for
  purposes unknown, and deterrence of such
  diversion by the risk of early detection

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Functions of Safeguards

• Accountancy
• Containment and surveillance
• Inspection

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Basic Commitments of a NNWS under a Comprehensive
Safeguards Agreement (CSA)

• Basic undertaking to accept safeguards on all
  source or special fissionable material in all
  peaceful nuclear activities within the States
  territory or under its jurisdiction or carried
  out under its control anywhere, for the exclusive
  purpose of verifying that such material is not
  diverted to nuclear weapons or other nuclear
  explosive devices

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Basic Commitments of a NNWS under a CSA (Cont.)

• to cooperate with the Agency to facilitate the
  implementation of the safeguards
• to provide the Agency with information concerning
  nuclear material, facilities and activities
• to take the necessary steps to ensure that the
  Agency inspectors can effectively discharge their
  functions
• to establish and maintain a State system of
  accounting for and control of all nuclear
  material

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State System of Account and Control (SSAC)

• The State System of Account and Control should be
  based on a structure of material balance areas.
• Material balance area means an area in or
  outside of a facility such that
• (a) The quality of nuclear material in each
  transfer into or out of each material balance
  area can be determined and
• (b) The physical inventory of nuclear material
  in each material balance area can be determined
  when necessary.

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SSAC (Cont.)

• A State System of Accounting and Control should
  include
• A measurement system
• A system for the evaluation of measurement
  accuracy
• Procedures for reviewing measurement differences
• Procedures for carrying out physical inventories
• A system for the evaluation of unmeasured
  inventories
• A system of records and reports for each material
  balance area
• Procedures for reporting to the IAEA

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Common Elements of a States Regulatory System

• Regulatory Authority
• -Convention on Nuclear Safety (Art.8)
• -Joint Convention on the Safety of Spent Fuel
  Management and on the Safety of Radioactive Waste
  Management (Art.19)
• -Convention on the Physical Protection of
  Nuclear Material (Amendment Protocol Art.6)
• Licensing
• Inspection and Assessment
• Enforcement

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Functions of the Regulatory Authority

• To fulfil its responsibilities, the Regulatory
  Body liases with the IAEA on an on-going basis,
  inter alia, as regards
• the submission of reports required by the
  safeguards agreement
• the provision and updating of information
  concerning nuclear material
• the provision and updating of information
  regarding design of nuclear facilities
• requesting exemption from or termination of
  safeguards on nuclear material
• notification of exports and imports of nuclear
  material
• providing support to the inspectors of the IAEA
• accompanying of IAEA inspectors during
  inspections and visits

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Basic Commitments of a NNWS under an AP

• Provision of additional information on, inter
  alia
• any nuclear fuel cycle research and development
  not involving nuclear material
• information requested by the IAEA on locations
  outside facilities in which nuclear material is
  customarily used (LOFs)
• all buildings on the site of each facility and
  LOF
• the estimated annual capacities of uranium and
  thorium mines and concentration plants

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Basic Commitments of a NNWS under an AP (Cont.)

• source material that has not reached the
  composition and purity suitable for enrichment or
  fuel production
• exempted material
• immediate and high level radioactive waste on
  which safeguards have been terminated
• specified equipment and non-nuclear material

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Basic Commitments of a NNWS under an AP (Cont.)

• Provision of information updates
• Granting complementary access to any location
  specified in the AP
• Provision of access to locations to carry out
  environmental sampling

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III. States Obligations Arising out of the
Convention on Physical Protection of Nuclear
Material (CPPNM)

• A Brief History of and Facts about the Convention
• Scope of the Convention
• Protection of Nuclear Material During
  International Transport
• Duties of Information
• Criminalization
• Jurisdiction
• Prosecute or extradite (Aut Dedere Aut Judicare)
• Fair Treatment
• Mutual Legal Assistance

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Scope of the Convention

• The Convention applies to nuclear material used
  for peaceful purposes while in international
  nuclear transport. (Art.2/1)
• With some exceptions the Convention also applies
  to nuclear material used for peaceful purposes
  while in domestic use, storage and transport.
  (Art.2/2)

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Protection of Nuclear Material During
International Transport

• Each State Party shall take appropriate
  steps...to ensure that, during international
  transport, nuclear material...is protected at
  levels described in Annex I. (Art.3)

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Protection of Nuclear Material During
International Transport (cont.)

• Each State Party shall take measures with a view
  to receiving assurances that nuclear material
  will be protected before
• Exporting or authorizing its export
• Importing or authorizing its import
• Allowing its transit between States that are not
  Parties to the Convention
• Transporting it from a part of the State to
  another part of the same State through
  international waters or airspace (Art.4/1-4)

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Duties of Information

• Each State Party undertakes to ensure that the
  following duties of information are carried out
• The States which the nuclear material is expected
  to transit by land/internal waterways or whose
  airports/seaports it is expected to enter, are
  identified and informed in advance (Art.4/5)
• Central authority or point of contact responsible
  for physical protection of nuclear material and
  for coordinating recovery and response operations
  is identified and made known to other States
  (Art.5/1)

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Duties of Information (cont.)

• States and international organizations are
  informed of any theft, robbery or other unlawful
  taking of nuclear material or credible threat
  thereof (Art.5/2-a)
• Information is exchanged with other States and
  international organizations with a view to
  protecting threatened nuclear material, verifying
  the integrity of the shipping container, or
  recovering unlawfully taken nuclear material
  (Art.5/2-b)
• Confidentiality of any information received in
  confidence is protected (Art.6/1)

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Duties of Information (cont.)

• The Director General of the IAEA (depositary) is
  informed of the States laws and regulations
  which give effect to the Convention (Art.14/1)
• If the State has prosecuted an alleged offender
  for an offence established in accordance with the
  Convention, the final outcome of the proceedings
  is communicated to the States directly concerned
  and to the Director General of the IAEA
  (Art.14/2)

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Criminalization

• Each State Party undertakes to establish the
  following acts as criminal offences punishable by
  appropriate penalties taking into account their
  grave nature
• an act without lawful authority which constitutes
  the receipt, possession, use, transfer,
  alteration, disposal or dispersal of nuclear
  material and which causes or is likely to cause
  death or serious injury to any person or
  substantial damage to property

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Criminalization (cont.)

• a theft or robbery of nuclear material
• an embezzlement or fraudulent obtaining of
  nuclear material
• an act constituting a demand for nuclear material
  by threat or use of force or by any other form of
  intimidation

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Criminalization (cont.)

• a threat
• to use nuclear material to cause death or serious
  injury to any person or substantial property
  damage, or
• to commit the offence of theft or robbery of
  nuclear material in order to compel a natural or
  legal person, international organization or a
  State to do or to refrain from doing any act
• an attempt to commit any offence described above
• an act which constitutes participation in any
  offence described above

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Jurisdiction

• The Convention requires Contracting States to
• establish its jurisdiction over the offences set
  forth
• in Art. 7 based upon
• Territoriality (Art. 8/1a)
• Registration of the ship or aircraft involved
  (Art. 8/1a)
• Nationality of the alleged offender (Art. 8/1b)

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Jurisdiction (Cont.)

• Jurisdiction to be established for extradition or
  prosecution once an alleged offender is present
  in the territory of a State Party (Art.8/2)
• Any criminal jurisdiction exercised in accordance
  with national law (Art.8/3)
• Arbitrary jurisdiction when a State Party is
  involved in international nuclear transport as
  the exporting or importing State (Art. 8/4)

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Aut Dedere Aut Judicare

• Security Council decision 1373 (2001)
• ...Decides also that all States shall
• ...Deny safe haven to those who finance, plan,
• support or commit terrorist acts, or provide safe
• havens (Art. 2/c)

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Aut Dedere Aut Judicare (Cont.)

• ...the State Party in whose territory the alleged
  offender is present shall take appropriate
  measures, including detention, under its national
  law to ensure his presence for the purpose of
  prosecution or extradition...(Art.9)
• The State Party in whose territory the alleged
  offender is present shall, if it does not
  extradite him, submit...the case to its competent
  authorities for the purpose of prosecution...(Art.
  10)

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Political Motives

• No reference to any exception based on political
  or discriminatory grounds
• Security Council decision 1373 (2001)
• Calls upon all States...that claims of
  political motivation are not recognized as
  grounds for refusing requests for the extradition
  of alleged terrorists (Para. 3/g)

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Fair Treatment

• Alleged offenders shall be guaranteed fair
  treatment at all stages of proceedings carried
  out in accordance with the Convention (Art. 12)

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Mutual Legal Assistance

• States Parties shall afford one another the
  greatest measure of assistance in connection with
  criminal proceedings...including the supply of
  evidence at their disposal necessary for
  proceedings...(Art.13)

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Amendment Protocol

• A Brief History of the Protocol
• New Definitions
• Purpose of the Convention
• Scope of the Convention
• Exemption from the Application of the Convention
• Fundamental Principles of Physical Protection of
  Nuclear Material and Nuclear Facilities
• Criminalization
• Denial of a Request for Extradition or Mutual
  Legal Assistance

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New Definitions

• Nuclear Facility (Art.1/d)
• Sabotage (Art.1/e)

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Purpose of the Convention

• to achieve and maintain worldwide effective
  physical protection of nuclear material used for
  peaceful purposes and nuclear facilities used for
  peaceful purposes
• to prevent and combat offences relating to such
  material and facilities worldwide
• to facilitate cooperation among States Parties to
  those ends (Art.1A)

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Scope of the Convention

• The Convention applies to nuclear material used
  for peaceful purposes in use, storage and
  transport and to nuclear facilities used for
  peaceful purposes
• Articles 3, 4 and 5/4 of the Convention also
  apply to nuclear material used for peaceful
  purposes while in international nuclear transport
  (Art.2/1)

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Exemption from the Application of the Convention

• The activities of armed forces during an armed
  conflict (Art.2/4-b)
• The activities undertaken by the military forces
  of a State (Art.2/4-b)
• Nuclear material used or retained for military
  purposes nuclear facility containing such
  material (Art.2/5)

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Fundamental Principles of Physical Protection of
Nuclear Material and Nuclear Facilities

• Responsibility of the State
• Responsibilities During International Transport
• Legislative and Regulatory Framework
• Competent Authority
• Responsibility of the License Holders
• Security Culture

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Fundamental Principles of Physical Protection of
Nuclear Material and Nuclear Facilities (Cont.)

• Threat
• Graded Approach
• Defence in Depth
• Quality Assurance
• Contingency Plans
• Confidentiality

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Criminalization

• Element of environment (Art.7/1-a)
• An act which constitutes the carrying, sending or
  moving of nuclear material into or out of a State
  without lawful authority (Art.7/1-d)
• An act directed against a nuclear facility, or an
  act interfering with the operation of a nuclear
  facility...(Art.7/1-e)
• Threat Element of environment and acts against a
  nuclear facility (Art.7/1-g)
• An act of a person who organizes or directs
  others to commit any offence...(Art.7/1-j)
• An act which contributes to the commission of any
  offence...(Art.7/1-k)

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Denial of a Request for Extradition or Mutual
Legal Assistance

• Not of a nature of political offence or as an
  offence connected with a political offence or as
  an offence inspired by political motives
• Not a ground for denying a request for
  extradition or mutual legal assistance

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IV. The Agencys Legislative Assistance Activities

• Introduction
• Objectives
• Technical Cooperation Projects and Challenges
• Tools
• How to apply for the Agencys legislative
  assistance

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Introduction

• The Office of Legal Affairs (OLA) has provided
  legislative assistance to more than 100 Member
  States since the Agencys inception
• Legislative assistance has been provided,
  however, in a more systematic manner since 1997
  when the first Technical Cooperation Project was
  established for this purpose

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Introduction (Cont.)

• The Agencys Legislative Assistance Programme
  covers all areas i.e. nuclear safety, security,
  safeguards and liability for nuclear damage.
• The Programme has been implemented through a
  multi-faceted approach, i.e. a combination of
• - Workshops and seminars
• - Training of individuals
• - Bilateral assistance and
• - Development of reference material for
  assessment
• and drafting of legislation

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Objectives

• to create awareness in Member States of
  international instruments in the nuclear field
• to enable Member States to comply with their
  international obligations
• to enable Member States to establish national
  legislative frameworks for the safe and peaceful
  uses of nuclear energy and
• to transfer relevant knowledge to Member States
  (sustainability)

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Technical Assistance Projects

• Technical Assistance Project for Africa
• International Expert Group on Nuclear Liability
  (INLEX) Funds
• Nuclear Security Plan
• EU Initiative on Safeguards

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Challenges

• Increasing number of complexity of international
  instruments in the area of safety, security and
  safeguards
• Increasing interest in the field of liability for
  nuclear damage through the work of the INLEX
• Increasing shortage in available outside legal
  expertise

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Tools

• Establishment and training of a pool of legal
  experts from which OLA can draw to provide
  required assistance and training
• Creation and maintenance of an International
  Nuclear Law Website (and underlying database of
  nuclear information)
• Develop new training material in all languages

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Tools (Cont.)

• Convert training material into distance learning
  tools and make them available on the
  International Nuclear Law Website
• Hold standardized training seminars at regular
  intervals in the different regions
• Continue to provide bilateral legislative
  assistance to Member States
• Develop brochure outlining the services available
  under the Legislative Assistance Programme
• Hold workshops on nuclear law for diplomats

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How to Apply

• Member States wishing to benefit from the IAEA
  legislative assistance activities should either
  request the IAEA Office of Legal Affairs or one
  of the technical departments such as the
  Department of the Technical Cooperation.
• International Atomic Energy Agency, P.O. Box
  200, Wagramer Strasse 5, A-1400 Vienna, Austria
• Telephone [phone] Facsmile (431) 2600-7
  E-mailOfficial.Mail_at_iaea.org

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THANK YOU FOR YOUR ATTENTION