Convention on Physical Protection of Nuclear Material (CPPNM) Amendment: briefing
20 November 2018
Chairperson: Mr F Majola (ANC)
The DOE gave a briefing on the amendments to the Convention on the Physical Protection of Nuclear Material (CPPNM). The background to the CPPNM, the new obligations of the Convention, its strategic importance of CPPNM and the implementation plan for the amendments. He asked that the Committee consider the amendments and requested their support for its approval.
The CPPNM was the only legally binding international undertaking on the physical protection of nuclear material. The Convention focused on the physical protection of nuclear material used for peaceful purposes during international transportation. A key objective was to prevent theft or unauthorised use and included offences that were punishable under law. South Africa was a member state and signed the CPPNM in May 1981 and ratified it in September 2007. The current amendments were drafted as a result of the September 9/11 attack on the USA and to combat the threat of terrorism on nuclear material. Member countries adopted the new provisions on 8 July 2005.
The Amended Convention came into force in May 2016 and DOE presented this to Cabinet on 23 May 2018. Cabinet had granted approval for the Convention to be presented to Parliament in terms of section 231(2) of the Constitution. The new amendments did not contain any new or changed obligations for South Africa and all aspects required in the amendments were already in place in existing local legislation. South Africa was supportive of this international community initiative to make the world a more secure and safer place.
Key discussion points by Committee members were why it took so long for the Convention to be ratified once approved at global level; the protection and security of nuclear facilities against cyber attacks and if section 231(2) of the Constitution was the appropriate section for the ratification process.
The Chairperson said it was important for South Africa to ratify the amendments and that it should be done quickly. Once the State Law Advisor legal opinion on the Convention given to the Department was forwarded to the Committee, as well as input from the parliamentary legal advisor and the Committee had feedback on the 2007 ratification process in Parliament, the Committee would be in a position to consider the matter. He was hopeful that Committee could conclude the matter at its next meeting in a week’s time.
Amended Convention on Physical Protection of Nuclear Material (CPPNM): briefing
The Department of Energy (DOE) delegation was led by Mr Zizamele Mbambo, DDG: Nuclear Energy. He was supported by Ms Elsie Monale, Chief Director: Nuclear Non-Proliferation and Radiation Security, and Ms Ratanang Moagi, Deputy Director: Nuclear and Radiation Security.
Mr Zizamele Mbambo, DDG: Nuclear Energy, said the briefing would appraise the Committee on the amendment to Convention on the Physical Protection of Nuclear Material (CPPNM). He asked that the Committee consider the amendments and requested their support for its approval.
His briefing covered the background to the CPPNM, new obligations that had to be included, the strategic importance of CPPNM, the implementation plan of the amendments and the important aspects.
The CPPNM was the only legally binding international undertaking on the physical protection of nuclear material. The Convention focused on the physical protection of nuclear material used for peaceful purposes during international transportation. A key objective was to prevent theft or unauthorised use and included offences that were punishable under law. South Africa was a member state and signed the CPPNM in May 1981 and ratified it in September 2007.
The DDG said that the current amendments were drafted as a result of the September 9/11 attack on the USA to combat the threat of terrorism on nuclear material. Member countries agreed to the new provisions on 8 July 2005.
The new obligations broadened the scope of the CPPNM to include nuclear material for domestic use, storage and transportation. It allowed for co-operation between member states to locate and recover stolen nuclear material, mitigation on radiological consequences as result of sabotage and to prevent and combat transgressions. Other important aspects of the new obligations were the sharing of information on potential attacks on nuclear material, criminalisation of transgressions and strengthening the international framework for legislation, regulatory and administration matters related to CPPNM.
The DDG noted the strategic importance of the Amended Convention. The protection of nuclear material was one of the most effective ways of preventing catastrophic events resulting from the unauthorised use of nuclear material (such as terrorists gaining access to nuclear material). Hence the security of nuclear facilities was critical and this involved activities at a global and local level. Each member state had a responsibility to implement the agreed protection measures - as guided by the set of international arrangements.
DDG Mbambo said that the Amended Convention came into force in May 2016 and DOE presented it to Cabinet on 23 May 2018. Cabinet had granted approval for the Convention to be presented to Parliament in terms of section 231(2) of the Constitution.
Section 231 of SA Constitution dealt with International agreements and section 231(2) stated that an international agreement bound the Republic only after it had been approved by resolution in both the National Assembly and the National Council of Provinces, unless it was an agreement referred to in subsection (3). The latter stated that an international agreement of a technical, administrative or executive nature, or an agreement which did not require either ratification or accession, entered into by the national executive, bound the Republic without approval by the National Assembly and the National Council of Provinces, but had to be tabled in the Assembly and the Council within a reasonable time.
Upon approval via the necessary parliamentary protocols and procedures, Cabinet also prescribed that the protection of physical nuclear infrastructure could only be done by South Africans citizenship holders with the appropriate security clearances. Once all the local processes had been concluded, the acceptance of the amended CPPNM would be executed via the appropriate diplomatic channels.
The DDG said that the implementation plan of the amended CPPNM would be aligned to local legislation that governed the process and would include the Nuclear Energy Act of 1999, Nuclear Regulator Act of 1999, National Key Point Act of 1980, Protection of Information Act of 1982.
DDG Mbambo referred the Committee to the Explanatory Memorandum which gave the background to the amendment of the CPPNM and all relevant aspects were covered in his briefing.
He ended the briefing by saying that the new amendments did not contain any new or changed obligations for the country and that all aspects required in the amendments are already in place in existing local legislation. South Africa was supportive of this international community initiative to make the world a more secure and safer place. He requested the acceptance and approval of the amended CPPNM by the Committee.
Ms Z Faku (ANC) asked if there was a specified deadline for the ratification.
Ms T Mahambehlala (ANC) commented that Cabinet had already approved the amendments. She wanted clarity on the location of the physical nuclear infrastructure that required protection.
The DDG replied that that was no specific deadline for ratification but the sooner we ratified it, the better as it would boost the confidence of member countries. The majority of member countries had already ratified the amendments (102 of the 151 member countries). It was important that SA ratified the amendments as soon as possible.
He replied that the country’s nuclear facilities were scattered throughout the provinces. These included Koeberg nuclear power station, the South African Nuclear Energy Corporation (NECSA) at Pelindaba and others. All facilities would be subject to the new amendments once approved.
Mr J Esterhuizen (IFP) asked if there was any protection and security against cyber attacks on nuclear facilities.
Mr M Matlala (ANC) commented on the long time it took to ratify the CPPNM from May1981 when it was signed off to it only being in 2007.
The Chairperson asked if there was any information available on the 2007 ratification in Parliament and asked the Committee Secretary to investigate this. He asked if section 231(2) of the Constitution was used for the 2007 ratification. It was important that the correct section of the Constitution was used for the ratification. On the face of it, it did not seem any in-depth work was required by the Committee to ratify the amendments provided that the correct section of the Constitution was used for the ratification, it could be done before the year-end recess.
DDG responded to the questions from Committee members, saying that the international community was working on cyber security measures and it was being addressed by the International Atomic Energy Agency of which South Africa was a contributing member.
The long time taken to ratify agreements was due to the various processes involved at local and international level - generally endorsement was agreed at international level by all member countries - this then triggered the agreements coming into force (at an international level). The last step entailed ensuring that local laws and legislation were in place to ratify the Convention at country level. All legislative processes and systems were in place in South Africa to enable adoption of the amendments. This included an assurance by the State Law Advisor and the Department of Justice that the process could proceed in terms of section 231(2) of the Constitution and that there were no impediments. Once the agreement was approved by Parliament, it could then proceed with SA’s acceptance of the amendments via international diplomatic channels.
Ms Mahambehlala said that she was still concerned about the long time it took to ratify agreements. A lot of time had passed since 2007 and the events of 9/11 and she wanted to know what was the procedure and specific aspects that guided the ratification process.
Ms T Gqada (DA) asked for more clarity on the changes proposed in the amendments and the ratification process. She was also concerned that the correct section of the Constitution was used for the ratification.
The Chairperson commented that the amendments had already been approved by Cabinet, so from the Committee’s perspective the major concern was that the correct parliamentary procedure was followed and that the correct section of the Constitution was used.
The DDG responded that ratification by SA was necessary as all member countries were bound by amendments that were triggered by the 9/11 event in the USA. The new amendments would strengthen the Convention and member countries had to incorporate these in their local laws. The State Law Advisor had indicated that these amendments were aligned with South African legislation, hence the recommendation by DOE that we ratify these amendments. He outlined the process to ratification: Committee supports the ratification and reports as such to the National Assembly; adoption of the report in the NA and National Council of Provinces (NCOP). After this the country can proceed with the adoption of the Convention amendments via normal diplomatic channels.
The DDG replied they would provide the Committee with the legal opinions it had obtained on the matter.
Ms Mahambehlala asked if ratification (of new amendments) was done when the need arose and the DDG confirmed.
Mr Matlala said that the DDG had not answered his question properly about the inordinately long time it took to ratify agreements. He understood that an event like 9/11 could trigger amendments but asked what was done in the intervening period between events like 9/11 that could trigger changes to the Convention.
Mr R Mavunda (ANC) said that the way he understood the matter was that the Committee merely had to take note of it. Cabinet had already approved the amendments, so there was not a lot of work required by the Committee on this.
The Chairperson said that the Committee actions on the matter were clear - there was an international agreement that was binding on the country in view of our membership of the CPPNM. Formal approval of this would be given once approved in the NA and NCOP. The Committee had to consider the amendments and recommend to the NA that it be approved or not. The legality of the matter had to be water tight. At face value this seemed the case but the Committee would verify this with Parliament’s legal services before taking a decision.
Ms Faku said that as the matter was clear, the Committee should not delay. If the legislation and legal aspects were adhered to in terms of the Constitution, she was in favour of approving the amendments.
The Chairperson agreed and said that the matter before the Committee was not difficult. The Committee merely had to ensure that the proper legal and constitutional procedures were being followed on the matter.
DDG Mbambo asked Ms Elsie Monale, Chief Director: Nuclear Non-Proliferation and Radiation Security to respond to the query raised by Mr Matlala in more detail.
The Chief Director said that any matter relating to nuclear security in terms of the Convention was important but that ratification often took a long time due to the complexities involved - e.g. the evolving technology that impacts nuclear security and country specific issues.
She said that the changes in the Convention amendments were the triggered by the events of 9/11. Initially the Convention only covered the transport of nuclear material, but after 9/11, there was a concern that nuclear facilities could also be targeted with potentially disastrous consequences. This resulted in engagements amongst member countries that led to the strengthening of nuclear security facilities at a local and global level. Some of the monitoring tools used by South Africa to assess its ability to meet CPPNM guidelines were peer reviews by the IEA (International Energy Agency). Another positive was that NECSA had passed a a “readiness” test conducted by the USA.
Ms Mahembehlala asked how many members countries there were and which had already ratified the amendments.
The Chairperson requested that DOE provide the Committee with a written list of these countries.
The DDG replied that he would.
The Chairperson said that it was important that South Africa ratify the amendments and that it should not take a long time. Once the DDG had provided the list of Convention member countries, as well as the legal opinions received by the Department from the State Law Advisor, plus input from the parliamentary legal advisors on the matter and information on the 2007 ratification process in Parliament, the Committee should be in position to consider the matter. He was hopeful that Committee could resolve the matter at its next meeting in a week’s time.
The meetings was adjourned.
231. International agreements
(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in ss (3).
(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect.
Majola, Mr F
Esterhuizen, Mr JA
Faku, Ms Z
Gqada, Ms T
Mahambehlala, Ms T
Matlala, Mr M
Mavunda, Mr RT
Nobanda, Ms GN
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