International Convention for the Suppression of Acts of Nuclear Terrorism Enters into Force

On July 7, 2007, the International Convention for the Suppression of Acts of Nuclear Terrorism[1] enters into force. July 7 is the 30th day after the receipt of the 22nd instrument of ratification (from Bangladesh), which the Convention required for its entry into force (Article 25.1). This Insight describes this Convention and its place in the global efforts underway to prevent acts of nuclear terrorism.

Background to the Convention

The idea for a treaty on the suppression of acts of nuclear terrorism originated in the 1990s in the wake of growing concerns about the threat of terrorists using nuclear or radiological material. Worries about terrorists gaining access to nuclear materials date back to earlier periods, as illustrated by the adoption in 1980 of the Convention on the Physical Protection of Nuclear Material.[2] The post-Cold War surge of fears about terrorism generally and, more specifically, terrorism involving biological, chemical, nuclear, or radiological agents led to the establishment by the United Nations (UN) General Assembly in December 1996 of an Ad Hoc Committee mandated "to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism, to supplement related existing international instruments, and thereafter to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism[.]"[3]

Since its establishment, the Ad Hoc Committee[4] has produced three treaties that the UN General Assembly adopted and that have entered into force: the International Convention on the Suppression of Terrorist Bombings (adopted in 1997; entered into force in 2001);[5] the International Convention on the Suppression of Financing of Terrorism (adopted in 1999; entered into force in 2002);[6] and the International Convention on the Suppression of Acts of Nuclear Terrorism (Convention) (adopted in 2005; entered into force in 2007).[7] The Convention represents, therefore, the first anti-terrorism treaty adopted after September 11, 2001. Despite the relevance of many international legal instruments to nuclear terrorism, the UN General Assembly and the Ad Hoc Committee created the Convention because "existing multilateral legal provisions do not adequately address those attacks[.]"[8]

Overview of the Convention

The Convention adopts the approach taken in many previous anti-terrorism treaties. It requires States Parties to make certain acts criminal offenses in national law, establish jurisdiction over such offenses, prosecute or extradite persons alleged to have committed the defined criminal offenses, and engage in cooperation and mutual legal assistance with respect to objectives of the Convention. The frequent use and familiarity of this approach helped the negotiations make progress, but questions exist about the adequacy of this strategy for counteracting nuclear terrorism. The following paragraphs describe in more detail the substantive provisions of the Convention and identify some issues that arose during the negotiations.

Offenses under the Convention

Article 2 defines what actions constitute offenses within the meaning of the Convention. Any person who unlawfully and intentionally possesses radioactive material or makes or possesses any nuclear or radioactive explosive or dispersal device (or attempts to do so) with the intent to cause (1) death or serious bodily injury, or (2) substantial damage to property or the environment has committed an offense under the Convention.[9] An offense is also committed when a person unlawfully and intentionally uses any radioactive material or dispersal device or uses or damages a nuclear facility (or attempts to do so), in a manner that releases or risks release of radioactive material with the intent to (1) cause death or serious bodily injury, (2) substantial damage to property or the environment, or (3) compel a natural or legal person, an international organization, or a State to do or refrain from doing an act. A person also commits an offense if he or she participates as an accomplice, organizes or directs others to commit an offense, or in any other way contributes to the commission of an offense by a group of persons acting with a common purpose.

National criminal law obligations under the Convention

The Convention requires States Parties to establish as criminal acts under national law the offenses set forth in Article 2 and to make those offenses punishable by appropriate penalties that take into account their grave nature (Article 5). A State Party must take jurisdiction over the offenses in Article 2 when the offense is committed (1) in the territory of a State Party, (2) on board a vessel flying the flag of the State Party or an aircraft registered under the laws of a State Party, or (3) by a national of the State Party (Article 9.1). A State Party may establish jurisdiction over offenses when the offense is committed (1) against a national of the State Party, (2) against a government facility of the State Party located abroad, or (3) by a stateless person who has his or her habitual residence in the territory of the State Party (Article 9.2).

States Parties must, after appropriate investigation, either prosecute or extradite a person alleged to have committed an offense defined in Article 2 (Articles 10 and 11). States Parties must ensure that such criminal offenses have no justification under national law (Article 6). National law must also make the offenses in the Convention extraditable (Article 13) and must not interpret such offenses as a political offense for purposes of extradition or mutual legal assistance (Article 15). States Parties are required to afford each other the greatest measure of assistance in connection with investigations or criminal or extradition proceedings brought against those alleged to have committed the offenses identified in Article 2 (Article 14).

No obligation to extradite or afford mutual legal assistance arises if a requested State Party has substantial grounds for believing that an extradition or mutual legal assistance request has been made for purposes of prosecuting or punishing a person's on account of his or her race, religion, nationality, ethnic origin, or political opinion (Article 16). The Convention also contains provisions according those alleged with committing offenses related to nuclear terrorism with specific rights, including the right to communicate with and be visited by a representative of the State of which the person is a national (Article 10)[10] and all rights accorded by the State in which the person is held and rights protected by applicable provisions of international law (Article 12).

Exclusions from the Convention's application

The Convention does not apply to offenses committed within a single State Party and when (1) the alleged perpetrator and the victims are nationals of that State Party, (2) the alleged offender is found in the territory of that State Party, and (3) no other State Party has a basis under the Convention to exercise jurisdiction (Article 3).

The negotiations confronted disagreements about whether the Convention should apply to State actions involving nuclear materials or weapons. According to the South African negotiating coordinator, "some delegations had expressed concern that the convention exempts military activities and personnel from prosecution for similar offenses as those articulated in the treaty. Other delegations would have liked to see the treaty protect against acts of terrorism committed by state actors involving nuclear weapons or materials."[11] These negotiating disagreements about the Convention's scope relate to long-standing controversies about the legality of the threat or use of nuclear weapons by States.[12]

In order to be adopted by consensus, the Convention did not address issues involving State and military possession and use of nuclear weapons and materials. Thus, the Convention does not apply to the activities of armed forces during armed conflicts that are governed by international humanitarian law, nor does it apply to activities undertaken by a State Party's military forces in the exercise of their official duties, to the extent such activities are governed by other rules of international law (Article 4.2). The Convention does not address in any way the issue of the legality of the use or threat of nuclear weapons by States (Article 4.3).

Handling radioactive material, devices, or nuclear facilities

States Parties that seize or otherwise take control of radioactive materials, devices, or nuclear facilities following the commission of an offense are required to render the material, device, or facility harmless and to ensure any nuclear material is secured in accordance with IAEA safeguards (Article 18.1). The Convention also contains rules for the return of radioactive material, devices, or nuclear facilities to the State Party to which it belongs or from which it was stolen (Article 18).

States Parties are obliged to prevent offenses identified in the Convention by making every effort to adopt measures to ensure the protection of radioactive material, taking into account International Atomic Energy Agency (IAEA) recommendations (Article 8). Given the importance of preventing radioactive materials from being stolen or diverted by terrorists, the Convention's very brief and general approach to prevention obligations does not advance the prevention agenda in terms of international law.

Context and Prospects for the Convention's Implementation

Upon its entry into force, the Convention becomes part of a growing array of instruments and initiatives aimed at preventing and responding to acts of nuclear terrorism. Since the terrorists attacks of 11 September 2001, States have launched a series of efforts to address the threat of nuclear terrorism, including the:

• Establishment of the IAEA's Plan of Activities to Protect Against Nuclear Terrorism (2002);[13]
• Creation by the G-8 of the Global Partnership Against the Spread of Weapons of Mass Destruction (2003);[14]
• Launch of the U.S.-led Proliferation Security Initiative to interdict WMD-related shipments and stop proliferation-related financing (2003); [15]
• Adoption of UN Security Council Resolution 1540 requiring UN members to enact national legal measures to prevent the proliferation of WMD to non-State actors (2004); [16]
• Amendment to the 1980 Convention on the Physical Protection of Nuclear Materials that, among other things, created expanded duties to secure nuclear materials in storage and during transit and to criminalize sabotage against civilian nuclear facilities (2005); [17]
• Establishment of the IAEA Advisory Committee on Safeguards and Verification to explore strategies to improve safeguards for monitoring and enforcement of the Treaty on the Non-Proliferation of Nuclear Weapons (2005); [18]
• Creation of the U.S.-Russian Bratislava Nuclear Security Cooperation Initiative to expand bilateral efforts to improve nuclear security (2005);[19] and
• Launch of the U.S.-Russian led Global Initiative to Combat Nuclear Terrorism (2006).[20]

Although concerns about nuclear proliferation by States, triggered by the actions of North Korea and Iran, have dominated headlines in recent years, the continued international activities to prevent nuclear terrorism, which now includes the legally binding Convention, demonstrate that many States remain concerned about this threat and are willing to integrate international legal instruments into the fight against nuclear terrorism. The Convention's contribution to these efforts will increase as the number of States Parties grows[21] and the Convention's implementation by States Parties reinforces other national, bilateral, and multilateral activities designed to fight against acts of nuclear terrorism.

These various bilateral and multilateral activities combine to produce a "web of prevention" with respect to the threat of nuclear terrorism. The initiatives and instruments forming the web do not, however, eliminate concerns that the regime against nuclear terrorism still does not contain specific, detailed standards for the physical protection of radioactive materials and nuclear facilities from terrorists or mechanisms to improve physical protection efforts within States. The Convention advances neither of these tasks directly.

Different approaches to improving physical protection of nuclear materials and facilities exist. The Global Initiative to Combat Nuclear Terrorism seeks to use a coalition of willing partner States to "[i]mprove accounting, control, and physical protection of nuclear material and radioactive substances, as well as security of nuclear facilities."[22] A different approach appears in one expert's arguments that "[t]he Security Council, backed up by its 1540 Committee, should move ahead to establish effective standards for physical protection of nuclear facilities around the world. It should consider assigning to the IAEA the task of conducting a series of inspections to see whether these standards are being met."[23]

In all likelihood, addressing the perceived gap in specific, detailed, and monitored standards for the physical protection of nuclear materials and facilities will evolve through a combination of efforts within the web of prevention and will not occur through the adoption of a comprehensive, binding treaty.

About the Author
David P. Fidler, an ASIL member, is James Louis Calamaras Professor of Law at Indiana University School of Law--Bloomington, is Director of the Indiana University Center on American and Global Security, and is an Editor for the Insights series.

Footnotes

[23]George Bunn, Enforcing International Standards: Protecting Nuclear Materials from Terrorists Post-9/11, Arms Control Today (Jan./Feb. 2007), at http://www.armscontrol.org/act/2007_01-02/Bunn.asp.