Proposal for a COUNCIL DECISION on objection to be made on behalf of the European Atomic Energy Community to a reservation formulated by the Islamic Republic of Pakistan at the time of its accession to the Convention on the Physical Protection of Nuclear Material

(presented by the Commission)

EXPLANATORY MEMORANDUM

On 20 October 2000, the Director General of the International Atomic Energy Agency, acting in his capacity as depository, communicated that on 12 September 2000 the Islamic Republic of Pakistan had deposited its instrument of accession to the Convention on the Physical Protection of Nuclear Material and that the Convention had entered into force for Pakistan on 12 October 2000. All EU Member States and Euratom are Party to the Convention. The instrument was deposited by Pakistan with a declaration stating that, inter alia, it "does not consider itself bound by paragraph 2 of Article 2, as it regards the question of domestic use, storage and transport of nuclear material beyond the scope of the said Convention".

In Article 2, paragraph 2, it is stipulated that with some specific exceptions the Convention shall also apply to nuclear material used for peaceful purposes while in domestic use, storage and transport. As a consequence of its declaration, the obligation a State party has under the Convention to provide co-operation and assistance, to the maximum extent feasible, to any requesting State, in the recovery and protection of such stolen or otherwise unlawfully obtained nuclear material would not be applicable for Pakistan in the case of nuclear material in domestic use. Furtheremore, the important provisions required under Article 7 of the Convention will not have to be implemented by Pakistan if offences are made with regard to nuclear material used for peaceful purposes while in domestic use, storage or transport. Indeed, under Article 7 of the Convention several offences as, for example, unlawful possession, use, transfer, alteration, disposal or disposal of nuclear material that is likely to cause serious injury or damage, theft or robbery, or fraudulent obtaining of nuclear material, would have to be made a punishable offence by Pakistan under its national law.

Implementation of the reservation would imply that the application of the operative articles of the Convention related to the co-operation and assistance obligations laid down in Article 5, paragraphs 1 and 2, as well as to the penalisation of certain offences and the mitigation of the potential dangers created by them with regard to nuclear material in domestic use by Pakistan would no longer be mandatory. However, the commitment to these actions by a State Party is an essential part of the object and purpose of the Convention. This is also clear from the preamble where it is specifically stated that one of the important objectives of the Convention is to avert the potential dangers posed by the unlawful taking and use of nuclear material and that there is an urgent need to adopt appropriate and effective measures for the punishment of such offences. In addition, another consideration stresses the importance of the physical protection of nuclear material in domestic use, storage and transport. Therefore, although the Convention does not prohibit the formulation of specific or general reservations, on that basis, the EU Member States and Euratom, as parties to the Convention, should object to Pakistan's reservation as being incompatible with the object and purpose of the Convention and that each Party would make the objection individually. In this context, in order to give the objections the desired legal effect, it is important that they are submitted by 20 October 2001 at the latest [1].

[1] The date has been confirmed by the International Atomic Energy Agency acting as the depository, it follows from Article 20(5) of the Vienna Convention on the Law of the Treaties, that a reservation is considered to have been accepted if it has raised no objection by the end of a period of twelve months of its notification.

Under the Euratom Treaty, and notably Article 101, second paragraph thereof, the Commission is authorised to make the objection on behalf of Euratom only after approval by the Council. The Commission proposes that the Council adopts the attached decision in due time, authorising the Commission to object on behalf of the European Atomic Energy Community to the above-mentioned reservation made by the Islamic Republic of Pakistan.

Proposal for a COUNCIL DECISION on objection to be made on behalf of the European Atomic Energy Community to a reservation formulated by the Islamic Republic of Pakistan at the time of its accession to the Convention on the Physical Protection of Nuclear Material

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 101, second paragraph thereof,

Having regard to the proposal from the Commission [2],

[2] OJ C ..., ..., p. ...

Whereas:

(1) The European Atomic Energy Community is party to the Convention on the Physical Protection of Nuclear Material;

(2) The Islamic Republic of Pakistan, at the time of its accession to that Convention on 12 September 2000 formulated a reservation that, inter alia, it does not consider itself bound by paragraph 2 of Article 2 of that Convention;

(3) Such a reservation raises doubts as to the full commitment of the Islamic Republic of Pakistan to the object and purpose of the Convention;

HAS DECIDED AS FOLLOWS:

Article 1

The Commission is hereby authorised to present, on behalf of the European Atomic Energy Community, the attached text to the Director General of the International Atomic Energy Agency, in his capacity of depository of the Convention on the Physical Protection of Nuclear Material, in order to object to the reservation formulated by the Islamic Republic of Pakistan with regard to Article 2, paragraph 2, at the time of its accession on 12 September 2000 to the above-mentioned Convention.

Done at Brussels,

For the Council

The President

ANNEX

The European Atomic Energy Community has carefully examined the declaration made by the Islamic Republic of Pakistan at the time of its accession to the Convention on the Physical Protection of Nuclear Material, regarding Article 2, paragraph 2.

The European Atomic Energy Community objects to the aforesaid reservation by the Government of the Islamic Republic of Pakistan to the Convention on the Physical Protection of Nuclear Material, which puts in question Pakistan's commitment to the object and purpose of the Convention.

This objection does not preclude the entry into force of the Convention between the European Atomic Energy Community and the Islamic Republic of Pakistan.