The 2016 Nuclear Security Summit (NSS) reached one of its goals in May with two-thirds of the state parties to the Convention on Physical Protection of Nuclear Material (CPPNM) ratifying its 2005 Amendment. On 8 May 2016, CPPNM/A came into force. This has, by far, emerged as one of the key victories from the six-year old NSS.
While the CPPNM (1987) focused on the physical protection of nuclear material used for peaceful purposes during international transport, it did not cover the same in domestic use/storage and transport. The newly ratified Amendment to the CPPNM fills this lacuna.
Indeed, the ratification is one of the tangible gains within the nuclear security architecture as it strengthens the evolving nuclear security regime by legally making it mandatory for state parties to bear complete responsibility to protect nuclear materials for civilian use. Amendment is consequential for various reasons. One, it is a substantial development in the strengthening of the evolving nuclear security regime. Till date it remains the only international convention of this nature that is legally binding. Two, it brings uniformity to nuclear safety practices among 64 contracting parties out of 103 in the area of physical protection of nuclear materials. Three, the ratification not only expands the scope but also brings a 29-year old original CPPNM to near completion as 102 out of 153 total parties now adhere to the guidelines of physical protection of nuclear materials. The threat from non-state actors acquiring illicit nuclear technology post 9/11 prompted the need to expand the scope of the existing international mechanism protecting nuclear material physically and against sabotage. Four, in a way the ratification has facilitated a shared platform of communication as the state parties take on new obligations to contribute to information sharing related to sabotage/credible threats of sabotage. The implementation of the Amendment also seeks to facilitate cooperation among states and the IAEA to locate and recover stolen nuclear material. Five, it is anticipated that an effective execution of the revised agreement would contribute to mitigating nuclear risks, especially the ones related to possible terrorist attacks involving nuclear material, and make it harder to smuggle nuclear material. Six, the ratification could be viewed as a demonstration of the collective resolve of states towards acting together in matters of nuclear security.
The success of the CPPNM/A however, can only be evaluated after the first review conference to be held five years post its entry into force. The number of participating states would also likely impact the efficacy of implementation.
There are three foreseeable problems in this regard. First, 39 out of 102 remain outside of the Amendment, including the P-5 like France and Russia. Both the countries are known to have a robust nuclear energy industry.
Second, the CPPNM allows for a provision under which the state parties can receive exemption from a particular article. For instance, many countries have already expressed reservations about Article 17 (2), which calls on the parties to settle disputes in a peaceful manner through the International Court of Justice (ICJ) or by arbitration.
There are already a large number of state parties such as France, China, South Korea and Pakistan, to name a few, who remain outside of the scope of dispute settlement. This further reduces the enforceability of the CPPNM to some extent. Finally, the CPPNM does not provide for any mechanism of inspection.
This implies that the effective implementation of the Amendment would ultimately depend upon the voluntary commitments of the state parties. This is particularly problematic in the South Asian context, and it is important to note how this gap would play out in the foreseeable future. Pakistan signed the CPPNM/A this year. However, it is interesting that it ranks 38th in the ‘Sabotage’ rankings of the Nuclear Threat Initiative’s (NTI) 2016 index, including indicators on quantities and sites such as sites and transportation, control and accounting procedures, and cyber security and is therefore at the highest risk in South Asia.
Progress thus is going to be determined by the degree of resolve and available infrastructure to support the policy decision. While countries may be legally obligated to provide security assurances, the CPPNM does not adequately address the challenges that may emerge from its violation, unintentional or otherwise.
The case of Pakistan only explains a existing reality – it is equally applicable to every state party adhering to the CPPNM. While the CPPNM would have to operate with its limitations, it remains the only international convention of legal standing in the realm of physical protection of nuclear materials. It should therefore be viewed as process rather than an end in itself.