110th Congress Exec. Rept.
SENATE
2d Session 110-23
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INTERNATIONAL CONVENTION FOR SUPPRESSION OF ACTS OF NUCLEAR TERRORISM
_______
September 11, 2008.--Ordered to be printed
_______
Mr. Dodd, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-4]
The Committee on Foreign Relations, to which was referred
the International Convention for the Suppression of Acts of
Nuclear Terrorism, adopted on April 13, 2005 (the
``Convention'') (Treaty Doc. 110-4), having considered the
same, reports favorably thereon with one reservation, four
understandings, and one declaration, as indicated in the
resolution of advice and consent, and recommends that the
Senate give its advice and consent to ratification thereof, as
set forth in this report and the accompanying resolution of
advice and consent.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................1
III. Major Provisions.................................................2
IV. Entry Into Force.................................................6
V. Implementing Legislation.........................................6
VI. Committee Action.................................................6
VII. Committee Recommendation and Comments............................7
VIII.Resolution of Advice and Consent to Ratification.................8
IX Annex.--Treaty Hearing of May 7, 2008...........................11
I. Purpose
The purpose of the Convention, which has a structure that
is similar to other counterterrorism treaties to which the
United States is a party, is to prevent and suppress acts of
nuclear terrorism.
II. Background
The International Convention for the Suppression of Acts of
Nuclear Terrorism (the ``Nuclear Terrorism Convention'') was
the first counterterrorism treaty adopted after the attacks of
9/11 by the General Assembly of the United Nations. The United
States has strongly supported the Convention since its
inception and was the second to sign the instrument when it was
opened for signature on September 14, 2005.\1\ The Convention
has also been praised by the Director General of the
International Atomic Energy Agency (IAEA), Mohamed ElBaradei,
who has called on all states to ``sign and ratify the
Convention without delay so nuclear terrorism will have no
chance.''\2\ The Convention entered into force on July 7, 2007.
As of July 2008, the Convention had 115 signatories and 41
States Parties.
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\1\Russia was the first to sign the Convention.
\2\``IAEA Director General Welcomes Landmark Convention to Combat
Nuclear Terrorism'' available at http://www.iaea.org/NewsCenter/
PressReleases/2005/prn200502.html
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The Convention establishes an international framework
intended to augment cooperation among countries in combating
nuclear terrorism and preventing the proliferation of weapons
of mass destruction (``WMD''). The Convention has a similar
structure to other counterterrorism treaties that the United
States is a party to, such as the Terrorist Bombings\3\ and
Terrorist Financing\4\ Conventions. Specifically, the
Convention requires States Parties to (1) criminalize certain
acts; (2) take ``all practicable measures'' to prevent and
counter preparations for the commission of those acts; and (3)
extradite or submit for prosecution alleged offenders. In
addition, the Convention provides a legal basis for
international cooperation in the investigation, prosecution,
and extradition of alleged offenders and obligates States
Parties to take certain steps upon seizing or otherwise taking
control of radioactive material, devices, or nuclear facilities
for safeguarding purposes, following the commission of an
offense covered by the Convention. The Convention generally
excludes from its scope of application the activities of armed
forces during an armed conflict and the activities undertaken
by the military forces of a State in the exercise of their
official duties, which are already comprehensively governed by
other bodies of international law.
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\3\International Convention for the Suppression of Terrorist
Bombings, adopted by the United Nations General Assembly on December
15, 1997, and signed on behalf of the United States of America on
January 12, 1998 (Treaty Doc. 106-6). Entered into force for the United
States on July 26, 2002.
\4\International Convention for the Suppression of the Financing of
Terrorism, adopted by the United Nations General Assembly on December
9, 1999, and signed on behalf of the United States of America on
January 10, 2000 (Treaty Doc. 106-49). Entered into force for the
United States on July 26, 2002.
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III. Major Provisions
A detailed analysis of the Convention may be found in the
Letter of Submittal from the Secretary of State to the
President, which is reprinted in full in Treaty Document 110-4.
A summary of key provisions is set forth below.
Offenses Covered by the Convention
Articles 1 and 2 together serve to define certain offenses
covered by the Convention. Article 5 commits each State Party
to criminalize these offenses under its national law. The
offenses can be summarized as follows:
i. The unlawful and intentional 1) possession of
radioactive material;\5\ or 2) making or possession of
a device\6\--with the intent either to cause death,
serious bodily injury or substantial damage to property
or to the environment.
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\5\``Radioactive material'' is defined as nuclear material and
other radioactive substances which contain nuclides that undergo
spontaneous disintegration and which may, owing to their radiological
or fissile properties, cause death, serious bodily injury or
substantial damage to property or to the environment.
\6\A ``device'' can be a nuclear explosive device (that is, a
device that brings together nuclear material to cause an explosive
chain reaction leading to blast effects, heat, light, and radiation),
or it could be a radioactive-material-dispersal or a radiation-emitting
device (for example, a device that uses a regular chemical explosive to
generate heat and blast effects that also has radioactive material
mixed in), which owing to its radiological properties may cause death,
serious bodily injury, or substantial damage to property or the
environment.
ii. The unlawful and intentional 1) use of
radioactive material or a device; or 2) use of, or
damage to, a nuclear facility\7\--in a manner that
releases or risks the release of radioactive material
with the intent either to cause death, cause serious
bodily injury, cause substantial damage to property or
the environment, or compel a natural or legal person,
an international organization, or a State to do or
refrain from doing an act.
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\7\``Nuclear facility'' includes any nuclear reactor and any plant
or conveyance being used for the production, storage, processing or
transport of radioactive material.
iii. A credible threat to commit an offense as set
forth in (ii) or an unlawful and intentional demand for
radioactive material, a device, or a nuclear facility
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by threat in a credible manner or by use of force.
iv. An attempt to commit an offense set forth in (i)
or (ii) above.
v. To participate as an accomplice in any of the
offenses set forth in (i), (ii), (iii), and (iv) above.
vi. To organize or direct others to commit any of the
offenses set forth in (i), (ii), (iii), and (iv) above.
vii. To intentionally contribute to the commission of
one or more offenses as set forth in (i), (ii), (iii),
and (iv) above by a group of persons acting with a
common purpose, with either 1) the aim of furthering
the general criminal activity or purpose of the group;
or 2) the knowledge of the intention of the group to
commit the offense or offenses concerned.
Exceptions from the application of the Convention
Article 4 excludes from the scope of the Convention 1) the
activities of armed forces during an armed conflict, which are
governed by international humanitarian law; and 2) 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. Article 4 also
states that the Convention ``does not address, nor can it be
interpreted as addressing, in any way, the issue of the
legality of the use or threat of use of nuclear weapons by
States.''
Preventing Offenses
Article 7 of the Convention commits States Parties to take
``all practicable measures'' to prevent and counter
preparations in their respective territories for the commission
within or outside their territories of the offenses covered by
the Convention and described above. Article 7 also provides a
legal basis for cooperating by exchanging information and
coordinating as appropriate to detect, prevent, suppress and
investigate the offenses covered by the Convention.
Establishing Jurisdiction
Under Article 9, each State Party must establish its
jurisdiction over the offenses covered by the Convention and
described above when:
i. The offense is committed in the territory of that
State;
ii. The offense is committed on board a vessel flying
the flag of that State or an aircraft which is
registered under the laws of that State; or
iii. The offense is committed by a national of that
State.
A State Party is additionally permitted (but not required)
to establish its jurisdiction over the offenses covered by the
Convention and described above when:
i. The offense is committed against a national of
that State;
ii. The offense is committed against a government
facility of that State abroad, including an embassy or
some other diplomatic or consular premises of that
State;
iii. The offense is committed by a stateless person
who has his or her habitual residence in the territory
of that State;
iv. The offense is committed in an attempt to compel
that State to do or abstain from doing any act; or
v. The offense is committed on board an aircraft that
is operated by that State.
Extradite or Prosecute Regime
Articles 10, 11, and 13 set forth an ``extradite or
prosecute'' regime for persons who have allegedly committed
offenses covered by the Convention.
Article 10(1) requires States Parties to take measures to
investigate certain alleged offenses. Paragraph 2 requires
States Parties in which an offender or an alleged offender is
located to take measures under their national law to ensure
that person's presence for the purpose of prosecution or
extradition. Paragraphs 3, 4, and 5 require States Parties to
respect certain rights of alleged offenders or confirmed
offenders in their custody, which are consistent with existing
U.S. law. Article 11 provides that States Parties in which
persons alleged to have committed offenses under the Convention
are present shall either extradite such persons or submit the
case for prosecution. These provisions are similar to those
that appear in other counterterrorism conventions to which the
United States is a party, such as the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime
Navigation.
Article 13 adds to existing extradition treaties between
States Parties the offenses covered by the Convention and
provides that States Parties shall undertake, in subsequent
extradition treaties between them, to include these offenses as
extraditable offenses. Paragraph 2 of Article 13 provides that
States Parties that make extradition conditional on the
existence of an extradition treaty may use the Convention as an
independent legal basis for extradition when there is no
applicable extradition treaty. The Secretary of State has noted
in her letter of submittal that, consistent with the
longstanding U.S. policy to extradite fugitives only to States
with which the United States has an extradition treaty, it does
not expect to use the Convention as a basis for extraditing
persons to countries with which the United States does not have
bilateral extradition treaties.
Treatment While in Custody
Article 12 requires States Parties to guarantee to persons
taken into custody for offenses under the Convention fair
treatment, including enjoyment of all rights and guarantees in
conformity with the law of the State in the territory of which
that person is present and applicable provisions of
international law, including international human rights law.
This provision is consistent with existing U.S. law and can be
found in other counterterrorism treaties to which the United
States is a party, such as Article 17 of the Terrorist
Financing Convention and Article 10(2) of the Convention for
the Suppression of Unlawful Acts against the Safety of Maritime
Navigation. As is made clear in the declaration included in the
draft Resolution of advice and consent and discussed further
below, this provision does not confer private rights
enforceable in U.S. courts. Nevertheless, individuals with
claims relating to their treatment while in U.S. custody, would
have other domestic legal avenues through which to pursue such
claims.
Protective Measures
Article 8 obligates States Parties to ``make every effort''
to adopt appropriate measures to ensure the protection of
radioactive material, taking into account ``relevant
recommendations and functions of the International Atomic
Energy Agency.'' In response to questions from the committee,
the Department of State has asserted that the Department of
Energy and the Nuclear Regulatory Commission ``already have in
place regulations and other documents (such as orders and
manuals) to ensure the protection of nuclear and byproduct
material.''
Article 18 obligates States Parties to take certain steps
upon seizing or otherwise taking control of radioactive
material, devices, or nuclear facilities, following the
commission of an offense covered by the Convention.
Specifically, a State Party must take steps to render the
material, device, or facility harmless, ensure that any nuclear
material is held in accordance with applicable IAEA safeguards,
and have regard to physical protection recommendations and
health and safety standards published by the IAEA. Moreover,
following the completion of any proceedings connected with an
offense covered by the Convention, any material, device, or
nuclear facility must be returned to the State Party to which
it belongs, the State Party of which the person owning such
radioactive material, device, or nuclear facility is a national
or resident, or to the State Party from whose territory it was
stolen or otherwise unlawfully obtained. Article 18 also
establishes procedures for the handling of such material when
no originating State exists or when a particular State cannot
lawfully return, possess, or accept the material.
Dispute Resolution
Article 23 provides a binding dispute resolution mechanism
for disputes regarding the interpretation or application of the
Convention that are not settled through negotiation within a
reasonable time; however, Article 23 also provides that a State
Party may make a declaration opting out of this dispute
resolution mechanism. The committee proposes on the basis of
the State Department's recommendation that the United States
opt out of the binding dispute resolution mechanism in the
treaty. Consequently, the proposed Resolution of advice and
consent contains such a reservation.
IV. Entry Into Force
In accordance with Article 25, the Convention will enter
into force for the United States on the thirtieth day following
the date on which the United States deposits its instrument of
ratification with the Secretary-General of the United Nations.
V. Implementing Legislation
With the exception of the provisions in the Convention that
obligate the United States to criminalize certain offenses,
make those offenses punishable by appropriate penalties, and
authorize the assertion of jurisdiction over such offenses,
this Convention is self-executing. The provisions that are not
self-executing would be implemented through legislation.
Some of the offenses States Parties are obligated to
criminalize are already covered by existing provisions in the
U.S. Code. For example, the Convention's prohibition against
the possession or use of a nuclear explosive or radiation
dispersal device with the intent to cause death or serious
bodily injury may be covered by 18 U.S.C. Sec. 832 (prohibiting
the unlawful possession or use of a ``radiological weapon'')
and/or 18 U.S.C. Sec. 2332h (prohibiting the unlawful
possession or use of a ``weapon'' or ``device'' designed to
release radiation). Offenses not covered in existing provisions
of the U.S. Code will need to be addressed in further
implementing legislation prior to U.S. ratification of the
Convention. In light of this, the Department of Justice has
submitted a draft bill to Congress entitled the ``Nuclear
Terrorism Conventions Implementation Act of 2008,'' which would
supplement existing provisions of the U.S. Code in order to
fully implement not just this Convention, but also the
Amendment to the Convention on the Physical Protection of
Nuclear Material. This draft legislation is currently under
consideration by the Committees on the Judiciary of the House
and Senate. The committee understands that the executive branch
will not deposit an instrument of ratification for this
Convention until legislation has been enacted that will allow
the United States to fully implement the Convention.
VI. Committee Action
The committee held a public hearing on the Convention on
May 7, 2008. Testimony was received from Ms. Patricia McNerney,
Principal Deputy Assistant Secretary of State for International
Security and Nonproliferation at the Department of State; Mr.
John Demers, Deputy Assistant Attorney General for the National
Security Division at the Department of Justice; and Mr. Richard
Douglas, Deputy Assistant Secretary of Defense for
Counternarcotics, Counter-proliferation and Global Threats at
the Department of Defense. A transcript of this hearing can be
found in the Annex to this report.
On July 29, 2008, the committee considered the Convention
and ordered it favorably reported by voice vote, with a quorum
present and without objection.
VII. Committee Recommendation and Comments
The Committee on Foreign Relations believes that the
Convention presents a significant opportunity to strengthen and
supplement current efforts by the United States to prevent and
suppress nuclear terrorism and the proliferation of weapons of
mass destruction. Accordingly, the committee urges the Senate
to act promptly to give advice and consent to ratification of
the Convention, as set forth in this report and the
accompanying resolution of advice and consent.
RESOLUTION
The committee has included in the resolution of advice and
consent a reservation, four understandings, and one
declaration.
Reservation
The proposed reservation essentially allows the United
States to opt out of the binding dispute resolution mechanism
provided for in the Convention. This reservation is similar to
those made by the United States with respect to the dispute
settlement mechanisms in the Terrorist Bombings and Terrorism
Financing Conventions.
First Understanding
Article 4(2) of the Convention carves from the scope of the
Convention the activities of armed forces during an armed
conflict, which are instead governed by ``international
humanitarian law,'' which is also known as the ``law of war.''
This provision is identical to the one found in Article 19(2)
of the Terrorist Bombings Convention. The proposed
understanding would make it clear that this carve-out does not
include certain situations such as ``internal disturbances and
tensions, such as riots, isolated and sporadic acts of
violence, and other acts of a similar nature'' in an effort to
prevent attempts by suspected offenders to claim the benefit of
this ``armed conflict'' exception in order to improperly avoid
extradition or prosecution under the Convention. This
understanding is the same as the understanding included in the
Senate's resolution regarding the Terrorist Bombings Convention
with respect to Article 19(2).
Second Understanding
Article 4 of the Convention uses the term ``international
humanitarian law,'' which is not generally used by the United
States armed forces and therefore the committee has included,
on the basis of the executive branch's recommendation, this
proposed understanding to make clear that the term
``international humanitarian law'' has the same substantive
meaning as ``law of war.''
Third Understanding
Article 4(2) of the Convention carves from the scope of the
Convention ``activities undertaken by military forces of a
State in the exercise of their official duties, inasmuch as
they are governed by other rules of international law.'' The
committee, on the basis of the executive branch's
recommendation, has included this proposed understanding in
order to clarify that the conduct of certain civilians who
direct, organize, or act in support of, the official activities
of the military are also exempted from the Convention's scope
of application.
Fourth Understanding
This proposed understanding would make it clear that
existing U.S. law implements the obligations contained in
Article 12 of the Convention.
Declaration
The committee has included a proposed declaration, which
states that the Convention is self-executing, with the
exception of those provisions that obligate the United States
to criminalize certain offenses, make those offenses punishable
by appropriate penalties, and authorize the assertion of
jurisdiction over such offenses. In addition, the proposed
declaration clarifies that none of the provisions in the
Convention confer private rights enforceable in U.S. courts.
This declaration is consistent with testimony provided by the
Department of State. The Senate has rarely included statements
regarding the self-executing nature of treaties in resolutions
of advice and consent, but in light of the recent Supreme Court
decision, Medellin v. Texas, 128 S.Ct. 1346 (2008), the
committee has determined that a clear statement in the
resolution is warranted. A further discussion of the
committee's views on this matter can be found in Section VIII
of Executive Report 110-12.
VIII. Resolution of Advice and Consent to Ratification
Resolved (two-thirds of the Senators present concurring
therein),
SECTION 1. SENATE ADVICE AND CONSENT SUBJECT TO A RESERVATION,
UNDERSTANDINGS, AND A DECLARATION
The Senate advises and consents to the ratification of the
International Convention for the Suppression of Acts of Nuclear
Terrorism, adopted on April 13, 2005, and signed on behalf of
the United States of America on September 14, 2005 (the
``Convention'') (Treaty Doc. 110-4), subject to the reservation
of section 2, the understandings of section 3, and the
declaration of section 4.
SECTION 2. RESERVATION
The advice and consent of the Senate under section 1 is
subject to the following reservation, which shall be included
in the instrument of ratification:
Pursuant to Article 23(2) of the Convention, the
United States of America declares that it does not
consider itself bound by Article 23(1) of the
Convention.
SECTION 3. UNDERSTANDINGS
The advice and consent of the Senate under section 1 is
subject to the following understandings, which shall be
included in the instrument of ratification:
(1) The United States of America understands that the
term ``armed conflict'' in Article 4 of the Convention
does not include situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts
of violence, and other acts of a similar nature.
(2) The United States of America understands that the
term ``international humanitarian law'' in Article 4 of
the Convention has the same substantive meaning as the
law of war.
(3) The United States of America understands that,
pursuant to Article 4 and Article 1(6), the Convention
does not apply to: (a) the military forces of a State,
which are the armed forces of a State organized,
trained, and equipped under its internal law for the
primary purpose of national defense or security, in the
exercise of their official duties; (b) civilians who
direct or organize the official activities of military
forces of a State; or (c) civilians acting in support
of the official activities of the military forces of a
State, if the civilians are under the formal command,
control, and responsibility of those forces.
(4) The United States of America understands that
current United States law with respect to the rights of
persons in custody and persons charged with crimes
fulfills the requirement in Article 12 of the
Convention and, accordingly, the United States does not
intend to enact new legislation to fulfill its
obligations under this Article.
SECTION 4. DECLARATION
The advice and consent of the Senate under section 1 is
subject to the following declaration:
With the exception of the provisions that obligate
the United States to criminalize certain offenses, make
those offenses punishable by appropriate penalties, and
authorize the assertion of jurisdiction over such
offenses, this Convention is self-executing. Included
among the self-executing provisions are those
provisions obligating the United States to treat
certain offenses as extraditable offenses for purposes
of bilateral extradition treaties. None of the
provisions in the Convention, including Articles 10 and
12, confer private rights enforceable in United States
courts.
Annex.--Treaty Hearing of May 7, 2008
TREATIES
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WEDNESDAY, MAY 7, 2008
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:32 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. Jim Webb
presiding.
Present: Senators Webb and Lugar.
OPENING STATEMENT OF HON. JIM WEBB, U.S. SENATOR FROM VIRGINIA
Senator Webb. The committee will come to order. Today, the
Committee on Foreign Relations meets to consider four
multilateral treaties that would make a significant
contribution to the nonproliferation and counterterrorism
efforts of the United States in this post-9/11 era. All four
treaties build on an existing international criminal law and
nonproliferation framework that the United States played a key
role in constructing.
The first treaty, the International Convention for the
Suppression of Acts of Nuclear Terrorism, stands on its own,
but closely follows the structure of older treaties to which
the United States is a party, such as the Terrorist Bombings
and Terrorist Financing Conventions.
The three remaining treaties on the committee's docket
today are an amendment and two protocols to existing treaties
that the United States has already joined. There is the
Amendment to the 1979 Convention on the Physical Protection of
Nuclear Material, commonly known as the Physical Protection
Convention; a protocol to the 1988 Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, known as the 2005 SUA Protocol; and a protocol to
the related 1988 Protocol Concerning the Safety of Fixed
Platforms on the Continental Shelf, known as the 2005 Fixed
Platforms Protocol.
All four treaties were concluded after 9/11 and attempt to
satisfy, at least in part, the urgent need for a more effective
and comprehensive international regime to combat terrorism and
nuclear proliferation. Each treaty requires States to
criminalize certain acts and then involves a separate
requirement to extradite or prosecute people who commit such
acts. Additionally, these treaties provide for various forms of
cooperation, information-sharing, and the protection of nuclear
material and nuclear facilities.
The Nuclear Terrorism Convention is designed to prevent and
suppress acts of nuclear terrorism. The convention follows
closely the model of other counterterrorism treaties to which
the United States is a party, such as the Terrorist Bombings
and Terrorist Financing Conventions.
Specifically, the convention requires States Parties to:
One, criminalize certain acts; two, take all practical measures
to prevent the commission of those acts; and three, extradite
or prosecute alleged offenders. In addition, the convention
provides a legal basis for international cooperation in the
investigation, prosecution, and extradition of alleged
offenders and obligates State Parties to take certain steps
upon seizing or otherwise taking control of radioactive
material, devices, or nuclear facilities for safeguarding
purposes following the commission of an offense that is covered
by the convention.
The second treaty is an amendment to the Convention on the
Physical Protection of Nuclear Material. The Physical
Protection Convention, which was originally concluded in 1979
and which the United States ratified in 1982, established an
international framework for improving the physical protection
of nuclear material used for peaceful purposes only during
international transport and for international cooperation in
recovering stolen nuclear material when responding to serious
offenses involving nuclear material.
When signing the implementing legislation for the Physical
Protection Convention, President Reagan declared that joining
and implementing the treaty, ``symbolizes our firm commitment
both to preventing the spread of nuclear explosives and to
fighting the scourge of terrorism.''
The amendment to the convention supplements the existing
framework primarily by articulating new international norms for
the physical protection of nuclear material and facilities,
including protection from sabotage, when in purely domestic
use, storage, and transport as well as in international
transport; by strengthening obligations for cooperation among
States Parties on matters of physical protection and for the
prosecution or extradition of those committing offenses
involving nuclear material and nuclear facilities for peaceful
purposes; and by adding new criminal offenses to the existing
``extradite or prosecute regime'' under the Physical Protection
Convention, such as sabotage and smuggling.
Finally, the 2005 SUA Protocol and the 2005 Fixed Platforms
Protocol amend two older agreements concluded in 1988, which
were originally negotiated in response to the 1985 hijacking of
the Italian cruise ship Achille Lauro.
The principal purpose of the 1988 agreements was to ensure
that individuals who committed acts of terrorism that endanger
the safe navigation of a ship or the safety of a fixed platform
are prosecuted. The older agreements were focused on vessels
and fixed platforms, such as the potential target of an attack
or other terrorist activity.
The new protocols, however, expand the existing
international framework to include scenarios in which vessels
or platforms are used as a potential means for carrying out or
enabling terrorist activity. Specifically, the protocols
establish a framework for investigating, prosecuting, and
extraditing any person who, among other things: One, uses or
threatens to use a ship or fixed platform as a weapon or as a
means to carry out a terrorist attack; two, unlawfully and
knowingly by ship transports biological, chemical, or nuclear
weapons or equipment, materials, or software that significantly
contribute to the development and delivery of such systems; or
three, transports terrorist fugitives by sea.
In addition, the SUA Protocol creates a ship-boarding
regime on the high seas based on flag-State consent if a State
Party has reasonable grounds to suspect that an offense covered
by the treaty has been, is being, or is about to be committed.
As a result, the SUA Protocol in particular would serve to
strengthen the maritime interdiction component of the
Proliferation Security Initiative.
As the Senate considers these four counterterrorism
treaties, it is critical to remember the following points that
these treaties all share in common. First, that our Defense
Department and our military strongly support these treaties and
believe they are consistent with U.S. national security
interests. Second, all four treaties will supplement and
enhance our international law enforcement framework for
combating terrorism and nuclear proliferation.
Third, Senate approval and entry into force by the United
States will set an important example and bolster U.S.
leadership in promoting universal adherence to counterterrorism
treaties, will help advance our Nation's interest in combating
terrorism and proliferation, and will allow us to participate
fully in relevant international meetings on the implementation
of these treaties.
The committee is pleased to have a panel of administration
witnesses today to testify in support of these four treaties.
Patricia McNerney, the Principal Deputy Assistant Secretary of
State for International Security and Nonproliferation. John
Demers is the Deputy Assistant Attorney General at the
Department of Justice. Richard Douglas, the Deputy Assistant
Secretary of Defense for counternarcotics,
counterproliferation, and global threats.
I would now ask Senator Lugar for his opening statement.
STATEMENT OF HON. RICHARD G. LUGAR, U.S. SENATOR FROM INDIANA
Senator Lugar. Well, thank you very much, Mr. Chairman.
I join you in welcoming our witnesses and appreciate the
opportunity to hear testimony regarding the four treaties,
which you have outlined and would help to strengthen the
international framework against the proliferation of nuclear
weapons and materials.
The Amendment to the Convention on Physical Protection of
Nuclear Material updates that agreement by applying it
specifically to nuclear terrorism. The International Convention
for Suppression of Acts of Nuclear Terrorism enhances efforts
to prevent nuclear terrorism through the vehicle of a
multilateral agreement.
And finally, as you pointed out, the 2005 protocols related
to maritime navigation will criminalize trafficking in nuclear
material and update existing agreements to reflect the progress
the United States has made in gaining international support for
proliferation interdiction efforts.
In April 2004, the U.N. Security Council adopted Resolution
1540, establishing for the first time binding obligations on
all U.N. Member States to take and enforce effective measures
against the proliferation of weapons of mass destruction, their
means of delivery, and related materials. If fully implemented,
Resolution 1540 can help ensure that no State or non-State
actor is a source of weapons of mass destruction proliferation.
Congress has also taken steps to update the set of tools
available to the President to aggressively confront nuclear
proliferation and terrorism. In 2006, Congress passed and the
President signed into law permanent waiver authority for the
Nunn-Lugar Cooperative Threat Reduction Program. This permanent
waiver authority was necessary to prevent the annual
certification process from unnecessarily hindering the critical
work of the Nunn-Lugar program.
In 2006, Congress also passed the Lugar-Obama act, a
provision of which authorized the President to conclude
agreements with other countries to prevent the transportation
of weapons of mass destruction and related materials to non-
State actors or States of proliferation concern. The two
maritime agreements we will review today provide an
international legal base for concluding agreements similar to
those envisioned in the Lugar-Obama legislation.
Now I am most hopeful that these treaties will be
implemented in such a way as to strengthen our authority to
confront the threat of nuclear proliferation. As the Foreign
Relations Committee takes up consideration of these treaties,
we do so in the context of some administration inconsistencies
toward recent treaties that President Bush has asked the Senate
to pass.
In 2006 and 2007, I worked with other members of this
committee to ensure that two agreements, one related to nuclear
nonproliferation and one related to nuclear liability, went
through all necessary legislative steps. Yet these agreements
still have not entered into force because executive branch
action to complete the ratification process has been
inexplicably delayed.
I am deeply concerned by the Bush administration's failure
to bring into force the additional protocol to our safeguards
agreement with the International Atomic Energy Agency. In
February 2004, President Bush called on the Senate to promptly
ratify the U.S. additional protocol. As chairman of the
committee at that time, I initiated the necessary action to
ensure that the Senate did what the President had asked.
Likewise, after much effort, the Senate passed implementing
legislation for the U.S. additional protocol in November 2006.
One would presume that congressional approval would be the
most difficult part of the implementation process. But 18
months after passage of the implementing legislation, the Bush
administration still has not submitted our instrument of
ratification to the IAEA.
Eleven months ago, Senator Biden and I wrote to Secretaries
Rice and Gates urging implementation of the U.S. additional
protocol. This was followed by a second letter from myself to
Secretary Rice last September similarly urging action. I have
raised this issue in hearings and private meetings with
administration officials without receiving a satisfactory
answer as to why implementation of a measure specifically
requested by President Bush is taking so long.
I understand there can be legal and policy issues that must
be resolved even after Congress passes treaties and associated
implementing legislation. But if an administration is committed
to a particular measure, such issues should take weeks to
resolve and not years.
I would underscore that the Bush administration supported
the changes to the implementing legislation originally reported
by our committee, and at no point did the administration state
that revisions subsequently added to the legislation would slow
implementation. Indeed, in my judgment, there is nothing in the
legislation that would warrant such a glacial process of
implementation.
The administration has also not submitted its instrument of
ratification for the Convention on Supplementary Compensation
for Nuclear Damage, the CSC, which the Senate ratified in
August 2006 and for which Congress passed implementing
legislation in December 2007. The administration has called the
CSC critical to providing liability protection for our nuclear
industry in India, China, and other areas currently expanding
nuclear power capabilities.
All of the treaties we consider today require implementing
legislation before they can come into force. Passing these
treaties and associated implementing legislation will be a
heavy lift. I believe this committee is willing to undertake
that task, and I am most hopeful that the chairman shares my
enthusiasm.
But the administration, likewise, must fulfill its
responsibilities related to previous treaties. With only a few
months left in this administration, I am hopeful that our
witnesses might shed some light on when we might see completion
of work on the additional protocol and on the CSC. Further, in
view of our experience, how will you work to ensure that the
treaties we examine today will enjoy expeditious executive
action, should Congress complete its work?
I look forward to our discussion and your responses to
these questions.
I thank you, Mr. Chairman.
Senator Webb. Thank you, Senator Lugar.
By unanimous consent, I would like to insert a statement
for the record by Senator Casey, who is unable to attend this
hearing.
[The prepared statement of Senator Casey follows:]
Prepared Statement of Hon. Robert P. Casey, Jr., U.S. Senator From
Pennsylvania
Thank you, Chairman Webb, for holding this important hearing today.
The greatest danger facing our Nation today is the prospect of a
terrorist group, possibly in cooperation with a nation-state, smuggling
through our borders and detonating an improvised nuclear weapon in an
American city. The long-term threat of nuclear terrorism is one that
deserves our full attention and so I am pleased that the Senate Foreign
Relations Committee is holding this hearing today on two key
international agreements that can help mitigate that threat. The
international community must establish a comprehensive framework toward
combating nuclear terrorism that supplements the existing
nonproliferation regime.
The International Convention for the Suppression of Act of Nuclear
Terrorism and the Amendment to the Convention on the Physical
Protection of Nuclear Material, both of which are before the committee
today, would help establish and implement the next steps necessary to
an effective international response combating nuclear terrorism. First,
the International Convention for the Suppression of Acts of Nuclear
Terrorism would play a crucial role in deterring would-be terrorists or
accomplices to an act of nuclear terrorism. It calls upon State Parties
to develop legal frameworks to enforce appropriate penalties relating
to nuclear terrorism. Entry into force of this convention would close
loopholes in domestic laws that allow persons who proliferate nuclear
materials or component to escape punishment for their actions. The
United States and Russia, the world's largest nuclear powers, already
have laws in place to prosecute citizens involved in proliferation.
However, the growing number of reports of nuclear material trafficking
suggests that many countries do not have the legal systems or the
enforcement capacity to make a complete crackdown on trafficking in
nuclear materials a national priority. The good news is that the
quantities detected so far in trafficking attempts have been small, but
the bad news is that, just as with drug trafficking, those transactions
that have come to our attention are only a fraction of what may
actually be occurring.
We must take action now to ensure that other States take a similar
approach to individuals who aid and abet acts of nuclear terrorism.
Unless we take steps to ratify and implement this Convention, the
United States will lack the moral authority to persuade the other 115
signatories to champion the cause and institute the requisite domestic
statues. Aiding and abetting acts of nuclear terrorism is abhorrent and
reprehensible. It is my belief that the United States, working in
concert with the international community, should go above and beyond
this Convention and brand such acts as crimes against humanity, just as
we treat acts of slavery and piracy today. But we start down this road
by ensuring that all nations enforce and prosecute acts of nuclear
terrorism to the fullest extent possible under their domestic statutes,
as provided for under this Convention.
Another treaty before this committee today, the Amendment to the
Convention on the Physical Protection of Nuclear Material (CPPNM),
likewise plays an important role in preventing nuclear terrorism.
Today, as many as 40 nations possess the key material and components
required to assemble a nuclear weapon. Yet, too many nuclear facilities
across the globe do not yet have the security safeguards we must insist
upon for stockpiles of fissile material. Neither the United States nor
the International Atomic Energy Agency has assembled a comprehensive
priority list assessing which facilities around the world pose the most
serious threat, according to Dr. Matthew Bunn, a leading expert on
nuclear terrorism. The proposed amendment to the CPPNM calls on
countries to take required steps to better secure the nuclear material
and components under their possession. By establishing international
norms to better physically protect nuclear materials and facilities,
secure facilities from sabotage, strengthen the obligation to cooperate
on the physical protection of nuclear materials and extraditions, and
criminalize trafficking and sabotage of nuclear material, this
amendment would help establish another layer of security to thwart a
preventable catastrophic event.
The United States must work in concert with the international
community to fully secure nuclear material and components and deter
terrorists from seeking the ultimate weapon. The treaties before the
committee today represent an important milestone in establishing a
universal, international norm against nuclear terrorism. We do not have
the luxury of time when it comes to this threat and so I encourage the
committee to take speedy action to mark up and report out these
conventions to the full Senate.
Thank you, Mr. Chairman, and I look forward to the testimony of our
witnesses.
Senator Webb. And I would like to welcome our witnesses. As
Chairman Biden was unable to be here today, I am obviously
standing in for him. And I know that Senator Lugar has worked
on this issue long and hard, and I am going to be very
interested to hear a number of the questions that he has.
We can begin--we will just start from the left and move to
the right here. Mr. Douglas, if you would like to begin?
Mr. Douglas. Thank you, Mr. Chairman.
Senator Webb. Did you have an order that you would rather
proceed in?
Ms. McNerney. We are going to start with State Department
and move to Justice to DOD, if that satisfies you?
Senator Webb. Fine with me.
STATEMENT OF PATRICIA McNERNEY, PRINCIPAL DEPUTY ASSISTANT
SECRETARY, INTERNATIONAL SECURITY AND NONPROLIFERATION,
DEPARTMENT OF STATE, WASHINGTON, DC
Ms. McNerney. Mr. Chairman, Senator Lugar, thank you for
the opportunity to appear before the committee today to testify
in support of these four counterterrorism and
counterproliferation treaties--the Nuclear Terrorism
Convention, the 2005 Protocol to the Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime
Navigation, the protocol of--the 2005 Protocol to the
Suppression of Unlawful Acts Against the Safety of Fixed
Platforms, and the Amendment to the Convention on Physical
Protection of Nuclear Material.
The Department of State strongly supports ratification of
these treaties for several reasons. First, joining these
treaties will enhance U.S. national security by modernizing and
strengthening the international legal framework in a manner
that is critical for preventing terrorists from acquiring or
using weapons of mass destruction.
Second, the treaties support related U.S. policy
priorities, such as the Global Initiative to Combat Nuclear
Terrorism and the Proliferation Security Initiative. They also
further the objectives of the nonproliferation obligations set
out in U.N. Security Council Resolution 1540.
Third, each of these treaties fills a gap in preexisting
treaty regimes that exist, and these have been successful
regimes, time-
tested, in which the United States is already participating.
Fourth, U.S. ratification of these treaties can be expected
to encourage ratification by other nations. The Nuclear
Terrorism Convention, which the United States strongly
supported and which entered into force on July 7, 2007, is the
only one of the 13 international counterterrorism treaties
currently in force to which the United States is not a party.
The SUA Protocols and the Physical Protection of Nuclear
Material amendment, which have not yet entered into force, were
U.S.-led initiatives. We anticipate the U.S. ratification of
these treaties will create significant momentum toward
additional ratification and entry into force.
Finally, U.S. ratification will reinforce the leading role
the United States has played in promoting these treaties in the
counterterrorism and counterproliferation treaty regimes in
general, and these will strengthen our position in negotiations
on additional treaties and amendments.
I would like to briefly go into a little more detail on
each of the treaties. The Nuclear Terrorism Convention was
signed on September 14, 2005, by the President on the first day
the treaty was open for signature, and this was really a part
of our agenda to combat nuclear terrorism. The treaty provides
a legal basis for international cooperation in the
investigation, prosecution, and extradition of those who commit
terrorist acts involving radioactive material and nuclear
radioactive device, as well as nuclear facilities.
As you mentioned some of the details, the two primary
offenses here and a range of ancillary offenses, but the
primary offenses that are additive are that the--makes unlawful
the intentional possession of radioactive material or a nuclear
radioactive device with the intent to cause death, injury, or
other damage. And it also makes unlawful the intentional use of
radioactive material or nuclear or radioactive devices or use
or damage to a nuclear facility with intent to cause death,
injury, or other damage to achieve a terrorist objective.
Similar to other multilateral counterterrorism treaties to
which the United States is party, this treaty creates an
extradite or prosecute legal requirement and also a mutual
legal assistance regime for Parties.
Moving to the SUA Protocol and the fixed platforms
protocol, in the wake of 9/11 terrorist attacks, the
international community really recognized that the 1988 SUA
Convention and Protocol were not adequate in scope. While they
treated vessels and platforms as potential objects of
terrorism, they did not address the use of vessels and fixed
platforms as the means of conducting or enabling terrorist
activity.
These 2005 protocols establish, among other things, new
principal offenses as well as ancillary offenses and a ship-
boarding regime. The protocols are the first multilateral
treaty framework for the investigation, detention, prosecution,
and extradition of persons who commit terrorist attacks using a
ship or fixed platform, transport on a civil ship the WMD or
their delivery systems, or related material, such as dual-use
items, which was a key part of this negotiation, as well as
transport on such ships of terrorist fugitives. The protocols
also create a robust framework for criminal liability for
ancillary offenses, including attempts and accessory liability.
It is important to note that the WMD-related offense
provisions do not affect the rights and obligations under the
Nonproliferation Treaty as well as the Biological Weapons
Convention and the Chemical Weapons Convention. Parties to the
2005 protocol must criminalize domestically these new offenses,
which is also consistent with U.N. Security Council Resolution
1540.
Finally, with regard to the SUA Protocols is the creation
of a framework for consensual ship-boarding agreements. This
ship-boarding regime, which we are also doing bilateral ship-
boarding agreements that are in parallel, will serve to
strengthen the international legal basis for interdictions at
sea as called for in the Proliferation Security Initiative and
will also promote implementation of U.N. sanctions toward Iran
and North Korea.
Last, on the 1979 Convention on the Physical Protection of
Nuclear Material, or the CPPNM, established physical protection
obligations for nuclear material used for peaceful purposes in
international transport. But beginning in the 1990s, the United
States led an initiative to expand that treaty, which has been
an important tool in our protection of nuclear material, to
cover physical protection of nuclear facilities domestically as
well as nuclear material in use, storage, and transport.
The 9/11 terrorist attacks, greater terrorist interest in
acquiring nuclear material, and the increased concerns about
illicit trafficking in nuclear materials added urgency to these
efforts to expand the CPPNM. The amendment adopted on July 8,
2005, at a diplomatic conference held under the auspices of the
International Atomic Energy Agency is the result of those
efforts. And this will significantly expand the original scope
of the CPPNM and will, in fact, globalize U.S. physical
security practices.
It establishes new international norms for protection of
nuclear materials and facilities, including protection from
sabotage. It will strengthen the obligations for cooperation
among States Parties to the amendment on physical protection,
and it will build upon the penal regime provided for in the
underlying treaty.
In sum, Mr. Chairman, we urge early ratification for these
very important treaties, which will bolster our efforts to
prevent terrorists from acquiring or using WMD and enhance the
international legal framework for counterterrorism and
counterproliferation. I will be happy to answer any other
questions and would just ask that my longer statement be placed
in the record.
Senator Webb. Without objection, so ordered.
[The prepared statement of Ms. McNerney follows:]
Prepared Statement of Patricia A. McNerney, Principal Deputy Assistant
Secretary of State for International Security and Nonproliferation,
Department of State, Washington, DC
introduction
Thank you for the opportunity to appear before this committee today
to discuss four multilateral counterterrorism treaties: The
International Convention for Suppression of Acts of Nuclear Terrorism
(``Nuclear Terrorism Convention'' or ``NTC''), the Protocol of 2005 to
the Convention for the Suppression of Unlawful Acts against the Safety
of Maritime Navigation (``2005 SUA Protocol''), the Protocol of 2005 to
the Protocol for the Suppression of Unlawful Acts against the Safety of
Fixed Platforms Located on the Continental Shelf (``2005 Fixed
Platforms Protocol''), and the Amendment to the Convention on Physical
Protection of Nuclear Material (``CPPNM Amendment'' or ``Amendment'').
These treaties are important tools in the international fight
against terrorism and the proliferation of Weapons of Mass Destruction
(``WMD''). Each fills an important gap in the existing international
regime, while building on an existing treaty to which the United States
is already a Party:
The Nuclear Terrorism Convention (Treaty Doc. 110-4), while
freestanding, builds upon the Terrorist Bombing Convention and
Terrorist Financing Convention by addressing an additional and
critical category of terrorist activity: The nexus between
terrorism and nuclear weapons and other radioactive materials
and devices, such as ``dirty bombs.''
The two SUA Protocols (Treaty Doc. 110-8) supplement the
1988 SUA Convention on the Safety of Maritime Navigation and
its 1988 Fixed Platforms Protocol by addressing the potential
use of vessels and platforms as a means of conducting or
enabling terrorist activity, and by addressing the unlawful
transport of WMD and related items via commercial ships.
The CPPNM Amendment (Treaty Doc. 110-6) supplements the 1979
Convention on the Physical Protection of Nuclear Material and
expands its scope to address the physical protection of nuclear
material used for peaceful purposes in domestic use, storage
and transport in addition to that in international nuclear
transport, and of nuclear facilities used for peaceful
purposes.
The Department of State strongly supports ratification of these
treaties for several reasons:
First, joining them will enhance U.S. national security. The
treaties modernize and strengthen the international counterterrorism
and counterproliferation legal framework in a manner that is critical
to our efforts to prevent terrorists from acquiring or using WMD.
Second, the treaties support related USG policy priorities, such as
the Global Initiative to Combat Nuclear Terrorism and the Proliferation
Security Initiative. Cooperation under the Global Initiative includes
efforts to strengthen national legal frameworks to ensure the effective
prosecution of, and the certainty of punishment for, terrorists and
those who facilitate acts of nuclear terrorism. The treaties also
further the objectives of, and support implementation of, the
nonproliferation obligations set out in United Nations Security Council
Resolutions 1540 (2004).
Third, as noted, each treaty fills a gap in a preexisting treaty
regime that has been successful and time-tested, and in which the
United States already participates.
Fourth, U.S. ratification of these treaties can be expected to
encourage ratification by other countries. Widespread ratification and
implementation of the treaties is critical, given their significant
national security focus. The Nuclear Terrorism Convention, which the
United States has strongly supported and which entered into force on
July 7, 2007, is the only one of the 13 international counterterrorism
treaties currently in force to which the United States is not a Party.
The SUA Protocols and the CPNNM Amendment, which have not yet entered
into force, were U.S.-led initiatives. We anticipate that U.S.
ratification of those treaties will create significant momentum towards
their entry into force.
Finally, U.S. ratification will reinforce the leading role the
United States has played in promoting these treaties and the
counterterrorism treaty regime and nonproliferation in general, and
will strengthen the United States position in other negotiations that
involve related matters, such as an effort to amend the aviation
counterterrorism treaties.
Based on these considerations, we urge the committee and the Senate
to give favorable consideration to all four treaties.
I now would like to turn to a more detailed discussion of each
treaty.
nuclear terrorism convention
The President signed the NTC on September 14, 2005, the first day
the treaty was open for signature, as part of his bold agenda to combat
nuclear terrorism. The NTC closely follows the model of previously
adopted counterterrorism conventions to which the U.S. is a Party, such
as the Terrorist Bombings and Terrorist Financing conventions. It
provides a specific legal basis for international cooperation in the
investigation, prosecution, and extradition of those who commit
terrorist acts involving radioactive material or a nuclear or
radioactive device or nuclear facilities.
Like previous treaties, the NTC establishes offenses, requires
domestic criminalization of those offenses, and obligates Parties to
establish jurisdiction over the offenses under certain circumstances.
More specifically, the NTC requires Parties to criminalize the unlawful
and intentional:
Possession of radioactive material (including nuclear
materials) or the making or possession of a device, which
includes nuclear explosive devices and ``dirty bombs,'' with
the intent to cause (1) death or serious bodily injury, or (2)
substantial damage to property or to the environment; and
Use of radioactive material or a device, or use or damage a
nuclear facility in a manner which releases or risks the
release of radioactive material with the intent (1) to cause
death or serious bodily injury, (2) to cause substantial damage
to property or to the environment; or (3) to compel a natural
or legal person, an international organization, or a country to
do or refrain from doing an act.
In addition to the principal offenses, the NTC includes ancillary
offense provisions that require States to criminalize threats and
attempts to commit an act of nuclear terrorism and participation as an
accomplice, organizing and directing, and certain contributions to acts
of nuclear terrorism.
Similar to other multilateral counterterrorism treaties to which
the United States is a Party, the NTC obligates Parties to extradite or
submit for prosecution persons accused of committing the relevant
offenses and to provide one another assistance in connection with
investigations or criminal or extradition proceedings in relation to
such offenses. We have successfully relied on equivalent provisions,
especially in the Terrorist Bombings and Terrorist Financing
Conventions, to support U.S. extradition and provisional arrest
requests and as a basis to request mutual legal assistance from other
Parties.
The NTC also requires Parties to make every effort to ensure
appropriate physical protection for nuclear and radiological material
and obligates States to take all practicable measures to prevent and
counter preparations in their territories for the commission of the
covered offenses.
The Convention entered into force as of July 7, 2007, and there are
currently [35] State Parties, including India, Japan, Russia, Spain,
and Saudi Arabia.
2005 sua protocol and 2005 fixed platforms protocol
In the wake of the 9/11 terrorist attacks, the United States was
concerned that the scope of the 1988 Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (``1988 SUA
Convention'') and the accompanying 1988 Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed Platforms (``1988 Protocol'')
was not adequate to address maritime-related terrorism. Specifically,
while the 1988 Convention and Protocol covered vessels and fixed
platforms at sea as potential objects of terrorist activity, it did not
address the use of vessels and fixed platforms as means of conducting
or enabling terrorist activity.
As a result, the United States initiated a 3-year process at the
International Maritime Organization (IMO) to negotiate multilateral
instruments that would provide a more effective international framework
to combat maritime terrorism and to conduct maritime interdictions of
weapons of mass destruction and prosecutions of unlawful transport of
WMD and their delivery systems. The effort culminated in the adoption
by a diplomatic conference of the IMO, on October 14, 2005, of the 2005
SUA Protocol and the 2005 Fixed Platforms Protocol (collectively ``the
2005 Protocols'').
The new Protocols, among other things, set forth new principal
offenses and add ancillary offenses and establish a shipboarding regime
that will expedite consensual boardings at sea. In terms of
establishing offenses, the Protocols are the first multilateral treaty
framework for the investigation, detention, prosecution, and
extradition of persons who (1) commit terrorist attacks using a ship or
fixed platforms; (2) transport by sea WMD, their delivery systems or
related materials to be used for WMD, including dual-use items; or (3)
transport terrorist fugitives by sea. The Protocols also create a
robust framework for criminal liability for ancillary offenses,
including accomplice liability, organizing or directing a covered
offense, and certain contributions to such offenses. Parties must
criminalize domestically the offenses introduced by the 2005 Protocols,
and obligations in the 1988 SUA Convention to extradite or submit for
prosecution persons accused of committing such offenses and to provide
mutual legal assistance extend to the new offense provisions. It is
important to note that the WMD-related offense provisions do not affect
the rights and obligations under the Nuclear Non-Proliferation Treaty,
the Biological Weapons Convention and the Chemical Weapons Convention
of Parties to those treaties.
The framework for consensual shipboarding of vessels on the high
seas suspected of involvement in the covered offenses is a major
development. This shipboarding regime will serve to strengthen the
international legal basis for interdictions at sea carried out under
the Proliferation Security Initiative (PSI) and will promote
implementation of U.N. sanctions on Iran and North Korea.
The 2005 SUA Protocol will enter into force once 12 States have
become Parties. The 2005 Fixed Platforms Protocol requires only 3
Parties, but it may enter into force only once the 2005 SUA Protocol
has taken effect. As of May 1, 18 States had signed each Protocol
subject to ratification. Only two States have become Parties to the SUA
Protocol and none have become Parties to the Fixed Platforms Protocol.
cppnm amendment
The 1987 Convention on the Physical Protection of Nuclear Material
(``CPPNM'') established physical protection obligations for nuclear
material used for peaceful purposes in international transport,
required criminalization of certain offenses involving nuclear
material, and included the ``extradite or prosecute'' regime and mutual
legal assistance provisions common to the other counterterrorism
conventions.
Beginning in the late 1990s, the United States led the initiative
to expand CPPNM to cover physical protection of nuclear material in
domestic use, storage, and transport and of nuclear facilities. The 9/
11 terrorist attacks, greater terrorist interest in acquiring nuclear
material for nuclear weapons and ``dirty bombs,'' and increased
concerns about illicit trafficking in nuclear materials added urgency
to the efforts to expand CPPNM. The Amendment to the CPPNM, adopted on
July 8, 2005, at a diplomatic conference held under the auspices of the
International Atomic Energy Agency (IAEA) in Vienna, Austria, is the
result of those efforts.
The CPPNM, as amended, will impose requirements for the physical
protection of nuclear material used for peaceful purposes in domestic
use, storage, and transport, as well as in international nuclear
transport, and of nuclear facilities used for peaceful purposes,
thereby significantly expanding the scope of the original CPPNM. The
Amendment will, in effect, globalize U.S. nuclear physical protection
practices. Specifically, it will, inter alia, establish:
New international norms for the physical protection of
nuclear material and facilities used for peaceful purposes,
including protection from sabotage;
Strengthened obligations for cooperation among State Parties
to the Amendment on matters of physical protection and for
protection of the confidentiality of physical protection
information; and
New offenses that Parties must criminalize in their domestic
law.
The basic physical protection obligations set out in the Amendment
require each State Party to establish, implement, and maintain an
appropriate physical protection regime applicable to nuclear material
and nuclear facilities used for peaceful purposes under its
jurisdiction, with the aim of:
Protecting against theft and other unlawful taking of
nuclear material in use, storage, and transport;
Ensuring the implementation of rapid and comprehensive
measures to locate and, where appropriate, recover missing or
stolen nuclear material;
Protecting nuclear material and nuclear facilities against
sabotage; and
Mitigating or minimizing the radiological consequences of
sabotage.
The Convention also sets a series of ``Fundamental Principles''
covering a number of aspects of physical protection. For example, the
principles address the overall responsibility of the State for
establishing, implementing, and maintaining a regime to govern physical
protection. States are required, insofar as reasonable and practicable,
to apply these principles in their physical protection regimes.
Under the Amendment's expanded cooperation and assistance
provisions, Parties will be required, in accordance with their national
law, to provide cooperation and assistance to the maximum extent
feasible on matters within the scope of the amended CPPNM. For example,
Parties with knowledge of a credible threat of sabotage of nuclear
material or a nuclear facility in another State must decide on
appropriate steps to be taken to inform that State as soon as possible
and, where appropriate, the IAEA and other relevant international
organizations. Further, in the case of sabotage of nuclear material or
a nuclear facility in its territory, a Party will be required to take
appropriate steps to inform, as soon as possible, other States likely
to be radiologically affected, and to inform, where appropriate, the
IAEA and other relevant international organizations.
Finally, the amendment builds upon the penal regime provided for in
the CPPNM by adding two new principal offenses--nuclear smuggling and
sabotage of a nuclear facility--which Parties must criminalize
domestically. The amended Convention will also include a range of
accessory offenses found in the modern counterterrorism treaties
discussed above in relation to the Nuclear Terrorism Convention and the
SUA Protocols. Like the CPPNM, the Amended Convention will require
Parties to extradite or submit for prosecution persons accused of
covered offenses.
The Amendment will enter into force only after two-thirds of the
current 134 Parties to the CPPNM join the Amendment. Fifteen countries
have ratified to date.
conclusion
In sum, Mr. Chairman, we urge early ratification for these
treaties, which will bolster our efforts to prevent terrorists from
acquiring or using WMD and enhance the international legal framework
for counterterrorism and counterproliferation.
Senator Webb. And we just were informed that we may have as
many as three consecutive votes being called around 3:15 p.m.
So, for all of the witnesses, if you want to summarize your
statements, your full statement will be entered into the
record.
And since I violated protocol last time, who wants to be
next?
Mr. Demers. I will go next.
Senator Webb. OK, Mr. Demers.
STATEMENT OF JOHN DEMERS, DEPUTY ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON,
DC
Mr. Demers. Mr. Chairman, Senator Lugar, thank you for the
opportunity to discuss the implementation of the four
international agreements that are the subject of today's
hearing.
These agreements will provide significant tools in our
efforts to protect the Nation against terrorism and weapons of
mass destruction. First, I will just say a few words about the
maritime agreements and our proposed implementing legislation.
Then I will address the Nuclear Terrorism Convention and the
Amendment to the Convention on the Physical Protection of
Nuclear Material.
The maritime agreements are the 2005 SUA Protocols--one
protocol applies to ships, and the other applies to fixed
maritime platforms--and those have been described already. Last
year, the Department of Justice submitted to the Senate and the
House proposed legislation to implement the 2005 SUA Protocols.
The proposed legislation would amend sections 2280 and 2281 of
title 18, which were the sections implementing the original SUA
Convention and Fixed Platform Protocol.
The offenses contained in the proposed legislation mirror
those detailed in the protocols. Those offenses involving the
transportation of explosives, radioactive material, and weapons
of mass destruction or their components would be subject to
specific knowledge and intent requirements that ensure the
protection of legitimate trade and innocent seafarers.
The conduct prohibited would be consistent with the rights
and obligation of States Parties to the treaty on the
Nonproliferation of Nuclear Weapons, the Biological Weapons
Convention, and the Chemical Weapons Convention. The offenses
would also be complementary with the obligations set out in
Security Council Resolution 1540.
The SUA Protocol also established a mechanism to facilitate
the boarding in international waters of vessels engaged--
suspected of engaging in these activities, and the proposed
statute accordingly includes certain provisions regarding
maritime interdictions.
The proposed amendments to section 2281 would protect fixed
maritime platforms, such as offshore oil platforms, from
terrorist attacks. Many of the same violent acts prohibited on
or against ships would be prohibited on or against platforms.
Together, the new offenses from the SUA Protocols will
contribute to our counterterrorism, maritime security, and
nonproliferation efforts.
I will also briefly address the Nuclear Terrorism
Convention and the Amendment to the Convention on Physical
Protection. These agreements focus on nuclear and radiological
materials. They require parties to criminalize nuclear
smuggling, the possession and use of radioactive material and
radiological dispersal devices, and attacks on nuclear
facilities. Importantly, the conventions will help the United
States work with other nations to prevent these activities here
at home and abroad and will strengthen the United States
security against various forms of nuclear terrorism.
The administration is working on legislative proposals to
implement both conventions. Although existing law covers much
of the conduct that is the subject of these two agreements, new
legislation is needed to implement the conventions fully. The
scattered existing statutes do not include all of the
jurisdictional bases provided by the conventions and have a
different mens rea requirement. Together, the new and existing
legislation will ensure the full assertion of permissible
authority to combat nuclear terrorism.
In closing, I would like to thank you once again for the
opportunity to discuss these important international treaties.
I look forward to working with the committee on developing
appropriate implementing measures and I would be happy to
answer any questions.
[The prepared statement of Mr. Demers follows:]
Prepared Statement of John C. Demers, Deputy Assistant Attorney
General, National Security Division, Department of Justice, Washington,
DC
Mr. Chairman and members of the committee, thank you for the
opportunity to discuss the implementation of four important
international agreements. These agreements provide significant tools in
our ability to protect the Nation against terrorism and weapons of mass
destruction.
Two of these agreements--the Nuclear Terrorism Convention and the
Amendment to the Convention on the Physical Protection of Nuclear
Material--focus on nuclear and radiological materials. The third set of
agreements, the 2005 Protocols to the 1988 Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation
and to the 1988 Protocol for the Suppression of Unlawful Acts against
the Safety of Fixed Platforms Located on the Continental Shelf (the
``SUA Protocols''), prohibit the use of a ship or a maritime platform
as a weapon and prohibit the transport by ship of terrorists, cargo
intended for use in connection with weapons of mass destruction
programs, and explosives or radioactive material for terrorist
purposes.
The administration is currently reviewing legislative proposals to
implement the Nuclear Terrorism Convention and the Amendment to the
Convention on the Physical Protection of Nuclear Material. The
legislative proposals to implement the two SUA Protocols were submitted
last year to the House and Senate.
i. nuclear terrorism convention and amendment to the convention on the
physical protection of nuclear material
President Bush signed the Nuclear Terrorism Convention on September
14, 2005. The Convention requires States Parties to criminalize certain
acts relating to the possession and use of radioactive material and
radiological dispersal devices and damage to nuclear facilities. The
Amendment to the Convention on the Physical Protection of Nuclear
Material was adopted by acclamation at a diplomatic conference of
States Parties on July 25, 2005. In relevant part, the amendment
requires States Parties to criminalize nuclear smuggling and sabotage
of nuclear facilities.
Together, these conventions strengthen the United States security
against various forms of nuclear terrorism. The conventions prohibit
nuclear smuggling, the release of radioactive or nuclear materials, and
attacks on nuclear facilities. Importantly, the conventions will help
the United States work with other nations to prevent these activities
domestically and abroad.
Although existing law may cover portions of these two conventions,
new legislation is necessary to ensure that the conventions are fully
implemented. For instance, the Nuclear Terrorism Convention's
prohibition against the possession or use of a nuclear explosive or
radiation dispersal device may be covered by broader existing
prohibitions against the unlawful possession or use of a radiological
weapon (18 U.S.C. 832) and the unlawful possession of a weapon or
device designed to release radiation (18 U.S.C. 2332h). Similarly, the
prohibitions against causing damage to a nuclear facility contained in
both the Nuclear Terrorism Convention and in the Amendment to the
Convention on the Physical Protection of Nuclear Material overlap with
section 2284 of title 42, which prohibits sabotage of nuclear
facilities. These scattered existing statutes, however, do not include
the same mens rea as required by the conventions, and they do not
include all the jurisdictional bases provided by the conventions, such
as jurisdiction for offenders ``found in'' the United States. The
Nuclear Terrorism Convention includes mandatory and optional
jurisdictional bases in order to achieve broad coverage of these
nuclear-related offenses, and appropriate legislation will be needed to
ensure the full assertion of permissible authority over nuclear
terrorism.
ii. sua protocols
Last year, the Department of Justice submitted to the House and
Senate proposed legislation to implement the 2005 SUA Protocols. One
Protocol applies to ships--the Protocol to the 1988 Convention for the
Suppression of Unlawful Acts against the Safety of Maritime
Navigation--and the other applies to fixed maritime platforms--the
Protocol to the 1988 Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the Continental Shelf.
The proposed legislation would amend sections 2280 and 2281 of title
18, which were the sections implementing the original SUA Convention
and the Fixed Platforms Protocol.
The 2005 Protocols require Parties to criminalize the use or
targeting of a ship or a fixed maritime platform in a terrorist
activity; the maritime transportation of explosives, radioactive
material, or biological, chemical, or nuclear weapons or certain of
their components, delivery means, or materials, under specified
circumstances; and the maritime transport of terrorist fugitives.
Accordingly, the amendments to section 2280 of title 18 would make
unlawful the targeting or use of a ship in terrorist acts.
Specifically, it would be an offense to use against, on, or from a ship
any explosive, radioactive material, or biological, chemical, or
nuclear weapon. It would also be an offense to discharge oil, liquefied
natural gas, or another hazardous or noxious substance from a ship.
These acts must be done in a manner that causes or is likely to cause
death or serious injury or damage. It would also be an offense to
otherwise use a ship in a manner that causes death or serious injury or
damage.
In accordance with the Protocol pertaining to ships, the new
legislation would also forbid the maritime transportation of explosives
and radioactive material and biological, chemical, or nuclear weapons,
their delivery systems, or related materials. Such offenses would be
qualified by the statute's mens rea requirements. Explosive or
radioactive material must be intended for a terrorist act. In order for
criminal liability to attach, the transport of biological, chemical, or
nuclear weapons must be done with knowledge of the items being
transported. Transportation of source material, special fissionable
material, or related material must be done knowing that the material is
intended to be used in a nuclear explosive activity or in any other
nuclear activity not under safeguards pursuant to an International
Atomic Energy Agency comprehensive safeguards agreement. Transportation
of certain dual use items that significantly contribute to the design,
manufacture, or delivery system of a biological, chemical, or nuclear
weapon or other nuclear explosive device, must be done intending that
the items be used for such purposes. The offenses prohibited are
consistent with the rights and obligations of States Parties to the
Treaty on the Non-Proliferation of Nuclear Weapons, the Biological
Weapons Convention,\1\ and the Chemical Weapons Convention.\2\ In fact,
the statute includes an exception specifying that certain nuclear
transport activities that are consistent with the Treaty on the Non-
Proliferation of Nuclear Weapons remain permissible under the statute,
in accordance with the SUA Protocol. The offenses are also
complementary with the obligations set out in U.N. Security Council
Resolution 1540 regarding prohibitions against the transport of
biological, chemical, and nuclear weapons and their means of delivery.
---------------------------------------------------------------------------
\1\Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on
their Destruction.
\2\Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on their Destruction.
---------------------------------------------------------------------------
The SUA Protocol also established a mechanism to facilitate the
boarding in international waters of vessels suspected of engaging in
these activities, and the statute accordingly includes certain
provisions regarding maritime interdictions.
The amendments to section 2281 of the same title would protect
fixed maritime platforms (such as offshore oil platforms) from
terrorist attacks. Specifically, the amendments would make unlawful the
use against or discharge from a fixed platform of any explosive,
radioactive material, or biological, chemical, or nuclear weapon, in a
manner that causes or is likely to cause death or serious injury or
damage. The amendments would also forbid the discharge from a fixed
platform of oil, liquefied natural gas, or another hazardous or noxious
substance, in a manner that causes or is likely to cause death or
serious injury or damage. Such acts would have to be done unlawfully
and intentionally and with a terrorist purpose.
iii. conclusion
Again, thank you for the opportunity to discuss these important
international treaties. I look forward to working with this committee
on developing appropriate implementing measures. At this time, I would
be happy to answer any questions.
Senator Webb. Thank you very much, Mr. Demers.
Mr. Douglas.
STATEMENT OF RICHARD DOUGLAS, DEPUTY ASSISTANT SECRETARY,
COUNTERNARCOTICS, COUNTERPROLIFERATION AND GLOBAL THREATS,
DEPARTMENT OF DEFENSE, WASHINGTON, DC
Mr. Douglas. Thank you, Mr. Chairman, Senator Lugar.
I appreciate the opportunity to come and talk about the
department's views on these very important treaties. And if I
could just recognize our Judge Advocate General brain trust
here that came and helped us prepare not only the statement,
but the conventions themselves.
The Department of Defense supports and endorses entry into
force of all of these agreements. I am here really to talk
about SUA and the fixed platforms treaties today, but we just
want to make clear that we think all of these agreements move
the ball in the right direction in counterterrorism, and we are
very happy that the committee has decided to hold hearings on
them.
In the interest of time, I am going to go right to the
maritime boarding issue. We think that this is a real
innovation in the convention. We think that the effect is going
to be to strengthen not only what we do in the context of the
Proliferation Security Initiative, but to create more certainty
and kind of a roadmap that will allow us to work better with
other States Parties not only to this convention, but other
countries that are interested in PSI and maritime boarding in
general.
So we want to make sure that this template that States can
use is established in a multilateral setting, and this treaty
does the trick.
We would also like to point out that for us the source of
these two conventions is notable. These are International
Maritime Organization conventions, a technical specialized
agency with a lot of skill, a lot of talent, technical talent
on things like safety of life at sea, maritime pollution, and
we think that is notable because the treaties themselves
reflect that technical expertise and the kinds of things you
would expect from an organization where you have ship drivers
and people who know what it is to go to sea.
And last, I would like to point out that we understand that
the industry also has expressed an interest in this convention.
The reason we think that is significant is because in the PSI
context, we have tried to establish a very good relationship
with the industry because supply chain security is so
important, and there is a critical role for industry to play in
this context. And we understand that the International Chamber
of Shipping has submitted some comments to the committee
endorsing this. So we thought that was notable to point out.
And with that, in the interest of time and the votes, I
will stop here, and my written statement will be submitted for
the record, with your permission.
[The prepared statement of Mr. Douglas follows:]
Prepared Statement of Richard Douglas, Deputy Assistant Secretary,
Counter-Narcotics, Counter-Proliferation and Global Threats, Department
of Defense, Washington, DC
Mr. Chairman and members of the committee, thank you for the
opportunity to testify today. Although I am primarily here to testify
in support of the 2005 Protocols to the 1988 Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation
(SUA Convention) and its accompanying Fixed Platforms Protocol, I would
also like to express the Department of Defense's strong support for the
multilateral counterterrorism treaties before the committee today. The
Nuclear Terrorism Convention and the Amendment to the Convention on the
Physical Protection of Nuclear Material, along with the 2005 SUA
Protocols, will enhance U.S. national security by modernizing and
strengthening the international counterterrorism and
counterproliferation legal framework.
As Deputy Assistant Secretary of Defense for Counter-Narcotics,
Counter-Proliferation and Global Threats, it is my duty to develop
policy and manage various programs that support the efforts of the
United States and its allies to combat the transfer and use of weapons
of mass destruction. It is with this duty in mind that I come before
this committee today to give the Department's strongest support to
these Protocols and ask that they be favorably reported to the full
Senate for its advice and consent during the current session.
Sadly, use of the ``world's highways'' by terrorists is not a new
phenomena. The 1988 SUA Convention was, in part, a response to the
takeover by Palestinian terrorists of the Italian passenger ship
Achille Lauro in 1985, when a wheelchair-bound American passenger, Leon
Klinghoffer, was murdered and his body was thrown overboard. That
terrorist murder helped lead to the 1988 SUA Convention. In the
aftermath of 9/11, it became clear that changes to international law
were necessary to address terrorism in the 21st century. The 1988 SUA
Convention was viewed as an ideal foundation upon which to build an
international legal regime to combat the modern terrorist threat. The
Department of Defense strongly supports the 2005 Protocols because they
should substantially bolster efforts to combat and prosecute the
maritime transportation of terrorists, weapons of mass destruction
(WMD), their delivery systems and related materials, and the use of a
ship or fixed platform to commit a terrorist attack. The 2005 Protocols
do just that and, of particular importance, contain a critical
operational mechanism to enforce the Convention's provisions that was
lacking in the original Convention--a maritime boarding regime.
September 11 forced the international community to look more
closely at potential instruments of terrorism and proliferation. The
Department of Defense actively participated and strongly supported a 3-
year United States effort to broaden the Convention's scope to include
provisions countering the movement of weapons of mass destruction and
related items by ship and to address the use of a ship or fixed
platform to conduct a terrorist act or transport a terrorist fugitive.
In October 2005 State Parties at the International Maritime
Organization overwhelmingly supported the United States initiative, and
adopted the Protocols that are being considered by the committee today.
The Protocols are an important weapon in the Global War on Terror and
could contribute substantially to our national security.
The 2005 Protocols represent a significant new tool in the fight
against terrorism and WMD proliferation. Instead of treating vessels
and fixed platforms at sea as potential objects of terrorist activity,
the new protocols treat vessels and platforms as potential means of
conducting or enabling terrorist activity. Specifically, they establish
the first treaty framework for the investigation, prosecution, and
extradition of persons who (1) use a ship or fixed platform as a weapon
or as a means to carry out a terrorist attack; (2) unlawfully transport
WMD (including ``dual use materials'') or WMD delivery systems on the
high seas; or (3) transport of terrorists by sea.
Additionally, the 2005 Protocols establish the operational
enforcement mechanism--a maritime boarding regime. They provide for
interdiction on the high seas of vessels suspected of being involved in
an offense under the SUA Convention, based on flag-State consent. A
State may provide consent to boarding of its flagged vessels in advance
through a written agreement, or may provide consent on a case-by-case
basis. The United States will not provide advance consent for other
States to board U.S.-flagged vessels.
The boarding procedures do not change existing international
maritime law or infringe upon the traditional principle of freedom of
navigation. Rather they eliminate the need to negotiate time-consuming,
ad-hoc boarding arrangements when facing the immediacy of criminal
activity.
The 2005 Protocols further other U.S. interests. For example, the
boarding procedures and criminal offenses created by these Protocols
will support the Proliferation Security Initiative (PSI). Since its
inception in May 2003, the United States has joined with like-minded
States to develop PSI--a cooperative international effort to combat the
common threat posed by the proliferation of WMD, their delivery
systems, and related materials. As part of the PSI, participating
States are committed to strengthening national and international legal
authorities to stop WMD proliferation. The SUA Protocols will
strengthen the legal basis for conducting maritime interdictions under
PSI and facilitate prosecution of WMD proliferators.
I have discussed what the 2005 Protocols do; now I would like to
review what they do not do. The Protocols do not create for the United
States any new budgetary or resource obligations. Nor do they restrict
U.S. abilities to transport weapons/material by sea. Nothing in the
2005 Protocols prevents the boarding of a ship based on self-defense,
nor limits authority to board a ship on any other legal basis. Further,
the 2005 Protocols, as well as the other treaties under discussion
today, specifically exempt military activities from the scope of their
defined criminal offenses. Lastly, the United States is not required to
consent to a foreign boarding of a U.S.-flagged ship, and a requesting
Party may not board a ship pursuant to the SUA Protocols absent express
authorization from the flag State.
Given the leading role of the United States in initiating and
promoting the Protocols, prompt U.S. ratification would underscore our
authority as a leader in the fight against terrorism and the spread of
WMD. Expeditious U.S. ratification of these Protocols would likely
speed their ultimate entry into force, resulting in early availability
of a significant tool in the fight against terrorism and WMD
proliferation. As was the case for the 3 years at the IMO, other States
are looking to the United States for leadership on this important
maritime law treaty.
The United States must enact implementing legislation, primarily
title 18 provisions, before it can deposit its instrument of
ratification. The Department of Defense, is ready to execute its
obligations relative to its responsibilities under these Protocols now.
The 2005 Protocols are an important addition to international
efforts to combat and prosecute the maritime transportation of
terrorists and weapons of mass destruction. They provide the
international framework for criminalizing the use of a ship to
transport terrorists or WMD, and provide a framework for boarding
suspect vessels engaged in these acts. The Protocols play a key role in
the Department of Defense's efforts to combat terrorism and the spread
of WMD, preserve freedom of the seas, and promote peace and security.
Thank you for the opportunity to express the Department's views on
this important matter.
Senator Webb. Thank you very much, Mr. Douglas.
And as I mentioned earlier, all testimony from the
witnesses will be included in the record in their entirety.
I have two questions. One is, Is there anything in any of
these treaties that would create a unilateral obligation on the
part of the United States, militarily, diplomatically, or
legally?
Ms. McNerney. No. Each of the treaties sets out
requirements for each participant to the treaty. They don't
enter into force until there is a sufficient quorum. It is a
different level for each of the treaties, but, basically, each
participant in the treaty has the same requirements, the same
standards.
Now what is perhaps unique is that the responsibility to
implement the treaties is a domestic legal requirement. And so,
our implementing legislation will be done consistent with our
legal process. Each country will similarly implement this
treaty following their normal criminalization of activities,
their normal implementation of prosecution of criminal law.
So certainly every system may have a different treatment of
the laws, but the obligations overarching those domestic legal
requirements are not unique to any one country.
Senator Webb. Mr. Douglas.
Mr. Douglas. Senator, in terms of the Navy and the Coast
Guard, the answer is, ``No.'' These treaties, and I am
referring now to the SUA Protocol, requires flag-State consent.
And if, for whatever reason, our Government or perhaps another
State Party determined that it was not feasible or, I mean, it
could be a host of options, we are not obligated to do it.
There has to be flag-State consent.
Senator Webb. Thank you.
Second question is this. All four treaties have a savings
clause that carves out from the scope of the convention the
activities of armed forces during an armed conflict. Could you
describe the applicability or not of that language as is--with
respect to international terrorist organizations such as al-
Qaeda?
Ms. McNerney. Yes, sir. The review of our lawyer, certainly
if you are looking at al-Qaeda, is that this would not apply to
an organization like al-Qaeda. They are neither an armed force
in the general sense of international understanding, such as
wearing uniforms and being visible as an armed force, and they
do not respect the international treaties that define the
limitations of what is an armed force. And so, therefore, that
exclusion would not apply to an organization like al-Qaeda.
Perhaps my Justice Department colleague; I don't know if
you have anything additional?
Mr. Demers. No; I have nothing additional, but we fully
concur in the State Department's assessment and reading of the
treaty.
Senator Webb. Thank you very much.
Senator Lugar.
Senator Lugar. Thank you very much, Mr. Chairman.
As preface for my first question, during a period of time,
when I chaired the committee in 1985 and 1986, we literally did
a house cleaning of treaties. We went into the closet, found
all of these treaties, some there for 10, 15 years, and sort of
had a general exhuming of all of them. We held hearings on
those that seemed relevant and valid and others that were not.
We are not at quite that point now, but I respect the fact
that Chairman Biden and Chairman Webb and bipartisan staff have
found these four treaties. They are not foundering. But as I
pointed out in my opening statement, there are really severe
problems with coordination. And this, as the hearing concludes,
I hope the three departments here represented, along with
whatever administration guidance you have, can try to think
through where we stand physically in terms of implementation,
passage, and submission of those treaties that still remain.
In other words, this really needs to be done fairly
urgently if Chairman Biden is to have the appropriate markups.
Committee members who are not present have some sense on what
they are voting, and then we try to prevail upon Senator Reid
to give us some time. Absent that, not much is going to happen.
And these are important documents, and something should happen.
Let me start with you, Ms. McNerney, the transmittals which
are the interagency cleared packages that become the treaty
documents that we consider here in the Senate did not contain
several reservations which the State Department is requesting
be included in the Senate-approved resolution of advice and
consent for these treaties.
Now, first, why did these reservations not come to us in
the Presidential transmittals for these agreements? Second, why
is each needed? And third, does each of these requested
reservations have the full support of the interagency?
Ms. McNerney. Thank you, Senator.
My understanding is the three that are not original
treaties have underlying treaties with a provision for opting
out of dispute resolution mechanisms. As a result, during the
process of legal review of these treaties, our lawyers missed
the fact--I don't want to blame my lawyers as they are very
excellent--that you need to look back to these underlying
treaties and look at whether there is a dispute resolution
mechanism.
My understanding is that for some of these older treaties,
the Senate would let them go through without opting out of the
dispute mechanism. That is not the current practice. And so, in
further review, basically I think through the interagency
process, we came to the agreement that we should ask for that
opt-out provision in these amendments to apply at least to
these new treaties.
And certainly, I think, given where the Senate has been on
these questions, this will probably make it very clear to the
Senate that we are not going to be implementing these through
any international dispute mechanisms, but rather through U.S.
legal procedures.
I also wanted to address your two questions in your opening
statement and just let you know that on the compensation
convention, we hope to be able to deposit those instruments
this month in Vienna at the IAEA. So we are on the cusp of
completing the requirements to bring it into force.
On the additional protocol, there are a number of
requirements that are in the--the resolution or, sorry, I think
the resolution of ratification, and the implementing
legislation, and one of the key ones that takes time is doing
necessary site vulnerability assessments. This is because of
the largesse of our nuclear programs and some of the detailed
requirements when you do such assessments.
Unfortunately, this is a bigger task than one might
imagine. So I understand your sensitivity to the time. Frankly,
we are hearing that from the President as well, and he wants to
make sure that this gets done. And so, all of the agencies that
are required to undertake these assessements, especially
Department of Defense and Department of Energy, because they
have ownership of some of these sites, are busily working on
the site assessments. And our intent is to have this done
before the end of the year.
Senator Lugar. Well, that is very reassuring on both
accounts that you mentioned. Is all of this work now being
cleared interagency, so we don't have that problem? In other
words, you are busy over there at State, but have Defense and
Justice signed off on these situations?
Ms. McNerney. Yes, sir. We do an interagency clearance
process for any documents that would come to the Congress.
Senator Lugar. So we can count on that and not double back
asking----
Ms. McNerney. I'd ask my colleagues to shake their head if
there is an issue, but I believe we have consensus. Yes; my
colleagues agree.
Senator Lugar. I have asked this question before and
received various answers. As each of you know, the various
regulations and other preparations have been ongoing. But could
each of you provide for the record a final and definitive
statement on behalf of the administration as to when all the
regulations will be completed, interagency finished, so that
the additional protocol on CSC come into force with a date
certain?
Now is your answer by the end of the year applicable to all
of this?
Ms. McNerney. For the additional protocol, that is sort of
the goal at this point, given some of the work that still
remains to be done. As mentioned on the other treaty,
hopefully, we will deposit those instruments before the end of
this month.
Senator Lugar. OK. So, conceivably, on one of these, we
might be able to take action in this Congress probably on at
least one----
Ms. McNerney. Hopefully, both of them.
Senator Lugar. Both.
Ms. McNerney. Yes.
Senator Lugar. But then----
Ms. McNerney. The President would like to finish this
before he leaves office. So that certainly is the goal here.
Senator Lugar. Well, this is a part of aiding all of this.
So if you could sort of summarize these timelines so we can
circulate that among our members?
Ms. McNerney. Yes, sir.
Senator Lugar. We would like to learn what is conceivably
doable for the President and for us in this period of time. It
would be helpful because I know the chairman is going to try to
do the best that he can, but we don't want any further
surprises coming out. And if something is really not going to
happen in this Congress, we need to think about the next
Congress, those of us who are still around during that period
would try to deal with that.
Let me just ask another question. In the rationale for
inclusion in the Amendment to the Convention on the Physical
Protection of Nuclear Material, Senator Webb has talked about
the military exclusion provision. But why is there a military
exclusion provision at all, leaving aside the definition of al-
Qaeda and so forth? Why did this come into play?
Ms. McNerney. Maybe I will turn to my colleague from the
Department of Defense to explain the needs?
Senator Lugar. Very well. Mr. Douglas.
Mr. Douglas. Senator Lugar, thank you, sir.
Just to give you the--I mean, as the Senate knows, in
general, in certain kinds of instruments we would like to
maintain the flexibility--complete flexibility and prevent sort
of misuse of instruments and their provisions to obstruct or
interfere with military activity. So there is the general
approach.
Given that this agreement and its amendment are more
directed to peaceful use, there was a concern within the
Department that there could be attempts to use the instrument
in a way that would not be consistent with our military
activities.
And then, if I may, on the broader question of the
understandings, there was great interagency coordination on the
effort to get those up here quickly, and we supported all of
them because we think that the disagreement resolution
provisions in particular are relevant to exactly the question
you asked, sir, and the military activities in general. So I
just want to assure the committee of that.
Senator Lugar. Well, I appreciate that response and,
likewise, the fact that all three of you are here, talking and
listening to each other, as well as to us, so that if there are
any questions arising, those might be resolved among you and
your staffs and attorneys and what have you.
I just conclude by saying that we appreciate the timeliness
of your appearance, and I appreciate especially the chairman's
taking time to chair this hearing so that we really could
establish what is doable. I keep getting back to the practical
aspects that we all are concerned about actual passage of these
treaties, and we are close to the finish line, but the pieces
that remain.
So itemize those for us if you will--a timeline of when we
might anticipate documents so that then our chairman can try to
determine a timeline of what is legislatively doable, given the
number of weeks that the Congress may remain in session.
Thank you, Mr. Chairman.
Senator Webb. Thank you to Senator Lugar. It is always a
humbling experience, as the junior member of the Senate Foreign
Relations Committee, to chair a hearing alongside the longest
serving member of the Senate Foreign Relations Committee. I
appreciate all of your wisdom and your advice.
And I appreciate all the witnesses for coming today. And
hopefully, we can meet with the chairman and see if we can move
something forward here.
Thank you very much.
[Whereupon, at 3:17 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses of Principal Deputy Assistant Secretary Patricia McNerney to
Questions Submitted for the Record by Senator Biden
Question 1. As of March 20, 2008, 134 States were party to the
underlying Convention on the Physical Protection of Nuclear Material,
but only 15 States had deposited their instruments of ratification for
the amendment. What is the United States doing to persuade more States
to ratify the amendment, considering that the amendment requires 87
ratifications to enter into force?
Answer. We take advantage of every opportunity, multilateral and
bilateral, to promote early entry into force of the Amendment to the
Convention on the Physical Protection of Nuclear Material (CPPNM
Amendment). Most of the countries with which we have directly addressed
this issue have submitted ratification packages to their respective
legislative branches. We believe that U.S. ratification will also help
to generate significant momentum toward ratification by other countries
and entry into force of the CPPNM Amendment.
Question 2. Section 132 of the Atomic Energy Act of 1954, as
amended, gives the President the authority to suspend nuclear
cooperation with any nation or group of nations which has not ratified
the Convention on the Physical Protection of Nuclear Material. Should
the failure of other States to ratify and implement the amendment have
an impact on civilian nuclear cooperation between the United States and
those States? Should the failure of other States to ratify and
implement the Nuclear Terrorism Convention have an impact on civilian
nuclear cooperation between the United States and those States?
Answer. When the amendment enters into force and a majority of
countries have ratified and implemented it, we anticipate examining
whether to require in our agreements for peaceful nuclear cooperation
that the cooperating parties apply physical protection measures in
accordance with the provisions of the amendment, as well as those of
the original Convention. This is a similar process to that which we
followed with the original CPPNM. We do not believe that there is a
parallel case for the Nuclear Terrorism Convention, as the primary
focus of that treaty is not on the adoption of physical protection
measures.
Question 3. Please analyze each of the four counterterrorism
treaties under consideration and explain whether the executive branch
regards these treaties to be self-executing in any respect. Please be
specific.
Answer. With the exceptions noted, the provisions of the treaties
are intended to be self-executing, in the sense of having automatic
domestic legal effect. These include, for example, provisions
obligating the United States to treat certain offenses as extraditable
offenses for purposes of bilateral extradition treaties. These do not
include provisions that obligate the United States to criminalize
certain offenses and subject them to appropriate penalties or
provisions that mandate or authorize the assertion of jurisdiction over
offenses; such provisions will be implemented either through existing
legislation or legislation being sought in connection with
ratification. No provisions of these treaties confer private judicially
enforceable rights.
Question 4. Paragraph 6(2) of the Amendment to the Convention on
Physical Protection of Nuclear Material provides that in implementing
Article 2A(1) of the Convention as amended, States Parties ``shall
establish and maintain a legislative and regulatory framework to govern
physical protection.'' Will it be necessary to promulgate new
regulations in order to fulfill this obligation under the amendment? If
not, please cite the existing regulations that would implement this
requirement if we become a party to the amendment.
Answer. No; it will not be necessary to promulgate new regulations
to fulfill obligations under the amendment. The amendment, in effect,
globalizes the physical security practices that are already in use in
the United States. A legislative and regulatory framework is firmly
established in this country to govern physical protection of nuclear
materials. For commercial licensed facilities, the Nuclear Regulatory
Commission (NRC) has the legislative mandate, via a number of statutes
(primarily, the Atomic Energy Act of 1954, as amended, and the Energy
Reorganization Act of 1974), to protect nuclear material within its
purview. NRC has several layers of agencywide regulations relating to
security and physical protection, beginning with Title 10 of the Code
of Federal Regulations. 10 CFR Parts 26, 50, 73, 74 and 95 all contain
provisions governing physical protection. 10 CFR Part 110 also
requires, by establishing them as export licensing criteria, that
certain physical security measures be maintained with respect to
nuclear materials and production or utilization facilities exported.
NRC promulgates other regulatory measures relating to physical
protection as part of its security regulation framework, including
orders and regulatory guides.
For the Department of Energy (DOE), there are a series of DOE
orders and manuals for achieving and maintaining physical protection in
DOE facilities. They include the following:
DOE O 470.3A (Order, 11/29/2005, HS) Design Basis Threat Policy
(U). The order defines the Design Basis Threat for DOE
facilities, including theft/diversion and radiological
sabotage.
DOE M 470.4-1 Chg 1 (Manual, 08/26/2005, HS) Safeguards and
Security Program Planning and Management. The manual
establishes program planning and management requirements for
the Department's Safeguards and Security.
DOE M 470.4-2 Chg 1 (Manual, 08/26/2005, HS) Physical Protection.
This Manual establishes requirements for the physical
protection of safeguards and security interests.
DOE M 470.4-3 Chg 1 (Manual, 08/26/2005, HS) Protective Force. The
manual establishes requirements for management and operation of
the DOE Protective Force, establishes requirements for firearms
operations and defines the firearms courses of fire.
DOE M 470.4-6 Chg 1 (Manual, 08/26/2005, HS) Nuclear Material
Control and Accountability. The manual establishes a program
for the control and accountability of nuclear materials within
the Department of Energy.
DOE O 470.4A (Order, 05/25/2007, HS) Safeguards and Security
Program. The Order establishes roles and responsibilities for
the Department of Energy Safeguards and Security Program.
Question 5. Paragraph 6(2)(b) requires States Parties to
``establish or designate a competent authority or authorities
responsible for the implementation of the legislative and regulatory
framework.'' What entity will be the ``competent authority'' for the
United States, should the United States ratify the amendment?
Answer. There are two competent authorities for the United States
for this purpose. DOE is the competent authority with respect to DOE
facilities, and NRC is the competent authority with respect to
commercial licensees.
Question 6. Paragraph 6 of the Amendment to the Convention on
Physical Protection of Nuclear Material requires States Parties to
``establish, implement and maintain an appropriate physical protection
regime applicable to nuclear material and nuclear facilities under
[their] jurisdiction. . . .'' Subparagraph 3 states that when
implementing this regime, each State Party shall ``apply insofar as is
reasonable and practicable'' various ``Fundamental Principles of
Physical Protection of Nuclear Material and Nuclear Facilities.'' Does
the United States apply each of the Fundamental Principles listed in
Paragraph 6(3)?
Answer. Yes; the United States does apply the Fundamental
Principles. NRC applies the Fundamental Principles through its
regulations and regulatory process. DOE application of the Fundamental
Principles has been reflected in the Orders and Manuals listed in
response to question No. 4.
The phrase ``insofar as reasonable and practicable'' was included
in subparagraph 3 of new Article 2A (added by paragraph 6 of the
amendment) to permit States Parties the flexibility to adapt the
Fundamental Principles to their own nuclear programs. The amendment is
intended for many States with vastly different nuclear
infrastructures--from those with no nuclear materials to those that
have advanced nuclear programs--so that flexibility in implementation
of the Fundamental Principles was essential and was a bottom-line
requirement for the United States and many other States as well in the
negotiation of the amendment.
Question 7. Paragraph 6 of the Amendment to the Convention on
Physical Protection of Nuclear Material provides that States Parties
may opt out of the physical protection regime in the new Article 2A
with respect to nuclear material that a State Party ``reasonably
decides does not need to be subject'' to the regime taking into account
certain factors. What is the history of this ``opt-out''? Which country
proposed it and why? Does the administration intend to make use of this
``opt-out'' provision?
Answer. The ``opt-out'' was originally proposed by the United
Kingdom, supported by Belgium, during the June 2002 Open-Ended Experts
Group meeting. The U.K. stated that it considered that very small
quantities of nuclear material should be outside the nuclear regulatory
framework, as they are of very little proliferation concern and do not
need to be subject to a full nuclear security regime. There was
consideration of whether the exclusion of very small quantities of
nuclear material could be achieved under the ``graded approach''
Fundamental Principle, but the U.K. opposed addressing small quantities
in that way. Its position was that it was very important to ensure that
the graded approach was applied to determining what physical
protections measures were appropriate, not to the existence of a
physical protection regime at all.
We do not anticipate that the United States would make use of this
``opt-out'' provision.
Question 8. There are two Annexes to the Convention on the Physical
Protection of Nuclear Material, which are (according to Article 15 of
the Convention) an integral part of the Convention. Paragraphs 14 and
15 of the Amendment to the Convention on Physical Protection of Nuclear
Material amend two footnotes of Annex II of the Convention in a
nonsubstantive way. Since U.S. ratification of the Convention, aside
from the amendment under consideration now, have these annexes been
amended? Annex I of the Convention only refers to ``Levels of Physical
Protection To Be Applied In International Transport of Nuclear
Material,'' but the amendment applies to nuclear material in domestic
use, storage, and transport. Why weren't these annexes more
substantially amended in the current amendment to the Convention? Do
you anticipate that the annexes will be amended in the near future to
reflect changes to the body of the Convention effected by the
amendment's entry into force?
Answer. The process leading to the 2005 amendment focused on:
Ensuring that States established legislative and regulatory frameworks
for domestic use, storage, and transport of nuclear material;
recommending cooperation among States regarding illicit trafficking and
use of best practices in physical protection planning and
implementation; including provisions for prosecution of sabotage
offenses; and setting forth the concepts underpinning a physical
protection regime via the Fundamental Principles and Physical
Protection Objectives. There was limited early discussion of changing
the Categorization Table in Annex II, but this was sidelined due to the
recognized inability to achieve consensus on its revision. Similarly,
work toward changing the assignment of specific physical protection
measures to categories, as in Annex I, was not undertaken.
We do not anticipate that the annexes will be revised in the near
future. It is expected that IAEA INFCIRC/225, which was adopted after
the original CPPNM to provide guidance to States on implementing a
physical protection regime, will be revised to reflect the Amendment to
the CPPNM.
Question 9. Paragraph 5(5) of the Amendment to the Convention on
Physical Protection of Nuclear Material states that the Convention, as
amended, ``shall not apply to nuclear material used or retained for
military purposes or to a nuclear facility containing such material.''
How is this carve-out interpreted? For example, is it correct to assume
that States Parties would have no obligation under the Convention, as
amended, to provide (pursuant to Article 5) cooperation and assistance
to a requesting State to the extent feasible in the recovery and
protection of nuclear material, if that nuclear material belongs to the
military?
Answer. This exclusion merely makes explicit what was implicit in
the original CPPNM in regard to nuclear materials used for ``peaceful
purposes.'' The term ``peaceful purposes'' was commonly understood for
these purposes as excluding military materials and defense programs.
During the amendment negotiation, several countries attempted to weaken
further this language, some explicitly including military materials and
facilities. Thus, in order to preclude any potential for compromise of
national security, military materials and facilities were explicitly
excluded. The assumption in the question is correct, but we would note
that a State is not prohibited from assisting if such assistance is
sought, but it is not required to assist by the amendment under the
terms of your example.
Question 10. In the treaty transmittal packages (110-4, 110-6, and
110-8), a reservation and several understandings were recommended for
inclusion in the Senate's resolution of advice and consent to
ratification, and ultimately in the U.S. instrument of ratification. At
the hearing and in briefing materials submitted to the committee, the
administration has recommended that additional reservations be made
with respect to the Amendment to the Convention on the Physical
Protection of Nuclear Material, as well as the 2005 SUA Protocol and
the 2005 Fixed Platforms Protocol, all of which would effectively allow
the United States to ``opt out'' of the binding dispute resolution
mechanisms provided for in the treaties these instruments are amending,
with respect to disputes concerning the interpretation or application
of the amendment and the two protocols. Please provide suggested
language for these reservations and confirm whether there are any other
changes or additions the executive branch would like to propose to the
reservations and understandings included in the transmittal packages.
Answer.
a. suggested language for understandings on dispute resolution
Nuclear Terrorism Convention
Pursuant to Article 23(2) of the Convention, the United
States of America declares that it does not consider itself
bound by Article 23(1) of the Convention.
2005 SUA Protocol
Consistent with Article 16(2) of the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime
Navigation, 2005, the United States of America declares that it
does not consider itself bound by Article 16(1) of the
Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, 2005, with respect to disputes
concerning the interpretation or application of the Protocol of
2005 to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation.
2005 Fixed Platform Protocol
Consistent with Article 16(2) of the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime
Navigation, 2005, and incorporated by Article 2 of the Protocol
of 2005 to the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf, the United States of America declares that
it does not consider itself bound by Article 16(1) of the
Convention for the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, 2005, with respect to disputes
concerning the interpretation or application of the Protocol of
2005 to the Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms Located on the
Continental Shelf.
CPPNM Amendment
Consistent with Article 17(3) of the Convention, the United
States of America declares that it does not consider itself
bound by Article 17(2) of the Convention with respect to
disputes concerning the interpretation or application of the
Amendment to the Convention on the Physical Protection of
Nuclear Material.
b. additional understanding recommended for article 9 of the 2005 sua
protocol
Article 9 of the 2005 SUA Protocol amends Article 10, paragraph 2,
of the 1988 SUA Convention and provides that any person who is taken
into custody or otherwise subject to proceedings under the Convention
shall be guaranteed fair treatment, including all rights and guarantees
under the law of the State in which that person is present. . . .''
Article 2 of the 2005 Fixed Platforms Protocol incorporates this (and
other) provisions from the 2005 SUA Protocol. Accordingly, we recommend
the following understandings, which are consistent with the
understanding recommended for an identical provision in the Nuclear
Terrorism Convention:
2005 SUA Protocol
The United States understands that Article 9 of the Protocol
of 2005 to the Convention for the Suppression of Unlawful Acts
against the Safety of Maritime Navigation (``2005 Protocol'')
imposes no obligation on the United States to provide any
individual remedy within its judicial system for any person who
alleges a violation of that article or any other terms of the
2005 Protocol.
2005 Fixed Platforms Protocol
The United States understands that paragraph 2 of Article 10
of the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation, 2005, and incorporated by
Article 2 of the Protocol of 2005 to the Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed
Platforms Located on the Continental Shelf (``2005 Fixed
Platforms Protocol''), imposes no obligation on the United
States to provide any individual remedy within its judicial
system for any person who alleges a violation of that article
or any other terms of the 2005 Fixed Platforms Protocol.
Question 11. Page XIV of the President's transmittal package for
the Nuclear Terrorism Convention states that the reservation proposed
by the administration ``would allow the United States to agree to
adjudication by a Chamber of the Court in a particular case, if that
were deemed desirable.'' Although the United States and another country
could presumably agree to submit a dispute over the interpretation or
application of the treaty to the International Court of Justice, it
appears that the reservation only anticipates that the United States
might agree to arbitration, either as laid out in Article 23(1) or
otherwise--but does not anticipate and would not specifically ``allow''
the United States to agree to adjudication by a Chamber of the Court in
a particular case. Is that reading of this reservation correct?
Answer. Upon further review, we do not consider inclusion of the
above-referenced text necessary for purposes of the recommended
reservation. It goes without saying that the United States could, in
its discretion, choose to submit a particular dispute regarding the
interpretation or application of the treaty to third-party dispute
settlement. Please see the revised version of the administration's
recommendation in the response to question 10 (above).
Question 12. Article 8 of the Nuclear Terrorism Convention states
that States Parties ``shall make every effort to adopt appropriate
measures to ensure the protection of radioactive material, taking into
account relevant recommendations and functions of the International
Atomic Energy Agency.'' What are the ``relevant recommendations''
referenced? Will it be necessary to promulgate new regulations in order
to fulfill this obligation under the amendment? If not, please cite the
existing regulations that would implement this requirement if we become
a party to the Convention.
Answer. The principal requirement in Article 8 is to ``make every
effort to adopt appropriate measures to ensure the protection of
radioactive material. . . .'' Both DOE and NRC already have in place
regulations and other regulatory documents (such as orders and manuals)
to ensure the protection of nuclear and byproduct material.
Pertinent NRC regulations include 10 CFR 20.1801 and 20.1802, 10
CFR Part 73, and 10 CFR 110.44. Over the past few years NRC has also
issued orders involving increased controls on materials to specific
groups of licensees. For DOE, we refer you to the series of DOE orders
and manuals referenced in response to Question 4 above with regard to
achieving and maintaining physical protection in DOE facilities.
With respect to the requirement that the measures for protection of
radioactive material, as that term is defined in the Nuclear Terrorism
Convention, take account of relevant recommendations of the IAEA; the
IAEA is continually developing recommendations and guidance related to
the protection of nuclear material and radioactive sources. USG experts
frequently participate in those efforts, bringing U.S. experience and
practice in protection of such materials to bear in the development of
international guidance. Some of the principal IAEA guidance documents
relating to protection of radioactive material are the following:
IAEA Nuclear Security Series and INFCIRC/225/Rev. 4
(Corrected) The Physical Protection of Nuclear Materials and
Nuclear Facilities;
Code of Conduct on the Safety and Security of Radioactive
Sources, and supplementary Guidance on the Import and Export of
Radioactive Sources; and
IAEA Safety Standards Series
DOE and NRC have advised that they do not foresee that any
regulatory changes would be necessitated by this Article if the United
States becomes a party to the NTC. We note that DOE is already in the
process of issuing an order to reflect the Guidance on the Import and
Export of Radioactive Sources listed above.
Question 13. Consider the following hypothetical: Two private
Iranian citizens ``unlawfully and intentionally'' transport on board a
ship special fissionable material from the territory of Iran to
Pakistan knowing that it is intended to be used in nuclear activity
that is not under safeguards pursuant to an IAEA comprehensive
safeguards agreement. Iran is a State Party to the Treaty on the Non-
Proliferation of Nuclear Weapons, but if the act is taken by private
Iranian citizens acting without the knowledge of their government,
would the resulting transfer or receipt of the material be ``contrary
to such Party's obligations under the Treaty on the Non-Proliferation
of Nuclear Weapons''? As a result, would such act be an offense under
the treaty?
Answer. Many factors would have to be considered in determining
whether an offense under the treaty had occurred in a particular
situation. For example, an NPT party could transfer special fissionable
material to a safeguarded Pakistani facility consistent with the NPT
(notwithstanding the fact that Pakistan does not have a comprehensive
safeguards agreement with the IAEA). Moreover, we would need to
evaluate the specific facts concerning the actions (or inaction) of the
government of the sending State. Thus, it is difficult to provide a
definitive answer to hypothetical situations such as this one.
______
Responses of Deputy Assistant Attorney General John C. Demers to
Questions Submitted for the Record by Senator Biden
Question. All four counterterrorism treaties (the Nuclear Terrorism
Convention, the Amendment to the Convention on Physical Protection of
Nuclear Material, the 2005 SUA Protocol, and the 2005 Fixed Platforms
Protocol) define offenses that will be prosecutable under an
``extradite or prosecute'' regime provided for in each treaty. Which of
these offenses will be most useful to the United States in its attempts
to combat terrorism and nonproliferation? Please provide specific
examples, if possible.
Answer. Each of the four counterterrorism treaties provides
critical additions to the legal framework addressing the dangers
associated with terrorists acquiring and using unconventional weapons.
The legislation would play a key role in harmonizing the
criminalization of conduct in various nations. Achieving consistency at
an international level will help with coordination and cooperation in
the repression of illicit conduct involving nuclear material. The
extradite or prosecute provisions in particular are useful to make it
difficult for perpetrators to find refuge in a country that cannot or
will not prosecute. Although these provisions are important to each of
the offenses, it is possible that the offenses in the CPPNM Amendment
would be more frequently used for prosecution and extradition than the
others because they cover a more common range of material or action,
like theft or smuggling of nuclear material, than some of the offenses
in the other treaties. It is nevertheless important to understand that
the criminal legislation would be a success even if it were never used
for a criminal prosecution; its mere presence in the U.S. Code may
deter threatening activity.
Question. The President has urged the Senate to act quickly on
these four counterterrorism treaties, yet the administration has not
submitted the draft implementing legislation for the Nuclear Terrorism
Convention and the Amendment
to the Convention on the Physical Protection of Nuclear Material. When
do you expect to submit a draft of that legislation? Why is it taking
so long to submit the legislation?
Answer. We appreciate the Senate's expeditious consideration of
these critically important treaties. The duration of time involved in
preparing draft legislation stems largely from two factors. First,
because these four conventions affect numerous existing domestic laws,
the integration of the legal obligations under these treaties requires
additional analysis of existing law. Second, the subject matter of
these treaties implicates the interests of numerous Federal agencies.
Hence, considerable interagency coordination has been involved in the
review of the draft legislation. We are engaged in what we anticipate
to be the last round of interagency coordination and will transmit the
legislation to the Hill promptly thereafter.
Question. Under Article 9(2) of the Nuclear Terrorism Convention, a
State Party ``may'' establish jurisdiction over the offenses covered by
the Convention when:
(a) The offense is committed against a national of that
State;
(b) The offense is committed against a State or government
facility of that State abroad, including an embassy or other
diplomatic or consular premises of that State;
(c) The offense is committed by a stateless person who has
his or her habitual residence in the territory of that State;
(d) The offense is committed in an attempt to compel that
State to do or abstain from doing any act; or
(e) The offense is committed on board an aircraft which is
operated by the Government of that State.
Which of the grounds above ((a) through (e)) does the
administration recommend that Congress establish jurisdiction over in
implementing legislation and why?
Answer. We will address the jurisdictional scope in our upcoming
draft legislation, which will include a section-by-section analysis.
Question. Consider the following hypothetical: Two Indian citizens
``unlawfully and intentionally'' transport on board a ship special
fissionable material from India to Pakistan knowing that it is intended
to be used in nuclear activity that is not under safeguards pursuant to
an IAEA comprehensive safeguards agreement. In brief, the acts of these
two Indian citizens would appear to qualify as an offense under the
2005 SUA Protocol. Neither India nor Pakistan are parties to the 2005
SUA Protocol; however, in this hypothetical the United States has
joined the 2005 SUA Protocol. At a later date, the two Indian citizens
are found in the United States. We cannot find an interested country to
which we might extradite the two Indian citizens and thus, under the
Convention, we presumably have an obligation to prosecute them. U.S.
courts have generally taken the position that Congress may legislate
with respect to conduct outside the United States, even in excess of
the limits posed by international law, so long as Congress has
indicated its intent to reach such conduct and doing so does not
violate the due process clause of the fifth amendment. Please analyze
this hypothetical and explain why prosecution under the circumstances
described above would not violate the due process clause of the fifth
amendment.
Answer. We cannot answer this type of hypothetical question;
however, courts have held that, under the fifth amendment's due process
clause, U.S. law may be applied to extraterritorial conduct in
comparable circumstances unless such application would be arbitrary or
fundamentally unfair. See, e.g., United States v. Shi, 525 F.3d 709
(9th Cir. 2008) (exercise of extraterritorial jurisdiction under 18
U.S.C. Sec. 2280 over foreign national did not violate due process);
United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir. 1993).
The precise manner of applying this due process test has varied, but
several courts recognize that the United States joining a multilateral
convention requiring prosecution can be sufficient to assert
jurisdiction. See, e.g., Shi, 525, F.3d at 723-24; cf. United States v.
Yunis, 924 F.2d 1086, 1092 (D.C. Cir. 1991) (recognizing that statute
implementing aircraft hijacking convention can support assertion of
universal jurisdiction). A somewhat different approach was taken in
United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990), and
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003). In those cases,
the ninth and second circuits interpreted the due process clause
generally to require some nexus between the United States, or its
national interests, and the challenged conduct. But later cases in the
ninth circuit have clarified the limited scope of Davis. See Shi, 525
F.3d at 722 (nexus requirement applies only when the ``rough guide'' of
international law also requires a nexus); United States v. Caicedo, 47
F.3d 370, 372 (9th Cir. 1995) (same).
______
Responses of Deputy Assistant Secretary Richard Douglas to Questions
Submitted for the Record by Senator Biden
on explaining the urgency of senate action
Question. Please explain why it is important for the Senate to act
on these treaties now. Is there any real urgency?
Answer. Terrorists have indicated a strong desire to use WMD and
these treaties will help stop them.
The 2005 Protocols to the 1988 Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation (SUA
Convention) and its accompanying Fixed Platforms Protocol, close
international legal gaps by criminalizing the use of a ship to
transport terrorists or as a weapon and by criminalizing maritime
transport of WMD, their delivery systems, and related materials.
In addition to the SUA Amendments, the Nuclear Terrorism Convention
and the Amendment to the Convention on the Physical Protection of
Nuclear Material will enhance U.S. national security by modernizing and
strengthening the international counterterrorism and
counterproliferation legal framework. These Conventions complement
important U.S. Government priorities, such as the Global Initiative to
Combat Nuclear Terrorism and the Proliferation Security Initiative. The
United States actively supported the development of these treaties, and
in the case of the SUA Protocols and the CPPNM Amendment were U.S. led
iniatives. U.S. ratification will reinforce U.S. leadership in this
area and encourage ratification by other states.
impact of 2005 sua protocol and 2005 fixed platforms protocol on
proliferation security initiative
Question. Can you explain how joining the 2005 SUA Protocol and the
2005 Fixed Platforms Protocol would strengthen the Proliferation
Security Initiative? Please use specific examples, if possible.
Answer. The proliferation offenses and the boarding regime
established by the 2005 SUA Protocols will strengthen the international
legal basis for conducting maritime interdictions. The protocol is
legally binding. PSI is not. PSI is a cooperative activity where like-
minded states work together to address proliferation of weapons of mass
destruction (WMD), their delivery systems, and related materials
worldwide, consistent with national legal authorities and relevant
international law and frameworks. The 2005 SUA protocols (the 2005 SUA
Protocol and the 2005 Fixed Platforms Protocol) further PSI objectives
by requiring States Parties to these treaties to criminalize, under
their domestic law, offenses involving the transport on SUA-covered
ships of WMD, delivery systems, and related materials.
The 2005 SUA protocols complement PSI and further its objectives by
expanding upon the international ``extradite or prosecute'' regime
provided for in the 1988 SUA Convention to prosecute those who
proliferate WMD by ship, thereby advancing the aims of the PSI. The SUA
Convention, as amended by the protocols, will establish a legal basis
for international cooperation in the investigation, prosecution, and
extradition of those who commit or aid terrorist acts or trafficking in
WMD aboard ships at sea or on fixed platforms.
The ship boarding provisions under SUA protocols will facilitate
timely coordination of boarding requests from flag-States, some of
which are not participating in PSI and may not choose to enter into
bilateral agreements with the United States. The SUA Protocols will
provide the benefits of a streamlined process in the context of a
multilateral convention. The SUA shipboarding regime will serve to
strengthen the international legal basis for interdictions at sea
carried out under the PSI. The shipboarding regime in the 2005 SUA
Protocol will provide a multilateral basis for the interdiction at sea
of WMD, their delivery systems, and related materials, as well as
terrorist fugitives. It will also provide an internationally accepted
model for shipboarding that can be used with States that are not party
to SUA or participants in PSI.
As an example, if we had information that a dual-use item that we
thought could significantly contribute to the design, manufacture, or
delivery of a nuclear, biological, or chemical weapon was being
transported aboard a vessel flagged by a party to SUA, we would, with
the SUA amendments, have an expeditious structure in place to
immediately contact that State to request that they conduct a boarding
or authorize the U.S. to board.
impact of 2005 sua protocol and 2005 fixed platforms protocol on
enforcement of unsc sanctions against iran and the dprk
Question.Can you explain how joining the 2005 SUA Protocol and the
2005 Fixed Platforms Protocol might facilitate the enforcement of U.N.
Security Council sanctions against Iran and North Korea?
Answer. The 2005 SUA Protocols require participating States Parties
to enact legislation to criminalize the unlawful maritime transport of
WMD, a key requirement in stopping the spread of WMD, and an important
step in helping to enforce the sanctions in current U.N. Security
Council resolutions. The SUA protocols establish a legal basis for
international cooperation in the investigation, prosecution, and
extradition of those who commit or aid terrorist acts or trafficking in
WMD aboard ships at sea or on fixed platforms. The ability of States
Parties to prosecute the perpetrators of these acts under the domestic
legislation that States Parties must adopt will be a means to impose
``consequences'' on the perpetrators of these acts. The 2005 SUA
Protocol's shipboarding regime will provide a multilateral basis for
the interdiction at sea of WMD, their delivery systems, and related
materials, as well as terrorist fugitives.
information-sharing initiatives
Question. Do you have any concerns about the information-sharing
provisions in these treaties? Are you at all concerned that the United
States will be required to share information under these treaties,
which might be detrimental to our national security?
Answer. No. The United States will not have to disclose sensitive
sources and methods when it requests to board a vessel of a State Party
to the SUA Convention. Any time a boarding is requested, the pros and
cons of revealing the boarding State's interest in a particular ship
must be carefully considered. But, there is no requirement that the
boarding State share information or reveal collection methods in the
process of requesting a boarding. Boarding requests shall be based upon
``reasonable grounds'' and contain (pursuant to Art. 8bis) the
following:
--Name of the suspect ship;
--International Maritime Organization (IMO) identification number;
--Port of registry;
--Port of destination and origin; and,
--Any other relevant information.
Accordingly, there is flexibility in determining what to provide to
support the request. Moreover, not every boarding is/will be based on
classified information.
Article 6.2 of the Convention on the Physical Protection of Nuclear
Material, and Article 7.3 of the International Convention for the
Suppression of Acts of Nuclear Terrorism, both provide that States
Parties are not required to disclose information that they are not
permitted to disclose under national law, or that would jeopardize
national security.
possible outcome of a future u.s. attack on a foreign nuclear facility
Question. If the United States were to ratify these four
counterterrorism treaties, and then its military forces were to attack
a nuclear facility (as defined in either the Nuclear Terrorism
Convention or in the Amendment to the Convention on the Physical
Protection of Nuclear Material) in another country, could that country
reasonably claim under any of these treaties that the United States had
breached its obligations under international law? Please explain.
Answer. None of the treaties under consideration would support such
a claim. Each treaty contains a provision that excludes the activities
of armed forces during an armed conflict, which are governed by the law
of war, and activities of the military forces of a State in the
exercise of official duties.
on possibility of potential military obligations
Question. Can you identify specific obligations under these four
counterterrorism treaties which the United States military might be
called upon to participate in the implementation thereof?
Answer. Specific obligations under the SUA Protocols include, among
other things, a requirement for State Parties to designate the
authority to receive and respond to requests for assistance (for the
U.S. it is the U.S. Coast Guard), and when conducting a boarding, to
avoid endangering personnel on board, take due account of the security
of the ship and its cargo, treat persons on board in a manner which
preserves their basic human dignity; notify the master of the impending
boarding, and take reasonable efforts to avoid unduly detaining the
ship.
