On July 31, the United States submitted its instrument of ratification to the International Atomic Energy Agency (IAEA) for the 2005 amendment to the Convention on the Physical Protection of Nuclear Material (CPPNM), having recently passed the long-gestating necessary implementing legislation.
President Barack Obama initiated the nuclear security summit process in 2009, following his Prague speech, to address what he called “the most immediate and extreme threat to global security” by securing “all vulnerable nuclear material” in four years.3 The process has brought much-needed, high-level political attention to the threat of nuclear terrorism, convening more than 50 heads of government over the course of three summits—Washington in 2010, Seoul in 2012, and The Hague in 2014—to make concrete commitments to strengthen the global nuclear security system, enhance international cooperation, and upgrade domestic nuclear security regimes. In doing so, the summits have elevated nuclear security to the top of the international agenda. Now there is a pressing need to consider how to consolidate the gains already made and to ensure continued progress.
Sustaining High-Level Attention
The work of strengthening the global nuclear security system is not complete and must continue as long as the threat evolves. Major gaps in the system remain. There are no comprehensive international standards or best practices that all states must follow, adherence to applicable international legal instruments is not universal, the current system does not adequately cover the 83 percent of global stocks of weapons-usable nuclear material that are categorized as military material,8 there is still no established way for states to hold each other accountable for security, and more work is needed to reduce and eliminate weapons-usable nuclear materials. In addition, many states still need to strengthen their own legal and regulatory frameworks for securing nuclear materials and facilities, particularly in the face of emerging threats such as cyberattacks.
The Article 16 Mechanism
An integral part of many treaty regimes is a review process to ensure the treaty’s continued viability in light of changing circumstances. This is certainly necessary for nuclear security as states must contend with the evolving threat, the spread of nuclear technology, and advances in security practices. Review conference mechanisms such as Article 16 provide opportunities to bolster a treaty regime in a number of ways—for example, by developing common understandings of key provisions, setting goals to support implementation, and facilitating interaction and coordination among states. This is one reason that review conferences often become regular undertakings.
Determining the Scope
According to Article 16, conferences are meant to “to review the implementation of this Convention and its adequacy as concerns the preamble, the whole of the operative part and the annexes in the light of the then prevailing situation.”12 As mentioned above, the 2005 amendment entails a general broadening of the scope of the CPPNM. Consequently, the scope covered by the conference mechanism will broaden as well, allowing states-parties to discuss steps taken to establish, implement, and maintain an appropriate physical protection system for all of their nuclear materials and nuclear facilities used for peaceful purposes, including the application of the fundamental security principles listed in the amendment, and all related issues. Article 16’s incorporation of the treaty preamble into the conference’s scope further provides the opportunity to raise topics for which no specific forum will be available following conclusion of the summit process and enables integration of the recommendations that have been developed to guide the establishment of comprehensive national nuclear security regimes.
Establishing a Regular Process
The summit process never was intended to continue indefinitely. Heads of government have a long list of priorities other than nuclear security, and the tendency toward “summit fatigue” can lead to waning levels of ambition over time. At the same time, continued, high-level political engagement is required if the benefits of the summit process are to be maintained. Thus, a balance must be struck between the goal of regular, high-level political engagement on the one hand and a realistic timeline for meetings at the head-of-government level on the other.
Setting the Agenda
The agenda for Article 16 conferences and intersessional meetings must be clear and robust enough to attract attendance by leaders and senior officials. In particular, there is a need to demonstrate the value of holding such regular meetings to states that may be hesitant to participate in light of their experiences with other, sometimes underachieving treaty review processes.
CPPNM Article 16 conferences and intersessional meetings should have several primary objectives. First, a key goal of Article 16 meetings would be to set international priorities for nuclear security, either reaffirming existing priorities or identifying new priorities as the threat landscape evolves. Intersessional meetings also would allow states to identify critical areas that require urgent action by states and, if necessary, to reset priorities.
With the nuclear security summits ending and major challenges remaining, it is vital to establish a mechanism to sustain and expand on the progress made at these biennial events. CPPNM Article 16, which will be triggered when the 2005 amendment to the convention enters into force, provides such a mechanism. Once an Article 16 meeting is set, it will be up to the states-parties to decide what the scope of the discussion will be, at what level they will participate, and whether to regularize the conference mechanism as a forum for sustained interaction on nuclear security.
The summit process strengthened global nuclear security through unprecedented high-level attention and far-reaching commitment. Yet, the job of securing all nuclear materials and related facilities is not done; reverting to the old ways of incremental and ad hoc progress is not an option. Instead, states should use the Article 16 mechanism, based on an expanded and reinvigorated treaty regime in the form of the amended CPPNM, with a renewed sense of purpose to stimulate additional steps toward strengthening global nuclear security.
3. Office of the Press Secretary, The White House, “Remarks by President Barack Obama in Prague As Delivered,” April 5, 2009, https://www.whitehouse.gov/the-press-office/remarks-president-barack-obama-prague-delivered; Office of the Press Secretary, The White House, “Communiqué of the Washington Nuclear Security Summit,” April 13, 2010, https://www.whitehouse.gov/the-press-office/communiqu-washington-nuclear-security-summit.
4. Rodolfo Quevenco, “United States Ratifies Key Nuclear Security Amendment,” July 31, 2015, International Atomic Energy Agency (IAEA), https://www.iaea.org/newscenter/news/united-states-ratifies-key-nuclear-security-amendment.
5. See Convention on the Physical Protection of Nuclear Material (CPPNM), October 26, 1979, 1456 U.N.T.S. 24631, art. 2, https://treaties.un.org/doc/db/Terrorism/Conv6-english.pdf. Compare this to article 2A of the 2005 amendment to the CPPNM, International Atomic Energy Agency (IAEA), “Nuclear Security – Measures to Protect Against Nuclear Terrorism: Amendment to the Convention on the Physical Protection of Nuclear Material,” GOV/INF/2005/10-GC(49)/INF/6, September 6, 2005, https://www.iaea.org/About/Policy/GC/GC49/Documents/gc49inf-6.pdf. In addition to physical protection measures, the CPPNM requires parties to criminalize and establish jurisdiction over certain offenses in their domestic systems. The amendment adds activities related to illicit trafficking and sabotage to the list of offenses that parties must criminalize.
1. A conference of States Parties shall be convened by the depositary five years after the entry into force of the Amendment adopted on 8 July 2005 to review the implementation of this Convention and its adequacy as concerns the preamble, the whole of the operative part and the annexes in the light of the then prevailing situation.
2. At intervals of not less than five years thereafter, the majority of States Parties may obtain, by submitting a proposal to this effect to the depositary, the convening of further conferences with the same objective.
7. In the official summit process, five working groups are considering ways to strengthen key international institutions and mechanisms engaged in nuclear security, including treaty regimes. Strengthening the CPPNM falls within the scope of the IAEA working group.
8. Nuclear Threat Initiative, “Non-Paper: Strengthening the Security of Military Materials,” n.d., https://www.nti.org/media/pdfs/Strengthening_the_Security_of_Military_Nuclear_Materials_1.pdf.
9. Although states could conceivably decide to call for an Article 16 conference before the amendment enters into force, they have not done so in the 23 years since the first conference. That first and so far only conference was notable for its brevity. States-parties acknowledged the adequacy of and reaffirmed their support for the convention, but did little more. There appears to be little appetite to request another such meeting without the boosting effect of the amendment’s entry into force.
Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland, in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realized. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.
11. 1995 Review and Extension Conference of the Parties to the NPT, “Decision 1: Strengthening the Review Process for the Treaty,” NPT/CONF.1995/32 (Part 1), Annex, n.d., http://www.un.org/disarmament/WMD/Nuclear/1995-NPT/pdf/1995-NY-NPTReviewConference-FinalDocumentDecision_I.pdf.
12. The only difference between the two texts is that the original text mandates that a conference take place five years after entry into force of the convention, whereas the 2005 amendment requires such a conference five years after entry into force of the amendment.
14. This is not to say that the preamble comprises binding obligations in the way the operative text does. A treaty preamble does not itself establish rights and duties for the parties, but rather sets common aims and is essential to treaty interpretation, among other things.
15. IAEA, “Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (INFCIRC/225/Revision 5),” IAEA Nuclear Security Series, No. 13 (January 2011), http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1481_web.pdf.
16. For example, NPT review conferences are attended by senior officials, with ministers or their equivalent participating as necessary. Heads of government have typically not attended review conferences, but, given the high priority that states have placed on nuclear security through the summit process, involvement at that level should continue.
17. Reference to the Biological Weapons Convention (BWC) intersessional process is not intended as a judgment on the utility of that process, which is the subject of substantial disagreement. Its inclusion has to do with the structure more than with the substance, as it demonstrates how states have established a process to sustain interaction in the interval between the main conferences. Substantively, an intersessional process specific to the CPPNM review conference mechanism would need to be defined by the states-parties.
18. See Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, “Final Document of the Seventh Review Conference,” BWC/CONF.VII/7, January 13, 2012, http://www.unog.ch/80256EDD006B8954/(httpAssets)/3E2A1AA4CF86184BC1257D960032AA4E/$file/BWC_CONF.VII_07+(E).pdf.
19. See IAEA, Joint Convention News, No. 3 (November 2012), http://www-ns.iaea.org/downloads/rw/conventions/joint-convention-newsletter-nov2012.pdf.
20. “Sherpa” is the term given to the government official who heads a country’s delegation in the preparatory phase of summit meetings and is in charge of conducting negotiations on the summit’s agenda topics and on eventual summit outcomes.
Jonathan Herbach is a research fellow specializing in nuclear security and arms control law at the University of Amsterdam in the Netherlands. Samantha Pitts-Kiefer is senior program officer for scientific and technical affairs at the Nuclear Threat Initiative.