[Senate Executive Report 110-24]
[From the U.S. Government Publishing Office]



110th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      110-24

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



 
 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.
---------------------------------------------------------------------------
    \1\The Senate approved the CPPNM on July 30, 1981 and the United 
States deposited its instrument of ratification on December 13, 1982.
---------------------------------------------------------------------------

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

                         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.

                                    

      
