IMPORT/EXPORT GUIDANCE

The Code contains a general provision to the effect that import and export should be undertaken consistent with the provisions of the Code and with international transport standards. For Category 1 and Category 2 sources, there are provisions for explicit authorization, as appropriate, by both the importing and exporting States of the import/export. The Code recommends that the importing State consent to an import only if:

(a) The recipient of the source is legally authorized to receive and possess the source; and

(b) The State has the appropriate technical and administrative capability, resources and regulatory structure needed to ensure that the source will be managed consistent with the provisions of the Code.

The exporting State has the obverse obligations to assess the receiving State’s authorization of the recipient and its regulatory capability. The Code also contains a provision allowing for exports and imports to take place otherwise than in accordance with the above provisions in exceptional circumstances.

Given the need to secure consensus in the Technical Committee, those provisions are somewhat general in nature. The potential for inconsistent inter-pretation — particularly in regard to the question of when prior consent from the importing State was required and to the application of the ‘exceptional circumstances’ provision — soon gave rise in capitals to concerns regarding the maintenance of a level playing field between the exporters of radioactive

26 An updated list of these States can be found at http://www-ns.iaea.org/home/

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sources. In order to address those concerns, and to develop mechanisms for exchange of information between the importing and exporting States, more detailed Guidance was developed by Member States and endorsed at the General Conference in 2004²⁷.

This Guidance establishes the mechanisms that should allow the import/

export provisions of the Code to be applied in a consistent manner by Member States. They clearly set out procedures for the international transfer of sources under three headings:

— Transfer of Category 1 sources;

— Transfer of Category 2 sources;

— Transfer of Category 1 or 2 sources in exceptional circumstances.

The export of a Category 1 source requires the prior, explicit consent of the importing State. The routine export of a Category 2 source requires prior notification, but there is no need for prior consent. Any export under the

‘exceptional circumstances’ provision requires the consent of the importing State. These provisions should assist national regulators in ensuring that they are aware of the presence of all Category 1 and 2 sources on their territory — something which has not always been the case in the past.

The Guidance repeats the provisions of the Code concerning authori-zation and assessment of the importing State’s capacity cited above. The question as to whether the proposed recipient of a source is authorized by the importing State is fairly straightforward. On the other hand, the judgement by the exporting State as to whether the importing State has the appropriate infra-structure to manage the source safely and securely could be more difficult. The Guidance allows for information provided by States to the IAEA on a voluntary basis to be taken into consideration, if agreed by the importing State.

This information includes:

(a) Responses by the importing State to a brief ‘Self-Assessment Question-naire’.

(b) Whether the importing State has written to the Director General indicating that it is working towards following the Guidance contained in the Code.

(c) Whether an importing State that participates in the IAEA Model Project has met Milestone 1, which requires establishment of a basic legal and regulatory infrastructure. The recent replacement of the Model Project

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123 by a number of regional and national projects — although it has a range of benefits — has introduced some uncertainty in relation to this factor.

That uncertainty may go beyond the replacement of the term ‘Milestone’

by ‘Thematic Safety Area’. It is not clear to me whether States partici-pating in such projects will still, once they satisfy the objectives for each Thematic Safety Area, be accredited as such. I hope that the project managers within the IAEA Secretariat are advising participating States that, should they satisfy the objectives of Thematic Safety Area 1, they should answer ‘yes’ to the question concerning Milestone 1 in the Model Project in the Self-Assessment Questionnaire.

In recognition of today’s security concerns, the Guidance also calls upon both the exporting and the importing State to assess the risk of diversion of the source to malicious uses. The application of these provisions will necessarily be somewhat subjective; nevertheless, the Guidance’s provisions relating to consultation (see below) and the reality of the commercial marketplace should mean that judgements are not made arbitrarily. In September 2004, the IAEA General Conference and Board of Governors underlined the importance of exporting States, in applying the Guidance, in particular these provisions, carrying out the information exchange and consultations foreseen in its paragraph 21²⁸.

Clearly, the effectiveness and practicability of these arrangements will be tested in the international marketplace. The General Conference in 2004 noted that more than 30 States had committed themselves to implementing the Guidance from 31 December 2005, and encouraged States to implement it on a harmonized basis and to notify the Director General of their intention to do so.

Without harmonization, the implementation of the Guidance could lead to confusion and the application of inconsistent standards to decision making about exports. This could in turn lead to the breakdown of the system brought into being by the Guidance. Only three States have so far written to the Director General committing themselves to implementing the Guidance. It is to be hoped that those many other States which have already made political statements in support of the Code of Conduct will write to the Director General soon, especially those among the 30 States referred to in the General Conference resolution.

It must be stressed that the Guidance is not intended to hamper legitimate international trade in, and the range of beneficial uses of, radioactive sources. Indeed, the manufacturers of radioactive sources have recognized that

28 GC(48)/RES/10.D, operative paragraph 9.

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continued accidents involving, or the deliberate misuse of, radioactive sources would lead to further restrictions on their use and have therefore strongly supported both the Code and the Guidance.

In the light of concerns raised around the time of consideration of the Guidance by the IAEA Board of Governors in September 2004, I must emphasize that neither the Code nor the Guidance is intended to be used as a weapon in political disputes. Like other IAEA standards, both instruments are based on the concept of cooperation between Member States. It would not be in the interests of any State were they to be applied in an arbitrary or discrimi-natory way. As I noted earlier, the objectives of the Code are to be met

“through the fostering of international cooperation”. Paragraph 21 of the Guidance indicates that “In furtherance of harmonized action under this Guidance, States should, as necessary and appropriate, exchange relevant information and consult with other States.” Should there ever be an attempt to misuse the Guidance for purely political purposes, the universal support which is essential for its implementation will break down.

5. CONCLUSION

Radioactive sources provide many benefits to society, but at the same time, serious accidents have occurred in the past. While their continued use should be encouraged, it must be accompanied by efforts to prevent or minimize such accidents. The Code and the Guidance represent a concerted attempt by IAEA Member States to address the failings which led to those accidents. They also represent an attempt to grapple with the threat of the malicious use of sources in radiological dispersal devices. Although people will inevitably be able to identify areas where the instruments could be further improved, I do not believe that that is a priority. The priority must be the effective implementation at national level of these standards, which is what we are here this week to discuss.

DISCUSSION

A.J. GONZÁLEZ (Argentina): Mr. McIntosh understands both the international legal aspects and the technical issues. The Code of Conduct was achieved because of this rare mixture of qualities. However, the Code is a moral obligation only; sooner or later we need a more binding commitment.

The Code does not have an implementation mechanism such as any convention will have. Even the Convention on Nuclear Safety has review meetings

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125 attended by the parties. My question is whether we can ask the IAEA to consider introducing — as an intermediate step towards the horizon of binding obligations for the safety and security of sources — a mechanism for the imple-mentation of the moral obligations that States have undertaken in the Code. It could even be a simple meeting of the 72 States that have written to the Director General where they could discuss their actions. This is happening to a small extent at this conference but it is not a formal mechanism.

S. McINTOSH (Australia): I am very interested to see how today’s discussions go. Though clearly not equivalent to the Convention on Nuclear Safety or the Joint Convention process, the more informal nature of the discussions may encourage developing Member State participation. If today’s experience is positive, I would support an ongoing series of meetings like this one where States can discuss their implementation of the Code. A more formal process could then be endorsed by the IAEA General Conference.

W. STERN (United States of America): I agree with Mr. González’

observation that this is in essence the first review of the Code, and with Mr.

McIntosh that one of the findings of this conference would be that we need a slightly more formal mechanism in order to proceed and review the Code in greater depth some years from now.

C. WILLIAMS (United Kingdom): I understand that assurance on preventing the diversion of sources for malicious use is provided by the Code through a system of self-assessment and declaration by each Member State.

How effective do you consider this to be?

S. McINTOSH (Australia): This is not the whole picture. The Code stipulates that importers should assess the risk of diversion, which is the self-assessment, but exporters also have such an obligation. Exporters are requested to consult with affected States before making a denial on that basis, but ultimately it is their decision. If a situation arose where there was a Taliban-style regime, which said there was no risk of diversion, the exporting State would not be bound by that ‘assurance’. It must make its own assessment.

W. STERN (USA): The Guidance on the Import and Export of Radioactive Sources derives from the Code. I would like to emphasize that so far only three States have written to the IAEA Director General committing themselves to implementing the Guidance. This could be because States are not aware that two separate letters are requested by the General Conference: one for the Code and the other for the Guidance with an implementation date. Last year the G8 countries made a commitment to implement the Guidance by the end of 2005. The European Union countries did likewise at the USA–EU summit in Shannon. A few days ago, the USA, Canada and Mexico committed themselves to implementing the Guidance by a set date and Asia–Pacific Economic Cooperation (APEC) leaders are considering a similar commitment.

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So, although few States have written to the Director General, a lot are considering following the Guidance. Therefore I would encourage States represented here to notify the Director General so that we can start moving forward in implementing the Guidance.

As Mr. McIntosh indicated, in the last two years we have made great political progress on the Code of Conduct. Today we shall review what we have actually accomplished technically — what States have done to implement the Code. The objective is not just to hear how well things are going but also to learn what needs to be changed, what assistance should be provided and how States can help one another in implementing the Code.