The Extradition (Protection of Nuclear Material)Order 1997

Made: 22nd July 1997

Laid before Parliament: 1st August 1997

Coming into force: 1st September 1997

At the Court at Buckingham Palace, the 22nd day of July 1997 Present, The Queen’s Most Excellent Majesty in Council

Now, therefore, Her Majesty, in exercise of the powers conferred upon Her by sections 4(1), 22(3) and 37(3) of the Extradition Act 1989, and section 7 of the Nuclear Material (Offences) Act 1983, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—

1

This Order may be cited as the Extradition (Protection of Nuclear Material) Order 1997, and shall come into force on 1st September 1997.

2

• (1) Schedule 2 to this Order specifies in the first column foreign States which are Parties to the Convention and in relation to which extradition treaties (and relevant Orders in Council under section 2 of the Extradition Act 1870[^f00005]) are for the time being in force, in the second column the dates of those treaties, and in the third column those Orders in Council; and

• (2) Schedule 1 to the Extradition Act 1989[^f00006] shall apply in the case of a State specified in the first column under and in accordance with the extradition treaty whose date is specified in the corresponding entry in the second column, as supplemented by paragraphs 1 and 4 of Article 11 of the Convention; and the Order in Council which gives effect to that extradition treaty shall be construed accordingly.

3

The Extradition Act 1989, so far as it relates to extradition procedures under Part III of that Act, shall apply in the case of a State specified in Part I of Schedule 3 to this Order (being States in respect of which the Convention is in force but in relation to which no extradition treaties are in force) subject to the limitations, restrictions, exceptions and

4

The Extradition (Protection of Nuclear Material) Order 1991[^f00007] is hereby revoked.

5

• (1) This Order extends only to the United Kingdom, the Channel Islands and the Isle of Man, and to those territories specified in Schedule 4 to this Order.

• (2) The Nuclear Material (Offences) Act 1983 is hereby extended, for the purposes of this Order, to the Channel Islands and the Isle of Man, and to those territories specified in Schedule 4 to this Order.

SCHEDULE 1 — The Convention

CONVENTION ON THE PHYSICAL PROTECTION OF NUCLEAR MATERIAL

The States Parties to this Convention,

Recognizing the right of all States to develop and apply nuclear energy for peaceful purposes and their legitimate interests in the potential benefits to be derived from the peaceful application of nuclear energy.

Convinced of the need for facilitating international co-operation in the peaceful application of nuclear energy,

Desiring to avert the potential dangers posed by the unlawful taking and use of nuclear material,

Convinced that offences relating to nuclear material are a matter of grave concern and that there is an urgent need to adopt appropriate and effective measures to ensure the prevention, detection and punishment of such offences,

Aware of the need for international co-operation to establish, in conformity with the national law of each State Party and with this Convention, effective measures for the physical protection of nuclear material,

Convinced that this Convention should facilitate the safe transfer of nuclear material,

Stressing also the importance of the physical protection of nuclear material in domestic use, storage and transport,

Recognizing the importance of the physical protection of nuclear material used for military purposes, and understanding that such material is and will continue to be accorded stringent physical protection,

Have agreed as follows:

Article 1

For the purposes of this Convention:

• (a) “nuclear material” means plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotopes 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore residue; any material containing one or more of the foregoing;

• (b) “uranium enriched in the isotope 235 or 233” means uranium enriched in the isotopes 235 or 233 or both in an amount such that the abundance ratio of the sum of these isotopes to the isotope 238 is greater than the ratio of the isotope 235 to the isotope 238 occurring in nature:

• (c) “international nuclear transport” means the carriage of a consignment of nuclear material by any means of transportation intended to go beyond the territory of the State where the shipment originates beginning with the departure from a facility of the shipper in that State and ending with the arrival at a facility of the receiver within the State of ultimate destination.

Article 2

1

This Convention shall apply to nuclear material used for peaceful purposes while in international nuclear transport.

2

With the exception of articles 3 and 4 and paragraph 3 of Article 5, this Convention shall also apply to nuclear material used for peaceful purposes while in domestic use, storage and transport.

3

Apart from the commitments expressly undertaken by States Parties in the articles covered by paragraph 2 with respect to nuclear material used for peaceful purposes while in domestic use, storage and transport, nothing in this Convention shall be interpreted as affecting the sovereign rights of a State regarding the domestic use, storage and transport of such nuclear material.

Article 3

Each State Party shall take appropriate steps within the framework of its national law and consistent with international law to ensure as far as practicable that, during international nuclear transport, nuclear material within its territory, or on board a ship or aircraft under its jurisdiction insofar as such ship or aircraft is engaged in the transport to or from that State, is protected at the levels described in Annex I.

Article 4

4

Each State Party shall apply within the framework of its national law the levels of physical protection described in Annex 1 to nuclear material being transported from a part of that State to another part of the same State through international waters or airspace.

5

The State Party responsible for receiving assurances that the nuclear material will be protected at the levels described in Annex 1 according to paragraphs 1 to 3 shall identify and inform in advance States which the nuclear material is expected to transit by land or internal waterways, or whose airports or seaports it is expected to enter.

6

The responsibility for obtaining assurances referred to in paragraph 1 may be transferred, by mutual agreement, to the State Party involved in the transport as the importing State.

7

Nothing in this article shall be interpreted as in any way affecting the territorial sovereignty and jurisdiction of a State, including that over its airspace and territorial sea.

Article 5

Article 6

Article 7

Article 8

Article 9

Upon being satisfied that the circumstances so warrant, the State Party in whose territory the alleged offender is present shall take appropriate measures, including detention, under its national law to ensure his presence for the purpose of prosecution or extradition. Measures taken according to this article shall be notified without delay to the States required to establish jurisdiction pursuant to Article 8 and, where appropriate, all other States concerned.

Article 10

The State Party in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.

Article 11

Article 12

Any person regarding whom proceedings are being carried out in connection with any of the offences set forth in Article 7 shall be guaranteed fair treatment at all stages of the proceedings.

Article 13

Article 14

Article 15

The Annexes constitute an integral part of this Convention.

Article 16

Article 17

Article 18

Article 19

Article 20

Article 21

Article 22

The depositary shall promptly notify all States of:

• (a) each signature of this Convention;

• (b) each deposit of an instrument of ratification, acceptance, approval or accession;

• (c) any reservation or withdrawal in accordance with Article 17;

• (d) any communication made by an organization in accordance with paragraph 4(c) of Article 18;

• (e) the entry into force of this Convention;

• (f) the entry into force of any amendment of this Convention; and

• (g) any denunciation made under Article 21.

Article 23

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Director General of the International Atomic Energy Agency who shall send certified copies thereof to all States.

In witness whereof, the undersigned, being duly authorized, have signed this Convention, opened for signature at Vienna and at New York on 3 March 1980.

ANNEX 1 — LEVELS OF PHYSICAL PROTECTION TO BE APPLIED IN INTERNATIONAL TRANSPORT OF NUCLEAR MATERIAL AS CATEGORIZED IN ANNEX II

ANNEX II — TABLE: CATEGORIZATION OF NUCLEAR MATERIAL

SCHEDULE 2 — FOREIGN EXTRADITION TREATIES AND STATES WHICH ARE PARTIES TO THE CONVENTION AND IN RELATION TO WHICH ORDERS IN COUNCIL UNDER SECTION 2 OF THE EXTRADITION ACT 1870 ARE IN FORCE

SCHEDULE 3

PART I — FOREIGN STATES WHICH ARE PARTIES TO THE CONVENTION AND WITH WHICH NO EXTRADITION TREATIES ARE IN FORCE

PART II — APPLICATION OF THE EXTRADITION ACT 1989 IN THE CASE OF A STATE MENTIONED IN PART I

1

The Extradition Act 1989[^f00008] shall have effect in relation to a State specified in Part 1 of this Schedule only in respect of—

• (a) an offence mentioned in section 22(4)(f) of that Act;

• (b) an attempt to commit such an offence;

• (c) counselling, procuring, commanding, aiding or abetting such an offence; and

• (d) being an accessory before or after the fact to such an offence.

2

No proceeding shall be taken on an application for a provisional warrant to be issued under section 8(1)(b) of the Extradition Act 1989, and no such warrant shall be issued, unless the application is made with the consent of the Secretary of State signified by an Order in the form set out in Part III of this Schedule or in a form to the like effect; but except as aforesaid the signification of consent shall not affect the provisions of the said section 8.

PART III

FORM OF CONSENT OF SECRETARY OF STATE TO APPLICATION FOR A PROVISIONAL WARRANT

SCHEDULE 4 — TERRITORIES TO WHICH THIS ORDER EXTENDS

• Anguilla

• Bermuda

• British Antarctic Territory

• British Indian Ocean Territory

• British Virgin Islands

• Cayman Islands

• Falkland Islands and Dependencies

• Gibraltar

• Montserrat

• Pitcairn, Henderson, Ducie and Oeno Islands

• St. Helena and Dependencies

• Sovereign Base Areas of Akrotiri and Dhekelia

• Turks and Caicos Islands

Signed

N. H. Nicholls — Clerk of the Privy Council

Explanatory note

(This note is not part of the Order)

This Order applies the Extradition Act 1989 so as to make extraditable the offences described in the Nuclear Material (Offences) Act 1983 (c. 18.), attempts to commit such offences and participation in the commission of such offences. It applies to States Parties to the Convention on the Physical Protection of Nuclear Material, opened for signature at New York and Vienna on 3rd March 1980.

Footnotes

[^f00001]: Cmnd. 8112.

[^f00002]: 1870 c. 52. The Act was repealed by the Extradition Act 1989 with the savings mentioned in section 37 of that Act. For the purpose of those savings the Act has to be read with section 22(1) of the Criminal Justice (International

[^f00003]: 1989 c. 33.

[^f00004]: 1983 c. 18.

[^f00005]: 1870 c. 52.

[^f00006]: Paragraph 15 of Schedule 1 was amended by section 22 of the Criminal Justice (International Co-operation) Act 1990.

[^f00007]: S.I. 1991/1720.

[^f00008]: 1989 c. 33.