[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 21.9.2006

COM(2006) 518 final

Proposal for a

COUNCIL DECISION

approving the accession of the European Atomic Energy Community to the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. INTRODUCTION

The Convention on the Physical Protection of Nuclear Material (“CPPNM” thereinafter) was signed in 1980 under the auspices of the International Atomic Energy Agency (IAEA) and entered into force in 1987. 118 states and the European Atomic Energy Community (“Euratom” thereinafter) are parties to the CPPNM[1]. All the Member States of the European Union are parties of the CPPNM.

In accordance with Article 18.4a) of the CPPNM, Euratom signed the CPPNM on 13. 6. 1980 and acceded to it on 6.10 1991[2].

The objective of the CPPNM is, in particular, to apply the measures of physical protection during the international transport of nuclear materials.

In 1999 a number of countries indicated that the CPPNM was not comprehensive and in need of a revision, mainly because it did not cover certain major aspects of physical protection. Shortcomings were identified in the protection of material for domestic use, storage, and transport. Moreover the CPPNM was found not to deal adequately with the protection of nuclear facilities against malicious acts. In order to answer these concerns the Director General of the International Atomic Energy Agency (IAEA) set up in June 2001 an “Open-Ended Group of Legal and Technical Experts to Prepare a draft Amendment of the CPPNM” to discuss whether there is a need to revise the CPPNM.

An Amendment Conference took place in Vienna at the Headquarters of the IAEA from Monday, 4 to Friday, 8 July 2005. The Conference adopted on 8 July the Amendment to the CPPNM.

The Council by its Decision of 28 June 2005[3] had authorized the Commission to negotiate amendments to the CPPNM with regard to matters covered by Community competence. The Euratom Community therefore participated fully in the Amendment Conference. The Final Act of the Amendment Conference was signed by the Commission representative on behalf of Euratom on 8 July 2005.

2. THE PROPOSED AMENDMENTS TO THE CPPNM

The amendments to the CPPNM are designed to significantly strengthen its effectiveness.

This becomes already clear by the description of the objectives in the new article 1A of the Convention: “The purposes of this Convention are to achieve and maintain worldwide effective physical protection of nuclear material used for peaceful purposes and of nuclear facilities used for peaceful purposes; to prevent and combat offences relating to such material and facilities worldwide; as well as to facilitate cooperation among States Parties to those ends”.

The amendments therefore extend the scope of the Convention beyond nuclear materials during international transport to cover nuclear material within country boundaries, while in use, transport or storage.

Moreover, to achieve a more comprehensive physical protection of nuclear materials the amended CPPNM not only covers the materials as such, but also the relevant nuclear facilities. The CPPNM has therefore been renamed the Convention on the physical protection of nuclear materials and nuclear facilities .

The amended CPPNM describes in detail what is meant by “nuclear facility”: a facility in which nuclear material is produced, processed, used, handled, stored or disposed of, if damage to or interference with such facility could lead to the release of significant amounts of radiation or radioactive material, it also includes associated buildings and equipment which, if interfered with, could release radiation or radioactive material (Article 1 (d)).

The new text also requires the establishment of an appropriate physical protection regime (Article 2A § 1) legislative and regulatory frameworks (Article 2A §2 (a)) and competent authorities for their implementation (Article 2A §2 (b)).

Furthermore it sets out 12 “fundamental principles of physical protection of nuclear material and nuclear facilities” that state parties to the new Convention shall apply (Article 2A § 3).

The amended Convention has direct implications relating to the Safeguard regime as it is defined in Chapter VII of the Euratom Treaty[4]. In particular, it should be highlighted the statement of responsibility for the establishment, implementation and maintenance of a physical protection regime (Principle A); for ensuring that nuclear material is adequately protected extends to the international transport thereof, until that responsibility is properly transferred to another State, as appropriate (principle B); for establishing and maintaining a legislative and regulatory framework to govern physical protection (Principle C); to establish or designate a competent authority which is responsible for the implementation of the legislative and regulatory framework (Principle D); to clearly identify the responsibilities for implementing the various elements of physical protection within a State (Principle E) and to establish Contingency (emergency) plans to respond to unauthorized removal of nuclear material or sabotage of nuclear facilities or nuclear material, or attempts thereof, which should be appropriately exercised by all license holders and authorities concerned. (Principle K).

The amended CPPNM also specifically requires from State parties protection against theft, smuggling and sabotage (Article 2A § 1).

It also provides for expanded cooperation between and among States and international cooperation regarding rapid measures to locate and recover stolen or smuggled nuclear material, mitigate any radiological consequences of sabotage, and prevent and combat related offences (Article 5).

A further highly important amendment is the new requirement stipulated in the Convention, that the intentional carrying out of different acts, threats and attempts “shall be made a punishable offence by each State Party under its national law” (Article 7 paragraph 1).

3. THE ROLE AND COMPETENCES OF EURATOM ALONGSIDE THE MEMBER STATES IN THE CONVENTION

Article 101 paragraph 1 Euratom Treaty foresees that “the Community may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements with … an international organisation …”.

The role and competences of Euratom within the framework of the CPPNM were confirmed in 1978 by the Court of Justice[5]:

“…Article 2(e) (of the Euratom Treaty) gives the Community the task of making certain, by appropriate supervision, that nuclear materials are not diverted to purposes other that those for which they are intended, without making any distinction with regard to the nature of such diversions and the circumstances in which they might take place and finally that the very expression “safeguards” which the Treaty uses to characterize the provisions of chapter VII has a wider scope than the mere substitution of a different destination for the one declared by a user of nuclear materials. The Treaty here envisages all diversions of nuclear materials entailing a security risk that is to say the danger of interference with the vital interests of the public and the states. Consequently there can be no doubt that the concept of “safeguards” within the meaning of the Treaty is sufficiently comprehensive to include also measures of physical protection.”

The Court concluded that “the participation of the Member States in the CPPNM …. is compatible with the provisions of the Euratom Treaty only subject to the conditions that, in so far as its own powers and jurisdiction are concerned, the Community as such is a party to the CPPNM on the same lines as the States”. And that certain commitments of the CPPNM can only be implemented, where the Community is concerned, by means of close association between the Community and the Member States, both in negotiation and conclusion process and in fulfilment of the commitments assumed.

Having in mind the modernising approach as the overall objective of the amendment of the CPPNM to better respond to new threats and to achieve greater nuclear security by combating, preventing, and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism, the conclusions of the Court has to be interpreted in a new light, which implies that also the scope of application of the Convention to Euratom will have to be adapted accordingly. In an anology to the recent judgement of the Court[6] related to the protection of the environment, the requirement to establish sanctions by the Member States cannot per se be excluded from Euratom competence. In this judgment the Court: confirmed, that there is a Community competence in principle to require the Member States to lay down criminal penalties for the protection of essential objectives of the Community

It is common ground that the physical protection of nuclear materials constitutes one of the essential objectives of the Community as it is expressed by the comprehensive, legally binding and enforceable Euratom safeguards system.

In that regard, Article 2e Euratom Treaty states that the Community has as its task to “make certain, …, that nuclear materials are not diverted to purpose other than those for which they are intended”.

Therefore to ensure a high level of safeguards it could prove necessary for Euratom to take measures which relate to the criminal law of the Member States.

Therefore the important amendments inserted in Article 7 paragraph 1 of the Convention, that the intentional commission of different acts, threats and attempts “shall be made a punishable offence by each State Party under its national law”, are not per se excluded to apply also to Euratom.

When acceding to the CPPNM the Commission will have to declare on behalf of the Community to the depository, as Article 18.4.c) requires from an regional organisation of an integration or other nature which accedes to the CPPNM, which articles do not apply to it.

Taking into account the above guidelines of the Court of Justice, the Declaration shall state that Articles 8-13[7] are not applicable to the Community as opposed to individual Member States.

4. CONCLUSIONS

In view of the proposed amendments to the CPPNM described above, and the cited ruling of the Court of Justice, it is necessary that the Community continues to participate fully in the Convention, particularly with the view to ensuring compatibility between the implementation of the Convention and the Euratom Treaty and its secondary legislation.

Therefore the Commission proposes to the Council to adopt, in accordance with Article 101 paragraph 2 of the Euratom Treaty the enclosed Decision approving the conclusion of the Convention by the Commission.

Proposal for a

COUNCIL DECISION

approving the accession of the European Atomic Energy Community to the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission[8],

Whereas:

(1) Article 2 e) of the Euratom Treaty states that the Community shall make certain, by appropriate supervision, that nuclear materials are not diverted to purpose other than those for which they are intended.

(2) The Convention on the Physical Protection of Nuclear Material (CPPNM) was adopted in 1979 and entered into force in 1987. 118 states and the European Atomic Energy Community are parties to the CPPNM[9]. All the Member States are Parties to the CPPNM.

(3) An Amendment Conference in accordance with Article 20 of the CPPNM was convened on 4 July 2005 under the auspices of the IAEA. The final act regarding the amendments to the Convention on the Physical Protection of Nuclear Material was signed by the European Commission on behalf of the European Atomic Energy Community on 8 July 2005.

(4) When “regional organisations of an integration or other nature” become party to the Convention, it has to communicate to the Depositary a declaration indicating which States are members thereof and which articles of this Convention do not apply to it, in accordance with Article 18 of the said Convention.

(5) The Court of Justice[10] decided that the participation of the Member States in the CPPNM is compatible with the provisions of the Euratom Treaty only subject to the conditions that, in so far as its own powers and jurisdiction are concerned, the Community as such is a party to the CPPNM on the same lines as the Member States. And that certain commitments of the CPPNM can only be implemented, where the Community is concerned, by means of close association between the Community and the Member States, both in negotiation and conclusion process and in fulfilment of the commitments assumed.

(6) The Court of Justice[11] confirmed further that Article 2(e) of the Euratom Treaty gives the Community the task of making certain, by appropriate supervision, that nuclear materials are not diverted to purposes other that those for which they are intended, without making any distinction with regard to the nature of such diversions and the circumstances in which they might take place and finally that the very expression “safeguards” which the Treaty uses to characterize the provisions of chapter VII has a wider scope than the mere substitution of a different destination for the one declared by a user of nuclear materials.

(7) Therefore the accession of the European Atomic Energy Community to the amended Convention on the Physical Protection of Nuclear Material and Nuclear Facilities should be approved.

HAS DECIDED AS FOLLOWS:

Sole Article

The accession of the European Atomic Energy Community to the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities, as amended by the Final Act signed on 8 July 2005 is hereby approved.

The text of the amended Convention and of the declaration by Euratom according to the provisions of Article 18 (4) of the Convention is attached to the present Decision.

Done at Brussels,

For the Council

The President

ANNEX

Declaration by the European Atomic Energy Community According to the provisions of Article 18 (4) of the Convention

The following States are presently members of the European Atomic Energy Community: the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland.

The Community declares that Articles 8 to 13 of the Convention on the Physical Protection of Nuclear Material and Nuclear Facilities do not apply to it.

CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL AND NUCLEAR FACILITIES

THE STATES PARTIES TO THIS CONVENTION,

RECOGNIZING the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interests in the potential benefits to be derived from the peaceful application of nuclear energy,

CONVINCED of the need to facilitate international co-operation and the transfer of nuclear technology for the peaceful application of nuclear energy,

BEARING IN MIND that physical protection is of vital importance for the protection of public health, safety, the environment and national and international security,

HAVING IN MIND the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of good-neighbourliness and friendly relations and co-operation among States,

CONSIDERING that under the terms of paragraph 4 of Article 2 of the Charter of the United Nations, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations,”

RECALLING the Declaration on Measures to Eliminate International Terrorism, annexed to General Assembly resolution 49/60 of 9 December 1994,

DESIRING to avert the potential dangers posed by illicit trafficking, the unlawful taking and use of nuclear material and the sabotage of nuclear material and nuclear facilities, and noting that physical protection against such acts has become a matter of increased national and international concern,

DEEPLY CONCERNED by the worldwide escalation of acts of terrorism in all its forms and manifestations, and by the threats posed by international terrorism and organized crime,

BELIEVING that physical protection plays an important role in supporting nuclear nonproliferation and counter-terrorism objectives,

DESIRING through this Convention to contribute to strengthening worldwide the physical protection of nuclear material and nuclear facilities use for peaceful purposes,

CONVINCED that offences relating to nuclear material and nuclear facilities are a matter of grave concern and that there is an urgent need to adopt appropriate and effective measures, or to strengthen existing measures, to ensure the prevention, detection and punishment of such offences,

DESIRING to strengthen further international co-operation to establish, in conformity with the national law of each State Party and with this Convention, effective measures for the physical protection of nuclear material and nuclear facilities,

CONVINCED that this Convention should complement the safe use, storage and transport of nuclear material and the safe operation of nuclear facilities,

RECOGNIZING that there are internationally formulated physical protection recommendations that are updated from time to time which can provide guidance on contemporary means of achieving effective levels of physical protection,

RECOGNIZING also that effective physical protection of nuclear material and nuclear facilities used for military purposes is a responsibility of the State possessing such nuclear material and nuclear facilities, and understanding that such material and facilities are and will continue to be accorded stringent physical protection,

HAVE AGREED as follows:

Article 1

For the purposes of this Convention:

(a) “nuclear material” means plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotope 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore-residue; any material containing one or more of the foregoing;

(b) “uranium enriched in the isotope 235 or 233” means uranium containing the isotope 235 or 233 or both in an amount such that the abundance ratio of the sum of these isotopes to the isotope 238 is greater than the ratio of the isotope 235 to the isotope 238 occurring in nature;

(c) “international nuclear transport” means the carriage of a consignment of nuclear material by any means of transportation intended to go beyond the territory of the State where the shipment originates beginning with the departure from a facility of the shipper in that State and ending with the arrival at a facility of the receiver within the State of ultimate destination;

(d) “nuclear facility” means a facility (including associated buildings and equipment) in which nuclear material is produced, processed, used, handled, stored or disposed of, if damage to or interference with such facility could lead to the release of significant amounts of radiation or radioactive material;

(e) “sabotage” means any deliberate act directed against a nuclear facility or nuclear material in use, storage or transport which could directly or indirectly endanger the health and safety of personnel, the public or the environment by exposure to radiation or release of radioactive substances.

Article 1A

The purposes of this Convention are to achieve and maintain worldwide effective physical protection of nuclear material used for peaceful purposes and of nuclear facilities used for peaceful purposes; to prevent and combat offences relating to such material and facilities worldwide; as well as to facilitate co-operation among States Parties to those ends.

Article 2

1. This Convention shall apply to nuclear material used for peaceful purposes in use, storage and transport and to nuclear facilities used for peaceful purposes, provided, however, that articles 3 and 4 and paragraph 4 of article 5 of this Convention shall only apply to such nuclear material while in international nuclear transport.

2. The responsibility for the establishment, implementation and maintenance of a physical protection regime within a State Party rests entirely with that State.

3. Apart from the commitments expressly undertaken by States Parties under this Convention, nothing in this Convention shall be interpreted as affecting the sovereign rights of a State.

4. (a) Nothing in this Convention shall affect other rights, obligations and responsibilities of States Parties under international law, in particular the purposes and principles of the Charter of the United Nations and international humanitarian law.

(b) The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

(c) 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.

(d) Nothing in this Convention condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws.

5. This Convention shall not apply to nuclear material used or retained for military purposes or to a nuclear facility containing such material.

Article 2A

1. Each State Party shall establish, implement and maintain an appropriate physical protection regime applicable to nuclear material and nuclear facilities under its jurisdiction, with the aim of:

(a) protecting against theft and other unlawful taking of nuclear material in use, storage and transport;

(b) ensuring the implementation of rapid and comprehensive measures to locate and, where appropriate, recover missing or stolen nuclear material; when the material is located outside its territory, that State Party shall act in accordance with article 5;

(c) protecting nuclear material and nuclear facilities against sabotage; and

(d) mitigating or minimizing the radiological consequences of sabotage.

2. In implementing paragraph 1, each State Party shall:

(a) establish and maintain a legislative and regulatory framework to govern physical protection;

(b) establish or designate a competent authority or authorities responsible for the implementation of the legislative and regulatory framework; and

(c) take other appropriate measures necessary for the physical protection of nuclear material and nuclear facilities.

3. In implementing the obligations under paragraphs 1 and 2, each State Party shall, without prejudice to any other provisions of this Convention, apply insofar as is reasonable and practicable the following Fundamental Principles of Physical Protection of Nuclear Material and Nuclear Facilities.

FUNDAMENTAL PRINCIPLE A: Responsibility of the State

The responsibility for the establishment, implementation and maintenance of a physical protection regime within a State rests entirely with that State.

FUNDAMENTAL PRINCIPLE B: Responsibilities During International Transport

The responsibility of a State for ensuring that nuclear material is adequately protected extends to the international transport thereof, until that responsibility is properly transferred to another State, as appropriate.

FUNDAMENTAL PRINCIPLE C: Legislative and Regulatory Framework

The State is responsible for establishing and maintaining a legislative and regulatory framework to govern physical protection. This framework should provide for the establishment of applicable physical protection requirements and include a system of evaluation and licensing or other procedures to grant authorization. This framework should include a system of inspection of nuclear facilities and transport to verify compliance with applicable requirements and conditions of the license or other authorizing document, and to establish a means to enforce applicable requirements and conditions, including effective sanctions.

FUNDAMENTAL PRINCIPLE D: Competent Authority

The State should establish or designate a competent authority which is responsible for the implementation of the legislative and regulatory framework, and is provided with adequate authority, competence and financial and human resources to fulfill its assigned responsibilities. The State should take steps to ensure an effective independence between the functions of the State's competent authority and those of any other body in charge of the promotion or utilization of nuclear energy.

FUNDAMENTAL PRINCIPLE E: Responsibility of the License Holders

The responsibilities for implementing the various elements of physical protection within a State should be clearly identified. The State should ensure that the prime responsibility for the implementation of physical protection of nuclear material or of nuclear facilities rests with the holders of the relevant licenses or of other authorizing documents (e.g. operators or shippers).

FUNDAMENTAL PRINCIPLE F: Security Culture

All organizations involved in implementing physical protection should give due priority to the security culture, to its development and maintenance necessary to ensure its effective implementation in the entire organization.

FUNDAMENTAL PRINCIPLE G: Threat

The State's physical protection should be based on the State's current evaluation of the threat.

FUNDAMENTAL PRINCIPLE H: Graded Approach

Physical protection requirements should be based on a graded approach, taking into account the current evaluation of the threat, the relative attractiveness, the nature of the material and potential consequences associated with the unauthorized removal of nuclear material and with the sabotage against nuclear material or nuclear facilities.

FUNDAMENTAL PRINCIPLE I: Defence in Depth

The State's requirements for physical protection should reflect a concept of several layers and methods of protection (structural or other technical, personnel and organizational) that have to be overcome or circumvented by an adversary in order to achieve his objectives.

FUNDAMENTAL PRINCIPLE J: Quality Assurance

A quality assurance policy and quality assurance programmes should be established and implemented with a view to providing confidence that specified requirements far all activities important to physical protection are satisfied.

FUNDAMENTAL PRINCIPLE K: Contingency Plans

Contingency (emergency) plans to respond to unauthorized removal of nuclear material or sabotage of nuclear facilities or nuclear material, or attempts thereof, should be prepared and appropriately exercised by all license holders and authorities concerned.

FUNDAMENTAL PRINCIPLE L: Confidentiality

The State should establish requirements for protecting the confidentiality of information, the unauthorized disclosure of which could compromise the physical protection of nuclear material and nuclear facilities.

4. (a) The provisions of this article shall not apply to any nuclear material which the State Party reasonably decides does not need to be subject to the physical protection regime established pursuant to paragraph 1, taking into account the nature of the material, its quantity and relative attractiveness and the potential radiological and other consequences associated with any unauthorized act directed against it and the current evaluation of the threat against it.

(b) Nuclear material which is not subject to the provisions of this article pursuant to sub-paragraph (a) should be protected in accordance with prudent management practice.

Article 3

Each State Party shall take appropriate steps within the framework of its national law and consistent with international law to ensure as far as practicable that, during international nuclear transport, nuclear material within its territory, or on board a ship or aircraft under its jurisdiction insofar as such ship or aircraft is engaged in the transport to or from that State, is protected at the levels described in Annex I.

Article 4

1. Each State Party shall not export or authorize the export of nuclear material unless the State Party has received assurances that such material will be protected during the international nuclear transport at the levels described in Annex I.

2. Each State Party shall not import or authorize the import of nuclear material from a State not party to this Convention unless the State Party has received assurances that such material will during the international nuclear transport be protected at the levels described in Annex I.

3. A State Party shall not allow the transit of its territory by land or internal waterways or through its airports or seaports of nuclear material between States that are not parties to this Convention unless the State Party has received assurances as far as practicable that this nuclear material will be protected during international nuclear transport at the 1evels described in Annex I.

4. Each State Party shall apply within the framework of its national law the levels of physical protection described in Annex I to nuclear material being transported from a part of that State to another part of the same State through international waters or airspace.

5. The State Party responsible for receiving assurances that the nuclear material will be protected at the levels described in Annex I according to paragraphs 1 to 3 shall identify and inform in advance States which the nuclear material is expected to transit by land or internal waterways, or whose airports or seaports it is expected to enter.

6. The responsibility for obtaining assurances referred to in paragraph 1 may be transferred, by mutual agreement, to the State Party involved in the transport as the importing State.

7. Nothing in this article shall be interpreted as in any way affecting the territorial sovereignty and jurisdiction of a State, including that over its airspace and territorial sea.

Article 5

1. States Parties shall identify and make known to each other directly or through the International Atomic Energy Agency their point of contact in relation to matters within the scope of this Convention.

2. In the case of theft, robbery or any other unlawful taking of nuclear material or credible threat thereof, States Parties shall, in accordance with their national law, provide co-operation and assistance to the maximum feasible extent in the recovery and protection of such material to any State that so requests. In particular:

(a) a State Party shall take appropriate steps to inform as soon as possible other States which appear to it to be concerned, of any theft, robbery or other unlawful taking of nuclear material or credible threat thereof, and to inform, where appropriate, the International Atomic Energy Agency and other relevant international organizations;

(b) in doing so, as appropriate, the States Parties concerned shall exchange information with each other, the International Atomic Energy Agency and other relevant international organizations with a view to protecting threatened nuclear material, verifying the integrity of the shipping container or recovering unlawfully taken nuclear material and shall:

(i) co-ordinate their efforts through diplomatic and other agreed channels;

(ii) render assistance, if requested;

(iii) ensure the return of recovered nuclear material stolen or missing as a consequence of the above mentioned events.

The means of implementation of this co-operation shall be determined by the States Parties concerned.

3. In the case of a credible threat of sabotage of nuclear material or a nuclear facility or in the case of sabotage thereof, States Parties shall, to the maximum feasible extent, in accordance with their national law and consistent with their relevant obligations under international law, co-operate as follows:

(a) if a State Party has knowledge of a credible threat of sabotage of nuclear material or a nuclear facility in another State the former shall decide on appropriate steps to be taken in order to inform that State as soon as possible and, where appropriate, the International Atomic Energy Agency and other relevant international organizations of that threat, with a view to preventing the sabotage;

(b) in the case of sabotage of nuclear material or a nuclear facility in a State Party and if in its view other States are likely to be radiologically affected, the former, without prejudice to its other obligations under international law, shall take appropriate steps to inform as soon as possible the State or the States which are likely to be radiologically affected and to inform, where appropriate, the International Atomic Energy Agency and other relevant international organizations, with a view to minimizing or mitigating the radiological consequences thereof;

(c) if in the context of sub-paragraphs (a) and (b), a State Party requests assistance, each State Party to which a request for assistance is directed shall promptly decide and notify the requesting State Party, directly or through the International Atomic Energy Agency, whether it is in a position to render the assistance requested and the scope and terms of the assistance that may be rendered;

(d) co-ordination of the co-operation under sub-paragraphs (a) to (c) shall be through diplomatic or other agreed channels. The means of implementation of this co-operation shall be determined bilaterally or multilaterally by the States Parties concerned.

4. States Parties shall co-operate and consult, as appropriate, with each other directly or through the International Atomic Energy Agency and other relevant international organizations, with a view to obtaining guidance on the design, maintenance and improvement of systems of physical protection of nuclear material in international transport.

5. A State Party may consult and co-operate as appropriate, with other States Parties directly or through the International Atomic Energy Agency and other relevant international organizations, with a view to obtaining their guidance on the design, maintenance and improvement of its national system of physical protection of nuclear material in domestic use, storage and transport and of nuclear facilities.

Article 6

1. States Parties shall take appropriate measures consistent with their national law to protect the confidentiality of any information which they receive in confidence by virtue of the provisions of this Convention from another State Party or through participation in an activity carried out for the implementation of this Convention. If States Parties provide information to international organizations or to States that are not parties to this Convention in confidence, steps shall be taken to ensure that the confidentiality of such information is protected. A State Party that has received information in confidence from another State Party may provide this information to third parties only with the consent of that other State Party.

2. State Parties shall not be required by this Convention to provide any information which they are not permitted to communicate pursuant to national law or which would jeopardize the security of the State concerned or the physical protection of nuclear material or nuclear facilities.

Article 7

1. The intentional commission of:

(a) an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property or to the environment;

(b) a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of nuclear material;

(d) an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority;

(e) an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause, death or serious injury to any person or substantial damage to property or to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the State Party in the territory of which he nuclear facility is situated;

f) an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation;

(g) a threat:

(i) to use nuclear material to cause death or serious injury to any person or substantial damage to property or to the environment or to commit the offence described in subparagraph (e), or

(ii) to commit an offence described in sub-paragraphs (b) and (e) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act;

(h) an attempt to commit any offence described in sub-paragraphs (a) to (e);

(i) an act which constitutes participation in any offence described in sub-paragraphs (a) to (h);

(j) an act of any person who organizes or directs others to commit an offence described in sub-paragraphs (a) to (h); and

(k) an act which contributes to the commission of any offence described in sub-paragraphs (a) to (h) by a group of persons acting with a common purpose; such act shall be intentional and shall either:

(i) be made with he aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence described in sub-paragraphs (a) to (g), or

(ii) be made in the knowledge of the intention of the group to commit an offence described in sub-paragraphs (a) to (g) shall be made a punishable offence by each State Party under its national law.

2. Each Stale Party shall make the offences described in this article punishable by appropriate penalties which take into account their grave nature.

Article 8

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 7 in the following cases:

(a) when the offence is committed in the territory of that State or on board a ship or aircraft registered in that State;

(b) when the a1leged offender is a national of that State.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over these offences in cases where the alleged offender is presented in its territory and it does not extradite him pursuant to article 11 to any of the States mentioned in paragraph 1.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

4. In addition to the States Parties mentioned in paragraphs 1 and 2, each State Party may, consistent with international law, establish its jurisdiction over the offences set forth in article 7 when it is involved in international nuclear transport as the exporting or importing State.

Article 9

Upon being satisfied that the circumstances so warrant , the State Parties in whose territory the alleged offender is present shall take appropriate measures, including detention, under its national law to ensure his presence for the purpose of prosecution or extradition. Measures taken according to this article shall be notified without delay to he States required to establish jurisdiction pursuant to article 8 and, where appropriate, all other States concerned.

Article 10

The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

Article 11

1. The offences in article 7 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include those offences in every future extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may at its option consider this Convention as the legal basis for extradition in respect of those offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize those offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State,

4. Each of the offences shall be treated, for the purpose of extradition between States Parties, as if it had been committed not only in the place in which it occurred but also in the territories of the States Parties required to establish their jurisdiction in accordance with paragraph 1 of article 8.

Article 11A

None of the offences set forth in article 7 shall be regarded for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

Article 11B

Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 7 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

Article 12

Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in article 7 shall be guaranteed fair treatment at all stages of the proceedings.

Article 13

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences set forth in article 7, including the supply of evidence at their disposal necessary for the proceeding. The law of the State requested shall apply in all cases.

2. The provisions of paragraph 1 shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters.

Article 13A

Nothing in this Convention shall affect the transfer of nuclear technology for peaceful purposes that is undertaken to strengthen the physical protection of nuclear material and nuclear facilities.

Article 14

1. Each State Party shall inform the depositary of its laws and regulations which give effect to this Convention. The depositary shall communicate such information periodically to all States Parties.

2. The State Party where an alleged offender is prosecuted shall, wherever practicable, first communicate the final outcome of the proceedings to the States directly concerned. The State Party shall also communicate the final outcome to the depositary who shall inform all States.

3. Where an offence involves nuclear material in domestic use, storage or transport, and both the alleged offender and the nuclear material remain in the territory of the State Party in which the offence was committed, or where an offence involves a nuclear facility and the alleged offender remains in the territory of the State Party in which the offence was committed, nothing in this Convention shall be interpreted as requiring that State Party to provide information concerning criminal proceedings arising out of such an offence.

Article 15

The Annexes constitute an integral part of this Convention.

Article 16

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.

Article 17

1. In the event of a dispute between two or more States Parties concerning the interpretation or application of this Convention, such States Parties shall consult with a view to the settlement of the dispute by negotiation, or by any other peaceful means of settling disputes acceptable to all parties to the dispute.

2. Any dispute of this character which cannot be settled in the manner prescribed in paragraph 1 shall, at the request of any party to such dispute, be submitted to arbitration or referred to the International Court of Justice for decision. Where a dispute is submitted to arbitration, if, within six months from the date of the request, the parties to the dispute are unable to agree on the organization of the arbitration, a party may request the President of the International Court of Justice or the Secretary-General of the United Nations to appoint one or more arbitrators. In case of conflicting requests by the parties to the dispute, the request to the Secretary-General of the United Nations shall have priority.

3. Each State Party may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by either or both of the dispute settlement procedures provided for in paragraph 2. The other States Parties shall not be bound by a dispute settlement procedure provided for in paragraph 2, with respect to a State Party which has made a reservation to that procedure,

4. Any State Party which has made a reservation in accordance with paragraph 3 may at any time withdraw that reservation by notification to the depositary.

Article 18

1. This Convention shall be open for signature by all States at the Headquarters of the International Atomic Energy Agency in Vienna and at the Headquarters of the United Nations in New York from 3 March 1980 until its entry into force.

2. This Convention is subject to ratification, acceptance or approval by the signatory States.

3. After its entry into force, this Convention will be open for accession by all States.

4. (a) This Convention shall be open for signature or accession by international organizations and regional organizations of an integration or other nature, provided that any such organization is constituted by sovereign States and has competence in respect of the negotiation, conclusion and application of international agreements in matters covered by this Convention.

(b) In matters within their competence, such organization shall, on their own behalf, exercise the rights and fulfill the responsibilities which this Convention attributes to States Parties,

(c) When becoming party to this Convention such an organization shall communicate to the depositary a declaration indicating which States are members thereof and which articles of this Convention do not apply to it.

(d) Such an organization shall not hold any vote additional to those of its Member States.

5. Instruments of ratification, acceptance, approval or accession shall be deposited with the depositary.

Article 19

1. This Convention shall enter into force on the thirtieth day following the date of deposit of the twenty-first instrument of ratification, acceptance or approval with the depositary.

2. For each State ratifying, accepting, approving or acceding to the Convention after the date of deposit of the twenty-first instrument of ratification, acceptance or approval, the Convention shall enter into force on the thirtieth day after the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 20

1. Without prejudice to article 16 a State Party may propose amendments to this Convention. The proposed amendment shall be submitted to the depositary who shall circulate it immediately to all States Parties. If a majority of States Parties request the depository to convene a conference to consider the proposed amendments, the depository shall invite all States Parties to attend such a conference to begin not sooner than thirty days after the invitations are issued. Any amendment adopted the conference by a two-thirds majority of all States Parties shall be promptly circulated by the depository to all States Parties.

2. The amendment shall enter into force for each State Party that deposits its instrument of ratification, acceptance or approval of the amendment on the thirtieth day after the date on which two thirds of the States Parties have deposited their instruments of ratification, acceptance or approval with the depositary. Thereafter, the amendment shall enter into force for any other State Party on the day on which that State Party deposits its instrument of ratification, acceptance or approval of the amendment.

Article 21

1. Any State Party may denounce this Convention by written notification to the depositary.

2. Denunciation shall take effect one hundred and eighty days following the date on which notification is received by the depositary.

Article 22

The depositary shall promptly notify all States of:

(a) each signature of this Convention;

(b) each deposit of an instrument of ratification, acceptance, approval or accession;

(c) any reservation or withdrawal in accordance with article 17;

(d) any communication made by an organization in accordance with paragraph 4(c) of article 18;

(e) the entry into force of this Convention;

(f) the entry into force of any amendment to this Convention; and

(g) any denunciation made under article 21.

Article 23

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Director General of the International Atomic Energy Agency who shall send certified copies thereof to all States.

Annex I

Levels of Physical Protection to be Applied in International Transport of Nuclear Material as Categorized in Annex II

1. Levels of physical protection for nuclear material during storage incidental to international nuclear transport include:

a. For Category III materials, storage within an area to which access is controlled;

b. For Category II materials, storage within an area under constant surveillance by guards or electronic devices, surrounded by a physical barrier with a limited number of points of entry under appropriate control or any area with an equivalent level of physical protection;

c. For Category I material, storage within a protected area as defined for Category II above, to which, in addition, access is restricted to persons whose trustworthiness has been determined, and which is under surveillance by guards who are in close communication with appropriate response forces. Specific measures taken in this context should have as their object the detection and prevention of any assault, unauthorized access or unauthorized removal of material.

2. Levels of physical protection for nuclear maleria1 during international transport include:

a. For Category II and III materials, transportation shall take place under special precautions including prior arrangements among sender, receiver, and carrier, and prior agreement between natural or legal persons subject to the jurisdiction and regulation of exporting and importing States, specifying time, place and procedures for transferring transport responsibility;

b. For Category I materials, transportation shall take place under special precautions identified above for transportation of Category II and III materials, and in addition, under constant surveillance by escorts and under conditions which assure close communication with appropriate response forces;

c. For natural uranium other than in the form of ore or ore-residue; transportation protection for quantities exceeding 500 kilograms uranium shall include advance notification of shipment specifying mode of transport, expected time of arrival and confirmation of receipt of shipment.

ANNEX II

TABLE: CATEGORIZATION OF NUCLEAR MATERIAL

Material | Form | Category |

I | II | III c/ |

1. Plutonium a/ | Unirradiated b/ | 2 kg or more | Less than 2 kg but more than 500g | 500 g or less but more than 15 g |

2. Uranium-235 | Unirradiated b/ Uranium enriched to 20% 235U or more Uranium enriched to 10% 235U but less than 20% Uranium enriched above natural, but less than 10% 235U | 5 kg or more | Less than 5 kg but more than 1 kg 10 kg or more | 1 kg or less but more than 15 g Less than 10 kg but more than 1 kg 10 kg or more |

3. Uranium-233 | Unirradiated b/ | 2 kg or more | Less than 2 kg but more than 500g | 500 g or less but more than 15 g |

4. Irradiated fuel | Depleted or natural uranium, thorium or low-enriched fuel (less than 10% fissile content) d/ e/ |

a/ All plutonium except that with isotopic concentration exceeding 80% in plutonium-238.

b/ Material not irradiated in a reactor or material irradiated in a reactor but with a radiation level equal to or less than 1 gray/hour (1 00 rads/hour) at one metre unshielded.

c/ Quantities not falling in Category III and natural uranium should be protected in accordance with prudent management practice.

d/ Although this level of protection is recommended, it would be open to States, upon evaluation of the specific circumstances, to assign a different category of physical protection.

e/ Other fuel which by virtue of its original fissile material content is classified as Category I and II before irradiation may be reduced one category level while the radiation level from the fuel exceeds 1 gray/hour (100 rads/hour) at one metre unshielded.

[1] Status of 27 June 2006

[2] Council Decision of 9 June 1980 approving the conclusion by the Commission of the International Convention on the physical protection of nuclear material, Official Journal L 149, 17.6.1980 p. 41

[3] doc. 1024/05 ATO 62 CONOP 33 =C 438

[4] Articles 77-85 Euratom Treaty

[5] Ruling of the Court of 14 November 1978, Ruling 1/78 , Ruling delivered pursuant to the third paragraph of Article 103 of the EAEC Treaty, ECR 1978, p. 2151, in particular §§ 21, 34 and First operative part of the Ruling

[6] Judgment of the Court of Justice in Case C-176/03 of 13 September 2005, Commission of the European Communities v Council of the European Union, in particular §§ 47 and 48

[7] Articles 8-13 of the CPPNM deal with the definition of legal regimes for criminal offences, pursuit and extradition of offenders and related matters.

[8] OJ C , , p. .

[9] Status of 27 June 2006

[10] Ruling of the Court of 14 November 1978, Ruling 1/78, Ruling delivered pursuant to the third paragraph of Article 103 of the EAEC Treaty, ECR 1978, p. 2151, in particular First operative part of the Ruling and § 34

[11] idem, § 21