By Sam Kane and Kingston Reif
What Are These Conventions?
-CPPNM was opened for signatures in 1980, and entered into force in 1987. The original convention required signatory states to maintain adequate physical protection of nuclear materials in international transport.
- The 2005 amendment to CPPNM extended these physical protection standards to nuclear facilities and materials in the domestic setting.
-ICSANT was opened for signatures in 2005, and entered into force in 2007. It establishes an international framework to combat nuclear terrorism and prevent the proliferation of weapons of mass destruction, including measures that will strengthen cooperation between states in the field of nuclear security, criminalize the planning and performing of nuclear terrorism, and provide a formal definition for nuclear terrorism.
Why is US Ratification of These Conventions Important?
-The risk from nuclear terrorism has been acknowledged as a significant threat in the post-9/11 era by President George W. Bush and President Barack Obama alike. It was the George W. Bush administration that called for the negotiation of the conventions in the wake of 9/11 to close some of the remaining loopholes in the international system of material protection.
-Ratification of the CPPNM Amendment and ICSANT would expand and strengthen global efforts to prevent and combat nuclear terrorism.
- These conventions strengthen the legal tools needed to prevent acts of nuclear terrorism, and ensure that states treat nuclear security as an international obligation.
- While the United States already has strong measures to prevent and prosecute nuclear terrorism, the treaties would help ensure other countries do as well, which helps prevent terrorists from getting materials or expertise that could threaten Americans.
- The treaties complement other tools in the anti-nuclear terrorism toolkit, such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism.
-Many other countries have indicated that they are waiting for the United States to complete ratification of the two treaties before moving ahead with their own ratification processes. After all, it was the United States, specifically the George W. Bush administration, that pushed for the negotiation of the amendment in the first place.
- The CPPNM Amendment will only enter into force after it has been ratified by two-thirds of the parties to the Convention. As of April 2013, only 67 out of 148 states have approved the Amendment.
- Similarly, the goal of bringing all countries into the ICSANT framework has been slowed by Congress’s failure to pass the required legislation.
What is the Historical Background of These Conventions?
-The original version of CPPNM was ratified by the US in December 1982.
- The idea of expanding CPPNM to include domestic nuclear materials was first raised in February 2001, at an “Informal Open-Ended Expert Meeting” tasked with assessing whether any amendments needed to be made to the original convention.
- This effort was heavily supported by the US, particularly after the 9/11 attacks.
- After several years of negotiation, the amendment was formally adopted by the Conference to Consider and Adopt Proposed Amendments to the CPPNM in 2005.
-The initial draft of ICSANT was proposed by Russia in 1996.
- Proponents of the draft convention argued that CPPNM did not adequately address the issue of nuclear terrorism, making a new convention necessary.
- The negotiations surrounding ICSANT were hindered by a number of problems, including concerns that some of the convention’s language could be interpreted as legitimizing the use of nuclear weapons.
- Ultimately, however, these issues were resolved, and the treaty was unanimously approved by the UN General Assembly in 2005, with the treaty entering into force in 2007.
-In September 2007, the Bush administration submitted ICSANT and the 2005 amendment to CPPNM to the Senate, which overwhelmingly approved the two conventions in September 2008.
-However, before the US can formally ratify these conventions, Congress must pass implementing legislation that would criminalize certain offenses, many of which are already illegal under US law.
-The Obama administration submitted drafts of this implementing legislation in February 2010 and April 2011, butneither draft was approved by Congress.
-In June 2012, the House of Representatives passed the needed legislation, in the form of the Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2012 (HR 5889). However, this legislationultimately stalled in the Senate.
What is the Current Status of These Conventions?
-On May 20, 2013, the House once again passed the two conventions’ implementing legislation, with a vote of 390-3.
-As in 2012, the fate of this legislation rests with the Senate.
What are the Key Roadblocks Facing These Conventions?
-In 2012, the opposition of Senator Charles Grassley (R-IA), the ranking member on the Senate Judiciary Committee, to how the House version of the implementing legislation dealt with capital punishment played a key role in preventing Senate approval of the needed legislation.
- Senate Judiciary Committee Chairman Patrick Leahy (D-VT) wanted to pass the House version of the legislation, which did not allow for capital punishment to be applied to the additional crimes established by the implementing legislation.
- Grassley, on the other hand, wanted to maintain capital punishment as an option in such cases.
- However, disagreement over how the death penalty is applied is largely irrelevant. The U.S. government charged surviving Boston Marathon bomber Dzhokhar Tsarnaev with the use of a “weapon of mass destruction,” even though Tsarnaev is said to have employed a home –grown device involving a pressure cooker. Still, that charge is seen by prosecutors as relatively easy to level—and prove—compared to other possible crimes, and it is one of the few federal crimes that can be punished by the death penalty. It is virtually certain, therefore, that any terrorist attack with a true weapon of mass destruction—a nuclear, chemical, or biological device– would present prosecutors with plenty of leeway to seek the death penalty, regardless of which form of implementing legislation the Congress ultimately passes.
- Unfortunately, Leahy and Grassley have yet to resolve this dispute.