United States: Amendment To The Convention On The Physical Protection Of Nuclear Material Enters Into Force

On May 8, 2016, the amendment to the Convention on the Physical Protection of Nuclear Material ("CPPNM") , ("CPPNM Amendment") entered into force. The CPPNM Amendment revises the CPPNM by seeking to further strengthen the international legal basis for nuclear security, including through applying physical protection levels to nuclear facilities. This publication explains the background to the CPPNM Amendment, as well as summarizes some of its main provisions and its impact on contracting parties. It also considers the concepts and standards enshrined in the CPPNM Amendment that warrant attention by nuclear licensees, their contractors and financial institutions doing business in the nuclear sector.

Overview of the International Nuclear Security Regime

Unlike for nuclear safety, there is no international convention dedicated to nuclear security. Instead, there exist a number of diffuse nuclear security-related conventions and other instruments, including the:

  • CPPNM and its Amendment;
  • the International Convention on the Suppression of Acts of Nuclear Terrorism; and
  • the UN Security Council's Resolutions 1373 and 1540.

Of these, the primary instrument dedicated to nuclear security is the CPPNM, and now its Amendment.

While far-reaching in their respective areas, prior to the CPPNM Amendment, none of these instruments prescribed uniform international standards for nuclear security at nuclear facilities. Instead, according to the International Atomic Energy Agency ("IAEA"), the international legal framework has developed in a complex manner and consists of a broad collection of legally binding and non-binding international instruments that can be difficult to1 piece together.

Recently, however, with a growing recognition that the ability to prevent, detect and respond to nuclear security threats within one state is affected by the adequacy of nuclear security measures taken by other States, particularly when nuclear material is transported across borders and in an era of global terrorism, the impetus for international cooperation (as enshrined in international nuclear security conventions) has increased significantly, including due to the Nuclear Security Summits, the latest of which was held in Washington D.C. in March 2016.2

Background to the CPPNM Amendment

Structure and Purpose of the CPPNM

The CPPNM entered into force on 8 February 1987. It consists of two main components. The first concerns the application of physical protection arrangements to nuclear material in international transport. The second concerns the prevention, detection and punishment of international offences relating to nuclear material. More specifically, the CPPNM primarily:

  • prescribes "levels" at which contracting States must ensure that different categories of nuclear materials are protected during international nuclear transport, whether during the export, import or transit of such material through their respective territories;3
  • requires contracting States to nominate a central authority and point of contact with responsibility for physical protection and coordinating recovery and response operations relating to the theft, loss, unauthorized removal, use or alteration of nuclear material (or the threat thereof);
  • prescribes certain criminal offenses relating to, inter alia, theft and other unlawful dealings with nuclear material; and
  • seeks to facilitate cooperation among contracting States to these ends. Importantly, however, the scope of the CPPNM is restricted to nuclear material used for peaceful purposes while in international nuclear transport.4

It does not apply to nuclear facilities or to nuclear material used for peaceful purposes but not in international transport. As such, the CPPNM has been considered to insufficiently address international cooperation in respect of the prevention of unauthorized possession of nuclear material.5

Adoption and Ratification of the CPPNM Amendment

Given these limitations, in 1999, a number of contracting States called for the CPPNM to be amended. Several IAEA-led expert meetings ensued, during which it was determined that there was "a clear need to strengthen the international physical protection regime."6

On 8 July 2005, following several international conferences, the CPPNM Amendment was adopted by consensus.7 However, the CPPNM Amendment required ratification by two-thirds of the CPPNM's contracting parties before it could come into force.

The ratification process was initially gradual until, at the first Nuclear Security Summit in Prague in 2009, US President Obama launched his global nuclear security initiative. Classifying the risk of nuclear terrorism as "the most immediate and extreme threat to global security," President Obama stressed that a multi-faceted, global approach was urgently needed to confront it. With the added impetus resulting from such initiative, by the final Nuclear Security Summit in Washington D.C. in April 2016, the CPPNM Amendment had achieved the 102 ratifications necessary for it to enter into force.

Effect of the CPPNM Amendment

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; and to facilitate co-operation among States Parties to those ends."8 Most importantly, the CPPNM Amendment expands the application of the CPPNM beyond international transport of nuclear materials, to both nuclear facilities and nuclear material in peaceful domestic use, storage and transport.9

Although certain contracting States that previously ratified the CPPNM Amendment are likely to have already done so, with entry into force of the CPPNM Amendment, all contracting States will be obliged as a matter of international law to ensure that their respective national legislation implements the additional CPPNM Amendment obligations. Together, the CPPNM and CPPNM Amendment require contracting States to:10

  • 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 (see further discussion below).11
  • 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 aforementioned levels of protection determined by the CPPNM.
  • 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 State is to establish jurisdiction over these offences in the following circumstances:

    • where the offense is committed in its territory or on board a ship or aircraft registered in the state;
    • where the alleged offender is a national of the state;
    • where the alleged offender is present in its territory and is not extradited; or
    • 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 offenses listed in the CPPNM, as amended, will be deemed to be included as extraditable offenses in any extradition treaty existing between contracting States. The CPPNM Amendment strengthens the extradition provision by stating that none of the offenses are regarded as a political offense and, as such, a request for extradition cannot be refused solely on the grounds that it concerns a political offense.12

What This Means for Industry

While the CPPNM Amendment primarily imposes obligations on contracting parties (ie. States) or their respective nuclear regulatory authorities, it also requires States to in turn impose certain obligations directly on license holders.

To prepare for the introduction of the CPPNM Amendment, license holders (whether nuclear facility operators, nuclear material shippers or others) may take particular note of explicit reference to the license holder's prime responsibility for the implementation of physical protection of nuclear material or nuclear facilities.13 This responsibility is based largely on the aforementioned "Fundamental Principles."

In order to comply with both this prime responsibility and the CPPNM Amendment more broadly, license holders will need to (and, where relevant, will need to ensure that their contractors and sub-contractors):

  • reconsider the design, maintenance and improvement of systems of physical protection of nuclear material and nuclear facilities, where appropriate co-operating with the relevant regulator(s), IAEA and other relevant international organizations;
  • reconsider "defense-in-depth" for physical protection of nuclear material and nuclear facilities, to ensure the existence of several layers and methods of protection that must be overcome or circumnavigated by any adversary;
  • review, and if necessary revise or develop, quality assurance policies and programmes relating to physical protection;
  • review, and if necessary revise or develop, emergency procedures and arrangements. In particular, license holders must plan for an unauthorized removal of nuclear material or sabotage of nuclear facilities or nuclear material, and attempts or threats thereof. This will require close collaboration with relevant State authorities;
  • review, and if necessary revise or develop, a positive, institutional nuclear security culture policy within license holder organizations;
  • review, and if necessary revise or develop, confidentiality policies, to prevent the unauthorized disclosure of information which could compromise the physical protection of nuclear material and nuclear facilities; and
  • work with regulators to ensure that the license holder's arrangements satisfy the relevant CPPNM requirements.

For other entities that are not the primary license holders, the CPPNM Amendment contains concepts and standards that warrant attention, particularly for contractors and sub-contractors doing business with license holders. It may also be prudent for companies that have policies for doing business in the nuclear sector (whether individually or through common initiatives such as the Nuclear Power Plant Exporters Principles of Conduct)14 to consider whether any amendments should be made to these policies to take into account and facilitate compliance with the CPPNM Amendment. It would be equally prudent for commercial banks and lending institutions to review their lending policies and guidelines against the CPPNM Amendment to ensure that enhanced nuclear security requirements are appropriately addressed.

Concluding Remarks

Yukiya Amano, Director-General of the IAEA, has reportedly stated that bringing the CPPNM Amendment into force will be the single most important step which the world can take to strengthen nuclear security.15 With the IAEA scheduled to convene a review of the CPPNM Amendment in 2021, the effectiveness of the CPPNM Amendment in promoting international nuclear security will ultimately be judged by its implementation. Notwithstanding this, any instrument that promotes uniform international standards in order to reduce vulnerability to nuclear terrorism must be viewed positively.

Footnotes

1 Foreword, 'The International Legal Framework for Nuclear Security, IAEA International Law Series No. 4, 2011,' available at: http://www-pub.iaea.org/MTCD/publications/PDF/Pub1486_web.pdf.

2 Ibid, page 1.

3 Article 3, CPPNM Unofficial Consolidated Text produced by the IAEA, available at: https://ola.iaea.org/ola/documents/ACPPNM/Unofficialconsolidated-text-English.pdf

4 Article 2.1, CPPNM.

5 Paragraph 2, 'Nuclear Security – Measures to Protect Against Nuclear Terrorism: Report by the Director General of the IAEA,' dated 6 September 2005, available at: https://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf

6 Ibid, paragraph 3.

7 Ibid, paragraph 10. Such adoption was the outcome of a diplomatic conference in which eighty-eight states and the European Atomic Energy Community (Euratom) participated actively and an additional eighteen states and three intergovernmental organizations (namely the IAEA, United Nations and League of Arab States) participated as observers.

8 Article 1A, CPPNM Consolidated Text.

9 Article 3, CPPNM Consolidated Text.

10 Article 2A, CPPNM Consolidated Text.

11 Article 2A.3, CPPNM Consolidated Text.

12 Paragraph 10, CPPNM Amendment, inserting a new Article 11A to the CPPNM.

13 Paragraph 6, CPPNM Amendment, inserting a new Article 2A to the CPPNM.

14 See: http://nuclearprinciples.org/the-principles/.

15 According to any announcement by the IAEA on 13 June 2014, available at: https://www.iaea.org/newscenter/news/securing-nuclear-materials-way-forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions