S.I. No. 381/2019 - Extradition (Convention on the Physical Protection Of Nuclear Material) Order 2019

1. The intentional commission of

(a) an act without lawful authority which constitutes the receipt, possession, use, transfer, alteration, disposal or dispersal of nuclear material and which causes or is likely to cause death or serious injury to any person or substantial damage to property or to the environment;

(b) a theft or robbery of nuclear material;

(c) an embezzlement or fraudulent obtaining of nuclear material;

(d) an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority;

(e) an act directed against a nuclear facility, or an act interfering with the operation of a nuclear facility, where the offender intentionally causes, or where he knows that the act is likely to cause, death or serious injury to any person or substantial damage to property or to the environment by exposure to radiation or release of radioactive substances, unless the act is undertaken in conformity with the national law of the State Party in the territory of which the nuclear facility is situated;

(f) an act constituting a demand for nuclear material by threat or use of force or by any other form of intimidation;

(g) a threat

(i) to use nuclear material to cause death or serious injury to any person or substantial damage to property or to the environment or to commit the offence described in sub-paragraph (e), or

(ii) to commit an offence described in sub-paragraphs (b) and (e) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act;

(h) an attempt to commit any offence described in sub-paragraphs (a) to (e);

(i) an act which constitutes participation in any offence described in subparagraphs (a) to (h);

(j) an act of any person who organizes or directs others to commit an offence described in sub-paragraphs (a) to (h); and

(k) an act which contributes to the commission of any offence described in subparagraphs (a) to (h) by a group of persons acting with a common purpose; such act shall be intentional and shall either

(i) be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence described in sub-paragraphs (a) to (g), or

(ii) be made in the knowledge of the intention of the group to commit an offence described in sub-paragraphs (a) to (g)

shall be made a punishable offence by each State Party under its national law.

2. The Republic of Azerbaijan declares that it is unable to guarantee the implementation of the provisions of the Convention on the Physical Protection of Nuclear Material and the Amendment to the Convention on the Physical Protection of Nuclear Material in its territories occupied by the Republic of Armenia (the Nagorno-Karabakh region of the Republic of Azerbaijan and its seven districts surrounding that region), until the liberation of those territories from the occupation and complete elimination of the consequences of that occupation (the schematic map of the occupied territories of the Republic of Azerbaijan is enclosed).

3. The Republic of Azerbaijan reserves the right to amend or revoke at any time the provisions of Paragraph 1 and Paragraph 2 of the present Declaration, and other Parties shall be notified in writing of any such amendments or revocation.”

Pakistan

“[...]

(6) It does not consider Article 11 of the Convention to be the legal basis for extradition, with respect of the offences set forth therein, and it shall conduct all extraditions under the Convention in accordance with the provisions of the laws of the Islamic Republic of Pakistan, on the basis of treaties on extradition the Government of the Islamic Republic of Pakistan has entered into, and upon the principle of reciprocity.”

GIVEN under my Official Seal,

18 July, 2019.

SIMON COVENEY,

Minister for Foreign Affairs and Trade.

EXPLANATORY NOTE

(

This note is not part of the Instrument and does not purport to be a legal interpretation

.)

The effect of this Order is to apply the provisions of Part II of the

Extradition Act 1965

to the countries listed in Part B of Schedule 1 to the Order in respect of offences under the 1979 Convention on the Physical Protection of Nuclear Material. The Convention was ratified on behalf of the State on 6 September 1991. The countries listed in Part B of Schedule 1 are those states parties to the Convention other than Member States of the European Union because extradition to and from those Member States is regulated by the European Arrest Warrant system.

This Order also contains a declaration under section 8(2) of the

Extradition Act 1965

to the effect that the Government have made an arrangement (namely, the Amendment to the Convention on the Physical Protection of Nuclear Material adopted at Vienna on 8 July 2005), amending the Convention as between Ireland and the countries listed in Part B of Schedule 2.

Part C of Schedule 1 and Part C of Schedule 2 list the reservations and declarations, or parts thereof, made by certain countries which relate to extradition under the Convention, as amended.

4. At intervals of not less than five years thereafter, the majority of States Parties may obtain, by submitting a proposal to this effect to the depositary, the convening of further conferences with the same objective.

5. A State Party may consult and co-operate, as appropriate, with other States Parties directly or through the International Atomic Energy Agency and other relevant international organizations, with a view to obtaining their guidance on the design, maintenance and improvement of its national system of physical protection of nuclear material in domestic use, storage and transport and of nuclear facilities.

6. After Article 2 of the Convention, a new Article 2A is added as follows

Article 2A

7. Article 5 of the Convention is replaced by the following text

8. Article 6 of the Convention is replaced by the following text

9. Paragraph 1 of Article 7 of the Convention is replaced by the following text

10. After Article 11 of the Convention, two new articles, Article 11A and Article 11B, are added as follows

Article 11A

None of the offences set forth in article 7 shall be regarded for the purposes of extradition or mutual legal assistance, as a political offence or as an offence connected with a political offence or as an offence inspired by political motives. Accordingly, a request for extradition or for mutual legal assistance based on such an offence may not be refused on the sole ground that it concerns a political offence or an offence connected with a political offence or an offence inspired by political motives.

Article 11B

Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set forth in article 7 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.

11. After Article 13 of the Convention, a new Article 13A is added as follows

Article 13A

Nothing in this Convention shall affect the transfer of nuclear technology for peaceful purposes that is undertaken to strengthen the physical protection of nuclear material and nuclear facilities.

12. Paragraph 3 of Article 14 of the Convention is replaced by the following text

13. Article 16 of the Convention is replaced by the following text

14. Footnote

b/

of Annex II of the Convention is replaced by the following text

b/

Material not irradiated in a reactor or material irradiated in a reactor but with a radiation level equal to or less than 1 gray/hour (100 rads/hour) at one metre unshielded.

15. Footnote

e/

of Annex II of the Convention is replaced by the following text

e/

Other fuel which by virtue of its original fissile material content is classified as Category I and II before irradiation may be reduced one category level while the radiation level from the fuel exceeds 1 gray/hour (100 rads/hour) at one metre unshielded.

PART B

Albania

Algeria

Antigua and Barbuda

Argentina

Armenia

Australia

Azerbaijan

Bahrain

Bangladesh

Bolivia (Plurinational State of)

Bosnia and Herzegovina

Botswana

Burkina Faso

Cameroon

Canada

Chile

China

Colombia

Costa Rica

Côte d‘Ivoire

Cuba

Djibouti

Dominican Republic

Ecuador

El Salvador

Eswatini

Fiji

Gabon

Georgia

Ghana

Iceland

India

Indonesia

Israel

Jamaica

Japan

Jordan

Kazakhstan

Kenya

Kuwait

Kyrgyzstan

Lesotho

Libya

Liechtenstein

Madagascar

Mali

Marshall Islands

Mauritania

Mexico

Monaco

Montenegro

Morocco

Myanmar

Namibia

Nauru

New Zealand

Nicaragua

Niger

Nigeria

Norway

Pakistan

Palestine

Panama

Paraguay

Peru

Qatar

Republic of Korea

Republic of Moldova

Republic of North Macedonia

Russian Federation

Saint Lucia

San Marino

Saudi Arabia

Senegal

Serbia

Seychelles

Singapore

Switzerland

Tajikistan

Thailand

Tunisia

Turkey

Turkmenistan

Ukraine

United Arab Emirates

United States of America

Uruguay

Uzbekistan

Viet Nam

PART C

Reservations made by States Parties with respect to the Amendment to the Convention on the Physical Protection of Nuclear Material

(Unless otherwise indicated, the reservations were made upon ratification, acceptance, approval, formal confirmation, succession or accession.)

Azerbaijan

“[...]

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

2

nd August,

2019.

WHEREAS, by the Convention on the Physical Protection of Nuclear Material (the terms of which are set out in Part A of Schedule 1 to the following Order) adopted at Vienna on 26 October 1979 (referred to subsequently in these recitals as “the Convention”), to which the State is a party, an arrangement was made with the other countries that are parties to that Convention for the surrender of persons wanted for prosecution or punishment for the offences specified therein;

AND WHEREAS the Convention was ratified on behalf of the State on 6 September 1991;

AND WHEREAS the Convention has also been ratified, or acceded to, by the countries specified in that regard in Part B of Schedule 1 to the following Order, subject to the reservations entered and declarations made by certain countries concerned specified in Part C of that Schedule;

AND WHEREAS by the Amendment to the Convention on the Physical Protection of Nuclear Material adopted in Vienna on 8 July 2005 (referred to subsequently in these recitals as “the Amendment” and the terms of which are set out in Part A of Schedule 2 to the following Order), to which the State is a party, an arrangement (within the meaning of subsection (2) of

section 8

of the

Extradition Act 1965

(No. 17 of 1965)) was made with other countries that are parties to the Amendment;

AND WHEREAS the Amendment was ratified on behalf of the State on 22 September 2014;

AND WHEREAS the Amendment has also been ratified, or acceded to, by the countries specified in that regard in Part B of Schedule 2 to the following Order, subject to the reservations entered and declarations made by certain countries concerned specified in Part C of that Schedule;

NOW I, SIMON COVENEY, Minister for Foreign Affairs and Trade, in exercise of powers conferred on me by section 8 (amended by

section 57

(3) of the

Criminal Justice (Terrorist Offences) Act 2005

(No. 2 of 2005)) of the

Extradition Act 1965

(No. 17 of 1965) (as adapted by the Foreign Affairs (Alteration of Name of Department and Title of Minister) Order 2011 (

S.I. No. 246 of 2011

)), and after consultation with the Minister for Justice and Equality, hereby order as follows