POWER QUALITY PROBLEMS

the CPPNM and its Amendment, as well as ICSANT⁴. Other paragraphs on criminalization of certain offenses are linked to the criminalization provisions of the CPPNM and its Amendment and ICSANT⁵. The same goes for recommendations related to recovery and control of materials, which relate to the provisions of the CPPNM and its Amendment and ICSANT on, inter alia, rendering material, devices and facilities harmless, as well as having regard to physical protection recommendations⁶. The guidance describing requesting and providing assistance, both as part of a national response plan and with respect to legal proceedings (mutual legal assistance) is contained in NSS No. 15, which relates again to relevant provisions of the CPPNM and its Amendment and ICSANT⁷.

8.3.THE ROLE OF NON-BINDING INSTRUMENTS IN THE LEGAL FRAMEWORK

The Amendment to the CPPNM, which entered into force in 2016, extends the scope of the original treaty to cover physical protection of nuclear facilities and nuclear material used for peaceful purposes in domestic use, storage and transport [7]. It also criminalizes additional offences related to illicit trafficking and sabotage of nuclear material or nuclear facilities, as well as ancillary offences related to organization or direction of others to commit a listed offence, and it provides for strengthened international cooperation in light of the expanded scope, such as assistance and information sharing in the event of sabotage.

The CPPNM and its Amendment also contain provisions for considering application of the treaty in light of changing circumstances, as well as for treaty modification. Article 16 of the CPPNM and of the CPPNM as amended requires the convening of a conference of States Parties to review the Convention’s implementation “and its adequacy as concerns the preamble, the whole of the operative part and the annexes in the light of the then prevailing situation” five years after entry into force of the CPPNM and of the Amendment, respectively. Consideration of implementation of the Convention in light of the prevailing situation could, for example, lead to agreement among the Parties with respect to interpretation of the Convention taking account of technological changes or changes in physical protection approaches. In considering the adequacy of the Convention in light of the prevailing situation, Parties could, for instance, decide that the Convention is no longer adequate and consider modification through the amendment process, as foreseen in Article 20. That said, the review mechanism under the Convention requires the convening of a single conference under the original Convention and a single conference under the CPPNM as amended, though a majority of Parties may request the convening of further such conferences at intervals of not less than five years. A single conference under the original CPPNM was convened in 1992 with no requests for further such conferences, and a conference under the CPPNM as amended is set to be convened in 2021, five years after entry into force of the Amendment. The Amendment process pursuant to Article 20 of the CPPNM has been invoked, which led to the 2005 Amendment expanding the scope of the Convention in terms of physical protection, criminalization of certain offenses and international cooperation. It took 11 years from the adoption of the Amendment in 2005 to its entry into force in 2016. In other words, while consideration of treaty implementation in light of changing circumstances and the possibility of treaty modification via amendment are covered in the CPPNM and its Amendment, these provisions are not regularly invoked, and the threshold, for instance, for treaty amendment is indeed high, requiring ratification, acceptance or approval of two-thirds of Parties for entry into force.

Not being subject to procedures for ratification, acceptance or approval or to entry into force requirements, non-binding instruments can more readily be updated to reflect technological advances, changing best practices and security approaches and other prevailing circumstances, with INFCIRC/225 for instance having been revised five times since its first publication in 1975. The non-binding instruments can also provide additional detail on measures to help implement obligations under legally binding instruments to which they are Party, namely when particular measures are not specified in the legally binding instrument. One of the roles of the non-binding instruments in the area of nuclear security, therefore, is to support implementation of the related legally binding instruments. Reflecting the role of providing updated, contemporary guidance that helps support implementation of binding instruments, the non-binding instruments are sometimes referred to into legally non-binding instruments. Non-non-binding instruments can also inform the development of the binding instruments, with provisions of the Amendment to the CPPNM (e.g. Article 2A) for example being derived from the non-binding recommendations on the physical protection of nuclear material and nuclear facilities (INFCIRC/225), as discussed in the following section. A further role of non-binding instruments is providing detailed guidance on a range of topics related to nuclear security, such

as computer security and nuclear security culture, to support the establishment, implementation and maintenance of a national nuclear security regime. States are not legally obligated to act in accordance with these non-binding instruments but, as mentioned above, may apply them as appropriate in their domestic systems.

With respect to radioactive sources, the Code of Conduct is a different type of instrument than the instruments that make up the Nuclear Security Series. International codes of conduct are a common type of regulatory instrument used in relation to a range of issues from corporate responsibility of transnational corporations (e.g. OECD Guidelines for Multilateral Enterprises) to the environment (Code of Conduct for Responsible Fisheries) to food and health (International Code of Conduct on the Distribution and Use of Pesticides). Under the IAEA’s auspices, there is a Code of Conduct on the Safety of Research Reactors, adopted by the Board of Governors in March 2004 and endorsed by the General Conference at its 48th regular session.

The Code of Conduct on the Safety of Research Reactors provides guidance on the development and harmonization of laws, regulations and policies on the safety of research reactors. In addition, in 1990, the General Conference adopted a Code of Practice on International Transboundary Movement of Radioactive Waste, which was largely incorporated into the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (see Article 27). Although the Code of Conduct on the Safety and Security of Radioactive Sources is not legally binding, a process is foreseen by which States express political commitment. States are urged to write to the Director General of the IAEA indicating support and endorsement of the Agency’s efforts in the area of radioactive source security and safety, and indicating that they are working toward following the guidance set forth in the Code of Conduct [8]. The Director General has been requested to compile, maintain and publish a list of those states having made such a political commitment.

ICSANT covers all radioactive material including nuclear material, and it does not only apply to material and facilities used for peaceful purposes [9]. It requires Parties to criminalize the unlawful and intentional possession and use of radioactive material or radioactive device and the unlawful use or damage of nuclear facilities. ICSANT also contains an obligation for Parties to “make every effort” to adopt appropriate measures for ensuring the physical protection of radioactive material, as defined under the Convention, taking into account the guidance and functions of the IAEA. Unlike the CPPNM, ICSANT does not, however, establish any specific obligations on adopting necessary legislative and regulatory measures to ensure the physical protection of materials and facilities. Pursuant to the Code of Conduct, on the other hand, States should inter alia have in place effective national legislation and regulations containing security measures to deter, detect and delay the unauthorized access to, or the theft, loss or unauthorized use or removal of radioactive sources during all stages of management, as well to reduce the likelihood of malicious acts, including sabotage, consistent with the threat defined by the State.

For the States that have indicated that they are working toward following the guidance set forth in the Code of Conduct, this is the only such (political) commitment with respect to specific measures aimed at security of radioactive sources. It should be mentioned, the material covered under the Code of Conduct is narrower than the material covered under ICSANT. A radioactive source under the Code of Conduct refers to radioactive material that is permanently sealed in a capsule or closely bonded, in a solid form and which is not exempt from regulatory control.

The Code of Conduct does not apply to nuclear material as defined in the CPPNM, except for sources incorporating plutonium-239.