[Senate Executive Report 110-24]
[From the U.S. Government Publishing Office]
110th Congress Exec. Rept.
SENATE
2d Session 110-24
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AMENDMENT TO THE CONVENTION ON PHYSICAL PROTECTION OF NUCLEAR MATERIAL
_______
September 16, 2008.--Ordered to be printed
_______
Mr. Biden, from the Committee on Foreign Relations,
submitted the following
REPORT
[To accompany Treaty Doc. 110-6]
The Committee on Foreign Relations, to which was referred
the Amendment to the Convention on the Physical Protection of
Nuclear Material, adopted on July 8, 2005 (the ``Amendment'')
(Treaty Doc. 110-6), having considered the same, reports
favorably thereon with one reservation, three 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.......................................................2
III. Major Provisions.................................................3
IV. Entry Into Force.................................................8
V. Implementing Legislation.........................................8
VI. Committee Action.................................................9
VII. Committee Recommendation and Comments............................9
VIII.Resolution of Advice and Consent to Ratification................11
I. Purpose
This Amendment supplements the Convention on the Physical
Protection of Nuclear Material (the ``CPPNM'' or the
``Convention'') (Treaty Doc. 96-43)\1\ and requires each State
Party to establish, implement, and maintain an appropriate
physical protection regime applicable to nuclear facilities
used for peaceful purposes and nuclear material used for
peaceful purposes in domestic use, storage, and transport. Such
a regime is to have the aim of protecting against theft of
nuclear material, ensuring the implementation of measures to
locate and recover missing or stolen nuclear material,
protecting nuclear material and nuclear facilities from
sabotage, and mitigating or minimizing the radiological
consequences of sabotage. The Amendment also provides for
expanded international cooperation mechanisms and additional
criminal offenses that each State Party must make punishable by
law. The Amendment is designed to expand and strengthen the
existing physical protection regime established by the CPPNM.
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\1\The Senate approved the CPPNM on July 30, 1981 and the United
States deposited its instrument of ratification on December 13, 1982.
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II. Background
The CPPNM, which was adopted in 1979 and entered into force
in 1987, establishes an international framework for improving
the physical protection of nuclear material used for peaceful
purposes while in ``international nuclear transport''\2\ and
for international cooperation in preventing the unlawful taking
or theft of nuclear material and recovering nuclear material
that has been stolen. The CPPNM requires States Parties, like
other counterterrorism treaties to which the United States is a
party, to criminalize certain offenses and either extradite or
submit for prosecution alleged offenders. The extradite or
prosecute regime is particularly useful in that it makes it
difficult for perpetrators to find refuge in a country that
cannot or will not prosecute. When signing the implementing
legislation for the CPPNM in 1982, President Reagan declared:
``This step symbolizes our firm commitment both to preventing
the spread of nuclear explosives and to fighting the scourge of
terrorism.''\3\ The Convention has been widely ratified; as of
July 2008, it had 136 Parties.
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\2\International nuclear transport, as defined by the Convention,
``means the carriage of a consignment of nuclear material by any means
of transportation intended to go beyond the territory of the State
where the shipment originates beginning with the departure from a
facility of the shipper in that State and ending with the arrival at a
facility of the receiver within the State of ultimate destination.''
See Article 1(c).
\3\``Statement on Signing the Convention on the Physical Protection
of Nuclear Material Implementation Act of 1982,'' Ronald Reagan
Presidential Library, available at: http://www.reagan.utexas.edu/
archives/speeches/1982/101982a.htm
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The CPPNM, however, does not apply to nuclear facilities,
and its physical protection requirements apply only to nuclear
material used for peaceful purposes while in international
nuclear transport. Thus, it was determined that a further
amendment to the CPPNM would be useful to fill in the gaps in
the current Convention's framework.\4\ Specifically, the
Amendment establishes (1) new international norms for the
physical protection of nuclear material used for peaceful
purposes (without regard to whether such material is in
international nuclear transport) and nuclear facilities used
for peaceful purposes, including protection from sabotage; (2)
strengthened obligations for cooperation among States Parties
to the Amendment on matters of physical protection (including
recovery of unlawfully taken nuclear material), for protection
of the confidentiality of physical protection information, and
to prevent sabotage; and (3) new criminal offenses that must be
made punishable by States Parties to the Amendment under their
national law, such as sabotage and smuggling.
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\4\It should be noted that, unlike the Convention on Nuclear
Terrorism, the CPPNM and this Amendment apply only to nuclear material-
defined as plutonium, except when the concentration of the isotope
plutonium-238 is greater than 80%; uranium-233; uranium enriched in the
isotopes uranium-233 or uranium-235; or natural uranium already
extracted from ore or ore-residue; and any material containing one or
more of the foregoing--and not to other radioactive materials.
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III. Major Provisions
A detailed paragraph-by-paragraph analysis of the Amendment
may be found in the Letter of Submittal from the Secretary of
State to the President, which is reprinted in full in Treaty
Document 110-6. A summary of key provisions is set forth below.
Expanding the Scope of the CPPNM
Paragraphs 1, 2, 3, and 4 of the Amendment make changes to
the underlying Convention that reflect the expanded purpose of
the CPPNM, as amended. Paragraph 1 changes the title of the
Convention so that it would read ``Convention on Physical
Protection of Nuclear Material and Nuclear Facilities.''
Paragraph 2 amends the preamble of the CPPNM to reflect the
national and international reasons for conclusion of the
Amendment. The changes to the preamble, for example,
specifically express the desire of States Parties to avert the
danger posed by illicit trafficking, the unlawful taking and
use of nuclear material, and the sabotage of nuclear material
and nuclear facilities. Paragraph 4 amends the Convention to
include a provision that identifies the purpose of the
Convention, as amended:
The purposes of this Convention are to achieve and maintain
worldwide effective physical protection of nuclear material
used for peaceful purposes and of nuclear facilities used for
peaceful purposes; to prevent and combat offenses relating to
such material and facilities worldwide; as well as to
facilitate co-operation among States Parties to those ends.
Paragraph 3 amends the Convention to include definitions
for the terms ``nuclear facility'' and ``sabotage,'' which
further reflect the expanded scope of the CPPNM that would be
effected by the Amendment.
Expanded Physical Protection Regime
Paragraph 5 amends Article 2 of the CPPNM and, among other
things, specifies that ``the responsibility for the
establishment, implementation and maintenance of a physical
protection regime within a State Party rests entirely with that
State.''
Paragraph 6 adds a new Article 2A to the Convention, which
requires States Parties to ``establish, implement and maintain
an appropriate physical protection regime applicable to nuclear
material and nuclear facilities under its jurisdiction . . .
.'' The required ``regime'' is to have four objectives:
i. protecting against theft and other unlawful taking
of nuclear material in use, storage and transport;
ii. ensuring the implementation of rapid and
comprehensive measures to locate and, where
appropriate, recover missing or stolen nuclear
material;
iii. protecting nuclear materials and nuclear
facilities from sabotage; and
iv. mitigating or minimizing the radiological
consequences of sabotage.
In order to implement this regime, States Parties are
required to:
i. establish and maintain a legislative and
regulatory framework to govern physical protection;
ii. establish or designate a competent authority or
authorities responsible for the implementation of the
legislative and regulatory framework; and
iii. take other appropriate measures necessary for
the physical protection of nuclear material and nuclear
facilities.
In testimony before the committee, administration officials
explained that it will not be necessary to promulgate new
regulations to fulfill the obligations under this paragraph, as
these requirements are consistent with the physical security
practices that are already in use in the United States.
Pursuant to paragraph (2)(b) of the new Article 2A of the
amended Convention, the United States will designate the
Department of Energy (DOE) as the U.S. competent authority with
respect to relevant DOE facilities and the Nuclear Regulatory
Commission (NRC) as the U.S. competent authority with respect
to commercial licensees. Officials described the legislative
and regulatory framework in place that would implement
obligations regarding the physical protection regime as
follows:
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
agency-wide 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.
Paragraph 3 of the new Article 2A of the amended Convention
states that when implementing a physical protection regime,
each State Party shall ``apply insofar as is reasonable and
practicable'' certain fundamental principles of physical
protection of nuclear material and nuclear facilities that are
listed in this paragraph (the ``Principles''). The Principles
listed provide specifics regarding the responsibilities of
States Parties in providing for the physical protection of
nuclear material and facilities. For instance, Principle G says
that a State should base its physical protection on the State's
current evaluation of the threat; the U.S. physical protection
regime is built on this basis, and the United States has
pressed for other countries to adopt it as well. Further,
Principle F states that organizations implementing physical
protection measures should give due priority to the development
and maintenance throughout the entire organization of a
``security culture'' necessary to ensure the effective
implementation of physical protection measures. Principle B
states that it is the responsibility of States Parties to
ensure that nuclear material is adequately protected during
international transport, until that responsibility is
transferred to another State. Principle I calls for defense in
depth, i.e., that a State Party's ``requirements for physical
protection should reflect a concept of several layers and
methods of protection (structural or other technical, personnel
and organizational) that have to be overcome or circumvented by
an adversary in order to achieve his objectives.'' In testimony
before the committee, administration officials asserted that
the ``NRC applies the Fundamental Principles through its
regulations and regulatory process.''
As noted above, the Principles are to be applied by States
Parties ``insofar as is reasonable and practicable.'' In
testimony before the committee, Principal Deputy Assistant
Secretary of State Patricia McNerney explained why this
language was included:
The phrase ``insofar as reasonable and practicable''
was included in subparagraph 3 of [the] 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.
Paragraph 4 of the new Article 2A of the amended Convention
provides that this Article ``shall not apply to any nuclear
material which the State Party reasonably decides does not need
to be subject to the physical protection regime established ...
taking into account the nature of the material, its quantity
and relative attractiveness and the potential radiological and
other consequences associated with any unauthorized act
directed against it and the current evaluation of the threat
against it.'' In response to questions from the committee
regarding this ``opt-out'' provision, the administration
testified as follows:
The ``opt-out'' was originally proposed by the United
Kingdom, supported by Belgium, during the June 2002
Open-Ended Experts Group meeting. The UK 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 UK 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.
International Cooperation in the Recovery and Protection of Stolen
Nuclear Material
Paragraph 7 amends Article 5 of the CPPNM, which provides a
framework for international cooperation in the recovery and
protection of stolen nuclear material. The changes made to this
article include broadening the framework of international
cooperation to include the new offenses added by Paragraph 9 of
the Amendment, such as sabotage, or a credible threat of
sabotage. For example, if nuclear material or a nuclear
facility is sabotaged in the territory of a State Party, and if
in its view other States are likely to be radiologically
affected, that State Party would be required by one of the new
provisions to ``take appropriate steps to inform as soon as
possible the State or the States which are likely to be
radiologically affected and to inform, where appropriate, the
[IAEA] and other relevant international organizations, with a
view to minimizing the radiological consequences thereof.''
Confidential Information
Paragraph 8 amends Article 6 of the CPPNM, which continues
to provide protection for confidential information, consistent
with States Parties' national law, and makes clear that
``States Parties shall not be required to provide any
information which they are not permitted to communicate
pursuant to national law or which would jeopardize the security
of the State concerned or the physical protection of nuclear
material or nuclear facilities.'' Among other things, the
changes to Article 6 provide that if a State Party has received
information from another State Party in confidence, the
receiving State Party ``may provide this information to third
parties only with the consent of that other State Party.''
Additional Offenses for the Extradite or Prosecute Regime
Paragraph 9 amends Article 7 of the CPPNM, which sets forth
certain offenses covered by the Convention that each State
Party is required to make punishable under its national law and
either extradite or submit for prosecution alleged offenders.
Paragraph 9 amends existing offenses (to include, for example,
criminal acts related to nuclear facilities, rather than just
nuclear material) and adds new ones. The new offenses can be
summarized as follows:
i. Smuggling nuclear material into or out of a State
without ``lawful authority'';
ii. Sabotaging a nuclear facility;
iii. Organizing or directing others to commit one of
the offenses covered by the Convention, as amended; and
iv. Committing an act that contributes to the
commission by a group of persons acting with a common
purpose of an offense covered by the Convention, as
amended.
Paragraph 12 amends Article 14(3) of the CPPNM, which
currently provides that when an offense involves nuclear
material used for peaceful purposes in domestic use, storage,
or transport, and both the alleged offender and the nuclear
material remain in the territory of the State Party in which
the offense was committed, nothing in the Convention shall be
interpreted as requiring that State Party to provide
information concerning criminal proceedings arising out of such
an offense. Paragraph 12 amends Article 14 so that the coverage
of this provision is extended to offenses involving nuclear
facilities, where the alleged offender remains in the territory
of the State Party in which the offense was committed.
Exceptions from Scope
Paragraph 5 in part amends Article 2 of the CPPNM to
explicitly exclude from the scope of the Convention the
following three items, all of which were implicitly excluded
from the scope of the original CPPNM: (1) ``activities of armed
forces during an armed conflict, as those terms are understood
under international humanitarian law, which are governed by
that law,'' (2) ``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'' and
(3) ``nuclear material used or retained for military purposes
or to a nuclear facility containing such material.'' In
relation to this last exclusion, administration officials
testified as follows:
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.
As a result of this exclusion, States Parties would have no
obligation under the amended CPPNM to provide, for example,
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. Of course,
States Parties could provide such assistance voluntarily and
the committee expects that the United States would be among
those countries that would do so, if doing so would not
compromise U.S. national security.
IV. Entry Into Force
In accordance with Article 20 of the CPPNM, the Amendment
will enter into force for each State Party that deposits its
instrument of ratification, acceptance, or approval of the
Amendment on the thirtieth day after the date on which two-
thirds (87) of the States Parties to the CPPNM at the time the
Amendment was adopted have deposited their instruments of
ratification, acceptance, or approval of the Amendment with the
depositary. Thereafter, the Amendment will enter into force for
any other State Party on the day on which that State Party
deposits its instrument of ratification, acceptance, or
approval of the Amendment.
As of July 17, 2008, 17 States have deposited their
instruments of ratification, acceptance, or approval of the
Amendment with the depositary.
V. Implementing Legislation
With the exception of the provisions in the Amendment that
obligate the United States to criminalize certain offenses, to
make those offenses punishable by appropriate penalties, and to
authorize the assertion of jurisdiction over such offenses,
this Amendment 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 Amendment's prohibition against
causing damage to a nuclear facility would be implemented in
part by 42 U.S.C. Sec. 2284, which prohibits sabotage of
nuclear facilities. For those offenses not covered in existing
provisions of the U.S. Code, it will be necessary to enact
further implementing legislation prior to U.S. ratification of
the Amendment. 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 Amendment, but also the
International Convention for Suppression of Acts of Nuclear
Terrorism (Treaty Doc. 110-4). 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 Amendment until legislation has been
enacted that will allow the United States to fully implement
the Amendment.
VI. Committee Action
The committee held a public hearing on the Amendment 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 Executive Report 110-23.
On July 29, 2008, the committee considered the Amendment
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
Amendment will enhance U.S. national security by modernizing
and strengthening the international counter-proliferation and
counterterrorism legal framework. The committee agrees with the
view expressed by President Bush in his Letter of Transmittal
to the Senate, that the Amendment is ``important in the
campaign against international nuclear terrorism and nuclear
proliferation.'' The United States, which pushed for the
creation and widespread ratification of the original
Convention, led the initiative that resulted in this Amendment.
The CPPNM left an important gap by focusing only on physical
protection requirements for nuclear material used for peaceful
purposes while in international nuclear transport. No matter
how well the United States protects its own peaceful nuclear
material and facilities, nuclear material located in any other
country that is not appropriately protected from theft or
sabotage poses a potentially grave threat to the United States.
This Amendment will support efforts by the United States, as
well as those of the International Atomic Energy Agency and
other states, to work with countries that possess nuclear
material to ensure that they have appropriate laws,
regulations, and practices in place to protect that material.
In the committee's view, the Amendment also complements United
Nations Security Council Resolution 1540, in which the Security
Council decided, by its authority under Chapter VII of the
Charter of the United Nations, that all States shall take and
enforce effective measures to establish domestic controls,
including the development and maintenance of ``appropriate
effective physical protection measures,'' to prevent the
proliferation of nuclear weapons and related materials.
Accordingly, the committee urges the Senate to act promptly to
give advice and consent to ratification of the Amendment, 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, three understandings, and one
declaration.
Reservation
With this reservation the United States would opt out of
the binding dispute resolution mechanism provided for in the
CPPNM with respect to disputes concerning the interpretation or
application of the Amendment. 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
Subparagraph 4(b) of Article 2 of the amended Convention
carves from the scope of the CPPNM the activities of armed
forces during an armed conflict, which are instead governed by
``international humanitarian law'' (also known as the ``law of
war''). This carve-out is identical to the one found in Article
19(2) of the Terrorist Bombings Convention, as well as Article
4 of the Nuclear Terrorism Convention. This 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
Paragraph 5 of the Amendment, which amends Article 2 of the
CPPNM, 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 State
Department'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
Subparagraph 4(b) of Article 2 of the amended Convention
carves from the scope of the CPPNM ``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.'' The committee, on the basis of the
State Department's recommendation, has included this proposed
understanding in order to clarify that the conduct of certain
civilians who direct or organize or act with the military are
also exempted from the Convention's scope of application.
Declaration
The committee has included a proposed declaration, which
states that the Amendment 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
Amendment 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
Amendment to the Convention on the Physical Protection of
Nuclear Material, adopted on July 8, 2005 (the ``Amendment'')
(Treaty Doc. 110-6), 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:
Consistent with Article 17(3) of the Convention on
the Physical Protection of Nuclear Material, the United
States of America declares that it does not consider
itself bound by Article 17(2) of the Convention on the
Physical Protection of Nuclear Material with respect to
disputes concerning the interpretation or application
of the Amendment.
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 Paragraph 5 of the Amendment
(Article 2 of the Convention on the Physical Protection
of Nuclear Material, as amended) does not include
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 Paragraph 5
of the Amendment (Article 2 of the Convention on the
Physical Protection of Nuclear Material, as amended)
has the same substantive meaning as the law of war.
(3) The United States of America understands that,
pursuant to Paragraph 5 of the Amendment (Article 2 of
the Convention on the Physical Protection of Nuclear
Material, as amended), the Convention on the Physical
Protection of Nuclear Material, as amended, will 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.
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 Amendment 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. This Amendment does
not confer private rights enforceable in United States
courts.