Disarmament DiplomacyIssue No. 23, February 1998
Draft Nuclear Terrorism Convention: UN Press Releases'Ad Hoc Committee Established to Elaborate Nuclear Terrorism Convention Concludes Session at Headquarters,' United Nations Press Release L/2857, 27 February 1998
"Draft Convention Submitted to Working Group of Sixth Committee
The Ad Hoc Committee established by the General Assembly to elaborate conventions on the suppression of terrorist bombings and on acts of nuclear terrorism concluded its second session this morning by adopting a report, as orally amended, on its work to draft a convention on nuclear terrorism.
The Committee, which met from 17 to 27 February, mainly in working group, considered a number of proposals during an article-by-article review of the 20-article draft convention, which was submitted by the Russian Federation. The International Convention for the Suppression of Terrorist Bombings was adopted by the Assembly last December after elaborating on the outcome of the Committee's work during its first session earlier that year. The Convention, which is open for signature until 31 December 1999, will enter into force 30 days after the date of the deposit of the twenty-second instrument of ratification.
The report on this year's session will be submitted to a working group of the Sixth Committee (Legal), which will undertake further discussion and elaboration from 28 September to 9 October during the Assembly's fifty-third session. The report contains three sections and three annexes. The sections include an introduction, a description of the Committee's proceedings in plenary and working group and a summary of the Committee's general debate. The annexes contain the draft international convention for the suppression of acts of nuclear terrorism; proposed amendments to the draft; and an informal summary of the Committee's discussions in working group.
The draft convention covers, among others, definitions; the scope of the convention; the obligation of States parties to implement the instrument; detention, extradition or prosecution; cooperation at the stage following settlement of an incident of nuclear terrorism; and cooperation to prevent the actions that would be proscribed by the nuclear terrorism convention. When he introduced the draft convention at the beginning of the Committee's session on 17 February, the representative of the Russian Federation said the text was an important means to fill the substantial gaps in existing legal instruments. Earlier conventions extended only to nuclear material being transported internationally, or being used, stored or transported in a given State. He also stressed that the draft would apply to threats to use nuclear components by individuals or organizations, regardless of the object being attacked.
In closing remarks today, the Committee's Chairman, Philippe Kirsch (Canada), said the possibility of an armed attack on a nuclear installation or the use of nuclear materials to cause serious harm were issues that deserved to be taken seriously and addressed by the international community. There was general agreement that any instrument should complement existing international treaties, although it was recognized some overlap was unavoidable. A convention on nuclear terrorism should not undermine international work against terrorism or already existing instruments designed to secure the physical protection of nuclear material.
He said the Committee was still considering whether to elaborate a new convention or a protocol to either the 1980 Convention on the Physical Protection of Nuclear Material or the 1997 Convention on the Suppression of Terrorist Bombings. Important elements of the proposed draft convention on nuclear terrorism were drawn from the 1980 Convention, which largely dealt with the use of nuclear material for peaceful purposes.
Continuing, he said if the Ad Hoc Committee or the working group of the Sixth Committee (Legal) decided on a separate convention, rather than a protocol, then it would still have to be determined to what extent the new instrument took into account the 1997 Convention. There were still uncertainties on how to deal with several complex issues, including the exact nature of the offence, the materials or facilities to be included and the scope of the convention. Future work should focus on the content of the exchanges in the working group and how to build on the progress made so far, and reflect general discussions rather then just individual suggestions. ...
Working Group Discussions
According to the report, the working group proceeded in two stages. In the first stage, the group reviewed article 1 and considered the definition of the material and offences to be covered under the draft convention, in order to clarify the objectives and scope of the agreement.
There was general agreement that the definitions should focus on combating terrorist acts, the report states. There was also general agreement that all definitions should be assembled in article 1 and that they should precede the descriptions of offences, which would be contained in article 1(bis), similar to the structure of the 1997 Terrorist Bombings Convention. In the second stage of its work, the group conducted a first reading of the provisions that contained elements specific to the draft convention or not identical to those found in relevant treaties. ... The group also examined the preambular paragraphs, as well as the remaining articles.
Several delegations proposed adding two new paragraphs to article 2, which describes the scope of the convention. The first would safeguard the inalienable right of States to the peaceful use of nuclear energy. The second paragraph would reproduce article 3 of the 1997 Terrorist Bombings Convention, which states that the draft convention does not govern the military activities of States in armed conflict or in exercise of their official duties.
Some speakers suggested that the text of article 4, which concerns States' cooperation to prevent or prosecute acts of nuclear terrorism, should be limited to measures to prevent illegal or unauthorized access to radioactive material. Other speakers favoured extending the scope of the article to include measures against illicit trafficking. There was also a suggestion to make the International Atomic Energy Agency (IAEA) the focal point for consultation and exchange of information under the article.
Regarding article 10, concerning the settlement of an act of nuclear terrorism, some speakers voiced their concerns about the difficulties that might arise if the return was obligatory, because some States were legally precluded from returning nuclear components or products. Some delegations stressed the need to take into account the role that the IAEA could provide, while others said that States could take care of the matter themselves. A number of delegations proposed additional paragraphs to the draft convention's preamble. According to those paragraphs, the preamble would: recognize the importance of a universally agreed definition of international terrorism; recall Assembly resolutions on the importance of nuclear disarmament; emphasize the responsibility of a State for the establishment, implementation and maintenance of a physical protection system for nuclear material, devices and installations on its territory; stress the inherent right of all States to engage in research, production and use of nuclear energy for peaceful purposes; and recall IAEA recommendations for physical protection of radioactive materials and facilities.
Highlights of General Debate
During the general debate, several speakers said universal adherence to a nuclear terrorism convention would address the emerging threats from groups operating across borders, several speakers said. The convention would also help reduce the probability of nuclear and radioactive terrorism, and safeguard sites that produced nuclear energy for peaceful purposes.
Many speakers called for a close examination of the draft convention's relationship with existing legal instruments. Delegations cited three treaties that covered similar issues: the 1980 Convention on the Physical Protection of Nuclear Material; the 1997 International Convention for the Suppression of Terrorist Bombings; and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) of 1996. Several speakers said the Committee should consider whether the most effective method of dealing with the nuclear threat would be to elaborate the draft convention or amend or add a protocol to the 1980 Convention.
The Committee should clarify the draft convention's definition of nuclear terrorism and the scope of its applications, some speakers said. The provisions concerning jurisdiction, extradition and the rendering of mutual assistance should also be studied. In addition, the text should not modify provisions of current international humanitarian law. Concerned that the draft only addressed terrorism by individuals, other speakers said that terrorism could also involve acts by States, especially in the case of nuclear terrorism.
A representative of the IAEA said it would be constructive to supplement international standards to ensure the control of nuclear material with a convention that would extend the coverage to the broadest possible range of radioactive material, as well as nuclear facilities, explosive and other devices. Measures were also needed to prevent unauthorized access to such material, to protect facilities from intrusion and to develop more effective controls against illicit trafficking. Coherence and consistency should be maintained in applying all related international legal instruments in the nuclear field, he said.
Philippe Kirsch (Canada) is Chairman of the Ad Hoc Committee. Carlos Fernando Diaz (Costa Rica), Hussein Mubarak (Egypt) and Rohan Perera (Sri Lanka) are Vice-Chairmen. Martin Smejkal (Czech Republic) is the Rapporteur. Established by resolution 51/210, of 17 December 1996, the Committee is open to all Member States of the United Nations, specialized agencies and the IAEA."
'Ad Hoc Committee to elaborate Nuclear Terrorism Convention meets at Headquarters, 17-27 February,' UN Press Release L/2853, 13 February 1998
"At its upcoming session, the Committee will have before it a 20-article draft convention on the suppression of acts of nuclear terrorism (document A/AC.252/L.3.), submitted by the Russian Federation.
Article 1 of the draft defines acts of nuclear terrorism. They include the use or threat to use nuclear material, nuclear fuel, radioactive products or waste, or any other radioactive substances with toxic, explosive or other dangerous properties. The definition also includes the use or threat to use any nuclear installations, nuclear explosive or radiation-dissemination devices in order to kill or injure persons; to damage property or the environment; or to compel persons, States or international organizations to do or to refrain from doing any act.
Included in that definition, according to the draft, is unauthorized receipt, through fraud, theft or forcible seizure, of any nuclear material, radioactive substances, nuclear installations, nuclear explosive or radiation- dissemination devices belonging to a State party. Demands by threat or use of force, or by other forms of intimidation for the release or transfer of such material, would also be regarded as acts of nuclear terrorism.
In article 2, the draft states that the convention would apply exclusively to acts by individuals, in an individual capacity or as part of non-State groups or other associations. Its scope should not include the questions of non-proliferation of nuclear weapons or nuclear threats posed by States or intergovernmental organizations.
The Russian Federation's proposal would have States parties cooperate in preventing or prosecuting against acts of nuclear terrorism. For instance, according to article 4 of the text, they would adopt necessary legislative and technical measures to protect nuclear material, installations and devices, and to forestall unauthorized access to them by third parties. The convention would not affect the international law provisions on States' competence to conduct investigations on vessels that were not flying their flags or in aircraft which were not registered in their territories, according to article 6 of the text. States parties would help each other in prosecuting the relevant acts and, when the prosecution is completed, any nuclear material or devices would be returned to the State party to which they belong.
The Committee will also have before it an explanatory note, also submitted by the Russian Federation (document A/AC.252/L.3/Add.1), which contains an article-by-article commentary on the draft convention.
The note states that a new international legal instrument is needed because the 1980 Convention on the Physical Protection of Nuclear Material has a number of substantial gaps concerning countering acts of nuclear terrorism, particularly at the stage of stopping the terrorist act and eliminating its consequences. The 1980 Convention applies to the safety of the 'peaceful atom', and it covers only one area of the machinery for combating the criminal use of nuclear material, namely, preventing nuclear components from getting out of the possession of State bodies.
The 1980 Convention alone is insufficient to eliminate the danger of nuclear terrorism in all its manifestations, the note says. Therefore, the Russian Federation submitted the draft convention for the following reasons: to increase the attention paid by the international community to combating new and dangerous manifestations of terrorism; to stimulate the adoption of effective preventive measures in that sphere; and to establish a reliable international legal mechanism for cooperation at all stages of combating nuclear terrorism.
According to the note, the draft convention does not contain any norms which go beyond the traditional framework of legal cooperation in combating terrorism. It is based on the approach taken by anti-terrorist conventions, including the principle of universal jurisdiction. A number of articles in the draft reproduce the corresponding formulations in the 1980 Convention and in the anti-terrorist conventions already approved by the international community.
Background on Committee
The process leading to the creation of the Ad Hoc Committee dates back to the adoption in 1994 of resolution 49/60, by which the Assembly approved a Declaration on Measures to Eliminate International Terrorism. The Declaration asked the Secretary-General to review existing international legal instruments on international terrorism to help States identify aspects of the matter that had not been covered by them and could then be addressed to develop a comprehensive legal framework on the question.
In the review he submitted to the Assembly's Sixth Committee (Legal) (document A/51/336) in September 1996, the Secretary-General said that even though there were 13 global or regional treaties on international terrorism, many of them were not universal.
International terrorism was, in many instances, associated with drug trafficking, arms trade, smuggling of modern materials, money laundering and with groups with extremist ideologies. Stressing the need to enact international laws in areas not covered by existing treaties, he suggested consideration should be given to terrorist bombings, terrorist fund-raising and to the prevention of the use of weapons of mass destruction by terrorists.
After considering the Secretary-General's report, the Assembly adopted resolution 51/210, which established the Ad Hoc Committee and included a Declaration to Supplement the 1994 Declaration on Measures to Eliminate International Terrorism. In the supplementary text, Member States reaffirmed their condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed. They also declared that knowingly financing, planning and inciting terrorist acts contradicted the purposes of the United Nations.
At its first session, held from 24 February to 7 March 1997, the Ad Hoc Committee adopted a report (document A/52/37) transmitting to the Assembly revised proposals to a draft convention on an international convention for the suppression of terrorist bombings.
The revised text and other proposals contained in that report formed the basis of further work on such a convention during the Assembly's fifty-second session, from 22 September to 3 October 1997, within the framework of a working group of the Sixth Committee.
At the recommendation of the Sixth Committee, the Assembly, by resolution 52/164, adopted the International Convention for the Suppression of Terrorist Bombings on 15 December 1997, and urged all States to become parties to it.
The International Convention is the eleventh United Nations legal instrument meant to identify, define and punish specific terrorist acts as international crimes. It provides that States either prosecute or extradite those accused of terrorist bombings within their territory. It also calls on States to adopt further measures to prevent terrorism and strengthen international cooperation in combating such crimes.
The Convention defines a terrorist bomber as a person who unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility, with the intent to cause death or serious bodily injury, or the destruction of such a place resulting in major economic loss."
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