Amendments to the Convention on the Physical Protection of Nuclear Material
On Friday, 8 July 2005, the Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material (the "CPPNM") agreed "to fundamental changes that will substantially strengthen the [CPPNM]." [1] The amendments update and modernize the CPPNM, recognizing the dynamic nature the security and protection of nuclear material used for peaceful purposes presents to Contracting States.
I. Background: Creation of the CPPNM & the Need for Amendment
The CPPNM, opened for signature on 3 March 1980, obliges Contracting States to protect nuclear materials used for peaceful purposes during international transport.[2] The CPPNM developed at a time when the primary concern for the protection of nuclear material concentrated on the transport of nuclear material. States viewed transport of nuclear material, especially international transport, as the highest risk activity related to nuclear material and developed the CPPNM to create international obligations and enforcement mechanisms for States Parties. The CPPNM contains "provisions related to nuclear material used for peaceful purposes while in domestic use, storage and transport. The Convention establishes measures related to the prevention, detection and punishment of offenses relating to nuclear material."[3] Presently, there are 112 States Parties to the CPPNM and 45 Signatories.[4] The International Atomic Energy Agency (the IAEA) is the depositary of the CPPNM, charged with administering the CPPNM's status and any declarations or reservations.
The CPPNM's drafters, however, did not address the security and protection of nuclear facilities. The CPPNM only applies to transport of nuclear materials used for peaceful purposes. It does not affect nor present obligations regarding the security and protection of nuclear facilities, including nuclear power plants. To fill the void the CPPNM left in regards to the security and protection of nuclear facilities, the IAEA developed policy guidance regarding the physical protection of nuclear material and nuclear facilities.[5] Besides the obligations of the CPNNM, the IAEA guidance also addresses the physical protection of nuclear material against unauthorized removal and sabotage.[6] The IAEA guidance, however, does not obligate or create enforcement mechanisms under international law beyond the CPPNM's restrictions on transport of nuclear materials.
To address the CPPNM's deficiencies, especially those concerning the security of nuclear facilities from the threats of unauthorized removal and sabotage, the July 2005 Conference was called "to adopt amendments to the Convention designed to strengthen its existing provisions and expand its scope to cover, among other points, the physical protection of nuclear material used for peaceful purposes, in domestic use, storage and transport; and the physical protection of nuclear material and peaceful nuclear facilities against sabotage" and unauthorized removal.[7]
II. Treaty Amendments Under International Law
Treaty amendments are governed by the Vienna Convention on the Law of Treaties.[8] Generally, "a treaty may be amended by agreement between the parties."[9] Article 40 of the the Vienna Convention prescribes that all contracting States must be notified and possess the right to participate in the negotiation and creation of proposed amendments.[10] Article 40 also instructs that "the [treaty's] amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement." [11] The manner and procedure for amendment is usually specified in the original treaty. Accordingly, article 20 of the CPPNM provides for the amending procedure, which resulted in the July 2005 Conference. [12]
III. States Parties Obligations Under the Amended CPPNM
The amendments to the CPPNM will create legal obligations and enforcement mechanisms for contracting States beyond the transport of nuclear material. The amendments include provisions to bring the unauthorized removal and sabotage of nuclear material within the CPPNM's framework.[13] These amendments update the CPPNM and provide legal force to the previously discussed IAEA guidance. IAEA Director General Mohamed ElBaradei commented "this new and stronger treaty is an important step towards greater nuclear security by combating, preventing, and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism. It demonstrates that there is indeed a global commitment to remedy weaknesses in our nuclear security regime."[14] The amendments "will also provide for expanded cooperation between and among States regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage, and prevent and combat related offences."[15]
IV. Ratification of the Amended CPPNM, the New CPPNMNF
The amendments will not enter into force "until the thirtieth day after the date which two thirds of the [112] States Parties have deposited their instruments of ratification, acceptance or approval with the [IAEA]."[16] Upon ratification, the CPPNM will be renamed the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities.
Footnotes
[1] IAEA, States Agree on Stronger Physical Protection Regime, ¶1 (July 8, 2024) <http://www.iaea.org/NewsCenter/PressReleases/2005/prn200503.html>.
[2] Convention on the Physical Protection of Nuclear Material, Feb. 23, 1987, 1456 U.N.T.S. 101 [hereinafter CPPNM].
[3] IAEA, International Conventions & Agreements: Convention on the Physical Protection of Nuclear Material, ¶2 (visited July 9, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn.html>. See CPPNM, supra note 2, arts. 7-10.
[4] IAEA, Status: Convention on the Physical Protection of Nuclear Material, (May 11, 2024) <http://www.iaea.org/Publications/Documents/Conventions/cppn_status.pdf>.
[5] See The Physical Protection of Nuclear Material and Nuclear Facilities, IAEA Doc. INFCIRC/225/Rev.4.
[7] IAEA, supra note 3, at ¶3.
[8] Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].
[12] CPPNM, supra note 2, at art. 20(1).
[13] IAEA, Conference to Consider and Adopt Proposed Amendments to the Convention on the Physical Protection of Nuclear Material: The Basic Proposal, IAEA Doc. CPPNM/AC/L.1/1 (April 28, 2024).
