Key provisions of the Supplementary Guidance on the Import and Export of Radioactive Sources

The Supplementary Guidance on the Import and Export of Radioactive Sources provides non-legally binding guidance on the import and export of radioactive sources. It is supplementary to the Code of Conduct’s paragraphs 23-29, which concern the import and export of certain categories of radioactive sources. The supplementary guidance is intended to establish a ‘common framework’ that states may apply, but ‘should not be construed to amend or supersede applicable guidance under other multilateral import and ex-port arrangements’.

Export authorization

The guidance requires participating states to establish ‘export control procedures’ together with ‘appro-priate enforcement measures’ to ensure that no radiological source is transferred without proper authorization. In particular, the exporting state should satisfy itself that the recipient is authorized by the importing state to receive and possess the source in accordance with its laws and regulations. This is done through the importing state issuing a confirmation of consent to the exporting state. If this system was not in place, the consignment may be lawful in the exporting state, but would become illicit traffick-ing once the source crosses the border.

The guidance specifies the types of information that the exporting state should provide to the import-ing state when requestimport-ing its consent. Moreover, the state should consider a number of factors before authorizing any exports:

Whether the recipient has been engaged in clandestine or illegal procurement of radioactive sources;

Whether an import or export authorization for radioactive sources has been denied to the recipient or importing state;

Whether the recipient or importing state has diverted for purposes inconsistent with the Code any import or export of radioactive sources previously authorized; and

The risk of diversion or malicious acts involving radioactive sources.

The guidance further suggests that the exporting state satisfy itself that the importing state itself has the ‘appropriate technical and administrative capability, resources and regulatory structure needed for the management of the source in a manner consistent with the guidance in the Code’. The guidance also notes that the exporting state can consider the responses, if any, of the importing state to the ‘Self-Assessment Questionnaire’ (included as Annex I to the Guidance). This self-assessment form includes four broad questions enquiring as to whether the state has established a regulatory framework that is both in place and operational.

The exporting state thus carries out two assessments prior to approving a shipment. The first examines the recipient itself and the second looks at the importing state more broadly. The exporting state can block a consignment if the state has engaged in diversion in the past, but may also base a decision to deny a shipment on a general risk of diversion or malicious acts. This gives the exporting state a large degree of discretion when deciding on whether or not the export should be allowed. The state needs to have some sort of capacity in place to assess individual importers. This could include a simple check with the criminal register, but might also involve the setting up of a dedicated watch-list. Such pre-export checks are used in arms export control regimes, along with techniques to prevent forged documentation being used.

The guidance also deals with notifications prior to shipment. Once the exporting state has decided to authorize the export, the state should ensure that the export takes place in a manner consistent with international standards on transport of radioactive material. The guidance makes no further specifications on this issue but does recommend that the exporting state ensures that the importing state is notified in advance of the shipment with information regarding the estimated date of transport, exporting facility, recipient and other details relating to the radioactive source itself. These additional measures may help to deter or detect any illicit activities that might arise in the final stages of the export and transhipment process.

Import authorization

The importing state is required to set up a mirroring import control system. It should satisfy itself that the recipient is authorized to receive and possess the sources in accordance with its laws. The state must also assess whether it has the appropriate technical and administrative capability to manage the source.

Furthermore, it must assess whether the recipient has been engaged in clandestine or illegal procure-ment in the past; whether an import or export authorization has been denied in the past; or whether there is a more general risk of diversion or malicious acts involving radioactive sources.

The guidance specifies what information it needs to transmit to the exporting state or facility, i.e. recipient authorization and consent notification. It also notes that the importing state should take appropriate steps to ensure the import is conducted in a manner consistent with international standards on transport of radioactive material.

In exceptional circumstances, for examples in cases of health or medical needs, the recommendations it makes do not have to be followed. In such situations, however, the exporting state may be required to maintain control over the sources throughout the period the sources are outside of its territory.

Transit and transhipment

The code does not apply on transhipment states, but requires participants to consider paragraph 29 of the Code when the transport goes through the territory of any state other than the importing or export-ing state. This paragraph calls for transhipments to be ‘conducted in a manner consistent with existexport-ing international standards relating to the transport of radioactive materials, in particular paying careful attention to maintaining continuity of control during international transport’.

3.2.6.4 Overall assessment

The Code of Conduct applies to materials that could be used in an RDD. It provides guidance to states on establishing the broad legislative and regulatory framework that would form a first line of defence against these materials falling into the hands of terrorist groups or organized crime. However, the code is not legally-binding and allows some discretion to the individual state as to precisely what measures should be implemented.

Due to the breadth of its guidance, it does not focus closely on activities around the point when unau-thorized radioactive sources may be taken across borders. It does nonetheless recommend putting in place the overall measures needed to prevent this from occurring, and to address the situation if it does happen. It does not focus strongly on the scenario when a lost radioactive source is trafficked across borders, though this is rectified by the supplementary guidance on export and import. This instrument sets up guidelines on when and how licenses for export and import should be granted to individuals or states. It does not, however, adequately address a situation where a radioactive source is stolen and traf-ficked across borders without lawful authority.

Read together, the two documents aim to establish a system that minimizes the risk of radioactive mate-rial being possessed or transported without lawful authorization. Though they do recommend establishing comprehensive safety and security regulations, along with appropriate enforcement procedures, they do not provide explicit guidance as to what degree such acts should be criminalized. Nor do they establish explicit rules on transnational law enforcement or jurisdiction.

3.3 Conclusions

It is evident from the analysis in this chapter that there are several legal instruments currently in place to control nuclear and other radioactive material. As has been seen, some of these can contribute greatly to controlling and repressing illicit trafficking of nuclear and other radioactive material; others make a smaller contribution. Some conclusions about each set of instruments are provided below, and an attempt to organ-ize the variety and complexity of these instruments can be found in the table in Annex I of this report.

Regarding the IAEA instruments:

All cover nuclear material except for the Code of Conduct;

Only the amendment to the CPPNM appears to prohibit illicit trafficking, including cross-border movements, of nuclear materials,

However, as noted above, the amendment to the CPPNM is not yet in force;

The Code of Conduct covers radioactive material, but Does not explicitly prohibit illicit trafficking, and

Is not legally binding on members of the IAEA even though many states have expressed their strong support for its implementation;

The IAEA instruments discussed above include provisions for accounting for, securing or physically protecting nuclear or other radioactive material;

The IAEA instruments discussed above also include or require export control measures.

Regarding the UN instruments:

The Nuclear Terrorism Convention and UNSCR 1540 and 1887 cover nuclear materials; the Nuclear Terrorism Convention also covers radioactive material;

Only the Nuclear Terrorism Convention contains an express prohibition on illicit trafficking;

The Nuclear Terrorism Convention and UNSCR 1540 and 1887 require states to implement measures to account for, secure and physically protect nuclear materials; only the Nuclear Terrorism Conven-tion extends this to radioactive material;

Only UNSCR 1540 and 1887 require states to implement export controls, but this is only for nuclear materials.

The ICAO’s Beijing Convention, with the objective of preventing unlawful activities involving aircraft, cov-ers radioactive and nuclear materials and includes prohibitions on illicit trafficking as well as unlawful cross-border movements. The convention is not yet in force, however.

The IMO’s SUA/2005 Protocol to SUA has the objective of preventing certain unlawful activities involving ships. The amended instrument covers nuclear and other radioactive material and includes provisions to prohibit illicit trafficking. The 2005 Protocol to SUA has specific prohibitions on unlawful cross-border movements of material. It does not include export controls or measures for accounting for, securing, or physically protecting nuclear or other radioactive material. Moreover, the application of the 2005 Protocol to SUA is still somewhat limited by the small numbers of states that have adhered to it.