National legislation surveys

Several instruments reviewed in the previous chapter require states to implement their obligations or recommendations into national legislative frameworks. These instruments include:

IAEA:

CPPNM

2005 Amendment to the CPPNM

Code of Conduct on the Safety and Security of Radioactive Sources (and supplementary Guidance on the Import and Export of Radioactive Sources)(non-binding)

UN:

ICSANT UNSCR 1540

UNSCR 1887 (non-binding);

ICAO Beijing Convention IMO:

SUA/2005 Protocol to SUA

[SUA PROT/2005 Protocol to SUA 2005]⁹⁵

The provisions calling for national implementation in each instrument are noted in the table in Annex I of this report.

The instruments discussed in Chapter 3 are only enforceable at the national level if they are effectively implemented through laws and regulations. It is difficult to adequately assess whether and how states are implementing these instruments without a systematic mechanism for doing so.

Such a mechanism has been developed and used to assess national implementation of treaties in other WMD fields including the chemical and biological weapons conventions. It is less clear if there has been a systematic analysis of countries’ laws and regulations to implement the legal instruments relevant to

94 Ibid, p. 135–137.

95 This instrument relates to fixed platforms and is analyzed in Annex I of this report for comparative purposes.

nuclear and other radioactive material discussed in the previous chapter of this report (or at least an analysis that is publicly available), apart from a self-assessment questionnaire in Annex I of the IAEA Guid-ance on the Import and Export of Radioactive Sources.⁹⁶

There may be an opportunity, then, for a future comprehensive review of whether and how states are implementing the instruments discussed in the previous chapter, with a particular focus on measures to control and repress illicit trafficking.

It should be possible to use the analytical framework and lessons learned from the development of the legislative survey in the chemical and biological weapons fields to inform the development of a legislative survey in the field of illicit trafficking.

Work on national implementation of the Chemical Weapons Convention (CWC), started shortly after its entry into force in 1997. This work originated in the Office of the Legal Adviser (LAO) in the Organisation for the Prohibition of Chemical Weapons (OPCW), and continues to be carried out by the LAO to this day, in co-ordination with the Implementation Support Branch of the International Co-operation and Assistance Division. Initial steps on implementation included national legislation surveys in 1998 and 2001, workshops on legislative issues in 2000 and 2001, and legislation checklists and questionnaires in 2002 and 2004.⁹⁷ Due to a lack of staff capacity and time, the surveys of legislation for implementation of the CWC that the LAO carried out in 1998 and 2001 did not continue. Instead, the LAO began to rely on self-reporting by states through the legislation questionnaires that came out in 2002 and 2004, but the answers were not always very detailed, nor necessarily accurate. Moreover, the Technical Secretariat was tasked by the Eighth Conference of the States Parties in 2003, under the Plan of Action regarding the Implementation of Article VII Obligations, to begin CWC drafting outreach fairly quickly, which left little capacity for systematic legislative analysis. This task fell largely to the LAO.

The first broad overview of legislation for national implementation of the Biological Weapons Conven-tion (BWC) was the VERTIC publicaConven-tion Time to Lay Down the Law in 2003.⁹⁸ During 2006-2007, Interpol’s Biocriminalization Project consisted largely of gap-analysis of laws and regulations related to imple-mentation of the BWC. This included looking at definitions, criminal offences, jurisdiction, control lists, biosecurity and biosafety measures, transfer controls and enforcement. VERTIC’s Senior Legal Officer, who was the Biocriminalization Project Manager at Interpol, continued this process when he joined VERTIC.

VERTIC’s National Implementation Measures (NIM) Programme has to date completed 136 analyses or legislation surveys of countries’ national laws and regulations to implement the BWC. These surveys are based on a template developed by the NIM Programme with 96 criteria covering the areas mentioned in the previous paragraph. On the basis of this data, it has become much easier to identify which countries require new laws and regulations to implement the BWC, and this has in turn led to direct legislative assistance to over 30 countries in all regions of the world (with several draft laws currently under inter-ministerial review or being considered by national assemblies). The laws and regulations that have been collected by VERTIC staff to prepare these surveys have been posted on the VERTIC website; there are now over 2000 entries.⁹⁹

In order to better understand how the legal instruments in Chapter 3 are being implemented, in relation in particular to illicit trafficking, legislative analysis could be undertaken based on the elements in Box 1.

96 Guidance on the Import and Export of Radioactive Sources, IAEA/CODEOC/IMP-EXP/2005 (IAEA, 2005).

97 See Legislation Questionnaire: Penal Enforcement Of The Chemical Weapons Convention, S/308/2002 (OPCW, The Hague, 2002), Questionnaire on the Implementation of Trade Measures under the Chemical Weapons Convention, S/440/2004 (OPCW, The Hague, 2004), and Plan of Action regarding the Implementation of Article VII Obligations, C-8/DEC.16 (OPCW, The Hague, 2003).

98 Available: http://www.vertic.org/media/assets/Time%20to%20lay%20down%20the%20law%20-%20final%20report.pdf.

99 See http://www.vertic.org/pages/homepage/databases/bwc-legislation-database/introduction.php.

Box 1. Survey template

Definitions:

nuclear material (and source material and special fissionable material) radioactive material (and radioactive source and orphan source) explosive or other lethal device (and device)

nuclear weapon

unauthorized (or otherwise illegal) carrying, delivery, disposal, export, import, movement, possession, receipt, sale, sending, storage, supply, transfer and use

other malicious acts involving nuclear or other radioactive material, or weapons produced with these materi-als, including those involving aircraft, ships and (possibly) fixed platforms on the continental shelf preparatory and conspiratorial offences, as well as participation in and contribution to certain crimes penalties for legal persons

Jurisdiction (including extraterritorial) over unlawful acts or unauthorised activities

Measures to account for and secure nuclear and other radioactive material (and penalties for failures to ensure proper accounting or security)

Physical protection measures (and penalties for failures to ensure physical protection)

Measures for regulatory authority for implementation (authorisation, licensing) and enforcement (report-ing, national and international inspections)

Measures to control exports and imports, including:

authorisation (permits)

control lists (trigger lists; dual-use equipment, materials, software and technology lists) catch-all clause

international co-operation (e.g., mutual criminal assistance, extradition)

An international survey, such as the one proposed above in this section, would provide an enhanced understanding of the state of legislation worldwide. If conducted properly, the survey would check all relevant aspects of a country’s legislation to control nuclear and radioactive material. The survey is likely to touch on several types of legislation, such as penal and criminal procedure codes, laws on counter-terrorism and organised crime, laws to prevent weapons of mass destruction, customs codes, licensing laws, import/export and trade laws (including trade in strategic or dual-use goods legislation), money-laundering laws, laws on mutual criminal assistance and extradition, laws on the management and trans-port of hazardous or dangerous substances, aircraft and ship/airtrans-port and trans-port security laws, rail security laws, laws on surveillance and intelligence gathering and others.

Such a scope is probably necessary, since the legislative remedy to the illegal cross-border movement of nuclear or other radioactive material necessitates a broad response. A complete assessment of a state’s nuclear regulation would take into account all aspects of the IAEA’s comprehensive nuclear security approach.