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15 JULY 2008. - An Act to amend the Amendment to the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 8 July 2005 by the Conference of the States Parties to the Convention (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. The Amendment to the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 8 July 2005 by the Conference of the States Parties to the Convention, will come out its full and complete effect.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 July 2008.
ALBERT
By the King:
Minister of Foreign Affairs,
K. DE GUCHT
The Minister of the Interior,
P. DEWAEL
Minister of Justice,
J. VANDEURZEN
Minister of Defence,
P. DE CREM
Seen and sealed the state seal:
Minister of Justice,
J. VANDEURZEN
____
Notes
(1) Session 2007-2008.
Senate.
Documents. - Bill tabled on 20 February 2008, No. 4-570/1. - Report, number 4-570/2.
Annales parlementaire - Discussion, meeting of 10 April 2008, meeting of 10 April 2008.
House of Representatives:
Documents. - Project transmitted by the Senate, No. 52-1062/1. - Report, no. 52-1062/2. - Text adopted in plenary session and subject to Royal Assent, No. 52-1062/3.
Annales parliamentarians. - Discussion, meeting of 15 May 2008, Vote, meeting of 15 May 2008.

Amendment to the Convention on the Physical Protection of Nuclear Material
1. The title of the Convention on the Physical Protection of Nuclear Material, adopted on 26 October 1979 (hereinafter referred to as the Convention) is replaced by the following title:
Convention on the Physical Protection of Nuclear Material and Nuclear Facilities
2. The preamble to the Convention is replaced by the following text:
The States parties to this Convention,
Recognizing the right of all States to develop and use nuclear energy applications for peaceful purposes and their legitimate interest in the benefits that may arise from them,
Convinced of the need to facilitate international cooperation and the transfer of nuclear technologies for the peaceful applications of nuclear energy,
Bearing in mind that physical protection is of vital importance to the protection of public health, safety, the environment and national and international security,
Bearing in mind the purposes and principles of the Charter of the United Nations concerning the maintenance of international peace and security and the promotion of good-neighbourly and friendly relations, and cooperation among States,
Considering that, pursuant to paragraph 4 of Article 2 of the Charter of the United Nations, the "members of the Organization refrain in their international relations from resorting to the threat or use of force, either against the territorial integrity or political independence of any State, or in any other way incompatible with the purposes of the United Nations",
Recalling the Declaration on Measures to Eliminate International Terrorism annexed to resolution 49/60 adopted by the United Nations General Assembly on 9 December 1994,
Desirous of deviating the risks that might arise from illicit trafficking, the illicit obtaining and use of nuclear materials, and the sabotage of nuclear materials and facilities, and noting that the physical protection of such materials and facilities against such acts has become a cause of increased concern at the national and international levels,
Deeply concerned at the growing number of acts of terrorism worldwide in all its forms and manifestations and the threats posed by international terrorism and organized crime,
Believing that physical protection plays an important role in supporting the objectives of nuclear non-proliferation and counter-terrorism,
Desiring to contribute through this Convention to strengthen the physical protection of nuclear materials and nuclear facilities used for peaceful purposes worldwide,
Convinced that offences relating to nuclear materials and facilities are a cause of grave concern and that it is urgent to take appropriate and effective measures, or to strengthen existing measures, to ensure the prevention, discovery and punishment of such offences,
Desirous of further strengthening international cooperation with a view to taking, in accordance with the national legislation of each State Party and this Convention, effective measures to ensure the physical protection of nuclear materials and facilities,
Convinced that this Convention should complement the safe use, storage and transport of nuclear material and the safe operation of nuclear facilities,
Acknowledging that there are recommendations made at the international level on physical protection, which are updated periodically and can provide guidance at any time on how to achieve effective levels of physical protection,
Recognizing also that the effective physical protection of nuclear materials and nuclear facilities used for military purposes is the responsibility of the State with such nuclear materials and nuclear facilities, and on the understanding that such materials and facilities are and will continue to be subject to rigorous physical protection,
The following agreed:
3. In article 1 of the Convention, after paragraph (c) are added two new paragraphs as follows:
(d) "Nuclear installation" means an installation (including associated buildings and equipment) in which nuclear material is produced, processed, used, manipulated, stored or permanently stored, if a damage to such a facility or an act that disrupts its operation may result in the release of significant amounts of radiation or radioactive material;
(e) "Sabotage" means any deliberate action against a nuclear facility or nuclear material that is being used, stored or in the course of transport, which is directly or indirectly likely to affect the health and safety of personnel or the public or the environment by causing exposure to radiation or release of radioactive substances;
4. After Article 1 of the Convention is added a new Article 1 To read:
Article 1^erA
The objectives of this Convention are to establish and maintain worldwide effective physical protection of nuclear materials used for peaceful purposes and nuclear facilities used for peaceful purposes, to prevent and combat offences relating to such materials and facilities worldwide, and to facilitate cooperation among States parties to that end.
5. Article 2 of the Convention is replaced by the following text:
1. This Convention applies to nuclear materials used for peaceful purposes in the course of use, storage and transport, and to nuclear facilities used for peaceful purposes, on the understanding, however, that the provisions of Articles 3 and 4 and paragraph 4 of Article 5 of this Convention apply to such nuclear materials only in the course of international nuclear transport.
2. The responsibility for the development, implementation and maintenance of a system of physical protection in the territory of a State Party rests entirely with that State.
3. Notwithstanding the commitments expressly entered into by the States parties under this Convention, nothing in this Convention shall be construed as limiting the sovereign rights of a State.
4. (a) Nothing in this Convention alters the other rights, obligations and responsibilities that arise for States parties to international law, in particular the purposes and principles of the Charter of the United Nations and international humanitarian law.
(b) The activities of the armed forces in times of armed conflict, as defined in international humanitarian law, which are governed by this right are not governed by this Convention, and the activities carried out by the armed forces of a State in the exercise of their official functions, as governed by other rules of international law, are also not governed by this Convention.
(c) Nothing in this Convention is considered a lawful authorization to use or threaten to use force against nuclear materials or facilities used for peaceful purposes.
(d) Nothing in this Convention excuses or makes legal acts otherwise unlawful, or prevents prosecution under other laws.
5. This Convention does not apply to nuclear materials used or stored for military purposes or to a nuclear facility containing such materials.
6. After Article 2 of the Convention is added a new Article 2 To read:
Article 2A
1. Each State Party shall develop, implement and maintain an appropriate system for the physical protection of nuclear materials and facilities under its jurisdiction with the objectives of:
(a) To protect nuclear material in the course of use, storage and in the course of transport from theft and illicit obtaining by other means;
(b) Ensure the application of rapid and comprehensive measures to locate and, where appropriate, recover missing or stolen nuclear material; where the substances are located outside its territory, that State Party shall act in accordance with the provisions of Article 5;
(c) To protect nuclear materials and facilities from sabotage;
(d) To mitigate or minimize the radiological consequences of sabotage.
2. For the implementation of paragraph 1^er, each State Party:
(a) Establish and maintain a legislative and regulatory framework to govern physical protection;
(b) Creates or designates one or more competent authorities to implement the legislative and regulatory framework;
(c) Takes any other appropriate measures necessary to ensure the physical protection of nuclear materials and facilities.
3. For the implementation of the obligations referred to in paragraphs 1 and 2, each State Party shall, without prejudice to the other provisions of this Convention, apply, provided that it is reasonable and feasible, the basic principles of physical protection of nuclear materials and facilities below.
FONDAMENTAL PRINCIPLE A: State responsibility
The responsibility for the development, implementation and maintenance of a "physical protection system in the territory of a State is entirely vested in that State.
FONDAMENTAL PRINCIPLE B: Responsibilities during International Transport
The responsibility of a State to ensure the proper protection of nuclear material extends to the international transport of nuclear material until it has been transferred in good form to another State, in an appropriate manner.
FONDAMENTAL PRINCIPLE C: Legislative and regulatory framework
The State is responsible for establishing and maintaining a legislative and regulatory framework for physical protection. This framework should include the development of relevant physical protection requirements and the establishment of an assessment and accreditation system or other procedures for the issuance of authorizations. It should also include a system of inspection of nuclear facilities and the transport of nuclear material, to ensure that the relevant requirements and conditions of accreditation or other authorization documents are met and to establish means to enforce them, including effective sanctions.
FONDAMENTAL PRINCIPLE D: Competent Authority
The State should establish or designate a competent authority to implement the legislative and regulatory framework and have adequate powers, powers and financial and human resources to assume the responsibilities entrusted to it. The State should take measures to ensure that there is real independence between the functions of the competent national authority and those of any other body responsible for the promotion or use of nuclear energy.
FONDAMENTAL PRINCIPLE E: Liability of Accreditation Holders
The responsibility for the implementation of the various elements of the system of physical protection in the territory of a State should be clearly defined. The State should ensure that the primary responsibility for the implementation of the physical protection of nuclear materials or facilities rests with the holders of relevant accreditations or other authorization documents (e.g. operators or shippers).
FONDAMENTAL PRINCIPLE F: Security Culture
All entities involved in the implementation of physical protection should give priority to the culture of security, its development and its maintenance, necessary to ensure its effective implementation at all levels of each entity.
FONDAMENTAL PRINCIPLE G: Threat
Physical protection in a State should be based on the current assessment of the threat made by the State.
FONDAMENTAL PRINCIPLE H: Graduated approach
Physical protection requirements should be based on a graduated approach that takes into account the current assessment of the threat, relative attractiveness, the nature of the material and the consequences that could result from the unauthorized removal of nuclear material and a sabotage act against nuclear material or nuclear facilities.
FONDAMENTAL PRINCIPLE I: Deep Defence
National requirements for physical protection should be the expression of a concept based on several levels and modalities of protection (both structural or technical, personnel or organizational) that must be overcome or by an aggressor to achieve its objectives.
FONDAMENTAL PRINCIPLE J: Quality Assurance
A quality assurance policy and programs should be established and implemented to ensure that the requirements for all important physical protection activities are met.
FONDAMENTAL K PRINCIPLE: Emergency plans
Emergency plans to respond to unauthorized removal of nuclear material or sabotage of nuclear facilities or materials or attempts to do so should be appropriately prepared and tested by all licensees and authorities.
FONDAMENTAL PRINCIPLE L: Privacy
The State should establish the requirements to be met to preserve the confidentiality of information, whose unauthorized disclosure could compromise the physical protection of nuclear materials and facilities.
4. (a) The provisions of this article shall not apply to any nuclear material which the State party reasonably decides that it does not have to be subject to the physical protection system established in accordance with paragraph 1^er, taking into account its nature, quantity and relative attractiveness, potential radiological consequences and other consequences of any unauthorized act against it and the current assessment of the threat to it.
(b) A nuclear substance that is not subject to the provisions of this Article under paragraph (a) should be protected in accordance with prudent management practices.
7. Article 5 of the Convention is replaced by the following text:
1. States Parties shall designate and indicate each other, directly or through the International Atomic Energy Agency, their focal points for matters under this Convention.
2. In the event of theft, robbery or any other illicit obtaining of nuclear material, or a likely threat of such an act, the States parties shall cooperate and assist them to the extent possible, in accordance with their national legislation, for the recovery and protection of such material, to any State that so requests. In particular:
(a) a State party shall take the necessary steps to inform, as soon as possible, other States which seem to be concerned about any illicit flight, robbery or other illicit obtaining of nuclear material, or of a likely threat of such an act, and to inform, as appropriate, the International Atomic Energy Agency and other relevant international organizations;
(b) in so doing, and as appropriate, the States parties concerned shall exchange information between themselves or with the International Atomic Energy Agency and other relevant international organizations in order to protect the nuclear materials at risk, verify the integrity of the transport container or recover illicitly removed nuclear material, and:
(i) coordinate their efforts through diplomatic channels and other mutually agreed means;
(ii) assist, if requested;
(iii) ensure the return of stolen or missing nuclear material recovered as a result of the above-mentioned events.
The modalities for the implementation of such cooperation shall be decided by the States parties concerned.
3. In the event of acts of sabotage of nuclear material or of a nuclear facility, or of a likely threat of such an act, the States parties shall cooperate to the extent possible, in accordance with their national legislation and the relevant obligations under international law, as follows:
(a) if a State party is aware of a likely threat of sabotage of nuclear materials or nuclear facilities in another State, it shall decide on the arrangements to inform the State party as soon as possible and, as appropriate, the International Atomic Energy Agency and other relevant international organizations in order to prevent sabotage;
(b) in the event of sabotage of nuclear material or installation in a State Party and if it considers that other States are likely to be affected by an event of a radiological nature, without prejudice to the other obligations under international law, it shall take the necessary steps to inform as soon as possible the other or other States likely to be affected by an event of a radiological nature and, as appropriate, the International Atomic Energy Agency
(c) if, in the light of subparagraphs (a) and (b), a State Party requests assistance, each State Party to which such a request is addressed shall promptly determine and notify the State Party that requires assistance, directly or through the International Atomic Energy Agency, if it is in a position to provide the necessary assistance, as well as the scope and conditions of assistance that may be granted;
(d) the coordination of cooperation activities referred to in subparagraphs (a), (b) and (c) shall be ensured through diplomatic channels and other means agreed upon. The modalities for the implementation of such cooperation are defined by the States parties concerned in a bilateral or multilateral manner.
4. States Parties shall cooperate and consult, as appropriate, directly or through the International Atomic Energy Agency and other relevant international organizations, with a view to obtaining advice on the design, maintenance and improvement of systems for the physical protection of nuclear materials in the course of international transport.
5. A State Party may consult with and cooperate with other States Parties, as appropriate, directly or through the International Atomic Energy Agency and other relevant international organizations, in order to obtain their views on the design, maintenance and improvement of its national system of physical protection of nuclear material being used, stored and being transported on national territory and nuclear facilities.
8. Article 6 of the Convention is replaced by the following text:
1. States Parties shall take appropriate measures consistent with their national legislation to protect the confidential nature of any information they receive in confidence under the provisions of this Convention of another State Party or on the occasion of their participation in an activity carried out under this Convention. Where States parties confidentially disclose information to international organizations or States that are not parties to this Convention, steps are taken to ensure that the confidentiality of such information is protected. A State Party that has received confidential information from another State Party shall only communicate this information to third parties with the consent of that other State Party.
2. States parties are not required by this Convention to provide information that their national legislation does not permit or compromise their national security or the physical protection of nuclear materials or facilities.
9. Article 7, paragraph 1, of the Convention is replaced by the following text:
1. intentionally committing one of the following acts:
(a) the concealment, detention, use, transfer, alteration, disposal or dispersal of nuclear material, without the required authorization, resulting in or may result in death or serious injury to others or substantial damage to property or the environment;
(b) simple flight or robbery of nuclear material;
(c) the diversion or other undue appropriation of nuclear material;
(d) an act of transporting, sending or moving nuclear material to or from a State without the required authorization;
(e) an act directed against a nuclear facility, or an act disturbing the operation of a nuclear facility, by which the author intentionally causes or knows that he may cause death or serious injury to others or substantial damage to property or the environment as a result of exposure to radiation or release of radioactive substances, unless that act is undertaken in accordance with the national law of the State;
(f) requiring nuclear material by threat, use of force or any other form of intimidation;
(g) the threat:
(i) use of nuclear material for the purpose of causing death or serious injury to others or substantial damage to property or the environment or committing the offence described in paragraph (e); or
(ii) to commit one of the offences described in subparagraphs (b) and (e) in order to compel a natural or legal person, an international organization or a State to do or to refrain from doing an act;
(h) the attempt to commit one of the offences described in paragraphs (a) to (e);
(i) participating in any of the offences described in paragraphs (a) to (h);
(j) the fact that a person organizes the commission of an offence referred to in subparagraphs (a) to (h) or orders others to commit it;
(k) an act that contributes to the commission of one of the offences described in paragraphs (a) to (h) by a group of persons acting together. Such an act is intentional and:
(i) is intended to facilitate criminal activity or to serve the criminal purpose of the group, where such activity or purpose presupposes the commission of an offence referred to in subparagraphs (a) to (g);
(ii) is made knowing that the group intends to commit an offence referred to in subparagraphs (a) to (g);
is considered by each State Party as an offence punishable under its national law.
10. After Article 11 of the Convention are added two new articles, Article 11A and Article 11B, as follows:
Article 11A
For the purposes of extradition or mutual legal assistance between States parties, none of the offences referred to in Article 7 is considered a political offence, or related to a political offence, or inspired by political motives. As a result, a request for extradition or mutual legal assistance based on such an offence cannot be denied for the sole reason that it concerns a political offence, a political offence or an offence inspired by political motives.
Article 11B
Nothing in this Convention shall be construed as implying an obligation of extradition or mutual legal assistance if the requested State Party has serious reasons to believe that the request for extradition for the offences referred to in Article 7 or the request for assistance in respect of such offences has been submitted for the purpose of prosecuting or punishing a person for considerations of race, religion, nationality, ethnic origin or political opinion, or that
11. After Article 13 of the Convention is added a new Article 13A to read as follows:
Article 13A
Nothing in this Convention affects the transfer of nuclear technology for peaceful purposes that is being undertaken to strengthen the physical protection of nuclear materials and facilities.
12. Paragraph 3 of Article 14 of the Convention is replaced by the following text:
3. Where an offence relates to nuclear material being used, stored or being transported in the national territory and both the alleged perpetrator of the offence and the nuclear material concerned remain in the territory of the State party where the offence has been committed, or where an offence concerns a nuclear facility and the alleged perpetrator of the offence remains in the territory of the State party where the offence has been committed, nothing in the State party involved
13. Article 16 of the Convention is replaced by the following text:
1. The depositary shall convene a conference of the States parties five years after the entry into force of the amendment adopted on 8 July 2005 to review the application of this Convention and to conduct its assessment with respect to the preamble, the entire device and the annexes, taking into account the situation at that time.
2. Subsequently, at intervals of at least five years, the majority of States parties may obtain the convening of subsequent conferences with the same objective by submitting a proposal to the depositary for that purpose.
14. Note (b) of Annex II to the Convention is replaced by the following text:
(b) Non-irradiated substances in a reactor or irradiated materials in a reactor with a radiation level equal to or less than 1 gray/hour (100 rads/hour) at 1 metre distance without screen.
15. Note (e) of Annex II to the Convention is replaced by the following text:
(e) Other fuels that, under their original fissile material content, are classified as Class I or Class II before irradiation, may enter the category directly below if the fuel radiation level exceeds 1 gray/hour (100 rads/hour) to 1 metre of remote control.
Declaration
Referring to Article 2A of the Protocol of Amendment to the Convention on the Physical Protection of Nuclear Materials, the Kingdom of Belgium declares that it interprets the fundamental principles of the physical protection of nuclear materials and facilities set out in Article 2A § 3 as guidelines that the State party must apply when implementing the obligations of §§ 1^er and 2 of Article 2A.
Accordingly, the Kingdom of Belgium considers that the fundamental principles of physical protection of nuclear materials and facilities are not, in itself, legal obligations.

Amendment to the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 8 July 2005 by the Conference of the States Parties to the Convention.