ADDITIONAL QUESTIONS FROM JAPAN REGARDING THE

UNCLAS TOKYO 005904 SIPDIS SIPDIS E.O. 12958: N/A TAGS: KNNP MCAP PINR PINS IAEA FR SUBJECT: ADDITIONAL QUESTIONS FROM JAPAN REGARDING THE GLOBAL INITIATIVE REF: SECSTATE 164535 ¶1. THIS IS AN ACTION MESSAGE. SEE PARAGRAPHS 4-6. ¶2. SUMMARY: Russian Embassy Political Officer Sergey I. Kuznetsov and American Embassy Science and Technology Officer Ayanna Hobbs met with Japanese counterparts at MOFA on 2 October, and hand-delivered answers provided by Washington (reftel) on Japan's initial questions. Russian Embassy Officer read off similar answers provided by Russian authorities. MOFA reiterated Japan's continued support of the Initiative. However, MOFA made clear that any statement the GOJ endorses will have to be reviewed by other agencies, and this will take time. If such a review is not possible, Japan will attend the first meeting in Morocco, but may only participate as an observer It will not be able to endorse the documents until further review by all participating Japanese government agencies. END SUMMARY 3.BEGIN TEXT of MOFA COMMENTS AND QUESTIONS. We understand that the Russian Federation and the United States expect that the Initial Partners will endorse Statement of Principles and possibly Terms of Reference, but not Explanatory Notes to Statement of Principles, at the meetings on 30-31 October ¶2006. Given the importance and concreteness of their contents, coordination and elaboration might be required to come up with agreed explanatory notes. Japan will continue to cooperate with Russia and the US in this regard. ¶4. Statement of Principles: ¶A. Description on National Laws and Regulations Throughout the text of Statement of Principles slightly different wording is used in referring to national legal framework. For the sake of consistency and greater clarity, we would suggest that relevant parts of the text read as follows: Introductory Part (3rd line): consistent with their relevant laws and regulations (instead of consistent with national legal authorities) 4th bullet (3rd line): consistent with their relevant laws and regulations (instead of consistent with relevant laws) 8th bullet (3rd and 4th lines): consistent with their relevant laws and regulations (instead of consistent with their national law) (In the 7th bullet, the phrase national legal and regulatory frameworks could remain as is now, if it refers to frameworks as a whole rather than to individual laws or regulations.) ¶B. 3rd Objective With regard to the phrase prevent illicit trafficking in them, we would appreciate clarification on what in them refers to. Could this part read: prevent their illicit trafficking? With respect to the phrase to include cooperation...in this initiative, could we understand that it means as follows: (in order) to research and develop, in a cooperative manner, an interoperable detection capability open to all who participate in this initiative. ¶5. Terms of Reference for Implementation and Assessment: ¶A. Use of Shall Japan proposes that the word shall throughout the text be replaced by other appropriate words (such as will) so as to clarify the non-legally binding nature of the document. ¶B. Scope of Activities, 2nd bullet What is the point to refer to evaluate requests (to fill capability gaps)? Reference to the possibility to provide assistance seems to cover the main point on this matter. ¶C. Responsibilities of Initiative Participants, paragraph 2 With regard to the phrase will ensure that appropriate personnel and resources are dedicated..., we would appreciate your clarification on whether this part requests participating states to establish an organizational unit or task-force consisting of experts from various ministries and departments to be involved in GI activities or to take measures so that each relevant ministries and departments duly dedicate their personnel and resources for GI activities. We understand that the latter is the intention of this paragraph and propose that this paragraph be slightly modified to read as follows: Participants will strive to ensure that appropriate personnel and resources are dedicated to the implementation of the Initiative and that operational and technical experts from ministries and departments with appropriate operational and technical expertise (e.g. Defense, Energy, Interior/Homeland Security, Finance, Justice, etc.) participate in Initiative activities identified in the Plan of Work, in consultation with the host nation. ¶D. Responsibilities of Initiative Participants, paragraph 3 Given that a schedule of technical meetings and operational training exercises in the future is unknown at this stage, it is difficult for many countries, including Japan, to make a statement to ensure adequate provision of resources to support such activities. Therefore, Japan would propose that this paragraph be slightly modified read as follows: Participants will provide political support within their governments to the activities of the operational and technical experts, and strive to provide appropriate resources to support an active schedule of technical meetings and operational training exercises. ¶E. Responsibilities of Initiative Participants. Paragraph 4 How many contact points are expected to be designated? Do you expect a single contact point (e.g. an official of the Foreign Ministry) who will coordinate all of the work within his/her country? Alternatively, do you envisage eight contact points who will take care of the eight objectives mentioned in the Statement of Principles? ¶6. Explanatory notes to Statement of Principles: ¶A. Objective 1 8.1 Activities To make recommendations to other partner nations regarding best practices is regarded as one of the main activities under this objective. While best practices of a country might be useful for others, it is not appropriate to directly apply practices of a country in other countries, because appropriate physical protection systems should differ depending on the assumptions of threats, specificity of facilities and other conditions. We would like to know your views on this point. 8.2. Authorities In this paragraph, partner states are requested to maintain capabilities in a manner that meets or exceeds any legal requirements. However, the phrase exceeds any legal requirements sounds too strong and may not be necessarily appropriate given the intention of this paragraph. We propose that this part read as follows: All partner nations will maintain these capabilities in a manner that meets the legal requirements established by... and will strive to strengthen such capabilities further. ¶B. Objective 2 9.1. Activities (same comments as mentioned in 8.1. above) 9.2. Authorities (same comments as mentioned in 8.2. above) ¶C. Objective 3 10.1. Goal In this paragraph, partner nations are requested to maintain a capability to detect the illicit movement of nuclear material and radioactive substances, across all borders, ports, and airports. Does this capability purport only to technical capability within the present domestic legal framework or include legal capabilities beyond the existing domestic legal framework to detect and prevent illicit movement of nuclear material (for example, granting additional power to regulate it to Authority or even establishing new punishment clause to assure its enforcement)? 1 0.2. Authorities (same comments as mentioned in 8.2. above) ¶D. Objective 4 11.1. Title The title of this objective reads: improve capabilities of partner nations to search for, seize. Does the word improve capabilities mean the improvement only of technical capabilities of search and seizure within the present domestic legal framework or include the establishment of new legal framework of search and seizure beyond the existing domestic legal framework (for example, amending the domestic legal framework to give a special power to authorities regarding search and seizure or to change the requirements of court issuance of warrant for search and seizure)? 11.2. Authorities (same comments as mentioned in 8.2. above) ¶E. Objective 5 12.1 Title The title of this objective reads: improve capabilities for --- investigation. Does the word improve capabilities mean the improvement of technical capabilities within the present domestic legal framework or include the improvement of legal capabilities (for example, introducing new methods of investigation including sting operation)? 12.2 Goal In this paragraph, partner nations that receive requests for assistance are requested to provide appropriate operational and technical assistance to -------------- ensure just punishment of those responsible. In this context, does the word assistance mean the practice of seminars and workshops to improve the technical capabilities of investigators regardless of the ongoing investigation of concrete cases, or include mutual legal assistance in criminal matters related to the ongoing investigation of concrete cases. Partner nations are also requested to maintain capability --- to identify all perpetrators and facilitators. In this connection, does this capability include a legal capability to identify perpetrators and facilitators (for example, introducing new legal methods of investigation beyond the present domestic legal framework)? Partner nations are also requested to maintain a means to share operational and technical information. What kind of concrete information is supposed to be shared? Does this include information on the ongoing investigation? 12.3. Authorities (same comments as mentioned in 8.2. above) ¶F. Objective 6 13.1. Goal In this paragraph, partner nations are requested to maintain capability to deny financial and economic resources to persons and entities reasonably believed to be seeking to carry out or facilitate a terrorist attack involving nuclear materials or radioactive substances as well as to maintain a capability to identify all suspicious activity related to terrorist efforts to acquire or use nuclear materials, or carry out acts of sabotage. What kind of concrete capabilities are envisaged here? Would they include the establishment of such legal measures that authorities maintain the power to grant permission on the matter in order to prohibit or prevent the provision of funds to terrorists, or of the additional legal power for authorities, or of the new legal instrument for punishment to assure effective enforcement? 13.2. Authorities (same comments as mentioned in 8.2. above) ¶G. Objective 7 14.1. Goal In this paragraph partner nations are requested to establish a firm basis for operational, technical, law enforcement, and other forms of concrete cooperation with partner nations on all aspects of the Statement of Principles. In this connection, we would like to know whether (a) you assume a new legal framework beyond existing one including the Convention on the Physical Protection for Nuclear Material and Facilities, the Nuclear Terrorism Convention, United Nations Security Council Resolution 1373 and 1540, or (b) you expect those countries who have not met the existing legal obligations to establish such legal framework to enhance their capacity building and expect those countries with such framework to assist those countries without such framework to implement this initiative in a smooth manner within the existing legal framework. We would like you to clarify your intention regarding these points. If you have option (a) above in mind, we would like you to explain the new legal framework that is to be established, so that we can consider it. In relation to the wording of the explanatory notes, at this stage we would like this part to read: establish, if appropriate (or necessary),a firm basis. In case you have option (b) above in mind, we would propose that this part read: like to ask you to change the phrase establish a firm basis for operational, technical, law enforcement, and other forms of concrete cooperation with partner nations on all aspects of the Statement of Principles, a firm legal basis consistent with the Convention on the Physical Protection for Nuclear Material and Facilities, the Nuclear Terrorism Convention, and United Nations Security Council Resolutions 1373 and 1540. We would like to know your views on the arrangements for the proper handling of evidence. If you think that participating countries should provide evidence beyond the existing legal frameworks, such as the Treaty between Japan and the United States of America on Mutual Legal Assistance in Criminal Matters, we need to consider carefully, in terms of its necessity and rationality, whether such arrangements could be accepted. Therefore, at this stage, we propose that this part read: including, if appropriate (or necessary),the arrangements for the proper handling of evidence or including the arrangements for the proper handling of evidence consistent with the existing international legal frameworks including the Convention on the Physical Protection for Nuclear Material and Facilities, the Nuclear Terrorism Convention, and United Nations Security Council Resolutions 1373 and 1540. In relation to the phrase through long jail terms, we would like to point out that long jail terms is a relative concept and heavily depends on domestic law of each country. For example, Article 6 of the Nuclear Terrorism Convention stipulates that criminal acts shall be punished by penalties consistent with their grave nature, but does not specify jail terms. Moreover, in criminal cases, a court has its own exclusive authority to determine a reasonable sentencing within the statutory penalty. We doubt whether court's decisions will be subject to long jail terms in all cases. Therefore we would propose that this part read, for example: through criminal penalties consistent with grave nature, according to the article 6 on the Nuclear Terrorism Convention. In relation to the phrase and civil or administrative penalties following long jail terms, we would like you to know that in Japan the person imposed on a criminal penalty shall be imposed on neither a civil nor an administrative penalty without specific provisions such as disqualification causes in other individual laws. We would therefore request that this part read: and, if possible, civil or administrative penalties. 14.2. Activities In this paragraph, partner nations are requested to review, ensure the effectiveness of, and strengthen on a continuous basis national legal and regulatory frameworks necessary to implement the Statement of Principles. While we understand your point, we think that the following formulation would sound more appropriate: will review, ensure the effectiveness of, and, if necessary, strengthen on a continuous basis the national legal and regulatory frameworks... 14.3. Authorities (same comments as mentioned in 8.2. above) ¶H. Objective 8 15.1. Goal In this paragraph, partner nations are requested to maintain points of contact for sharing operational, technical, law enforcement information. However, in the paragraph under Activities, the rapid exchange only of technical and operational information is referred to and there is no mention of law enforcement information. We would like to know the reason of this inconsistency. We would also like to know the contents of operational information, technical information and law enforcement information and whether such information includes that related to ongoing investigation. 15.2. Authorities (same comments as mentioned in 8.2. above) END TEXT ¶7. Japanese participants included members MOFA's International Nuclear Energy Cooperation Division: 1) Principal Deputy Director Zentaro Naganuma 2) Deputy Director Takayuki Kitagawa (NOTE: Mr. Kitagawa has been re-assigned as of 2 October) 3) Officer Toshio Kaneko SCHIEFFER SCHIEFFER