| United Nations | A/53/37 |
General Assembly
Distr. GENERAL
[23 July 1998]
ORIGINAL:
ENGLISH
A/53/37
[Original: Arabic, English,
French, Russian, Spanish]
Report of the Ad Hoc Committee
established by General Assembly
resolution 51/210 of 17 December 1996
General Assembly
Official Records
Fifty-third session
Supplement No. 37 (A/53/37)
Note
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United Nations document.
Contents
Chapter Paragraphs Page
I. Introduction . . . . . . . . . . . . . . . . . . 1-8 1
II. Proceedings . . . . . . . . . . . . . . . . . . 9-16 2
III. Summary of the general debate . . . . . . . . .17-30 2
Annexes
I. Draft text of the convention on the suppression
of acts of nuclear terrorism submitted by the
Russian Federation . . . . . . . . . . . . . . . 6
II. Written amendments and proposals submitted by
delegations . . . . . . . . . . . . . . . . . . 14
III. Informal summary of the discussions in the
Working Group, prepared by the Rapporteur. . . . 35
Chapter I
Introduction
1. The second session of the Ad Hoc Committee established by the
General Assembly by its resolution 51/210 of 17 December 1996 was convened in
accordance with paragraph 9 of Assembly resolution 52/165 of 15 December 1997. The
Committee met at Headquarters from 17 to 27 February 1998.
2. In accordance with paragraph 9 of resolution 51/210, the Ad Hoc
Committee was open to all States Members of the United Nations or members of the
specialized agencies or of the International Atomic Energy Agency (IAEA). 1/
3. Pursuant to paragraph 10 of resolution 52/165, IAEA was invited to
assist the Ad Hoc Committee in its deliberations and its representatives
participated in the Committee's second session.
4. On behalf of the Secretary-General, Mr. Hans Corell, the Legal
Counsel, opened the second session of the Ad Hoc Committee.
5. The Director of the Codification Division of the Office of Legal
Affairs, Mr. Roy Lee, acted as Secretary of the Ad Hoc Committee, assisted by Ms.
Sachiko Kuwabara-Yamamoto (Deputy Secretary), Mr. Mpazi Sinjela, Ms.
Christiane Bourloyannis-Vrailas, Mr. David Hutchinson and Mr. Renan Villacis of the
Codification Division.
6. It was generally agreed that the membership of the Bureau would
remain the same as at the previous session, with the exception of one Vice-Chairman.
The Bureau was thus constituted as follows:
Chairman: Mr. Philippe Kirsch (Canada)
Vice-Chairmen: Mr. Carlos Fernando Diaz (Costa Rica)
Mr. Hussein Mubarak (Egypt)
Mr. Rohan Perera (Sri Lanka)
Rapporteur: Mr. Martin mejkal (Czech Republic)
7. At the same meeting, the Ad Hoc Committee adopted the following
agenda (A/AC.252/L.4):
1. Opening of the session.
2. Election of officers.
3. Adoption of the agenda.
4. Organization of work.
5. Elaboration, pursuant to paragraph 9 of General
Assembly resolution 51/210 of 17 December 1996 and paragraph
9 of resolution 52/165 of 15 December 1997, of an international
convention for the suppression of acts of nuclear terrorism,
to supplement related existing international instruments.
6. Adoption of the report.
8. The Ad Hoc Committee had before it a draft convention on the
suppression of acts of nuclear terrorism submitted by the
Russian Federation (A/AC.252/L.3) and an explanatory note
to the draft convention submitted by the same delegation
(A/AC.252/L.3/Add.1). The draft convention was used as a basis for
the work of the Committee (see annex I).
Chapter II
Proceedings
9. The Ad Hoc Committee held a general exchange of views at its 5th
and 6th meetings, on 17 and 18 February 1998.
10. At its 6th meeting, the Ad Hoc Committee decided to conduct its
work in the form of a working group of the whole.
11. The working group proceeded in two stages. In the first stage,
the Group considered the definition of the material and offences to be covered under the
proposed convention with a view to clarifying its necessity as well as its objectives and
substantive scope. For those purposes the working group reviewed draft article 1.
12. In the second stage of its work, the working group, without
prejudice to the question of whether a new convention should be developed, conducted a first
reading of the substantive provisions containing elements specific to the draft
convention or not identical to those found in relevant treaties, namely, draft articles 2, 4 to
6, 8 and 10 to 14. The group also reviewed the preambular paragraphs and final provisions, as
well as the remaining draft articles.
13. Written amendments and proposals were submitted and considered
during the discussions (see annex II). Oral amendments and proposals were also
discussed.
14. At its 7th meeting, on 27 February 1998, the Ad Hoc Committee
adopted the report of its second session.
15. An informal summary of the discussions in the working group is
attached to the present report (see annex III). The summary was prepared by the
Rapporteur for reference purposes only and not as a record of the discussions.
16. The Ad Hoc Committee noted with appreciation the useful
contribution made by the representatives of IAEA to its work.
Chapter III
Summary of the general debate
17. At the 5th meeting of the Ad Hoc Committee, the delegation of
the Russian Federation introduced the draft convention on the suppression of acts of nuclear
terrorism, contained in document A/AC. 252/L.3 and Corr.1 and 2, highlighting the
potential threats posed by nuclear terrorism and the need to take effective countermeasures
against such threats.
18. It was explained that existing international legal instruments
were not sufficiently broad, either in their scope or in terms of the measures they
provided, to counteract possible threats of nuclear terrorism and that the draft convention was
intended to fill the gaps left by those instruments. It was noted that the scope of application of
the 1980 Convention on the Physical Protection of Nuclear Material was limited to nuclear
material used for peaceful purposes and did not extend to nuclear material of a
military nature. The draft convention, it was said, sought to cover to the broadest extent the
possible targets, forms and manifestations of acts of nuclear terrorism.
19. It was also remarked that the 1980 Convention did not
distinguish acts of nuclear terrorism from other criminal acts involving the use of nuclear
material. The draft convention had the distinctive feature of defining acts of nuclear
terrorism by reference to the purpose of such acts, thus separating them from other criminal
acts.
20. Another difference from the 1980 Convention was the fact that
the provisions of the draft convention dealt with a wide range of measures for combating
nuclear terrorism, including post-crisis measures, such as the return to the rightful
owners of a broad range of radioactive material and devices. In other aspects, it was noted
that the draft convention closely followed the standard criminal law provisions to be found in
other counter-terrorist conventions, which could be further strengthened by the inclusion of
relevant provisions of the recently concluded International Convention for the
Suppression of Terrorist Bombings.
21. Some delegations shared the view that there was a need to
elaborate a new international convention for suppressing acts of nuclear terrorism
and welcomed the initiative taken by the Russian Federation. It was suggested that
while there was still considered to be a low probability of nuclear terrorism as compared
with terrorist bombings or other forms of terrorist attacks, the extremely grave consequences
of acts of nuclear terrorism and the widespread fear that could be generated by threats
of such acts called for the immediate establishment of an effective legal regime.
Existing international legal instruments, in their view, did not directly or adequately address
the issue. The proposed convention, it was said, would usefully supplement those instruments
by providing yet another avenue of cooperation for suppressing one of the most serious
threats of terrorism. The point was made, however, that for it to be fully effective, the
proposed convention should establish a clear and precise definition of the offences to be
covered as well as a proper delimitation of its scope of application.
22. Some delegations, while supporting the elaboration of a new
international legal instrument for combating nuclear terrorism, emphasized the need to
develop a comprehensive legal regime for combating acts of international
terrorism in accordance with General Assembly resolution 51/210. It was also stated that
fundamental issues such as the definition of terrorism also needed to be addressed.
23. Other delegations, however, expressed concern as to overlap
between the provisions of the proposed convention and those of related existing
international instruments, especially the 1980 Convention on the Physical Protection of Nuclear
Material, the 1996 Comprehensive Nuclear-Test-Ban Treaty and the 1997 International
Convention for the Suppression of Terrorist Bombings. In their view, the scope of the
proposed convention should be carefully reviewed in the light of those instruments in
order to avoid creating an overlapping or conflicting regime that could undermine the
effectiveness of existing legal instruments. In this connection the authors of the draft
convention emphasized that it had purely anti-terrorist purposes and by no means was it meant
to modify to any extent the existing regime for the physical protection of nuclear material.
It was therefore considered important that any discussion of the draft convention be
conducted on the basis of an initial identification of gaps in the existing international
instruments, a matter on which both the Secretariat and IAEA could provide useful assistance.
Having identified the gaps, it would also be necessary to consider the necessity for a
new agreement and the nature and appropriate form of the legal instrument which might be
developed, as well as certain questions of legal policy, including identification of the
most appropriate forum for developing such an instrument.
24. Some delegations, while expressing support for the initiative
aimed at adopting measures for suppressing nuclear terrorism, expressed the view that
the most effective way of achieving that goal was to eliminate nuclear weapons altogether.
Another approach that was suggested was the establishment of nuclear-free zones, an
approach that had already been implemented in some regions of the world.
25. Regarding the nature of the instrument to be drafted, some
delegations proposed that the new instrument be adopted in the form of a protocol or amendment
to the 1980 Convention, which would guarantee that there would be no derogation
from or duplication of that Convention. It was pointed out in this connection that a
mechanism for adopting such a protocol or amendment was provided in the 1980 Convention
in the form of a review conference. Some other delegations, however, expressed a preference
for the adoption of a separate convention, noting the limited scope of application of the
1980 Convention (in particular, the use of nuclear material for peaceful purposes) and
the limited number of States Parties in comparison with the membership of the United
Nations.
26. The view was also expressed that careful consideration had to
be given to the choice of an appropriate forum for a discussion of the topic. It was
suggested by some delegations that IAEA, which had the technical competence to deal with the
issue of the use of nuclear materials for peaceful purposes, might be a more suitable forum for
the drafting or adoption of the proposed instrument or its physical protection provisions. On
the other hand, the view was expressed that IAEA had its specific mandate, that it was
within the Ad Hoc Committee's mandate to undertake the drafting of the convention and
that IAEA could be invited to provide expert advice to the Committee. In this
connection, the view was expressed that, given the technical nature of the subject matter and
the particular expertise of IAEA in this field, it was important to enlist the views as well
as the participation of IAEA in the Ad Hoc Committee's deliberations.
27. With regard to the provisions of the proposed convention, it
was considered important that they be formulated in a way that was consistent with and built
upon existing counter-terrorism instruments. In particular, it was stated that
by following closely the language of the 1997 Terrorist Bombings Convention, with appropriate
adaptation, if necessary, the Committee could take advantage of that Convention's refinements
of a number of standard provisions that had appeared in related legal instruments, as well as
some of the new provisions in that instrument enhancing the effectiveness of measures
to suppress acts of international terrorism. The suggestion was also made that the draft
convention should contain only counter-terrorist provisions and should not incorporate
provisions relating to the protection of nuclear material.
28. With regard to the definition of the offence of nuclear
terrorism, it was stated that while the scope of the offence must be broad enough to cover the
full range of terrorist conduct, it must also be drafted with sufficient precision to
preclude unintended application to non-criminal activity. It was stated that, in the drafting of the
convention, care should be taken to ensure that the rights of States to peaceful and other
lawful uses of nuclear energy would not be affected by the application of the convention.
There was a divergence of views regarding the inclusion in the draft convention of specific
provisions on threats and on protection of the environment against nuclear terrorism. It
was also stated that international humanitarian law should not be modified on the basis of
this Convention.
29. In the view of some delegations, it should be clearly spelled
out that the convention was limited in scope to acts carried out by natural persons acting in
an individual capacity or as part of non-State groups. In this connection, some delegations
suggested that it was important to take into account the relevant provisions of the 1997
Terrorist Bombings Convention. Other delegations, however, felt that it was important to
include in the draft convention provisions dealing with acts of nuclear terrorism
sponsored by a State.
30. The secretariat of IAEA presented its comments on questions
related to definitions and a possible overlap between the draft convention and the 1980
Convention, as well as on the provisions related to the physical protection of nuclear
material and the exchange of information, and also made some general observations on the draft
convention. 2/
Notes
1/ For the membership of the Ad Hoc Committee at its second
session, see document A/AC.252/1998/INF/2.
2/ For the text of the statement see document A/AC.252/L.5.
Annex I
Draft text of the convention on the suppression of acts of
nuclear terrorism submitted by the Russian Federation */
(*/ originally issued as A/AC.252/L.3 and Corr.1 and 2)
The States parties to this Convention,
Unconditionally condemning as criminal all acts of
nuclear terrorism regardless of where, by whom and for what purposes they
are committed,
Guided by the purposes and principles of the Charter of
the United Nations and the Convention on the Physical Protection of Nuclear Material
of 1980 and the determination to prevent the commission of acts of nuclear terrorism,
which may have the gravest consequences and represent a threat to international peace
and security,
Taking into account the Declaration on Measures to
Eliminate International Terrorism, adopted by the General Assembly in its
resolution 49/60 of 9 December 1994, Noting the importance of cooperation in preventing,
suppressing and investigating such acts,
Affirming the need to conduct a policy precluding any
concessions to those who commit terrorist acts and that such incidents must be
resolved, as far as is practically possible, by peaceful means,
Aware of the importance of developing a reliable system
of measures to prevent nuclear terrorism in all its forms and manifestations,
Have agreed as follows:
Article 1
For the purposes of this Convention:
1. "An act of nuclear terrorism" means:
(a) (i) The use or threat of the use of nuclear
material, nuclear fuel, radioactive products or waste, or any other radioactive substances,
their radioactive properties or a combination of radioactive properties with toxic,
explosive or other dangerous properties;
(ii) the use or threat of the use of any nuclear
installations, nuclear explosive or radiation-dissemination devices and components thereof
or objects of which they are components, including their destruction or the
threat of their destruction, as well as the manufacture of home-made nuclear devices, for the
purpose of causing death or serious injury to any person or harming his health,
causing substantial damage to property or the environment, or compelling a natural or
legal person, a group of persons, a State or an international organization to do
or to refrain from doing any act;
(b) For the purposes set forth in subparagraph (a),
the receipt or alienation without the permission of the competent authorities or through
fraud, theft, forcible seizure, appropriation, possession, alteration or the transfer of
any nuclear material, nuclear fuel, radioactive products or waste, or any other radioactive
substances, any nuclear installations, nuclear explosive or radiation-dissemination devices and
components thereof or objects of which they are components belonging to any of the States
Parties regardless of their location, as well as acts constituting a demand by threat
or use of force or by any other form of intimidation for the release or transfer of such
material, sources, substances, installations or devices and/or components thereof or objects of
which they are components;
(c) Preparing to commit or attempting to commit an
act set forth in subparagraphs (a) and (b) as well as any type of participation in
committing, preparing or attempting to commit such acts or a threat to commit them.
2. "Nuclear material" means plutonium, except that with
isotopic concentration exceeding 80 per cent in plutonium-238; uranium-233;
uranium enriched in the isotope 235 or 233; uranium containing the mixture of isotopes as
occurring in nature other than in the form of ore or ore-residue; or any material
containing one or more of the foregoing;
Whereby "uranium enriched in the isotope 235 or 233"
means uranium containing the isotope 235 or 233 or both in an amount such that the
abundance ratio of the sum of these isotopes to the isotope 238 is greater than the ratio
of the isotope 235 to the isotope 238 occurring in nature.
3. "Nuclear fuel" means nuclear material or any material
capable of producing energy by means of a self-sustaining chain process of
nuclear fission.
4. "Radioactive products" mean any radioactive material
produced in the process of producing or using nuclear fuel, or any material which
has become radioactive through radiation as a result of the production or use of nuclear
fuel, with the exception of radio isotopes which have reached the final stage of manufacture
and have thus become suitable
for utilization for scientific, medical, agricultural,
commercial or industrial purposes.
5. "Radioactive waste" means substances in any aggregate
state not subject to further use, materials, goods, instruments, equipment and
objects of biological origin in which the level of radionuclides exceeds those established
by the standards and regulations of the States parties to the convention on the safety of
radioactive waste management.
6. "Radioactive substances" mean any other substances,
with the exception of those set forth in paragraphs 2, 3 and 4 of this article, which
have radioactive properties that are hazardous to human life and health and/or may cause
substantial damage to the environment.
7. "A nuclear installation" means:
(a) Any nuclear reactor, including reactors installed
on vessels, aircraft or space objects for use as an energy source in order to propel such
vessels, craft or objects or for any other purpose;
(b) Any plant used for the production, location,
storage, processing, transport and other purposes of nuclear material, nuclear fuel,
radioactive products or waste, or any radioactive substances;
(c) A composite of such plants considered as a single
production, scientific or other complex.
8. "A nuclear explosive device" means any device capable
of bringing about a nuclear chain reaction of explosive fission, for example, a
nuclear weapon or a nuclear experimental device.
9. "A radiation-dissemination device" means any device
capable of disseminating any type of radioactive materials by any means which pose
the danger of contaminating a population and area.
Article 2
1. This Convention shall apply exclusively to acts by
specific natural persons (in an individual capacity or as part of non-State groups or
other associations) and its scope shall not include the questions of the non-proliferation of
nuclear weapons or nuclear threats posed by States, international intergovernmental
organizations or other subjects of international law.
2. Nothing in this Convention shall affect the immunity
of vessels and aircraft belonging to a State and operated by it for military,
customs or police purposes, or of space objects.
Article 3
Each State party shall adopt such measures as may be
necessary to establish as criminal offences under its legislation the acts set forth
in article 1, paragraph 1, of this Convention and shall make provision for appropriate
penalties which take into account the grave nature of those offences.
Article 4
States parties shall cooperate in the prevention of acts
of nuclear terrorism, particularly, by:
1. Taking all measures provided for under their
legislation to prevent preparations in their respective territories for the commission of
offences within or outside their territories, including the taking of measures to prohibit
in their territory illegal activities by persons, groups or organizations which encourage,
instigate, organize or participate in the commission of acts of nuclear terrorism or help to
conceal such offences;
2. Exchanging information in the manner and conditions
provided for under article 11 of this Convention and coordinating
administrative and other measures taken to prevent the commission of such offences;
3. Adopting all necessary legislative, administrative
and technical measures to ensure the physical protection of nuclear material, nuclear
fuel, radioactive products or waste, radioactive substances, nuclear installations and
nuclear devices as well as protection against illegal or unauthorized access to them by third
parties.
Article 5
1. Each State party shall take such measures as may be
necessary to establish its jurisdiction over any of the offences set forth in article
1, paragraph 1, of this Convention which are committed:
(a) In its territory or on board a vessel, aircraft
or space object registered in that State;
(b) By any of its nationals or, if the State in
question deems it advisable, by stateless persons who have their habitual residence in its
territory;
(c) In order to compel that State to do or to refrain
from doing any act; or
(d) In respect of or against a national of that State
or a legal person connected with that State, if the State deems it advisable.
2. Each State party shall also take such measures as may
be necessary to extend its jurisdiction over these offences in cases where the
alleged offender is present in its territory and it does not extradite that person in
accordance with article 8 of this Convention to any of the States referred to in paragraph 1 of
this article.
3. This Convention shall not exclude the exercise of any
criminal jurisdiction in accordance with national law.
Article 6
1. Each State party, in the territory of which an
offence set forth in article 1, paragraph 1, of this Convention is committed, or in the
territory of which an alleged offender is present, shall, in accordance with
international law and its legislation, take measures to suppress an act of nuclear terrorism,
including coercive measures, detect, expose, detain and take an alleged offender into custody
or take any other necessary measures to ensure that person's presence for such time as
is necessary to enable any criminal or extradition proceedings to be instituted.
2. The State referred to in paragraph 1 of this article
shall immediately make a preliminary inquiry concerning the facts in accordance with
its legislation and shall promptly report its findings to the States required to
establish jurisdiction in accordance with article 5 of this Convention and shall also indicate
whether it intends to exercise jurisdiction.
3. Nothing in this Convention shall in any way affect
the right of any State party to take the necessary measures referred to in this article
with the consent of or in accordance with a request for assistance addressed to that State by a
third State, if the offence is committed in the territory of a third State or if the
alleged offender is present in the territory of a third State.
4. Nothing in this Convention shall affect in any way
the rules of international law pertaining to the competence of States to exercise
investigative or enforcement jurisdiction on board ships not flying their
flag 1/ or on board aircraft not registered in those States. 2/
Article 7
1. If a State party in the territory of which an alleged
offender is present does not extradite that person, it shall, without any undue
delay, submit the case to its competent authorities for the purpose of
prosecution and proceedings in accordance with the legislation of that State.
2. Any person in respect of whom proceedings are being
carried out in connection with any of the offences set forth in article 1,
paragraph 1, of this Convention shall be guaranteed fair treatment at all stages
of the proceedings, including enjoyment of all the rights and guarantees provided
for such proceedings under the legislation of the State in the territory of which
that person is present.
Article 8
1. The offences set forth in article 1, paragraph 1, of
this Convention, shall be deemed extraditable offences included in any
extradition treaty existing between States parties. States parties shall
undertake to include such offences as extraditable offences in all subsequent
extradition treaties to be concluded between them.
2. If a State party which makes extradition conditional on
the existence of a treaty receives a request for extradition from another State
party with which it has no extradition treaty, the requested State may, at its
discretion, consider this Convention as a legal basis for extradition in respect
of the offences set forth in article 1, paragraph 1, of this Convention.
Extradition shall be subject to the other provisions set forth under the
legislation of the requested State.
3. States parties which do not make extradition conditional
on the existence of a treaty shall recognize the offences set forth in article
1, paragraph 1, of this Convention as extraditable offences between themselves,
subject to the provisions set forth under the legislation of the requested State.
4. Where necessary, the offences set forth in article 1,
paragraph 1, of this Convention shall be treated by the States parties for the
purposes of extradition as if they had been committed not only in the place in
which they occurred but also in some place under the jurisdiction of the State
party making the request for extradition.
5. A State party which receives more than one request for
extradition from States which have established jurisdiction in accordance with
article 5 of this Convention and which takes a decision not to undertake
prosecution, shall, in choosing the State to which the alleged offender is to be
extradited, duly take into account the interests and obligations of the State
party in the territory of which the act of nuclear terrorism was committed.
Article 9
1. States parties shall afford one another the greatest
possible assistance in connection with prosecution instituted in respect of the
offences set forth in article 1, paragraph 1, of this Convention, including
assistance in obtaining evidence at their disposal necessary for the proceedings.
2. States parties shall carry out their obligations under
paragraph 1 of this article in conformity with any treaties on mutual legal
assistance that may exist between them. In the absence of such treaties, States
parties shall afford one another assistance in accordance with their domestic
legislation.
Article 10
1. Upon the completion of the proceedings connected with
an act of nuclear terrorism, if it is considered feasible, any nuclear material,
nuclear fuel, radioactive products or waste or any other radioactive substances
as well as nuclear installations, nuclear explosive or radiation-dissemination
devices, including homemade devices and/or their components or objects of which
they are components shall be returned to the State party, to which they belong
or which was the State of their origin.
2. If the material, fuel, products, waste, substances,
installations, devices, their components or objects of which they are components
set forth in paragraph 1 of this article do not belong to any of the States
parties, or if none of those States was the State of their origin, a separate
decision concerning their use shall be taken after consultations between the
States concerned.
Article 11
1. States parties shall exchange information in order to
prevent, suppress, uncover and investigate the offences set forth in article 1,
paragraph 1, of this Convention and also in order to institute criminal
proceedings against and punish persons guilty of committing those crimes. In
particular:
(a) A State party shall take appropriate measures in
order to inform without delay the other States referred to in article 5 of this
Convention or States which, in its opinion, are concerned in respect of the
commission of acts of nuclear terrorism as well as preparations to commit such
acts about which it has learned, and also to inform, where necessary,
international organizations;
(b) Where necessary, the States parties concerned shall
exchange information with one another or with international organizations about
measures being taken by them to prevent and suppress acts of nuclear terrorism,
the reasons underlying those acts, the means to carry them out, the persons who
have committed them and the methods used to prevent and suppress such acts;
(c) Each State party may, at its own discretion,
communicate to another State party or international organization any other
relevant information.
2. States parties shall take appropriate measures
consistent with their domestic legislation to protect the confidentiality of any
information which they receive in confidence by virtue of the provisions of this
Convention from another State party or through participation in an activity
carried out for the implementation of this Convention. If States parties provide
information to international organizations in confidence, steps shall be taken
to ensure that the confidentiality of such information is protected.
3. States parties shall not be required by this Convention
to provide any information which they are not permitted to communicate pursuant
to domestic legislation or which would jeopardize the security of the State
concerned or the physical protection of nuclear material, nuclear fuel,
radioactive products or waste, radioactive substances, nuclear installations,
nuclear devices or their components or objects of which they are components.
4. States parties shall inform one another about their
competent authorities and liaison points responsible for sending and receiving
the information referred to in this article. Such authorities and liaison points
must be accessible on a continuous basis.
Article 12
States parties shall conduct, through mutual agreement,
consultations with one another directly or with the assistance of international
organizations on all questions provided for under this Convention.
Article 13
Nothing in this Convention shall affect the obligations of
States parties under the Charter of the United Nations or the rights and
obligations of States parties arising from international treaties concluded by
them previously or shall be directed against any State.
Article 14
1. In the event of a dispute between two or more States
parties concerning the interpretation or application of this Convention, such
States parties shall consult with a view to the settlement of the dispute by
negotiation, or by any other peaceful means of settling disputes acceptable to
all parties to the dispute.
2. Any dispute of this character which cannot be settled
in the manner prescribed in paragraph 1 of this article shall, at the request of
any party to such dispute, be submitted to arbitration or referred to the
International Court of Justice for decision. Where a dispute is submitted to
arbitration, if, within six months from the date of the request, the parties to
the dispute are unable to agree on the organization of the arbitration, a party
may request the President of the International Court of Justice or the
Secretary-General of the United Nations to appoint one or more arbitrators. In
case of conflicting requests by the parties to the dispute, the request to the
Secretary-General of the United Nations shall have priority.
3. Each State party may, at the time of signature,
ratification, acceptance or approval of this Convention or accession thereto,
declare that it does not consider itself bound by either or both of the dispute
settlement procedures provided for in paragraph 2 above. The other States parties
shall not be bound by the dispute settlement procedure provided for in paragraph
2 above, with respect to a State party that has made a reservation to that
procedure.
4. Any State party which has made a reservation in
accordance with paragraph 3 of this article may at any time withdraw that
reservation by notification to the depositary.
Article 15
1. This Convention shall be open for signature by all
States in ______ from ________ 19__ until its entry into force.
2. This Convention is subject to ratification, acceptance
or approval by the signatory States.
3. After its entry into force, this Convention will be open
for accession by all States.
4. (a) This Convention shall be open for signature or
accession by international organizations and regional organizations of an
integration or other nature provided that such organization is constituted by
sovereign States and has competence in respect of the negotiation, conclusion and
application of international agreements in matters covered by this Convention;
(b) In matters within their competence, such
organizations shall, on their own behalf, exercise their rights and fulfil the
responsibilities which this Convention attributes to States parties;
(c) When becoming party to this Convention, such an
organization shall communicate to the depositary a declaration indicating which
States are members thereof and which articles of this Convention do not apply to
it;
(d) Such an organization shall not hold any vote
additional to those of its member States.
5. Instruments of ratification, acceptance, approval or
accession shall be deposited with the depositary.
Article 16
1. This Convention shall enter into force on the thirtieth day
following the date of deposit of the _______ instrument of ratification,
acceptance or approval.
2. For each State ratifying, accepting, approving or
acceding to the Convention after the date of deposit of the _______ instrument
of ratification, acceptance or approval, the Convention shall enter into force
on the thirtieth day after the deposit by such State of its instrument of
ratification, acceptance, approval or accession.
Article 17
1. A State party may propose amendments to this Convention.
The proposed amendment shall be submitted to the depositary, who shall circulate
it immediately to all States parties. If a majority of States parties request the
depositary to convene a conference to consider the proposed amendments, the
depositary shall invite all States parties to attend such a conference to begin
not sooner than 30 days after the invitations are issued. Any amendment adopted
at the conference by a two-thirds majority of all States parties shall be
promptly circulated by the depositary to all States parties.
2. The amendment shall 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 of the States
parties have deposited their instruments of ratification, acceptance or approval
with the depositary. Thereafter, the amendment shall enter into force for any
other State party on the day on which that State deposits its instrument of
ratification, acceptance or approval of the amendment.
Article 18
1. Any State party may denounce this Convention by written
notification to the depositary.
2. Denunciation shall take effect 180 days following the
date on which notification is received by the depositary.
Article 19
The depositary shall promptly notify all States of:
(a) Each signature of this Convention;
(b) Each deposit of an instrument of ratification,
acceptance, approval or accession;
(c) Any reservation or withdrawal in accordance with
article 14;
(d) Any communication made by an organization in
accordance with article 15, paragraph 4 (c);
(e) The entry into force of this Convention;
(f) The entry into force of any amendment to this
Convention; and
(g) Any denunciation made under article 18.
Article 20
The original of this Convention, of which the _______ texts
are equally authentic, shall be deposited with the _______, who shall send
certified copies thereof to all States parties.
IN WITNESS WHEREOF the undersigned, being duly authorized,
have signed this Convention, opened for signature at _______ on _______ 19___.
Notes
1/ Wording not underlined is literally reproduced from article 9 of the
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation of 1988.
2/ The underlined words are deemed reasonable to add in order to reflect the
relevant provisions of the three conventions in the field of combating
terrorism in the air.
Annex II
Written amendments and proposals submitted by delegations
1. Proposal submitted by Belgium and France
(A/AC.252/1998/WP.1/Rev.2)
Replace article 1 with the following:
Article 1
For the purposes of this Convention:
(a) "Radioactive material" means any material containing nuclides
which disintegrate spontaneously (a process accompanied by the emission of one
or more types of ionizing radiation, such as alpha, beta, gamma or neutron
radiation) and which could pose a threat to human life or health and/or cause
substantial damage to property or the environment. Radioactive materials include:
(i) Nuclear material as defined in subparagraph (b);
(ii) Nuclear fuel as defined in subparagraph (c);
(iii) Radioactive products as defined in subparagraph (d);
(b) (i) "Nuclear material" means plutonium, except that with isotopic
concentration exceeding 80 per cent in plutonium-238; uranium-233; uranium
enriched in the isotope 235 or 233; uranium containing the mixture of isotopes
as occurring in nature other than in the form of ore or ore-residue; or any
material containing one or more of the foregoing;
(ii) "Uranium enriched in the isotope 235 or 233" means uranium
containing the isotope 235 or 233 or both in an amount such that the abundance
ratio of the sum of these isotopes to the isotope 238 is greater than the ratio
of the isotope 235 to the isotope 238 occurring in nature;
(c) "Nuclear fuel" means any material capable of
producing energy by means of a self-sustaining nuclear fission chain reaction;
(d) "Radioactive products" means any radioactive material or any
substance that has become radioactive through radiation as a result of the
production or use of nuclear fuel. These substances include materials, objects,
instruments, equipment and products of biological origin containing nuclides
whose concentrations or activities exceed those established by the standards of
the competent State authorities;
(e) "Devices" include:
(i) "A nuclear energy-releasing device" means any device
containing nuclear material, designed or having the capacity to release nuclear
energy through an uncontrolled self-sustaining chain-reaction process of fission;
(ii) "A dissemination device" means any device designed
or having the capacity to spread radioactive material with a view to
contaminating a surface or a space;
(iii) "A radiation device" means any device designed or having the
capacity to emit, from radioactive materials, radiation at a level exceeding that
established by the standards of the competent State authorities.
Article 1 bis
1. Any person commits an offence within the meaning of this Convention
if that person, unlawfully and intentionally, possesses or uses radioactive
materials or devices, as defined in article 1, for the purpose of:
(a) Causing the death of, or seriously injuring, any person or
seriously harming his health;
(b) Causing substantial damage to property or the environment;
(c) Threatening to cause the death of, or serious injury to, any
person or serious harm to his health, or to cause substantial damage to property
or the environment with a view to compelling a natural or legal person, an
international organization or a State to do or to refrain from doing an act.
2. Any person also commits an offence if that person attempts to commit
an offence within the meaning of paragraph 1, subparagraphs (a) or (b);
3. Any person also commits an offence if that person:
(a) Is an accomplice in an offence within the meaning of
paragraphs 1 or 2; or
(b) Organizes the commission of an offence within the meaning of
paragraphs 1 or 2 of this article or orders other persons to commit such offence;
or
(c) Contributes in any other way to the commission of one or more
of the offences referred to in paragraphs 1 or 2 by a group of persons acting in
concert; such contribution must be deliberate and made either to facilitate the
general criminal activity of the group or to serve its purposes, or in full
knowledge of the group's intention to commit the offence or offences concerned.
2. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.2)
Article 1 bis
1. Any person commits an offence within the meaning of this Convention
if that person unlawfully and intentionally uses or threatens to use [nuclear
material, nuclear fuel, radioactive products or waste or any other radioactive
substances], their radioactive properties or a combination of radioactive
properties with toxic, explosive or other dangerous properties; uses or destroys,
or threatens to use or destroy, [any nuclear installations], [nuclear explosive
or radiation-dissemination devices] and components thereof or objects of which
they are components; [or home-made nuclear devices]:
(a) With the intent to cause death or serious bodily injury; or
(b) With the intent to cause substantial damage to property where
such damage results in or is likely to result in major economic loss.
2. Any person also commits an offence if that person attempts to commit
an offence as set forth in paragraph 1.
3. Any person also commits an offence if that person:
(a) Participates as an accomplice in an offence as set forth in
paragraphs 1 or 2; or
(b) Organizes or directs others to commit an offence as set forth
in paragraphs 1 or 2; or
(c) In any other way contributes to the commission of one or more
offences as set forth in paragraphs 1 or 2 by a group of persons acting with a
common purpose; such contribution shall be intentional and either be made with
the aim of furthering the general criminal activity or purpose of the group or
be made in the knowledge of the intention of the group to commit the offence or
offences concerned.
3. Proposal submitted by Australia (A/AC.252/1998/WP.3)
Article 1 bis
1. Any person commits an offence within the meaning of this Convention
if that person:
(a) Unlawfully and intentionally uses or threatens to use nuclear
material, nuclear fuel, radioactive products, radioactive material, their
radioactive properties or a combination of radioactive properties with toxic,
explosive or other dangerous properties;
(b) Uses or threatens to use any nuclear installation, nuclear
explosive or radiation dissemination devices and components thereof or objects
of which they are components, including their destruction or the threat of their
destruction, as well as the manufacture of home-made nuclear devices;
and does so for the purpose of:
(i) Causing death or serious injury to any person;
(ii) Harming the health of a person;
(iii) Causing substantial damage to property or the
environment;
(iv) Compelling a natural or legal person or group of
persons, State or international organization to do or refrain
from doing any act.
2. Any person also commits an offence if that person attempts to commit
an offence as set forth in paragraph 1 of the present article.
4. Proposal submitted by Mexico (A/AC.252/1998/WP.4)
Article 1
Paragraph 1
1. Add a new subparagraph (c):
"Acts constituting a demand by threat or use of force or by any
other form of intimidation for the purpose of compelling a natural
or legal person to release or transfer such material, sources,
substances, installations or devices and/or components thereof
or objects of which they are components".
2. The present subparagraph (c) would become subparagraph (d).
3. Add the following paragraph to the new subparagraph (d):
"Such participation must be intentional and for the purpose of
collaborating with the aims or the general unlawful activity
of the group or with a knowledge of the intention of the group
to commit the criminal offence or offences in question".
5. Proposal submitted by the Netherlands
(A/AC.252/1998/WP.5)
Article 1 bis
1. Any person commits an offence within the meaning of this Convention
if that person unlawfully and intentionally [possesses,] delivers, places,
discharges, detonates or uses in any other way radioactive materials or devices:
(a 1)* With the intent to cause death or serious bodily injury, or
serious harm to the health of a person; or
(a 2/)* With the intent to cause death or serious bodily injury among
the public or serious harm to the public health; or
(b) With the intent to cause substantial damage to property or the
environment; or
(c) To threaten to cause death or serious bodily injury [among the
public], or serious harm to the health of a person [to the public health], or to
cause substantial damage to property or the environment in order to compel a
natural or legal person, international organization or State to do or to refrain
from doing any act.
2. Any person also commits an offence if that person attempts to commit
an offence as set forth in paragraph 1, subparagraph (a) or (b).
3. [vide article 2, paragraph 3, of the International Convention for the
Suppression of Terrorist Bombings]
Notes
* The choce between a 1/ and a 2/ depends on whether or not acts between
individuals should be covered by this Convention on terrorism.
6. Proposal submitted by Belgium (A/AC.252/1998/WP.6)
Article 2
Delete article 13 and replace article 2 with the following text:
1. (a) This Convention shall apply exclusively to acts by natural
persons (in an individual capacity or on behalf of one or more other natural or
legal persons), and its scope shall not include acts of States and international
intergovernmental organizations;
(b) The activities of armed forces during an armed conflict, as
those terms are understood under international humanitarian law, which are
governed by that law, are not governed by this Convention.
2. Nothing in this Convention shall affect other rights, obligations and
responsibilities of States and individuals under international law, in particular
the purposes and principles of the Charter of the United Nations and
international humanitarian law.
7. Proposal submitted by China and Australia
(A/AC.252/1998/WP.7)
Article 2
Add a new paragraph to article 2, as paragraph 3:
"This Convention shall not apply where the offence is committed
within a single State, the alleged offender and the victims are
nationals of that State and the alleged offender is found
in the territory of that State."
8. Proposal submitted by France (A/AC.252/1998/WP.8)
Amendment to article 4
1. Idem.
2. Idem.
3. Adopting all necessary legislative, administrative and technical
measures to ensure the protection of radioactive material against illegal or
unauthorized access to them by third parties.
9. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.9)
Article 2
1. Nothing in this Convention shall affect other rights, obligations and
responsibilities of States and individuals under international law, in particular
the purposes and principles of the Charter of the United Nations and
international humanitarian law.
2. Nothing in this Convention affects the immunities of vessels and
aircraft owned or operated by a State for non-commercial purposes.
10. Proposal submitted by Belgium (A/AC.252/1998/WP.10)
Article 4
Delete article 4, paragraph 3.
11. Proposal submitted by China (A/AC.252/1998/WP.11)
Article 5
Redraft paragraph 1 (c) and 1 (d) as follows:
"(c) Against that State or in order directly to compel it to do
or to refrain from doing any act; or
"(d) In respect of or against a national of that State or a
legal person incorporated under the law of that State, if the State deems it
advisable."
12. Proposals submitted by Lebanon (A/AC.252/1998/WP.12)
Preambular paragraphs
1. Add a seventh preambular paragraph to read:
"Recalling the advisory opinion of the International Court of
Justice on the Legality of the Threat or Use of Nuclear
Weapons, issued on 8 July 1996 (A/51/218, annex), and the General Assembly
resolutions on that opinion adopted thereafter,"
2. Add an eighth preambular paragraph to read:
"Noting that the activities of military forces of States are
governed by rules of international law outside the framework
of this Convention and that the exclusion of certain actions
from the coverage of this Convention does not condone or make
lawful otherwise unlawful acts or preclude prosecution under
other laws,"
Reference: Eleventh preambular paragraph of the International
Convention for the Suppression of Terrorist Bombings,
resolution 52/164, annex.
3. Add the following notion to paragraph 1 (b) of article 1:
"Illegal dumping of radioactive wastes or radioactive substances,
whether on the high seas or inland."
We propose that this addition be inserted after the word "alteration"
in the third line of the present paragraph 1 (b).
13. Proposals submitted by Germany (A/AC.252/1998/WP.13)
Article 1 and article 1 bis
Article 1
1. All definitions should be assembled in a separate article 1, which
should precede the article describing the offence, now article 1. In this respect
also the pattern provided by the International Convention for the Suppression of
Terrorist Bombings and other United Nations instruments should be followed.
Article 1 bis
2. Germany intends to propose the following text for the article
containing the description of the offence, replacing the present article 1,
paragraph 1:
"Each party shall adopt such appropriate measures as may be
necessary to establish as criminal offences under its domestic
law the following acts committed intentionally:
"(a) The unlawful manufacture, treatment, storage, use,
transport, export or import of
"(i) Nuclear material; or
"(ii) Other hazardous radioactive substances, that cause or are
likely to cause death or serious injury to any person,
substantial damage to the quality of air, soil, water,
animals, plants or to property;
"(b) The manufacture, procurement, storage, transfer or use of
nuclear or other hazardous radioactive material or
special devices (nuclear explosive or radiation-dispersal)
for the purpose of:
"(i) Endangering the life or limb of any person or property of
substantial value by a nuclear explosion; or
"(ii) Exposing large numbers of persons to ionizing radiation;
"(c) The threat:
"(i) To use nuclear or other hazardous radioactive material to
cause death or serious injury to any person or
substantial property damage; or
"(ii) To commit an offence described in subparagraph
(a) or (b) in order to compel a natural or legal person,
international organization or State to do or to refrain
from doing any act;
"(d) The attempt to commit an offence described in
subparagraph (a);
"(e) The participation in any offence described in
subparagraphs (a) to (b)."
Explanatory memorandum
3. Subparagraph (a). Subparagraph 1 (a) follows the line of article 2,
paragraph 1 (e), of the draft convention of the Council of Europe on the
protection of the environment through criminal law and in principle the line of
the Vienna Convention on Physical Protection of Nuclear Materials. It extends the
scope of the offence in article 7, paragraph 1 (a), of the latter Convention in
two ways: it is applicable not only to nuclear material, but, based on practical
cases that have occurred in the past in Europe, also to other hazardous
radioactive substances such as caesium-131, cobalt-60 or strontium-90.
Additionally, it includes cases where the conduct is likely to cause serious
damage to the environment.
4. Subparagraph (b). Subparagraph (b) covers specific dangerous cases
of preparatory acts that go beyond the Vienna Convention and the draft convention
of the Council of Europe.
5. Subparagraph (c). Subparagraph (c) follows in principle article 7,
paragraph 1 (e), of the Vienna Convention. The scope is adapted to the extension
of the offence described in subparagraph (a).
6. Subparagraphs (d) and (e). Subparagraphs (d) and (e) take over common
concepts. As paragraph 2 (b) already covers preparatory acts, subparagraph (d)
refers only to the offence described in subparagraph (a).
14. Proposal submitted by Slovakia (A/AC.252/1998/WP.14)
Article 1 bis, paragraph 1 (a)
"(a) Killing or seriously wounding another person, or causing
substantial damage to the environment or property".
15. Proposal submitted by Belgium (A/AC.252/1998/WP.15)
Article 5
Replace article 5 of document A/AC.252/L.3 with the following text:
1. Each State party shall take such measures as may be necessary to
establish its jurisdiction over the offences set forth in article 1 when:
(a) The offence is committed in the territory of that State; or
(b) The offence is committed on board a vessel flying
the flag of that State or an aircraft or space object that is registered under
the laws of that State at the time the offence is committed; or
(c) The offence is committed in order directly to compel that
State to do or to refrain from doing any act; or
(d) The offence is committed by a national of that State.
2. A State party may also establish its jurisdiction over any such
offence when:
(a) The offence is committed against a national of that State; or
(b) The offence is committed against a legal person in accordance
with its domestic law; or
(c) The offence is committed against a State or government
facility of that State abroad, including an embassy or other diplomatic or
consular premises of that State; or
(d) The offence is committed by a stateless person who has his or
her habitual residence in the territory of that State; or
(e) The offence is committed on board an aircraft that is operated
by the Government of that State.
3. Upon ratifying, accepting, approving or acceding to this Convention,
each State party shall notify the Secretary-General of the jurisdiction it has
established in accordance with paragraph 2 under its domestic law. Should any
change take place, the State party concerned shall immediately notify the
Secretary-General.
4. Each State party shall likewise take such measures as may be
necessary to establish its jurisdiction over the offences set forth in article
1 in cases where the alleged offender is present in its territory and it does not
extradite that person to any of the States parties that have established their
jurisdiction in accordance with paragraph 1 or 2.
5. This Convention does not exclude the exercise of any criminal
jurisdiction established by a State party in accordance with its domestic law.
16. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.16)
Article 10
1. Upon the completion of the extradition or prosecution
proceedings, any nuclear material, nuclear fuel, radioactive products or waste
or any other radioactive substances, as well as nuclear-explosive or
radiation-dissemination devices, including homemade devices and/or their
components or objects of which they are components, shall be returned to the
State party that has ownership over them, except where it is not considered
feasible physically or legally to return them.
2. (Deleted)
17. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.17)
Article 5
1. Each State party shall take such measures as may be necessary to
establish its jurisdiction over the offences set forth in article 1 bis when:
(a) The offence is committed in the territory of that
State or on board a vessel flying the flag of that State or an aircraft or space
object that is registered under the laws of that State at the time the offence
is committed; or
(b) The offence is committed by a national of that
State.
2. A State party may also establish its jurisdiction over any
such offence when:
(a) The offence is committed against a national of that
State; or
(b) The offence is committed against a State or
government facility of that State abroad, including an embassy or other
diplomatic or consular premises of that State; or
(c) The offence is committed by a stateless person who
has his or her habitual residence in the territory of that State; or
(d) The offence is committed in an attempt to compel
that State to do or abstain from doing any act.
3. Upon ratifying, accepting, approving or acceding to this
Convention, each State party shall notify [the Secretary-General] of the
jurisdiction it has established in accordance with paragraph 2 under its domestic
law. Should any change take place, the State party concerned shall immediately
notify the Secretary-General.
4. Each State party shall likewise take such measures as may
be necessary to establish its jurisdiction over the offences set forth in article
1 bis in cases where the alleged offender is present in its territory and it does
not extradite that person to any of the States parties that have established
their jurisdiction in accordance with paragraph 1 or 2.
5. This Convention does not exclude the exercise of any
criminal jurisdiction established by a State party in accordance with its
domestic law.
18. Proposal submitted by China (A/AC.252/1998/WP.18)
Article 6
Delete paragraphs 3 and 4 of article 6.
19. Proposal submitted by Italy (A/AC.252/1998/WP.19)
Article 1 bis
In the text contained in document A/AC.252/1998/WP.1,
insert a new paragraph reading:
"2. An offence shall also be deemed to have been committed by
anyone who, being in possession of radioactive materials or devices, compels a
natural or legal person, an international organization or a State to do or to
refrain from doing an act by threatening to use the materials or devices in his
possession."
Renumber subsequent paragraphs and amend the cross-references in them
to refer also to the new paragraph 2.
20. Proposal submitted by Germany
(A/AC.252/1998/WP.20/Rev.1)
Article 1 bis, paragraph 1
Article 1
Any person commits an offence within the meaning of this Convention
if that person, unlawfully and intentionally:
(a) Manufactures (produces), treats, transports, processes, uses,
exports or imports nuclear or other hazardous radioactive material that
intentionally causes or is likely to cause death or serious bodily injury or
substantial damage to property or the environment;
(b) Manufactures (produces), procures, possesses, transfers or
uses nuclear or other hazardous radioactive material or special devices for the
purpose of:
(i) Causing death or serious bodily injury; or
(ii) Substantial damage to property or the environment;
(c) Threatens:
(i) To use nuclear or other hazardous radioactive material to
cause death or serious bodily injury or substantial damage to property in such
a manner as to disturb the public peace; or
(ii) To commit an offence as described in subparagraph (a) or (b)
in order to compel a natural or legal person, an international organization or
a State to commit or to refrain from committing an act.
21. Proposal submitted by Austria and Japan
(A/AC.252/1998/WP.21)
Article 11, paragraph 4
States parties shall inform the depositary of their competent
authorities and liaison points responsible for sending and receiving the
information referred to in this article. The depositary shall communicate such
information regarding competent authorities and liaison points to all States
parties. Such liaison points must be accessible on a continuous basis.
22. Proposal submitted by Belgium (A/AC.252/1998/WP.22)
Preamble
Insert a new paragraph at the end of the preamble reading:
"Noting that the activities of the armed forces of States are
governed by rules of international law which are outside the purview of this
Convention and that the exclusion of certain acts from the scope of the
Convention neither excuses nor renders lawful acts which are otherwise unlawful,
nor does it prevent the institution of proceedings under other laws."
23. Proposal submitted by Belgium (A/AC.252/1998/WP.23)
Article 18
Replace article 18, paragraph 2, by the following text:
"2. Denunciation shall take effect one year after the date on
which notification is received by the depositary."
24. Proposal submitted by the Syrian Arab Republic
(A/AC.252/1998/WP.24)
Preamble
Add a new paragraph reading:
"Recalling the Declaration of the Occasion of the Fiftieth
Anniversary of the United Nations of 24 October 1995 (General Assembly resolution
50/6),
"Recalling General Assembly resolution 46/51 of 9 December 1991,
which urges all States, unilaterally and in cooperation with other States, as
well as United Nations organs, to contribute to the progressive elimination of
the causes underlying international terrorism, and requests the other relevant
specialized agencies and intergovernmental organizations to consider what further
measures can usefully be taken to combat and eliminate terrorism."
Add a new paragraph, which would become the second preambular
paragraph (similar to that which appeared in the International Convention for the
Suppression of Terrorist Bombings), reading:
"Considering that the incidence of such acts of nuclear terrorism
is an issue of grave concern to the whole international community".
Amend the second draft preambular paragraph to read:
"Guided by the purposes and principles of the Charter of the
United Nations in general, and by those of maintaining international peace and
security and strengthening friendly and cooperative relations among nations in
particular, and by the Convention on the Physical Protection of Nuclear Material
of 1980, ...".
Amend the fourth draft preambular paragraph to read:
"Noting the importance of international cooperation in order to
put in place effective measures consistent with the national law of all States
Parties to this Convention to prevent, suppress and investigate such acts,"
Amend the present fifth preambular paragraph to read (additions
underlined):
"Affirming the need for each State to conduct a policy precluding
any concessions to those who commit terrorist acts, and acts of nuclear terrorism
in particular, etc."
Note: It would also be appropriate to include a separate article in
the Convention warning of the dangers of making any concessions to those who
commit acts of nuclear terrorism.
Add a new paragraph reading:
"Recalling General Assembly resolution 51/210 of 17 December 1996,
and the eleventh preambular paragraph of the draft international convention for
the suppression of terrorist bombings to the effect that the activities of the
armed forces of States are governed by rules of international law which are
outside the purview of this Convention and that the exclusion of certain acts
from the scope of the Convention neither excuses nor renders lawful acts which
are otherwise unlawful, nor does it prevent the institution of proceedings under
other laws."
Add a new paragraph reading:
"Recalling the advisory opinion of the International Court of
Justice on the legality of the threat or use of nuclear weapons issued on 8 July
1996 (A/51/218) and the relevant resolutions adopted by the General Assembly."
Add a new paragraph reading:
"Recalling also the recommendations of the International
Atomic Energy Agency annexed to the 1980 Convention on the Physical Protection
of Nuclear Material."
25. Proposal submitted by the Syrian Arab Republic
(A/AC.252/1998/WP.24/Corr.1)
Preamble
Replace the last proposal in A/AC.252/1998/WP.24 with the following:
Add a new paragraph reading:
"Recalling also the recommendations of the International
Atomic Energy Agency concerning physical protection of nuclear material and
facilities that reflect international perception regarding the minimum level for
such protection."
26. Proposal submitted by the Syrian Arab Republic
(A/AC.252/1998/WP.25)
Article 1
Divide the present article 1 into two articles, the first covering
the scope of the Convention and the second giving the definitions.
Reword paragraph 1 (a) of the present article 1 to read:
"For the purposes of this Convention:
1. An act of nuclear terrorism' means:
An illegal act carried out by persons as individuals, as
governmental or non-governmental groups or as some other grouping, for the
purpose of causing death or serious injury to any person or harming his health,
causing substantial damage to property or the environment, or compelling a
natural or legal person, a group of persons, a State or an international
organization to do or to refrain from doing any act, by means of:
(a) (i) The use or threat of the use of nuclear material, ...
(ii) The use or threat of the use of any nuclear
installations, ..."
In subparagraph (b), after "possession, alteration" add
"or burying nuclear waste or nuclear materials in an illegal
manner on the territory of a third party, or dumping such waste in the sea,".
Subparagraph (c) should remain unchanged.
Paragraphs 2-9 should be included in an article which deals with
definitions.
Paragraph 5: Amend the name of the convention which appears in this
paragraph to read:
"The joint convention on the safety of spent fuel management and the
safety of radioactive waste management."
Article 2
Delete the present article 2 and replace it with the following
paragraphs:
"1. Nothing in this Convention shall affect the rights,
obligations and other responsibilities of States and individuals under
international law, and in particular the purposes and principles of the Charter
of the United Nations, and under international humanitarian law.
2. This Convention shall not apply to the activities of armed forces
during armed combat as defined by international humanitarian law, since it is
that law which governs those activities.
3. This Convention shall not apply to the armed disputes recognized
by the Geneva Conventions of 1949 and the Protocols, and by the 1997 Geneva
Protocol I, article 1, paragraph 4, which deals with peoples struggling against
a colonialist power, foreign occupation and racist regimes in exercise of their
right to self-determination. This principle is also embodied in the Charter of
the United Nations and the declaration of the principles of international law
concerning friendly relations and cooperation between States in accordance with
the Charter."
27. Proposal submitted by the Syrian Arab Republic
(A/AC.252/1998/WP.26)
Article 5
Paragraph 1 of the article should be replaced by provisions taken
from article 6, paragraphs 1 and 2, of the International Convention for the
Suppression of Terrorist Bombings, as follows:
"1. Each State party shall take such measures as may be necessary
to establish its jurisdiction over the offenses set forth in article 1, paragraph
1, when:
(a) The offence is committed in the territory of that State; or
(b) The offence is committed on board a vessel flying the flag of
that State or an aircraft which is registered under the laws of that State at the
time that offence is committed; or
(c) The offence is committed by a national of that State.
"2. A State Party may also establish its jurisdiction over any
such offence when:
(a) The offence is committed against a national of that State; or
(b) The offence is committed by a stateless person who has his or
her habitual residence in the territory of that State; or
(c) The offence is committed in an attempt to
intimidate, coerce or exact vengeance from the civilian population of that State
or to compel that State to do or abstain from doing any act."
Present paragraph 2 should remain unchanged and should be renumbered
as paragraph 3.
Present paragraph 3 should be retained and renumbered as paragraph
4. The wording of article 6, paragraph 5, of the International Convention for
the Suppression of Terrorist Bombings is to be preferred, as follows:
"4. This Convention does not exclude the exercise of any criminal
jurisdiction established by a State party in accordance with its domestic law."
Article 6
Paragraph 1 should be reworded as follows:
"1. Each State Party in the territory of which an offence set
forth in article 1, paragraph 1, of this Convention is committed, or in the
territory of which an alleged offender is present, shall, in accordance with
international law and its legislation and when convinced that justifying
circumstances exist, take that person into custody or take other measures, in
accordance with its legislation, to ensure his presence for such time as is
necessary to enable any criminal or extradition proceedings to be instituted."
Paragraph 2:
"2. That State shall immediately conduct a preliminary inquiry in
accordance with its legislation and shall promptly report its findings ..."
Paragraph 3 should remain unchanged.
Paragraph 4 should remain unchanged.
Article 8
Replace paragraphs 1, 3 and 5 of the draft with [provisions taken
from] the corresponding paragraphs [of article 9] of the International Convention
for the Suppression of Terrorist Bombings, as follows:
"1. The offences set forth in article 1, paragraph 1, shall be
deemed to be included as extraditable offences in any extradition treaty in force
between any of the States Parties. States parties undertake to include such
offences as extraditable offences in every extradition treaty to be concluded
between them.
"3. States parties which do not make extradition conditional on
the existence of a treaty shall recognize the offences set forth in article 1,
paragraph 1, as extraditable offences between themselves, subject to the
conditions provided by the law of the requested State.
"...
"5. The provisions of all extradition treaties and arrangements
between States parties with regard to offences set forth in this Convention shall
be modified as between States Parties to the extent that they are incompatible
with this Convention."
The provisions of article 12 of the International Convention for the
Suppression of Terrorist Bombings should either be added to this article as a new
paragraph or included as a separate article 8 bis, as follows:
"Nothing in this Convention shall be interpreted as imposing an
obligation to extradite if the requested State Party has substantial grounds for
believing that the request for extradition for offences set forth in article 1,
paragraph 1, has been made for the purpose of prosecuting or punishing a person
on account of that person's race, religion, nationality or political opinions or
causing prejudice to that person's position for any of these reasons."
28. Proposal submitted by the Syrian Arab Republic
(A/AC.252/1998/WP.27)
Article 12
Delete the words "through mutual agreement", and add "or through the
depositary or with the assistance of international organizations" after
"consultations with one another directly".
It would be better to incorporate this article into article 14, as
a separate paragraph.
Article 13
The article should be supplemented with the provisions of articles
17 and 18 of the International Convention for the Suppression of Terrorist
Bombings, and the words "or shall be directed against any State" should be
deleted.
Article 14
All the means for the peaceful settlement of disputes stipulated in
the Charter of the United Nations should be retained, and there should be no
obligatory referral to the International Court of Justice. Such referral should
remain optional and should be invoked when all the possible means stipulated have
been exhausted.
29. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.28)
Amendment to Article 6 and new Article 10
Article 6
1. Upon receiving information that a person who has committed or who is
alleged to have committed an offence as set forth in article 1 bis may be present
in its territory, the State party concerned shall take such measures as may be
necessary under its domestic law to investigate the facts contained in the
information.
2. Upon being satisfied that the circumstances so warrant, the State
party in whose territory the offender or alleged offender is present shall take
the appropriate measures under its domestic law so as to ensure that person's
presence for the purpose of prosecution or extradition.
3. Where the measures referred to in paragraph 2 of the present article
are being taken, the State party having a claim to jurisdiction in accordance
with article 5, subparagraph 1 (b) or 2 (c), may invite the International
Committee of the Red Cross to communicate with and visit the alleged offender.
4. When a State party, pursuant to the present article, has taken a
person into custody, it shall immediately notify, directly or through the
Secretary-General, the States parties which have established jurisdiction in
accordance with article 5, paragraphs 1 and 2, and, if it considers it advisable,
any other interested States parties, of the fact that that person is in custody
and of the circumstances which warrant that person's detention. The State which
makes the investigation contemplated in paragraph 1 of the present article shall
promptly inform the said States parties of its findings and shall indicate
whether it intends to exercise jurisdiction.
Article 10
Any person who is taken into custody or regarding whom any other
measures are taken or proceedings are carried out pursuant to this Convention
shall be guaranteed 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 international law, including international law
of human rights.
30. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.29)
Amendments to Article 8
Paragraphs 1 to 5 should be the same as article 9 of the 1997
International Convention for the Suppression of Terrorist Bombings.
Paragraph 6 should read as follows:
"6. A State party which receives more than one request for
extradition from States which have established jurisdiction in accordance with
article 5 of this Convention and which decides not to prosecute shall, in
selecting the State to which the offender or alleged offender is to be
extradited, pay due regard to the interests and responsibilities of the State
party in the territory of which the act of nuclear terrorism was committed."
31. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.30)
Amendment to Article 11
Replace the current paragraph 1 with the following:
"1. Where necessary, the States parties concerned shall exchange
information with one another or with international organizations about measures
being taken by them to prevent and suppress acts of nuclear terrorism, including
the methods used to prevent and suppress such acts."
32. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.31)
Article 14
1. Any dispute between two or more States parties concerning the
interpretation or application of this Convention which cannot be settled through
negotiation or any other peaceful means of settling disputes within a reasonable
time shall, at the request of one of them, be submitted to arbitration. If,
within six months from the date of the request for arbitration, the parties are
unable to agree on the organization of the arbitration, any one of those parties
may refer the dispute to the International Court of Justice, by application, in
conformity with the Statute of the Court.
2. Each State may at the time of signature, ratification, acceptance or
approval of this Convention or accession thereto declare that it does not
consider itself bound by the obligation to submit such dispute to arbitration set
forth in paragraph 1. The other States parties shall not be bound by paragraph
1 with respect to any State party which has made such a reservation.
3. Any State which has made a reservation in accordance with paragraph
2 may at any time withdraw that reservation by notification to the
Secretary-General.
33. Proposal submitted by the Libyan Arab Jamahiriya
(A/AC.252/1998/WP.32/Rev.1)
Preamble
Add two paragraphs reading:
"Recognizing the importance of drawing up a universally agreed
definition of international terrorism,
"Recalling General Assembly resolutions affirming that nuclear
disarmament is a fundamental factor in the safeguarding of international peace
and security and expressing appreciation of the advisory opinion delivered on 8
July 1996 by the International Court of Justice on the legality of the threat or
use of nuclear weapons,"
Article 1
At the end of subparagraph (b), add:
"The illegal dumping of nuclear waste at sea or on the territory
of other countries, and transporting such waste transnationally."
Article 2
Replace the article by the following:
"1. This Convention shall apply to acts of nuclear terrorism by
natural or legal persons, including States and international organizations,
operating on their own behalf or on behalf of others.
"2. Nothing in this Convention shall affect the rights,
obligations and other responsibilities of States and individuals under
international law, in particular the purposes and principles of the Charter of
the United Nations, and under international humanitarian law."
Article 10
At the end of each of paragraphs 1 and 2 add:
"in consultation with the relevant international organizations and
in particular with the International Atomic Energy Agency."
Article 13
At the end of the article add:
"Nothing in this Convention shall permit a State party to exercise
jurisdiction in the territory of any other State, or assume duties for which any
other State party is responsible pursuant to its national law."
34. Proposal submitted by Croatia and Switzerland
(A/AC.252/1998/WP.33)
Amendment to Article 4
Amend paragraph 3 to read as follows:
"3. Adopting all necessary measures to: ensure the protection of
radioactive materials and facilities against illegal or unauthorized use thereof
or access thereto by third parties; establish effective controls against illicit
trafficking; and in doing so, take into account the recommendations of the
International Atomic Energy Agency, which shall serve as a focal point for
consultation, cooperation and exchange of information for the purpose of the
above."
35. Proposal submitted by Australia (A/AC.252/1998/WP.34)
Amendments to Articles 7, 8 and 9
1. Article 7: delete the article.
2. Article 8: delete paragraphs 1 to 4.
3. Article 9: delete the article.
4. Replace with the following provisions of the International Convention
for the Suppression of Terrorist Bombings:
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
5. Add the text of paragraph 5 of article 8 to article 9 of the
International Convention for the Suppression of Terrorist Bombings as a separate
paragraph 6.
36. Proposal submitted by Belgium (A/AC.252/1998/WP.35)
Replace Article 7 of the draft contained in A/AC.252/L.3 with the
following:
"Article 7
"1. The State party in the territory of which the alleged offender
is present shall, in cases to which article 5 applies, if it does not extradite
that person, be obliged, without exception whatsoever and whether or not the
offence was committed in its territory, to submit the case without undue delay
to its competent authorities for the purpose of prosecution, through proceedings
in accordance with the laws of that State. Those authorities shall take their
decision in the same manner as in the case of any other offence of a grave nature
under the law of that State.
"2. Whenever a State party is permitted under its domestic law to
extradite or otherwise surrender one of its nationals only upon the condition
that the person will be returned to that State to serve the sentence imposed as
a result of the trial or proceeding for which the extradition or surrender of the
person was sought, and this State and the State seeking the extradition of the
person agree with this option and other terms they may deem appropriate, such a
conditional extradition or surrender shall be sufficient to discharge the
obligation set forth in paragraph 1."
Include a new article 9 bis:
"Article 9 bis
"Any person who is taken into custody or regarding whom any other
measures are taken or proceedings are carried out pursuant to this Convention
shall be guaranteed 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 law of human rights."
37. Proposal submitted by the United States of America
(A/AC.252/1998/WP.36)
Divide the present article 1 into two articles. The new first article
would contain the following technical definitions to replace those currently in
article 1, paragraphs 2 to 9.
Article 1
For the purposes of this Convention:
"1. Nuclear material' means plutonium, except that with isotopic
concentration exceeding 80 per cent in plutonium-238; uranium-233; uranium
enriched in the isotope 235 or 233; uranium containing the mixture of isotopes
occurring in nature other than in the form of ore or ore residue; or any material
containing one or more of the foregoing;
"Whereby uranium enriched in the isotope 235 or 233' means
uranium containing the isotope 235 or 233 or both in an amount such that the
abundance ratio of the sum of these isotopes is greater than the ratio of the
isotope 235 to the isotope 238 occurring in nature;
"2. Other radioactive material' means material, other than that
defined in paragraph 1 above, which contains nuclides which undergo spontaneous
disintegration (a process accompanied by emission of one or more types of
ionizing radiation such as alpha-, beta-, neutron particles and gamma rays) and
which material may, due to its radiological properties, cause death, serious
bodily injury or extensive destruction to property;
"3. Nuclear facility' means:
(a) Any nuclear reactor, including reactors installed on vessels,
vehicles, aircraft or space objects for use as an energy source in order to
propel such vessels, craft or objects or for any other purpose;
(b) Any plant or conveyance being used for the production,
location, storage, processing or transport of nuclear material;
"4. Radiation device' means:
(a) Any nuclear explosive device;
(b) Any radiation dissemination device."
38. Proposal submitted by the Republic of Korea
(A/AC.252/1998/WP.37)
Article 8 bis
None of the offences set forth in article 1 bis shall be regarded,
for the purposes of extradition or mutual legal assistance, as a political
offence or as an offence connected with a political offence or as an offence
inspired by political motives. Accordingly, a request for extradition or for
mutual legal assistance based on such an offence may not be refused on the sole
ground that it concerns a political offence or an offence connected with a
political offence or an offence inspired by political motives.
Article 8 ter
Without prejudice to paragraph 1 of article 7 of this Convention,
nothing in this Convention shall be interpreted as imposing an obligation to
extradite, if the requested State party has substantial grounds for believing
that the request for extradition for offences set forth in article 1 bis has been
made for the purpose of prosecuting or punishing a person on account of that
person's race, religion, nationality, ethnic origin or political opinion or that
compliance with the request would cause prejudice to that person's position for
any of these reasons.
39. Proposal submitted by the Islamic Republic of Iran
(A/AC.252/1998/WP.38)
Add the following paragraphs to the preamble:
"Emphasizing that the responsibility for the establishment,
implementation and maintenance of a physical protection system for nuclear
material, devices and installations within a State rests entirely with that
State,
"Stressing the inherent right of all States to engage in research,
production and use of nuclear energy for peaceful purposes."
40. Proposal submitted by the Holy See (A/AC.252/1998/WP.39)
Article 5
Each State party shall adopt such measures as may be necessary,
including, where appropriate, domestic legislation, to ensure that criminal acts
within the scope of this Convention, in particular where they are intended or
calculated to provoke a state of terror in the general public or in a group of
persons or particular persons, are under no circumstances justifiable regardless
of where, by whom and for what purposes they are committed, and are punished by
penalties consistent with their grave nature.
Annex III
Informal summary of the discussions in the Working Group, prepared by
the Rapporteur
Preamble
1. Concerning the second preambular paragraph, there was a proposal to
make a reference to the Purposes and Principles of the Charter the subject of a
separate paragraph. There was also a proposal to make specific reference to the
Purposes of maintaining international peace and security and strengthening
friendly relations and cooperation among States (see A/AC.252/1998/WP.24).
2. With regard to the third preambular paragraph, it was suggested to
add a reference to the 1996 Declaration to Supplement the 1994 Declaration on
Measures to Eliminate International Terrorism. A suggestion was made to replace
the paragraph with the text of the second preambular paragraph of General
Assembly resolution 52/165 of 15 December 1997. Opposition was voiced to the
latter proposal.
3. As to the fourth preambular paragraph, it was suggested to insert a
reference to punishment. There was also a suggestion to amend the paragraph so
as to place emphasis on international cooperation in accordance with national law
(ibid.).
4. It was suggested to amend the fifth preambular paragraph by inserting
"for each State" after "need" and to add a specific reference to acts of nuclear
terrorism (see A/AC.252/1998/WP.24).
5. There was a general proposal to incorporate those paragraphs from the
preamble of the International Convention for the Suppression of Terrorist
Bombings which were of relevance to the present document. Specific mention was
made in that regard of its third (see A/AC.252/1998/WP.12), tenth (see
A/AC.252/1998/WP.24) and eleventh (see A/AC.252/1998/WP.12 and WP.22) preambular
paragraphs. On the other hand, it was also suggested that it would be sufficient
simply to recall the Terrorist Bombings Convention.
6. A number of other proposals for additional paragraphs were advanced.
It was suggested to include a paragraph recalling General Assembly resolution
46/51 of 9 December 1991, in particular its paragraphs 6 and 11 (see
A/AC.252/1998/WP.24). It was also suggested to include a reference to the
advisory opinion of the International Court of Justice on the Legality of the
threat or use of nuclear weapons (see A/AC.252/1998/WP.12). There was, however,
opposition to both of those proposals. There were also proposals to add
paragraphs recognizing the importance of a universally agreed definition of
international terrorism (see A/AC.252/1998/WP.32/Rev.1); recalling General
Assembly resolutions on the importance of nuclear disarmament (ibid.);
emphasizing the responsibility of a State for the establishment, implementation
and maintenance of a physical protection system for nuclear material, devices and
installations on its territory (see A/AC.252/1998/WP.38); stressing the inherent
right of all States to engage in research, production and use of nuclear energy
for peaceful purposes (ibid.); and recalling recommendations of the International
Atomic Energy Agency (IAEA) for physical protection of radioactive materials and
facilities (see A/AC.252/1998/WP.24/Rev.1). It was also suggested that, rather
than adding paragraphs to the preamble, efforts should be made to keep the
preamble short and focused on the specific objectives of the Convention.
Article 1
General comments
7. There was general agreement that the focus of the definition should
be on combating terrorist acts. There was also general agreement to the effect
that all definitions should be assembled in article 1, which should precede the
article describing the offences currently contained in article 1 bis. It was
suggested that the structure provided by the 1997 International Convention for
the Suppression of Terrorist Bombings should be followed (see
A/AC.252/1998/WP.13).
Specific comments
8. The following proposals were made:
(a) To base the definition on the proposals made by the
International Atomic Energy Agency (IAEA) so as to avoid possible deviations or
contradictions (see A/AC.252/1998/WP.1/Rev.2);
(b) To define the term "radioactive material" by reference to
material which contains nuclides and disintegrates spontaneously and which could
pose a threat to human life or health or causes substantial damage to property
or the environment (see A/AC.252/1998/WP.1/Rev.2);
(c) To add a new subparagraph (c) to paragraph 1 defining acts
constituting a demand by threat or use of force or any other form of
intimidation; the current subparagraph (c) would become subparagraph (d). It was
also proposed to include additional language in the new paragraph (d) which would
internationalize the offence of participation in the unlawful activity
(A/AC.252/1998/WP.4);
(d) To define the term "nuclear material" in paragraph 2 of
article 1 by reference to article 20 of the IAEA statute;
(e) To create a generic term for "radioactive material";
(f) To use two generic terms, namely "nuclear material" and "other
radioactive material";
(g) To delete the definition of "nuclear fuel" from the draft;
(h) To include the term "precursors" in the definitions;
(i) To delete paragraph 7, which defines the term "nuclear
installation";
(j) To delete paragraph 8, defining the term "nuclear-explosive
device";
(k) To delete paragraph 9, which defines the term
"radiation-dissemination device";
(l) To exclude from the definitions devices that are covered by
the 1997 International Convention for the Suppression of Terrorist Bombings;
(m) To make it more specific that material used for military
purposes is excluded from the Convention;
(n) To divide the present article into two articles, the first
covering the scope of the Convention and the second giving the definitions; and
to redraft the first paragraph of present article 1 (see A/AC.252/1998/WP.25);
(o) To add at the end of subparagraph (b) of article 1 reference
to illegal dumping of nuclear waste at sea or on the territory of other
countries, as well as transporting such waste transnationally (see
A/AC.252/1998/WP.32/Rev.1); or reference to illegal dumping of radioactive wastes
or radioactive substance on high seas or inland (see A/AC.252/1998/WP.12);
(p) To divide article 1 into two articles. The first would deal
with technical definitions, which would replace those currently in paragraphs 2
to 9 of article 1. "Nuclear material" and "other radioactive material" would be
used and "nuclear fuel", "radioactive products", "radioactive waste" and
"radioactive substances" would be deleted. "Nuclear installation" would be
replaced by "nuclear facility", which would be defined to include nuclear
reactors and plants or conveyances associated with nuclear material (see
A/AC.252/1998/WP.36).
Article 1 bis
9. As to the acts of nuclear terrorism found in article 1 of the draft,
the Russian Federation indicated that the "purpose" found in subparagraph (a)
(ii) was also applicable to subparagraph (a) (i). It was suggested that (i) and
(ii) of (a) could be merged. Preference was expressed for the use of the words
"unlawful" or "without lawful authority" to qualify the acts. There was
opposition to that suggestion.
10. Divergent views were expressed regarding the reference to
"terrorism" in the definition of crimes.
11. The suggestion was made to move the stipulation of purpose from
the end to the chapeau. Although preference was expressed for the use of the
concept of "purpose", the point was made that the concept of "intent" should be
used. It was considered preferable to include the element of "intent" in the
chapeau. A proposal was made to include a separate subparagraph on demand for
material based on article 1, subparagraph (b), of the draft (see
A/AC.252/1998/WP.4).
12. There was a trend to group all the offences under a new article
1 bis, following the model of the 1997 International Convention for the
Suppression of Terrorist Bombings. The view was expressed that a more precise
definition of crimes was desirable. In this regard, several proposals were put
forward (see A/AC.252/1998/WP.1/Rev.2, A/AC.252/1998/WP.2, A/AC.252/1998/WP.3,
A/AC.252/1998/WP.5, A/AC.252/1998/WP.13, A/AC.252/1998/WP.19 and
A/AC.252/1998/WP.20/Rev.1). The proposal was made to replace the word "use" by
specifying acts as in the Terrorist Bombings Convention (article 2, paragraph 1).
A suggestion was also made to add "acquire" to "use or possess". Another
suggestion was also made to add "destroy" to "use or possess".
13. A proposal was made to specify that the acts should be committed
by "persons in individual capacity or as part of non-state groups or other
associations". The deletion of the reference to "devices" was also suggested.
14. It was suggested to include a specific provision on "threat".
Views diverged on how the threat offence should be defined. The point was made
that such a provision should be based on article 3, paragraph 2, of the 1988 Rome
Convention. Others suggested that the threat be credible or require possession
in order to constitute an offence. Preference was also expressed for excluding
any reference to "threat".
15. The point was made that it was unnecessary to include the
manufacture of nuclear or nuclear-related products, while views to the contrary
were also expressed. Divergent views were held as to whether the acts should
cover the "installations" themselves. The point was also made that
"installations" could be defined narrowly only to include those containing
nuclear materials.
16. The suggestion was made to include a specific provision regarding
"harm to human health", in particular that of a grave nature. The view was
expressed that the contamination of property and of the environment should also
be criminalized (see A/AC.252/1998/WP.25). In that regard, it was noted that the
qualification of "substantial" to the damage caused would be subjective. The
point was also made that the concept of damage to property, health or the
environment was too vague as an element of composition of a crime (see
A/AC.252/1998/WP.2). It was suggested that the transfer of nuclear material and
the dumping of waste should also be considered a crime. Divergent views were
expressed concerning the inclusion of a specific provision on environmental
damage.
17. As regards ancillary crimes, a proposal was made that would
criminalize participation carried out with the aim of furthering the general
criminal activity or in the knowledge of the intention of the group. The
suggestion was made to replace the draft ancillary offences with the text of
article 2 (3) of the Terrorist Bombings Convention. There was opposition to the
extension of offences of attempt and complicity to the substantive crime of
threat. Views were expressed by some delegations that preparation, contribution
and participation should not be criminalized.
Article 2
18. With respect to paragraph 1, the view was expressed that the text
within parentheses should be deleted. There was also the view that the first
clause of the paragraph should be deleted and the concept that it expressed
placed in the article on the definition of offences. As regards the second clause
of the paragraph, the point was made that only lawful acts of States should be
excluded from the scope of the draft. It was suggested to delete the reference
to non-proliferation, as well as to nuclear threats. Deletion of the phrase "or
other subjects of international law" was also suggested, as was the deletion of
the entire paragraph. There were proposals to replace the paragraph with one or
more of the following provisions: a simplified version of the elements in current
paragraph 1 (see A/AC.252/1998/WP.6); the first part of article 19, paragraph 2
of the Terrorist Bombings Convention (see A/AC.252/1998/WP.6 and WP.25); article
19, paragraph 1, of that Convention (see A/AC.252/1998/WP.6, WP.9 and WP.25);
article 19, paragraph 2 of the Terrorist Bombings Convention as a whole; or
article 12 of the Hostages Convention (see A/AC.252/1998/WP.25). These proposals
gave rise to divergent views.
19. As regards paragraph 2, the suggestion was made to replace the
phrase "belonging ... purposes" with "owned or operated by a State for
non-commercial purposes" (see A/AC.252/1998/WP.9). It was further suggested to
delete the reference to space objects (ibid.). The deletion of the entire
paragraph was also proposed.
20. There were proposals to include two new paragraphs in the article,
the first safeguarding the inalienable right of States to the peaceful use of
nuclear energy, and the second (see A/AC.252/1998/WP.7) excluding the application
of the proposed convention to purely internal nuclear terrorist acts. As regards
the latter proposal, the point was made that crimes with transborder
environmental effects should not be excluded from the scope of the draft.
Article 4
21. As regards paragraph 1, the view was expressed that the text
should follow the language of article 15, subparagraph (a), of the Terrorist
Bombings Convention. It was proposed to add the phrase "when they have obtained
the relevant information" after "legislation". It was also suggested to include
the phrase "knowingly finance" after "organize".
22. Concerning paragraph 2, the view was expressed that it should
follow the language of article 15, subparagraph (b), of the Terrorist Bombings
Convention.
23. While some supported the retention of paragraph 3 in its current
form, others advocated its deletion. The suggestion was made to include the
requirement that the recommendations of the International Atomic Energy Agency
(IAEA) should be taken into account in the implementation of this paragraph (see
A/AC.252/1998/WP.33), but reservations were expressed in that regard. While some
delegations felt that the focus of the paragraph should be limited to measures
to prevent illegal or unauthorized access to radioactive material (see
A/AC.252/1998/WP.8), others favoured extending its scope to embrace measures
against illicit trafficking (see A/AC.252/1998/WP.33). There was also a
suggestion to make IAEA a focal point for consultation, cooperation and exchange
of information under the paragraph (see ibid.).
Article 5
24. The view was expressed that paragraph 1 of that article should be
recast as two separate paragraphs in the manner of article 6 of the Terrorist
Bombings Convention, one paragraph setting out mandatory bases of jurisdiction
and the other setting out bases of jurisdiction which were optional in nature
(see A/AC.252/1998/WP.15 and 17). In this regard, it was said that the grounds
of jurisdiction that were the subject of subparagraph (a) and the first part of
subparagraph (b) should be included in the paragraph that set out the mandatory
bases of jurisdiction (ibid.). Differing views were expressed with regard to the
grounds of jurisdiction addressed in subparagraph (c), some delegations favouring
their inclusion as a mandatory basis of jurisdiction (see A/AC.252/1998/WP.15)
and others preferring that they appear among the bases that were optional in
nature (see A/AC.252/1998/WP.17). As for subparagraph (d) and the second part of
subparagraph (b), it was said that the grounds of jurisdiction which they set
forth should appear in the paragraph dealing with optional bases of jurisdiction
(see A/AC.252/1998/WP.15; compare also WP.17). Support was voiced for the
inclusion in that same paragraph of the grounds of jurisdiction set out in
article 6, paragraph 2 (b), (see A/AC.252/1998/WP.15 and WP.17) and article 6,
paragraph 2 (e) (see A/AC.252/1998/WP.15) of the Terrorist Bombings Convention.
There was also a proposal that the texts of paragraphs 1 and 2 of article 6 of
that Convention should replace the text of the current paragraph 1 in its
entirety.
25. A number of proposals were made relating to the drafting of
certain aspects of paragraph 1. Specifically, it was suggested: that the second
part of subparagraph (a) should be recast along the lines of article 6, paragraph
1 (b), of the Terrorist Bombings Convention (see A/AC.252/1998/WP.15 and 17);
that that phrase should be converted into a separate subparagraph
(A/AC.252/1998/WP.15); that the opening words of subparagraph (c)should be
amended so as to read "against that State or in order directly to compel it" (see
A/AC.252/1998/WP.11; compare also WP.15); and that the words "connected with" in
subparagraph (d) should be replaced by the formula "incorporated under the law
of" (ibid.). With regard to the second category of victim referred to in that
subparagraph, there was a suggestion that it should be made the subject of a
separate subparagraph (see A/AC.252/1998/WP.15), though it was also proposed that
mention should not be made of it among the possible bases of jurisdiction (see
A/AC.252/1998/WP.17).
26. With regard to paragraphs 2 and 3, the suggestion was made that
they should be aligned with the texts of article 6, paragraphs 4 and 5, of the
Terrorist Bombings Convention (see A/AC.252/1998/WP.15 and 17). The suggestion
was also made that a new paragraph should be added to the article, modelled on
article 6, paragraph 3 of the same Convention (ibid.).
Article 6
27. The following provisions were suggested in replacement of
paragraphs 1 and 2: (a) article 7 of the Terrorist Bombings Convention; (b)
article 7, paragraphs 1, 2, 5 and 6 of the Terrorist Bombings Convention (see
A/AC.252/1998/WP.28); (c) article 7, paragraphs 1 and 2, of the Terrorist
Bombings Convention; (d) article 7 of the Terrorist Bombings Convention with the
addition of the element of suppression. The view was also expressed that the
issues of prevention and suppression should be dealt with in a separate article.
A proposal was made to replace the notion of suppression with that of punishment.
It was further suggested to replace the term "legislation" with "domestic law".
There was the view that the article should provide for the submission of a case
to an international criminal court.
28. The view was expressed that paragraphs 3 and 4 should be deleted
(see A/AC.252/1998/WP.18 and WP.28).
Article 7
29. It was suggested to replace paragraph 1 with article 8, paragraph
1, of the 1997 International Convention for the Suppression of Terrorist Bombings
(see A/AC.252/1998/WP.34 and WP.35).
30. It was also proposed to replace paragraph 2 with article 14 of the
same Convention, which, some delegations felt, would better take the form of a
separate article (see ibid.). In that connection, there was a suggestion to
delete the words "provisions of" from the text of article 14 (see
A/AC.252/1998/WP.28).
31. The proposal was made to insert an additional paragraph modelled
on article 8, paragraph 2, of the Terrorist Bombings Convention (see
A/AC.252/1998/WP.34 and WP.35).
Article 8
32. It was suggested that a refinement of the article was required.
As to paragraph 1, the point was made that it could be subject to the laws of the
requested State. Different views were expressed concerning the inclusion of a
provision on multiple extradition requests like the one found in paragraph 5.
Another proposal was to add the phrase "among other grounds provided under its
national law" after "account" in the last sentence of paragraph 5.
33. Some delegations suggested that the article be replaced with
article 9 of the Terrorist Bombings Convention. A proposal was also made to
include a sixth paragraph (see A/AC.252/1998/WP.29).
Article 9
34. There was agreement to replace this provision with article 10 of
the Terrorist Bombings Convention (note also A/AC.252/1998/WP.34).
Article 10
35. As regards paragraph 1, the Russian Federation noted that the
reference to the feasibility of the return of nuclear components or products
referred to the fact that they had not been destroyed. Furthermore, the State of
ownership would have precedence for the return over the State of origin. It was
also noted that the provision should address the obligatory nature of accepting
return of the components or products.
36. The point was made that nuclear components or products should be
returned to any State and not just States parties to the convention. Other
delegations voiced their concerns about the difficulties that might arise if the
return was obligatory in nature, since in some cases States were legally
precluded from returning nuclear components or products. Similarly, the State in
which the nuclear components or products are recovered may be prohibited from
possessing them. The issue might be addressed by including the words "unless
prohibited by international or domestic law" or by following article 5 of the
1980 Convention on the Physical Protection of Nuclear Material. The point was
also made that the provision needed to address what happens when a State does not
return an item and to ensure that such items were kept under appropriate
safeguards. Some delegations stressed the need to take into account the role the
International Atomic Energy Agency (IAEA) could play on the matter, while others
felt that States could take care of the matter themselves. A proposal was
submitted for a new paragraph 1 (see A/AC.252/1998/WP.16). The view was expressed
that a provision should be included regarding the need to address the issue of
technical and financial assistance in order to carry out the return. The point
was also made that it might be necessary to address the issue of restitution for
damage resulting from the destruction of nuclear material.
37. Divergent views were expressed concerning the retention or
deletion of paragraph 2.
Article 11
38. The view was expressed that the object of article 11 should be
exchange of information with a view to suppressing and preventing acts of nuclear
terrorism. A proposal was made to place articles 4 and 11 parallel to each other
since the question of exchange of information went hand in hand with that of
cooperation among States. The proposal was made for the information exchange to
happen "as appropriate".
39. With regard to paragraph 1 (c) of article 11, the view was
expressed that since States had a right to communicate any information, the
subparagraph was superfluous and should be deleted. With regard to paragraph 3,
a proposal was made to replace the term "domestic legislation" by "domestic law".
Another proposal was made that paragraph 4 should provide the obligation of the
depositary to act as a medium of exchange of information (see
A/AC.252/1998/WP.21).
40. With regard to the role of the depositary, a proposal was to make
the role of the depositary more specific. Another view was that the depositary
should be the Secretary-General of the United Nations, and yet another view
expressed preference for IAEA to serve the depositary function.
Article 12
41. The view was expressed that there was no equivalent provision in
the 1997 International Convention for the Suppression of Terrorist Bombings, that
the provision was considered to be superfluous and that it should therefore be
deleted.
42. A proposal was made to insert the words "as appropriate" after the
word "consult" and to delete the words "through mutual agreement".
43. A proposal was made to replace the words "through mutual
agreement" with " through the depositary". The view was also expressed that
article 12 should be incorporated into article 14 as a separate paragraph (see
A/AC.252/1998/WP.27).
Article 13
44. The view was expressed that since the provision dealt with the
relationship between the draft and general international law, it would be more
appropriate to utilize the language of paragraph 1 of article 19 of the Terrorist
Bombings Convention.
45. A question was raised as to the intended meaning of the words "or
shall be directed against any State".
46. Another question was raised as to the meaning of the phrase
"rights and obligations of States parties arising from international treaties
concluded by them previously". In that connection, the view was expressed that
the corresponding provision of article 9, paragraph 5, of the Terrorist Bombings
Convention had an opposite effect.
47. A proposal was made that the provisions of article 13 should be
supplemented by the provisions of article 18 of the Terrorist Bombings
Convention.
48. The view was expressed that since paragraph 1 of article 19 of the
Terrorist Bombings Convention had been included in the current draft as part of
the package, the last paragraph to the preamble to that Convention should also
be included in the draft as part of the package.
49. The view was expressed that since paragraph 5 of article 9 of the
1997 Terrorist Bombings Convention only referred to the extradition of offenders,
the current provision should be aligned to that provision in order to be
consistent.
50. A proposal was made that articles 17, 18 and 19, paragraph 1, of
the 1997 Convention should also be used in the current draft. Paragraph 2 of
article 19 was however considered not to be relevant in this context and should
therefore be excluded since it dealt with the activities of military forces.
Others supported the inclusion of article 19, paragraph 2.
51. A proposal was made to supplement article 13 with provisions of
articles 17 and 18 of the Terrorist Bombings Convention and that the words "or
shall be directed against any State" should be deleted (see A/AC.252/1998/WP.27).
Article 14
52. With regard to article 14 of the draft, the Russian delegation
clarified that some text has been inadvertently dropped from paragraph 3 and that
it was intended to track exactly the corresponding provision in article 17 of the
Physical Protection Convention.
53. The view was expressed that the language had been taken from
article 18 of the Physical Protection Convention. The suggestion was made that,
in order to be consistent, the provisions of article 20 of the Terrorist Bombings
Convention should be used instead. A proposal was also made to combine paragraph
1 of article 17 of the 1980 Physical Protection Convention with article 20 of the
1997 Terrorist Bombings Convention.
54. A proposal was made to confine the object of declaration under
paragraph 2 to compulsory arbitration set forth in paragraph 1 (see
A/AC.252/1998/WP.31). A proposal was also made that article 14 should provide for
more flexibility in the peaceful settlement of disputes along the lines described
in Article 33 of the Charter of the United Nations.
55. A proposal was made to retain all the means of peaceful settlement
of disputes stipulated in the Charter and that there should be no obligatory
referral to the International Court of Justice (see A/AC.252/1998/WP.27).
Articles 5, 8, paragraphs 2, 11, 12, 13, 15 and 16 of the 1997
International Convention for the Suppression of Terrorist Bombings
Provisions in the 1997 International Convention for the Suppression of
Terrorist Bombings with no direct equivalent in document A/AC.252/L.3
56. The Working Group discussed the possible incorporation of certain
provisions of the 1997 Terrorist Bombings Convention that had no direct
equivalent in the working document.
57. Support was expressed for the inclusion of article 5, and was
pointed out that that provision formed part of a package together with articles
11 and 12 (see para. 3 below). Opposition, however, was voiced to its inclusion.
It was also proposed to amend the article by deleting the phrase "in particular
... nature and". This proposal was also objected to. The suggestion was made to
replace the phrase "by consideration ... other similar nature" with "regardless
of where, by whom and for what purposes they are committed" (see
A/AC.252/1998/WP.39).
58. With respect to article 8, paragraph 2, the proposal was made to
insert an additional paragraph modelled on it (see A/AC.252/1998/WP.34 and
WP.35).
59. Concerning article 11, some delegations supported its inclusion
(see A/AC.252/1998/WP.34). Other delegations conditioned such inclusion on the
incorporation also of article 12 of the 1997 Terrorist Bombings Convention. It
was also stated that the inclusion of article 11 was dependent on the insertion
of article 5 as well as of article 12 of that Convention. On the other hand,
there were delegations that considered any decision on the matter to be premature
pending a decision on the definition of the offences to which the document would
apply.
60. There was support for including article 12 of the Convention. The
view was expressed, however, that the application of the article should be
limited to cases of extradition. It was also suggested to insert at the beginning
of the article the phrase "without prejudice to article 7, paragraph 1" (see
A/AC.252/1998/WP.37). On the other hand, reservations were voiced regarding the
inclusion of article 12. It was argued that if this article was retained, the
reference therein to "mutual legal assistance" should be deleted.
61. Support was expressed for the inclusion of article 13 (see
A/AC.249/1998/WP.34).
62. With respect to article 15, the view was expressed that any
decision on its inclusion was premature absent an agreement on definitions. There
was also the view that subparagraphs (a) and (b) of the article should be
included in the working document in lieu of its articles 4 and 11.
63. There was support for including article 16. Some delegations were
of the view that the International Atomic Energy Agency (IAEA) should serve as
a conduit for the communication of information under the article, either in
addition to, or instead of, the Secretary-General of the United Nations.
Articles 15 to 20
64. The Russian Federation noted that the final clauses of the draft
had been based on those found in the 1980 Physical Protection Convention, but
that there were several blank spaces that would have to be filled. The draft's
final clauses differed from those in the 1997 International Convention for the
Suppression of Terrorist Bombings, in that the former allowed for the
participation of international organizations (article 15, para. 4), had a
specific procedure for amending the convention (article 17) and referred to the
functions of the depositary (article 19).
65. Concerning article 15, the point was made that a final date should
be set for signing the convention. In that regard, it was suggested that the
article should follow the wording of article 21 of the Terrorist Bombings
Convention. It was also suggested that article 15 be replaced with article 21 of
the Terrorist Bombings Convention in its entirety.
66. As regards article 15, paragraph 3, the view was expressed that
accession to the convention should not be conditional upon its entry into force
and could therefore follow the wording of article 21 of the International
Convention for the Suppression of Terrorist Bombings.
67. With respect to article 15, paragraph 4, doubts were expressed
about having international organizations as parties to the convention. The
International Atomic Energy Agency (IAEA) noted in this regard that the Agency
was not a party to any convention.
68. As regards article 16, it was pointed out that the reference to
the instrument of "accession" should be incorporated into both paragraphs 1 and
2. There were divergent views regarding the number of ratifications required for
the entry into force of the convention.
69. Concerning article 17, it was noted that there was a need for
greater precision as to the kind of majority that would be required to convene
a review conference of the convention.
70. As regards article 18, it was suggested that the wording of
article 23, paragraph 2, of the Terrorist Bombings Convention be used, so that
the denunciation would take effect one year after the respective notification.
71. A proposal was made to delete article 19. A proposal was also made
to delete article 19, paragraph (d).
72. Concerning the blank spaces in the first part of article 20, it
was suggested to include "six working languages of the United Nations" and
"Secretary-General of the United Nations". IAEA stated that it was ready to
fulfil its role as depositary should that be the will of the Ad Hoc Committee.
Statement by the International Committee of the Red Cross
73. The representative of the International Committee of the Red Cross
(ICRC) made a statement to the working group in which he touched on the proposals
to incorporate provisions modelled on the first part of article 19, paragraph 2,
of the International Convention for the Suppression of Terrorist Bombings and on
article 7, paragraph 5, of that Convention. With regard to the latter proposal
(see A/AC.252/1998/WP.28), he emphasized that ICRC, while welcoming the
incorporation of a provision of the type proposed, would only make the visits it
contemplated under certain conditions. Specifically, it should be understood that
ICRC was free to accept or to refuse an invitation to make such a visit and that
it would in principle agree to make a visit only if the detainee was not able to
be visited by representatives of her or his State. Before it made a visit, ICRC
would also need the agreement both of the detaining State and of the detainee.
In making any visit, ICRC would not be acting on behalf of the State that
requested that it make the visit, but independently and as a neutral
intermediary. It would conduct visits in accordance with its standard criteria.
In particular, it would expect to be allowed to interview detainees in private,
without witnesses. It must also be able to repeat any visit.
Future work
74. It was pointed out that further analysis was required as regards
the impact which the creation of a new convention would have on existing
international instruments, particularly the Convention on the Physical Protection
of Nuclear Material of 1980, the International Convention for the Suppression of
Terrorist Bombings of 1997 and the Nuclear Non-Proliferation Treaty. The new
regime should not, it was said, affect existing obligations under the Charter of
the United Nations or international humanitarian law.
75. A suggestion was made that, without prejudice to the positions of
respective delegations on the proposed convention, the Committee request the
Bureau to prepare a draft revised text of the convention based on the work
carried out during the session, taking into account, in particular, the
discussion on the relevant provisions of the 1980 Convention on the Physical
Protection of Nuclear Material and the 1997 International Convention for the
Suppression of Terrorist Bombings.
76. Some delegations expressed preference for an expansion of the
scope of the existing conventions, both in substantive and geographic terms, with
emphasis on preventive and protective aspects. It was suggested that, if the
Committee were to agree on the need for a new convention, the provisions of the
existing draft would have to be strengthened to provide for better physical
protection measures.