No easy fight against nuclear terrorism

By Andy Ho, The Straits Times, 19 Jul 2014

IT HAS not been too widely noticed, but there's going to be a new capital crime in the law books. This would be when amendments to the Radiation Protection Act to criminalise acts of nuclear terrorism become law later this year.

Nuclear terrorism may involve the detonation of a stolen or purchased nuclear weapon.

Or it could refer to a "dirty bomb", in which a conventional bomb with nuclear material attached to it is detonated to disperse the radioactivity widely.

The Bill to amend the Act was passed by Parliament last week to toughen penalties for stealing nuclear material or using it to harm the public.

But why should Singapore, which has no nuclear weapons or nuclear reactors that generate nuclear waste, be concerned?

Singapore has a stake in the fight against nuclear terrorism because it is a major trans-shipment hub. About 90 per cent of world trade is transported in cargo containers, and nuclear terrorists may try to use Singapore's shipping facilities for their nefarious purposes.

Nuclear terrorism may well be the gravest threat to the security of globalised nations. So, like it or not, a globalised Singapore is involved. It already has two bilateral agreements with the United States to combat terrorism.

One is the US Container Security Initiative. Launched in 2002, this arrangement involves US customs officers stationed here working with local customs personnel to inspect containers heading for the US.

This is reciprocal, which means Singapore customs personnel can also be stationed at US ports for the same purpose.

Another 57 ports in many countries have similar bilateral arrangements with the US under the Container Security Initiative.

All containers with nuclear material are examined. Also, suspicious containers are unloaded and scanned with non-intrusive radiation detection technology. Any unapproved nuclear material found is then neutralised.

While the Container Security Initiative deals with containerised shipping at the port, the US Proliferation Security Initiative seeks to stop illegally trafficked nuclear weapons and nuclear material on the high seas.

Singapore is one of 102 countries with this bilateral agreement with the US, allowing officials to board, search, detain and seize the cargo of each other's vessels on the high seas.

The Proliferation Security Initiative is necessary because, under the United Nations Law of the Sea Convention, a vessel on the high seas is exclusively subject to the jurisdiction of its flag state only.

This means that the authorities from a coastal state may not board vessels on the high seas near it - unless suspected of piracy, slave trade or unauthorised broadcasting.

But terrorism is not included in this list of exceptions.

If more states join the Proliferation Security Initiative, more ships can be stopped and searched in international waters for nuclear material.

But out of sovereignty concerns, over half of UN members have refused to join the Proliferation Security Initiative, including India and China.

Overall, both bilateral arrangements are restricted in their effectiveness because of the number of countries participating.

Apart from dealing with vessels at port or on the high seas, border controls also matter. This is because terrorists need to not only acquire nuclear materials but also move them into place, perhaps even across borders.

They also need to assemble a group of co-conspirators with the know-how to put together a device on location. So, tracking terrorist travel matters.

The International Atomic Energy Agency, the main body that manages multilateral nuclear treaties, runs an Illicit Trafficking Database, which has information on nuclear trafficking. And Interpol maintains a database that identifies stolen passports.

Both these databases can help the authorities apprehend known terrorists at border checkpoints.

Finally, there are also multilateral treaties against nuclear terrorism. But they are generally ineffective since they come with no enforcement mechanisms.

One is the Convention for the Physical Protection of Nuclear Materials, a treaty that Singapore will ratify once the amended Radiation Protection Act is enforced.

This was the world's first major treaty to establish rules to secure nuclear material. Party-states must criminalise nuclear trafficking within their borders, on vessels that fly their flags, or if suspects are their citizens.

Party-states must also adequately protect nuclear materials being transported across borders. But party-states are not required to secure nuclear facilities and nuclear material within their own borders. The treaty was amended in 2005 to plug this gap and require all party-states to protect nuclear facilities and nuclear materials within their own territory.

Still, only 74 nations have ratified the amendment. Singapore plans to accede to the treaty as well as the 2005 amendment. But another 17 states must do so for the amendment to come into force, which will take many years.

There is also the 2005 International Convention on the Suppression of Acts of Nuclear Terrorism. This requires party-states to detain suspects and prosecute or extradite them, upon request by other party-states.

This has caused Singapore, which has signed the treaty, to not ratify it yet as it requires that a detainee be accorded "fair treatment" under undefined "applicable provisions of international law, including international law of human rights". This provision could be interpreted in ways that Singapore may disagree with.

Likewise, the US has also signed but not ratified this treaty for precisely the same reasons.

States may sign treaties to show in-principle support for them and then debate in their own legislatures what exceptions or amendments they might wish to ask for before ratification. That debate may be inconclusive, so many years may elapse between signing and ratifying.

Lastly, all UN members are subject to UN Security Council Resolution 1540 which mandates that all states adopt undefined "effective security standards" for nuclear materials and nuclear weapons.

But the resolution also comes with no enforcement mechanism.

In sum, an international legal framework of sorts is emerging to criminalise nuclear terrorism and place such acts under international jurisdiction. But the situation is very far from ideal.