[Senate Executive Report 110-23]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-23

======================================================================



 
 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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                         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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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

                              ----------                              


                         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.

                                 

      
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