AD HOC COMMITTEE BEGINS CONSIDERING DRAFT CONVENTION TO SUPPRESS NUCLEAR TERRORISM ACTS

17 February 1998
L/2854

AD HOC COMMITTEE BEGINS CONSIDERING DRAFT CONVENTION TO SUPPRESS NUCLEAR TERRORISM ACTS

17 February 1998

Press ReleaseL/2854

AD HOC COMMITTEE BEGINS CONSIDERING DRAFT CONVENTION TO SUPPRESS NUCLEAR TERRORISM ACTS

19980217 Russian Federation, Introducing Text, Says Convention Fills Gaps In Existing Instruments; Some Emphasize Need to Avoid Duplication

The international community must establish effective measures to counter acts of nuclear terrorism which could threaten global peace and security and cause irreparable damage to the environment, the representative of the Russian Federation said this morning. He was addressing the second session of the Ad Hoc Committee established by General Assembly resolution 51/210, of 17 December 1996, to elaborate conventions on terrorist bombings and on acts of nuclear terrorism.

Introducing a 20-article draft convention on the suppression of acts of nuclear terrorism, he said the convention was not an end in itself but an important means to fill the substantial gaps in existing legal instruments. It would apply to threats to use nuclear components by individuals or organizations, regardless of the object being attacked. Earlier conventions extended only to nuclear material being transported internationally, or being used, stored or transported in a given State.

Several speakers said article 1 of the draft convention, which defined acts of nuclear terrorism, was both too wide and too narrow in scope. The definitions should be brought into line with the language used in established international instruments and extend to include other radioactive substances.

The draft convention's relationship with existing legal instruments must also be examined, other representatives said. In particular, delegations cited three treaties that covered similar subjects -- the 1980 Convention on the Physical Protection of Nuclear Material; the 1997 International Convention for the Suppression of Terrorist Bombings; and the Comprehensive Nuclear-Test- Ban Treaty (CTBT) of 1996.

A number of speakers said the Ad Hoc Committee should consider the legal and political feasibility of drafting a new legal instrument if any serious gaps were found between the draft convention and existing international agreements. Even if the 1980 Convention was limited, it was preferable to strengthen it by enlarging the number of States parties and strengthening its

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field of application from within. Any existing gaps could be addressed by a protocol to the 1980 Convention.

In assisting the Ad Hoc Committee in its deliberations on the elaboration of the draft convention, the Legal Adviser of the International Atomic Energy Agency (IAEA), Larry Johnson, focused on three aspects of the text -- the definitions, possible treaty overlap between the draft and the 1980 Convention, and physical protection and exchange of information. He said effective physical protection systems were required to protect nuclear material and facilities for non-proliferation and radiation safety purposes.

At its first session last year, the Ad Hoc Committee elaborated a draft Convention for the Suppression of Terrorist Bombings, which was adopted by the General Assembly in December 1997. The, Convention which is open for signature until 31 December 1999, will enter into force 30 days after the date of the deposit of the twenty-second instrument of ratification.

Opening the Committee meeting this morning, the United Nations Legal Counsel, Hans Corell, said the Convention had already received 14 signatories.

Statements were also made by France, India, Germany, Japan, Netherlands, Belarus, United Kingdom, Brazil, Finland, Lebanon, Belgium, South Africa, Syria, Austria, Australia, Egypt, Algeria, Republic of Korea, Pakistan and Portugal.

At the outset of the meeting, the Committee adopted its agenda and decided that its Bureau for the second session be constituted as follows: Philip Kirsch (Canada), Chairman; Hussein Mubarak (Egypt), Carlos Fernando Diaz (Costa Rica) and Rohan Perera (Sri Lanka), Vice-Chairmen; and Martin Smeijkal (Czeck Republic).

The Ad Hoc Committee will meet again at 10 a.m. on Wednesday, 18 February, to consider its programme of work.

Committee Work Programme

The Ad Hoc Committee set up by the General Assembly to elaborate conventions on the suppression of terrorist bombings and on acts of nuclear terrorism met this morning to begin its second session.

Established by resolution 51/210, of December 1996, the Committee -- which is open to all Member States of the United Nations, members of the specialized agencies or of the International Atomic Energy Agency (IAEA) -- is also mandated to address means of further developing a comprehensive legal framework of conventions dealing with international terrorism.

At its second session, the Committee has before it a 20-article draft convention on the suppression of acts of nuclear terrorism (document A/AC.253/L.3), submitted by the Russian Federation and an explanatory note to the draft convention submitted by the same delegation (document A/AC.252/L.3/Add.1). (For background on the session, see Press Release L/2853, of 13 February).

Statements

HANS CORELL, Under-Secretary-General for Legal Affairs and United Nations Legal Counsel, in his opening statement, said that the Committee, having successfully concluded the elaboration of the International Convention for the Suppression of Terrorist Bombings, would take on the task of elaborating an international convention for the suppression of nuclear terrorism pursuant to General Assembly resolution 52/165. The International Convention had already received 14 signatories since 12 January, when it was opened for signature.

He said that while the current session would end on 27 February, the Committee's work would continue during the Assembly's fifty-third session, from 28 September to 9 October, within the framework of a working group of the Sixth Committee (Legal).

ALEXANDRE ZMEEVSKI (Russian Federation), introducing the draft convention, said the international community could not exclude the possibility that some nuclear components would escape the control of competent State bodies. It was important to anticipate terrorist actions, to foresee potential threats and to work out effective countermeasures. Terrorist actions using nuclear material could lead to irreparable damage to the environment and threaten international peace and security.

A convention was not an end in itself; it was an important means to fill the substantial gaps in combating terrorism, he said. While the draft text had points of contact with other conventions, particularly the 1980 Convention on the Physical Protection of Nuclear Material, existing international

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agreements were not sufficiently capable to counter various forms of nuclear terrorism. The draft was presented prior to the elaboration of the convention on the suppression of terrorist bombings, and therefore his delegation was ready to consider any proposals by other States designed to clarify and strengthen its provisions.

Regarding the scope of application, he said the draft convention would be applicable to threats related to the use of any nuclear component by non- State structures, regardless of the object being attacked. The 1980 Convention was not applicable to nuclear material or military objects and extended only to nuclear material being transported internationally, or being used, stored or transported in a given State.

The draft text encompasses the broadest possible definition of terrorist acts related to the use, or threat of use, of nuclear components, he said. The purpose of a criminal attack was the primary concern of the draft, which referred to all actions without exception, including stealing, robbery, the demand to turn over nuclear material by threat, and intimidation. Depending on the circumstances of a criminal attack, it might fall only under the scope of the draft convention or the 1980 Convention, or it might fall under both. The International Convention on the Suppression of Terrorist Bombings could also be applied. However, by its nature and goals that Convention could not, or should not, fully deal with special agreements or treaties in the area of nuclear terrorism.

The draft convention also contains a clear statement on issues related to the post-crisis settlement of nuclear terrorism, he said. Nuclear components should be returned to the State which owned them or to that State where they originated.

During its discussions, the Committee should address the role of the IAEA, which had a great deal of experience in coordinating activities in the protection of nuclear material, he said. The IAEA had a broad database regarding the illegal use of nuclear material, and drawing upon its potential would help the elaboration of a convention on nuclear terrorism.

FRANCOIS ALABRUNE (France) said the draft convention introduced by the Russian Federation aimed to respond to a real threat. Even if nuclear terrorism did not appear to be a major threat at the current time, the extreme gravity of the consequences for health and the repercussions of nuclear terrorism rightly compelled the international community to draft a legal instrument to deal with it. The proposed convention would usefully supplement existing legal instruments and a body of law intended to combat international terrorism would gradually be built up to cover those crimes. The draft convention fitted in with the logic and continuity of the various Declarations on terrorism and resolution 51/210 adopted in 1996 which set up the Ad Hoc Committee. Pursuant to that resolution, the Ad Hoc Committee had successfully

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elaborated the International Convention on the Suppression of Terrorist Bombings which France had signed. Hopefully, other Member States would do so as soon as possible.

He said for the draft convention to be really useful, there were two requirements -- namely, criminalization and the need for a specific definition. France would introduce into the text of the draft convention the idea of "internationality". Complicity, and membership of a group conspiring to commit such acts would also have to be taken into account. The idea of "threat" should be taken into account at the early stages.

The scope of the draft convention must be delineated precisely, and its technical aspects must be checked for compatibility with other conventions, he said. The Ad Hoc Committee would also have to look carefully at those aspects of the draft which extended the scope of the 1980 Convention. The idea of "armed forces" was an important element that would have to be considered. He hoped the Ad Hoc Committee would move forward as quickly as possible in determining its working methods.

SANKURATHRIPATI RAMA RAO (India) welcomed all efforts to eliminate and counter terrorism. Existing conventions and legal instruments were not comprehensive enough to counter terrorism, which had established a global network. India also welcomed the introduction of the draft convention by the Russian Federation and supported the initiative for any legal instrument to counter any manifestation of terrorism. He expressed the hope that the Committee would have constructive and realistic discussions of the draft convention.

The elaboration of a convention on suppressing acts of nuclear terrorism was only a mid-step in the direction outlined in Assembly resolution 51/210, he continued. It was also necessary to elaborate a comprehensive convention on international terrorism.

GERHARD WALTER HENZE (Germany) said radioactive material could be misused in a variety of ways to harm large populations, and the 1980 Convention did not cover all the methods of misuse by terrorists. The draft text of the Russian Federation had been drafted before the 1997 International Convention for the Suppression of Terrorist Bombings and, therefore, it could not take into account several of its provisions, including those on jurisdiction, extradition and legal assistance. The Committee's aim should be to incorporate those aspects in the draft convention as much as possible because it had already been approved by consensus.

Article 1 of the draft text was both too wide and too narrow in scope, he said. Its provisions would penalize some legal activities. The definitions needed to be brought into line with the language used in established international instruments. Germany would like to propose a new

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text for the article containing the description of offences, thereby replacing the language in article 1, paragraph 1. The draft should also extend the scope of the offence to include the application of nuclear material based on practical cases that have occurred in Europe and to other radioactive substances. In addition, it should include cases where terrorist conduct was likely to cause serious damage to the environment, as well as outlaw the threat to use nuclear or other hazardous material to cause death, serious injury or property damage.

MOTOHIDE YOSHIKAWA (Japan) said that his Government was very concerned with the issue and the prevention of terrorism; it had dealt with it forcefully. The draft convention before the Ad Hoc Committee recognized the need for the international community to deal with nuclear terrorism. However, two issues had to be fully considered before substantive article-by-article discussions of the draft. First, the draft convention's relationship with existing legal instruments should be taken into account. Three treaties had a close relationship with it: the 1980 Convention on the Physical Protection of Nuclear Material; the 1997 International Convention on the Suppression of Terrorist Bombings; and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) of 1996. Duplication of coverage and definition need attention, as terms should be consistent.

Secondly, he said, the Ad Hoc Committee should consider the appropriate forum for discussion of the draft convention. The IAEA had the competence in the field of nuclear material. As mentioned by other delegations, the duplication on the 1980 Convention had to be closely examined. To establish another regime might create some problems. Article 16 of that Convention envisaged review conferences to deal with its application. He would welcome the views of the representative of the IAEA on the draft convention.

KARL DE VEY MESTDAGH (Netherlands) said his Government welcomed the attention given by the Ad Hoc Committee and the IAEA to the threat of the theft and use of nuclear material for terrorist purposes. The draft convention leaned heavily on the 1980 Convention. Although it took that treaty as only a starting point, the draft was also based on the assumption that the 1980 Convention was deficient because it aimed only at the protection of nuclear material used for peaceful purposes while in international transport. The first task of the Ad Hoc Committee was to detect any gaps in international instruments on the suppression of nuclear terrorism. Subsequently, the Ad Hoc Committee should consider not only the legal, but also the political feasibility, of drafting a new legal instrument if and when any serious lacuna had been found.

He said that exercise might not be detrimental to the IAEA's ongoing work and should certainly not affect the scope and application of the 1980 Convention. Even if that Convention was limited in some respect, his Government's policy was to strengthen it by enlarging the number of States

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parties and strengthening its field of application from within. A new international convention that had quite some overlap with the 1980 Convention would endanger that policy. While the 1980 Convention did not have regard to nuclear material for military purposes, it did have a strong and most explicit reference to the necessity, or even the obligation, to protect that material. It also obliged parties to cooperate on the recovery and protection of stolen nuclear material; to make as criminal offences specific acts to misuse or threats to misuse nuclear material to harm the public; and to extradite or prosecute those accused of committing such acts.

The IAEA had adopted and regularly updated recommendations on physical protection measures which were intended for all nuclear facilities and shipments, he continued. The reason that nuclear material for military purposes was excluded from the 1980 Convention was clear. Such an initiative, which would have many political pitfalls, should first of all be considered within the framework of the IAEA. Should the Ad Hoc Committee decide that there were gaps in current legal instruments that needed to be filled through the development of a new international law, the Netherlands would prefer a protocol to the 1980 Convention. Also the question should be seriously considered whether or not any new considerations should be conducted in Vienna, instead of in New York.

SYARGEI SYARGEEU (Belarus) said the draft convention constituted a response by the international community to a genuine threat which might have disastrous consequences. The text also fit into the logical scheme for the drafting of international legal documents on terrorism, in accordance with the relevant General Assembly resolutions. Belarus supported the concept of the acceptability and the reasonable use provisions contained in the 1997 International Convention for the Suppression of Terrorist Bombings. The draft convention also contained an important section on the settlement of such incidents.

In addition, he said, it was important to note that the draft's purpose was to bring about effective countermeasures and to anticipate terrorist actions. After the general exchange of views, the Committee should engage in an article-by-article discussion of the draft convention in the framework of a working group, with the participation of the IAEA.

HUW LLEWELLYN (United Kingdom) said his Government strongly supported in principle new international instruments or measures that helped to counter terrorism. While there might be a case to extend the existing international framework to cover a broader range of nuclear material, the United Kingdom had a number of concerns about the content of the draft convention.

He said the draft encompassed provisions to counter terrorism and for the physical protection of nuclear material. However, a Convention on the suppression of acts of nuclear terrorism should only deal with measures to

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counter terrorism. Therefore, paragraph 1 of article 1 should be refined, as it currently would prohibit lawful uses of nuclear materials. The draft provisions regarding offences also overlap with the 1980 Convention, and his Government was concerned about parallel instruments covering same ground. In addition, the draft must address actions by individuals and not by States. Large portions of draft also could be brought into line with the 1997 Convention on terrorist bombings.

ANTONIO DE AGUIAR PATRIOTA (Brazil) said while his Government appreciated any effort to combat terrorism, it did have some concerns and some doubts as to the absolute necessity or justification of the exercise of drafting a convention on the suppression of acts of nuclear terrorism. While Brazil was prepared to work in a constructive spirit and reach agreement, the draft convention should be carefully examined, particularly in the context of the 1980 Convention and the Convention on terrorist bombings. Brazil was also interested in slightly expanding the scope of the draft convention to stress counter-terrorism and punishment. Special attention should also be given to articles 2 and 14, as well as to anticipate the need to look carefully at the problems of State terrorism.

MARJA-LIISA LEHTO (Finland) said her Government shared the concern of Member States over the nuclear terrorism and the concern was certainly legitimate. The legal framework dealing with the issue was already extensive, particularly with the 1980 Convention, regarding criminalization. The main difference between the draft convention and the 1980 treaty was with their scope. The 1980 Convention mainly dealt with peaceful uses, whereas the new draft dealt with nuclear material for military purposes. There was also some overlap with the International Convention for the Suppression of Terrorist Bombings. The Ad Hoc Committee could consider several possible ways to deal with the overlap. Finland had considered carefully the proposals made so far. It wished to highlight the need to avoid creating parallel and mutually incompatible regimes.

She said there was no indication in article 1, subparagraph 1(a) that the use in question should be unlawful and for the purposes of causing death, serious injury, or substantial damage to property. In the absence of such an indication, the subparagraph seemed to criminalize all uses of nuclear or radioactive materials and that was too wide in scope. She noted that the IAEA had extensive expertise and could be a useful focal point for the implementation of many of the provisions of the draft convention.

HICHAM HAMDAN (Lebanon) said that his Government endorsed some of the concerns of other delegations, particularly Germany, on issues relating to environmental protection. The draft convention dealt with issues relating to the transfer of radiation materials. He did not agree with delegations who spoke of a limited number of international conventions relating to the current draft. A large number of conventions should be kept in mind when considering

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issues concerning the environment. He noted that the draft convention only aimed at dealing with terrorism by individuals. It could also consider the possibility of dealing with State terrorism.

EVERT MARECHAL (Belgium) said the threat of nuclear terrorism was serious and genuine, and the international community should lay the basis for combating and suppressing that threat. As several representative had stated before, there were other treaties in the area of combating terrorism and regarding nuclear materials. In order to come up with an effective new convention, the Committee should ensure that it fit in with those other existing international instruments so as to avoid overlaps.

Belgium supported the statements made by Germany and France which emphasized the need to clarify the draft convention's definition of nuclear terrorism and the scope of its applications. It was also important to have in the definition of the precise crimes an indication that they were intentional acts. In addition, the draft convention should not modify provisions of current international humanitarian law.

CRAIG JOHN DANIELL (South Africa) said the draft convention should emphasize counter-terrorism measures. The draft text's article 1.1 was problematic, and there was need for a separate section covering the definition of acts of nuclear terrorism. In addition, the recently concluded Convention on terrorist bombings could be extremely useful in the Committee's consideration of other articles of the draft convention.

GHASSAN OBEID (Syria) said the text should be strengthened by applying sections of other international Conventions, including the 1997 Convention on terrorist bombings. The responsibility for nuclear radioactive material was, first and foremost, the responsibility of the State owning that material. It was important to strengthen the protection of such materials and to prevent the use of nuclear materials for terrorist purposes. If the Committee was going to elaborate a convention to address terrorism in all its forms, perhaps it would be best to draft an amendment to the 1980 Convention in the form of a protocol.

The section of the draft convention covering the settlement of conflicts was very limited, he said. In addition, Syria was concerned that the draft only addressed terrorism by individuals. The Committee must keep in mind that terrorism could also involve terrorist acts by States, especially in the case of nuclear terrorism. It was usually impossible for the average individual to use nuclear weapons without the support of States.

GEORGE STILLFRIED (Austria) said he agreed with those delegations which had spoken on the importance of considering any gaps between the draft convention and existing treaties. Any overlaps should be avoided. The Ad Hoc Committee should then discuss whether the IAEA was the appropriate forum for

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further consideration, given its expertise and experience on the matter. More thought should be given to the concept of criminalization contained in the draft and to elements of the 1997 International Convention for the Suppression of Terrorist Bombings.

KEITH HOLLAND (Australia) said his country was party to the relevant treaties on terrorism. As host of the Olympic Games in 2000, his Government also had a heightened interest in ensuring that an adequate international law was in place to deal with terrorism. He shared the concern that some matters raised in the current draft that were covered by other conventions might create confusion and overlap. However, there had to be a balanced way of dealing with treaty overlap. The delegation of the Netherlands has made a sensible suggestion to consider the gaps and how they could be dealt with.

HUSSEIN MUBARAK (Egypt) said the new draft convention was a "step in the right direction" in dealing with the matter of nuclear terrorism. The representative of the IAEA would be able to assist the Ad Hoc Committee to bridge the borders between the work of the IAEA and that of the United Nations. The note by the Russian Federation had attempted to carve out the parameters of the draft and the difference with other relevant conventions, particularly the 1980 Convention.

He said Egypt supported statements by other delegations on the importance of spelling out the terms of the scope of application as defined in article 1 of the draft convention. As yet, there had been no agreement on the option of whether the draft should be considered further by the Ad Hoc Committee or by the IAEA. The draft should be examined in conjunction with other conventions dealing with the environment, those dealing with the dumping of nuclear waste and the 1997 International Convention for the Suppression of Terrorist Bombings.

AHCENE KERMA (Algeria) said his Government supported the adoption of a convention on the suppression of nuclear terrorism. That convention would supplement the existing legal framework and demonstrate the concern of the United Nations in combating terrorism. In addition, another convention, which took into account all aspects of terrorism, should be elaborated soon.

In discussing the draft convention submitted by the Russian Federation, the Committee needed to consider certain elements of earlier conventions, particularly the 1997 Convention on terrorist bombings. Algeria appreciated the presence of IAEA experts and would make comments on specific provisions of the draft convention when discussions continued in the framework of a working group.

KAK SOO SHIN (Republic of Korea) said his Government strongly condemned all forms of international terrorism and had actively participated in efforts to combat that scourge. It also welcomed the draft convention submitted by

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the Russian Federation to fill the lacunae existing in the international legal system to combat international terrorism.

The language of the draft convention overlapped with that of existing legal instruments that dealt with nuclear terrorism, particularly the 1980 Convention and 1997 Convention on terrorist bombings. The Committee should concentrate on avoiding such duplication. Efforts should be focused on provisions regarding anti-terrorist measures rather than those on the physical protection of nuclear material. Before embarking on an article-by- article deliberation of the draft convention, the Committee should identify the lacunae that existed in the international legal instruments and then consider how to complement them. Article 1 should be thoroughly discussed before the Committee took up the other articles of the convention.

MUHAMAD NAJM AKBAR (Pakistan) said no discussion of terrorist activities would be complete without a consensus effort to reach a definition of terrorism and address its underlying causes. Moving towards that goal, the Committee had been addressing several aspects of terrorism, and Pakistan appreciated efforts made by the Russian Federation. His delegation looked forward to contributing to the discussion and would make its remarks on the different provisions of the draft convention in the framework of a working group.

PAUL ESCARAMEIA (Portugal) said that after the exchange of views by delegations, the Committee should proceed to identifying the lacunae that might exist among existing Conventions. The Committee should examine every article and determine when and where language from existing conventions could be used. More attention should be paid to provisions regarding counter- terrorism rather than those on the protection of nuclear material.

LARRY JOHNSON, IAEA Legal Adviser, said the Agency welcomed all efforts aimed at thwarting attempts by terrorists to use nuclear technology as a means to achieving their unlawful ends. It also welcomed efforts to achieve greater levels of safety for the protection of health and minimization of danger to life and property posed by the possible unlawful use of ionizing radiation by terrorists. In assisting the Ad Hoc Committee in its deliberations on the elaboration of the draft convention, the IAEA had focused on three aspects of the text: the definitions; possible treaty overlap between the draft and the 1980 Convention on the Physical Protection of Nuclear Material; and physical protection and exchange of information.

He then went on to comment in detail on the definitions contained in the draft convention. The definitions of "nuclear material" found in the 1980 Convention should serve the purposes of the draft convention, he said. The intention was to cover the particular materials which require physical protection because of the dangers posed should they fall into the wrong hands or be accessible for unauthorized use. The definition of nuclear fuel should

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follow that found in the 1963 Vienna Convention on Civil Liability for Nuclear Damage.

A new definition combining elements of the draft convention's "radioactive products" and "radioactive waste" could provide a comprehensive definition without the need to enter into the technical aspects of spent fuel and radioactive wastes, while including both of those materials in the definition. The term "radioactive substances" was not defined for use by the Agency, although the term "material" was used in many of its publications. The definition contained in a Draft Safety Guide on "Preventing, Detecting and Responding to Illicit Trafficking in Radioactive Materials" was more relevant.

On the issue of possible treaty overlap, he said States parties of the 1980 Convention and States drafting the draft convention should bear in mind the complications arising from overlapping treaty regimes. The relationship between the draft convention and the 1980 Convention should be examined, particularly as far as criminalizing certain acts are concerned. The unlawful acts committed in respect of all materials or items covered by the draft convention included unlawful acts committed in respect of nuclear material in peaceful uses -- covered in the 1980 Convention. The overlap existing between the two texts as regards the crimes covered, coupled with differing jurisdictional provisions, could complicate their implementation, particularly if it would lead to a result where a party to both instruments could choose which instrument applied in a given case.

He said the IAEA believed it would be constructive to supplement the international regime of standards to ensure adequate and effective control of nuclear and other radioactive material with a convention that would extend the coverage to the broadest possible range of radioactive material, as well as nuclear facilities, explosive and other devices. Measures were also needed to prevent unauthorized access to such material, to protect facilities from intrusion and to develop more effective controls against illicit trafficking. It was desirable to maintain coherence and consistency in applying all related international legal instruments in the nuclear field.

Finally, he said, the international community had a legitimate interest in States fulfilling their physical protection responsibilities. Effective physical protection systems were required to protect nuclear facilities and material both for non-proliferation and safety purposes.

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For information media. Not an official record.