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International Agreement to Aid Russian Nuclear Cleanup Could Compound U.S.-Russian Liability Dispute By Joe Fiorill WASHINGTON — The Russian Duma’s apparently imminent ratification of a new agreement could further complicate an ongoing U.S.-Russian legal dispute, potentially damaging international efforts to secure dangerous Russian nuclear weapons materials, according to officials and experts interviewed in recent weeks (see GSN, Sept. 22). Amid U.S.-Russian disagreement over liability protections in nuclear threat reduction measures, Russian ratification of the Framework Agreement on a Multilateral Nuclear Environmental Program in the Russian Federation (MNEPR) could presage a renegotiation of the 1992 Cooperative Threat Reduction umbrella agreement, a process that would be characterized by an “intense debate” over liability issues, Duma Defense Committee adviser Alexander Pikayev said. The disagreement, which centers on how to assign legal liability for injuries and damages arising from activities carried out under threat reduction agreements, has led to the termination of two U.S.-Russian programs ― the Plutonium Science and Technology agreement (see GSN, July 25) and the Nuclear Cities Initiative agreement (see GSN, Sept. 19) ― in the past three months. The United States has been seeking to establish liability provisions such as those contained in the 1992 umbrella agreement as a standard for all such programs. Unlike under several related agreements, Russia could be liable under the umbrella agreement for damages or injuries resulting from planned attacks. Washington says it is seeking to protect its officials and contractors against court claims, while Russian officials have called the U.S.-favored language unreasonable. In a telephone interview earlier this month from Moscow, Pikayev stressed that, in any case, Russia lacks the financial wherewithal to meaningfully accept broad liability. “If Russia could pay for the liability in full, what is the reason to accept international assistance?” asked the Duma adviser, who also leads nonproliferation studies at Russia’s Institute of World Economy and International Relations and at the Carnegie Endowment for International Peace’s Carnegie Moscow Center. In May, as the dispute came to a head, Russia, the United States, nine European Union countries and Norway, as well as the European Community and the European Atomic Energy Community, signed the MNEPR agreement in Stockholm. The program is expected to focus on cleaning up nuclear material in northwestern Russia, including spent fuel from 109 decommissioned nuclear submarines (see GSN, May 22). Then-Swedish Foreign Minister Anna Lindh called the signing “an historic event for our children and our grandchildren,” but the parties left the sticky question of liability out of the framework agreement, drawing up a separate Protocol on Claims, Legal Proceedings and Indemnification, which was signed by all parties except the United States, with the expectation that a separate U.S.-Russian deal would be reached later. U.S., European and Russian sources generally agreed that the Duma is likely to ratify MNEPR during its current session, despite a tight schedule leading up to legislative elections slated for December. Under the terms of the agreement, MNEPR will enter into force when Russia and one other signatory deposit instruments of ratification at the Organization for Economic Cooperation and Development or with the Russian government; since Sweden has already deposited its ratification, Duma ratification would pave the way for a quick entry into force. Opinions varied about whether the move could make it more difficult to garner support later for U.S.-favored measures. “CTR is not dead,” said Pikayev, but “if MNEPR is ratified, a precedent would be established that liability would have to be shared … and it would be in conflict with the relevant provision of the CTR agreement.” The U.S. State Department Nonproliferation Bureau’s Jeff Miller, who will represent the United States at MNEPR talks next week in Moscow, took a different view. “We welcome ratification of the MNEPR,” Miller told Global Security Newswire yesterday, “because it would allow our European friends to begin to implement ratification of the agreement in earnest.” “We don’t consider it [MNEPR] to be a precedent for future agreements between Russia and the United States,” he added, acknowledging it is “certainly possible” Russia could view it as such. Carnegie Endowment Senior Associate Rose Gottemoeller concurred that Duma ratification of MNEPR will not necessarily bode ill for other measures. “It’s not an either-or, and that’s well-recognized within both the Russian government and in some parts of the Duma as well,” Gottemoeller said in an interview last week. Dispute Could Imperil Financing But May Not Impede U.S. RatificationThe liability dispute appears to be hampering MNEPR financing mechanisms. The United States ― “primarily because of our liability concerns,” said Miller ― has not contributed to a narrowly targeted European Bank for Reconstruction and Development fund that has received more than $10 million each from European MNEPR parties. It is unclear whether the liability dispute will also affect progress toward a more broadly applicable MNEPR fund envisioned under the framework agreement, he added. “One of the reasons we’ve bifurcated the issue of liability is because we want our European allies to be able to move forward where we could not,” Miller said. At the same time, a relatively early U.S. ratification of MNEPR appears possible, despite the need for Washington to work out liability arrangements with Moscow in the context of the agreement. U.S. officials have said they consider CTR umbrella agreement liability language to apply to threat reduction activities in Russia that do not have specific liability provisions attached, and Miller said the United States could deposit its ratification even in the absence of U.S.-Russian agreement on liability under MNEPR. He added that, in a departure from the norm, the U.S. Senate does not have to approve MNEPR ratification. “It was determined a while ago that we don’t need to seek Senate advice and consent on the MNEPR. We only need to report to the Senate that we have signed the MNEPR” before depositing an instrument of ratification at the OECD, Miller said. Referring to the bureaucratic procedures required in such cases, Miller added, “We shouldn’t have difficulty getting the authority to deposit the instrument. It’s just that we haven’t done that yet. I can’t really give you a reason that we haven’t done it. … In terms of our relationships with our European allies, at least, on this issue, the most important thing was signing the agreement in May in Stockholm.”
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