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former IAEA Director-General

Congress Finally Passes Legislation to Prevent and Counter Nuclear Terrorism
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Arms Control NOW

Authored by Kingston Reif on June 2, 2015

Today, as part of the USA Freedom Act, the Senate passed language to implement key requirements of two important, and long overdue agreements that strengthen global efforts to prevent and counter nuclear terrorism, paving the way for their ratification.

The two agreements —the 2005 amendment to the Convention on the Physical Protection of Nuclear Material (CPPNM) and the 2005 International Convention on the Suppression of Acts of Nuclear Terrorism (ICSANT) – require state parties to better protect nuclear materials and to punish acts of nuclear terrorism. While the United States already has strong measures to prevent and prosecute nuclear terrorism, these agreements will help to ensure that all signatories adhere to similarly robust measures.

The amendment to the CPPNM expands the original treaty to require parties not only to protect nuclear material in international transit, but also to protect nuclear facilities and nuclear material that is domestically in storage, use, or in transit. The International Atomic Energy Agency (IAEA) is the depository for the original treaty and the amendment. ICSANT, a UN convention, establishes a framework to strengthen cooperation among countries in combating nuclear terrorism, and provides details on how offenders and illicit materials should be handled by states when seized.

Together the conventions strengthen the existing legal tools to prevent weapons of mass destruction (WMD) terrorism and will help ensure that states treat nuclear security not only as a domestic concern, but an international responsibility. They also complement other tools in the anti-nuclear terrorism toolkit, such as such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism.

The George W. Bush administration submitted the treaties to the Senate in September 2007, and the Senate overwhelmingly approved them in September 2008. But prior to U.S. ratification, the agreements require the United States to pass legislation to criminalize specific offenses, many, but not all of which, are already covered under U.S. law.

The Obama administration first submitted the implementing legislation to Congress for approval in 2010, having pledged at the first Nuclear Security Summit that year to accelerate efforts to complete ratification. The House passed legislation in both 2012 and 2013, but the Senate failed to act due in large part to a dispute between Senator Patrick Leahy (D-VT) and Senator Charles Grassley (R-IA), the leaders of the Senate Judiciary Committee, over whether the Justice Department should be able to pursue the death penalty in appropriate cases and seek lawful wiretaps to investigate the new crimes created by the legislation.

Frustrated by the deadlock in the Senate, the House Judiciary Committee attached the implementing language to its version of the USA Freedom Act, which passed the full House on May 14 by a vote of 338-88. Like previous versions of the House language, the language in the USA Freedom Act does not include the controversial death penalty and wiretap provisions. Instead, it establishes a maximum sentence of life imprisonment and a maximum $2 million fine for an “act of nuclear terrorism” resulting in death.

The leadership of the House Judiciary Committee deserves enormous credit for its bipartisan persistence in support of the treaties and passage of implementing legislation.

Now that the United States is poised to ratify the agreements, other states must follow its lead. A number of countries have indicated that they are waiting for the United States to complete ratification of the conventions before moving ahead with their own ratification processes.

At the March 2012 Nuclear Security Summit in Seoul, more than 50 countries pledged to seek the entry into force of the CPPNM amendment by the March 2014 Nuclear Security Summit in the Netherlands. While many states have signed and ratified the amendment as part of the Summit process, the goal of entry into force was not achieved.

The amendment will only enter into force after it has been ratified by two-thirds of the parties to the original convention. As of February 2015, 84 out of 152 states had approved the amendment; 101 are required to do so before entry into force. IAEA Secretary General Yuki Amano has stated that bringing the amendment into force is his highest nuclear security priority.

One hundred and fifteen states have signed ICSANT and 99 have ratified it. While ICSANT is already in force, universal adherence should be the goal, as multilateral agreements works most effectively when all states are parties to the agreements.

Author: 
Kingston Reif