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"[Arms Control Today is] Absolutely essential reading for the upcoming Congressional budget debate on the 2018 #NPR and its specific recommendations ... well-informed, insightful, balanced, and filled with common sense."

– Frank Klotz
former Administrator of the National Nuclear Security Administration
March 7, 2018
States Vow to Update Nuclear Materials Pact

Paul Kerr

Demonstrating what International Atomic Energy Agency (IAEA) Director-General Mohamed ElBaradei called “a global commitment to remedy weaknesses in our nuclear security regime,” delegates from 89 counties July 8 decided to adopt measures to strengthen the 1980 Convention on the Physical Protection of Nuclear Material (CPPNM).

The new requirements will not take effect, however, until ratified by two-thirds of the 112 states-parties to the convention.
The convention currently requires states-parties to implement specific measures to protect nuclear material during international transport. The new rules would apply similar obligations to domestic use, storage, and transport of civilian nuclear material.

The amended convention also requires member states to protect civilian nuclear facilities from attack and sabotage. Indeed, the term “nuclear facilities” has been added to the convention’s title.

According to the IAEA, the amended convention “will also provide for expanded cooperation” among states to prevent the theft and smuggling of nuclear material, “locate and recover stolen or smuggled nuclear material, and mitigate any radiological consequences of sabotage.”

The IAEA has been seeking such changes since 1997, 10 years after the convention entered into force.
ElBaradei formed a group of experts in 1999, which later determined that the agreement should be revised. On the basis of their recommendation, ElBaradei convened another group in 2001 to prepare draft amendments. (See ACT, January/February 2002.) The group met several times before completing its report in March 2003. ElBaradei circulated the proposed amendments in July 2004 at the request of Austria and 24 other states. He then called for a convention in January 2005 after receiving requests from the required number of states-parties.

The Changes

Although the new physical protection requirements are legally binding, there are no provisions to verify whether states actually implement them and no penalties if states fail to do so.

Rather than mandating specific regulations, the amended convention says that each party shall apply certain “fundamental principles of physical protection of nuclear material and nuclear facilities.” These principles include establishing a “legislative and regulatory framework to govern physical protection,” which could include verification inspections of nuclear facilities.
The convention also states that the degree of protection undertaken by member-states should be based on their “current evaluation on the threat,” but does not appear to provide mandatory threat-assessment criteria.

According to Patricia Comella, a nonproliferation official at the Department of State, the United States pushed during the late 1990s for the convention’s revisions to include verifiable and compliance powers, but many other states found these ideas unacceptable.

The new provisions also require member states to “establish or designate a competent authority” responsible for the implementation of the legislative and regulatory framework.

Additionally, the convention requires states-parties to criminalize several additional acts, including attacks on nuclear facilities. The previous convention contains similar requirements for crimes related to the theft of nuclear material.

Controversy

It took years for agreement to be reached on the controversial proposed changes. In 2003, Comella told the American Nuclear Society conference that the main point of contention was a provision specifying that the activities of states-parties’ military forces “in the exercise of their official duties” would not be subject to the convention. Former IAEA Board of Governors member Alec Baer said that the provision was designed to shield from liability military troops who damaged nuclear facilities while trying to protect them from attack, Nucleonics Week reported July 21. But some parties argued that this provision could “permit [military] attacks on nuclear facilities used for peaceful purposes to be made with impunity,” Comella said.

China apparently took a key step in January to break the impasse. Assistant Secretary of State for Arms Control Stephen Rademaker stated March 10 that “China helped to end the three-year-long deadlock…by proposing a well-received bridging amendment, which mitigated some of the controversies surrounding the original CPPNM amendment proposal.”
The adopted amendment reads, “Nothing in this convention shall be construed as a lawful authorization to use or threaten to use force against nuclear material or nuclear facilities used for peaceful purposes.”