By Joe Fiorill
Global Security Newswire
WASHINGTON — A looming deadline and policy pressures are fueling new hopes that the United States and Russia might find a way out of a legal stalemate that for years has hampered the countries’ cooperation on work to secure and eliminate nuclear materials in Russia (see GSN, June 20). Foreign-policy and domestic-security discussions here have been marked in recent months by a new focus on the threat of nuclear terrorism, with Russia mentioned frequently as a possible source of stolen or diverted material for a potential terrorist attack. Meanwhile, a key U.S.-Russian agreement on locking down and destroying various materials in Russia is fast nearing expiration. Unless a new extension is agreed upon, the 1992 Cooperative Threat Reduction “umbrella agreement” will run out in the middle of next year. The threat and deadline pressures could lead at last to a resolution to the dispute, officials and experts have indicated in recent interviews and public statements. “They would like to get it done” within the next few months, a U.S. official close to the talks said in an interview this week. “We should have sorted this out a while ago.” The disagreement centers on the extent to which U.S. officials and contractors should be shielded from lawsuits arising from their work in Russia to secure nuclear materials. Washington has until recently sought to impose, as a standard to be observed in all U.S.-Russian nuclear security agreements, broad liability protections such as those in the current umbrella agreement. Related accords on U.S.-Russian nuclear security work have shielded U.S. officials and contractors from liability when engaging in activities under the agreements but, in a notable exception, left them exposed to liability in cases where damages or injury result from individuals’ intentional acts. The Cooperative Threat Reduction agreement, however, contains no such exception, providing more complete immunity for U.S. personnel. Two U.S-Russian accords from 1998 — the Nuclear Cities Initiative and the Plutonium Science and Technology agreements — were allowed to expire in 2003 because they contained the exception for premeditated acts. Later in 2003, Russia ratified the Framework Agreement on a Multilateral Nuclear Program in Russia, which governs European- and U.S.-aided programs to clean up nuclear sites in northwestern Russia. The liability provisions of the treaty contained the exception for intentional acts and, as a result, were laid out not in the main text but in a side agreement with European countries that the United States did not sign (see GSN, Dec. 15, 2003). “I think that there probably need to be some compromises on the U.S. side,” Institute for Science and International Security Director David Albright said at a congressional hearing this week. “There has been a sense that some of the resistance on the U.S. side has been unnecessary.” Contractors Question U.S. Focus in TalksIn early 2004, U.S. National Nuclear Security Administration head Linton Brooks defended the tough U.S. line on liability, saying Washington’s position was based on fears of “manipulation” of the Russian legal system, potentially leading to malicious lawsuits against U.S. contractors (see GSN, Jan. 14, 2004). “We don’t want to subject our companies to that,” Brooks told reporters at the time. Among those pushing for a quick resolution to the dispute, though, are many of the companies to which Brooks referred. While they could be at the center of any lawsuits resulting from damages that occur during the nonproliferation projects, the contractors have questioned the U.S. insistence that liability protections include no exception for individuals’ premeditated acts. The Contractors International Group on Nuclear Liability, which counts such members as Battelle Memorial Institute and General Electric, late last month wrote U.S. Secretary of State Condoleezza Rice to express support for speeding ratification of the International Atomic Energy Agency’s Convention on Supplementary Compensation for Nuclear Damage “as a long-term and comprehensive solution to the liability issue impasse.” Voicing support for the conclusions of a recent U.S.-Russian expert report on the subject, the group said Russia and the United States should place more emphasis on the international treaty process and on Russian liability law rather than on “more than decade-old” efforts to reach a bilateral arrangement. The contractors’ counsel, Omer Brown of the law firm Harmon, Wilmot & Brown, wrote in the letter to Rice that the group considers no current bilateral or multilateral agreement to provide adequate nuclear liability protection but that the solution is in the international treaty, not in insisting on liability protections for premeditated acts. “Ad hoc” bilateral agreements with the United States, Brown wrote, could even diminish Russia’s motivation to adopt more comprehensive measures such as the U.N. treaty — a text contractors support, he added in an interview today, in part because it would require Russia to substantially increase the maximum amount it agrees to pay out in compensation after a nuclear incident. He said the treaty would raise Russia’s limit for such payments from about $60 million, the figure it is contemplating under the 1963 Vienna Convention on Civil Liability for Nuclear Damage, to about $450 million. “Too much emphasis has been placed by the U.S. government on resisting Russia’s insistence that any agreement exclude coverage for premeditated acts of individuals,” Brown wrote in the letter. “Such a provision has been a feature of the 1963 Vienna and 1960 Paris conventions [addressing nuclear liability], under which contractors have done work for four decades. The exclusion does not appear unreasonable.” While the United States focuses on the question of intentional acts, the contractors said, it fails to address a more important deficiency in the liability provisions. “We’re not hung up on this acts-of-individuals, because that is something we’ve lived with under the conventions for 40 years, intentional acts of individuals. That’s something that the State Department has been insisting on, and it’s kind of held things up,” Brown said today. “What they haven’t been concentrating on is the most important part, which is the waiver of sovereign immunity.” Brown wrote in his letter to Rice that the “critical deficiency of all prior nuclear indemnity agreements with Russia” was the lack of such a provision, in which Russia would waive its immunity as a sovereign country from lawsuits. Since a government cannot be sued without such a waiver, he said today, contractors would have no recourse if Russia simply refused to honor provisions in liability agreements that nominally require Moscow to provide compensation or come to the legal defense of contractors. The chairwoman of the expert report group, Carnegie Endowment for International Peace Senior Associate Rose Gottemoeller, said contractors believe none of the existing U.S.-Russian agreements to provide adequate liability protection but are not eager to see work stopped either. “They’re kind of holding their nose and proceeding with work,” the former U.S. Energy Department nonproliferation specialist said in an interview this week. U.N. Compensation Treaty, Multilateral Cleanup Accord ConsideredThe Cooperative Threat Reduction umbrella agreement’s language on liability remains the United States’ “first position” in negotiations, the U.S. official close to the talks said, but “I’m not sure we’re going to get it.” In the absence of that language, the parties could find solutions in the Multilateral Nuclear Program in Russia liability protocol or in the IAEA compensation treaty. The multilateral accord, as signed by European countries and Russia, protects the European governments and their contractors from all legal proceedings brought by Moscow, “with the exception of claims for injury or damage against individuals arising from omissions or acts of such individuals done with intent to cause injury or damage.” It also requires Russia to “provide for the adequate legal defense of and indemnify” foreign contributors “in connection with third-party claims,” again stipulating the exception for intentional acts. “That’s pretty good,” the U.S. official said of the agreement, “and that in itself might be one to use.” The IAEA convention would create a “worldwide liability regime” in which each country would be responsible for maintaining reserves from which parties injured during activities at its facilities would be compensated. After a country’s reserve was paid out, the other treaty countries would contribute any additional compensation to injured parties, with the various countries’ payouts determined by a formula laid out in the treaty. The convention assigns “absolute” liability to the country in which the nuclear site is located but adds an exception for damage resulting from “armed conflict, hostilities, civil war or insurrection” or from a “grave natural disaster of exceptional character — “pretty standard” language that contractors can live with, Brown said. Neither the United States nor Russia has ratified the pact so far. Both countries are unlikely to do so before the umbrella agreement expires next year, but observers say its principles could still influence the countries’ liability talks. In the United States, the treaty is pending before the Senate Foreign Relations Committee; the contractors’ group said the panel is expected to hold a hearing on the pact this year. The committee refused to confirm such a hearing was planned. Congress Applies Pressure Amid Reports of Progress in NegotiationsIn recent months and weeks, there have been signs that the push for progress on securing nuclear sites could supersede U.S. worries about the liability language. The U.S. Senate and House of Representatives this year have both used authorization and appropriations legislation as a forum for expressing dissatisfaction about the dispute (see GSN, June 2). The Washington Post reported June 20 that, according to negotiators, the United States and Russia had made progress on the liability concerns and that an accord would be announced at next week’s Group of Eight summit in Perthshire, Scotland. An Associated Press interview with U.S. Senate Energy and Natural Resources Committee Chairman Pete Domenici (R-N.M.), published the same day, echoed that report. The U.S. official familiar with the talks said there was a push to “get something done” at the Scotland meeting but indicated agreement could also be weeks or months, rather than days, away. “We’re negotiating with the Russians right now,” the official said. The official identified next year’s expiration of the umbrella agreement as the main force driving recent progress in the talks. In the absence of an agreement on liability, the approaching expiration could begin to affect programs long before the deadline actually arrives, the source said, as offices involved in the effort begin to curtail new hiring or purchasing. “I think people are realizing we have to come to some kind of way” to resolve the dispute, the official said. “If we’re going to continue this, we’re going to have to do something.” The official questioned the Post’s report that the departure from the U.S. State Department of former Undersecretary John Bolton, who has been nominated as ambassador to the United Nations, was instrumental in breaking the liability stalemate. “One could come to that conclusion,” the source said, “but on the other hand, I think, partly, the deadline, too, is focusing people’s minds — and the criticism.” If Bolton was still in the State Department, the official said, “He might have gotten browbeaten so badly, it might have started moving anyway.” Brown expressed skepticism about the prospects for an agreement but said he had no way of knowing whether rumors of an imminent solution were more accurate now than in the past. “We’ve been told for two years that the agreement was imminent,” he said.
By David Ruppe
Global Security Newswire
WASHINGTON — The U.S. Senate yesterday approved $4 million in funding for the Robust Nuclear Earth Penetrator program, one of several nuclear-related measures contained in its version of the fiscal 2006 Energy and Water Appropriations bill (see GSN, June 17). Before approving the $31 billion bill with a 92-3 vote, the Republican-controlled Senate in a 53-43 vote beat back a Democratic amendment to prohibit funding for the feasibility study of the earth-penetrating nuclear weapon. The version of the bill already approved by the House denied any funding for the Robust Nuclear Earth Penetrator study. Differences in the two bills are expected to be resolved in a House-Senate conference later this year. The Senate also froze funding for work on a Yucca Mountain facility for storing the nation’s nuclear waste and blocked funding to further construct a facility for producing nuclear fusion ignition using lasers (see GSN, June 16). It also approved $25 million for the Reliable Replacement Warhead program, to fund a study on designing replacement parts or warheads to add reliability and longevity to the U.S. nuclear arsenal. That is $15 million more than requested by the administration. The bill fully funded the administration’s $339 million request for construction of a plant at the Savannah River Site in Georgia, which would convert tons of weapon-grade plutonium into mixed-oxide fuel for commercial nuclear power plants. National Ignition FacilityThe $146 million cut to the National Ignition Facility program sustains a recommendation by the Senate Appropriation Energy and Water Subcommittee, which in a report last month criticized the Energy Department’s prioritization of the program over other research similarly related to maintaining the nuclear weapons stockpile. The House in May approved full funding requested by the administration for the program, meaning lawmakers from both bodies will have to resolve the difference in conference. Under the Senate plan, the Lawrence Livermore National Laboratory facility in California would still receive $314 million, enabling it to continue research using high-powered lasers already in place. The Energy Department’s goal is to produce fusion ignition by 2010. Yucca MountainThe bill included $577 million for continued construction of a national nuclear waste storage facility in Yucca Mountain, Nev., which is $74 million less than requested by the Bush administration and the same amount the Senate approved for the current fiscal year (see GSN, June 20). The underground storage site has experienced years of delay and difficulties in obtaining a license. The House provided $651 million, which was full amount requested by the administration, and its Appropriations Committee supported finding a temporary facility to store waste from the nation’s nuclear power plants until Yucca is completed. The Senate bill contains no funding for a temporary government facility.
Expectations for progress on resuming the six-party talks on North Korea’s nuclear program were low as officials from Pyongyang and Washington met informally yesterday at an academic conference in New York, Reuters reported (see GSN, June 30). “If it's useful, you'll soon hear of a date” for restarting talks, a U.S. official said (Reuters/New York Times, June 30). State Department spokesman Sean McCormack played down the importance of the informal talks, according to Agence France-Presse. “No meetings are scheduled between U.S. and North Korean officials outside the context of the conference proceedings,” he said, adding that no date has been chosen to resume six-party talks. McCormack acknowledged that North Korean diplomat Ri Gun attended a dinner with U.S. envoy Joseph DeTrani on Wednesday. “They were in the same room together. I have no indications that this was anything other than a social event. There was nothing that I would characterize last night as a meeting,” he said (Agence France Presse I/SpaceWar.com, June 30). Meanwhile, South Korean Foreign Minister Ban Ki-Moon said today that U.S. Assistant Secretary of State Christopher Hill could visit North Korea in an effort to boost resumption of talks. “I believe Hill could visit North Korea,” Ban told Seoul’s Hankyoreh newspaper. “He has already visited South Korea, China, Japan and Russia, which are involved in the talks. There is no reason for him to skip North Korea.” Ban noted that North Korea and the United States could engage in bilateral talks within the six-party talk framework, AFP reported. However, he rejected a North Korean proposal for talks only with the United States. “We cannot accept North Korea’s demand. The United States, China, Russia, Japan are all the same,” he said (Agence France-Presse II, July 1).
Support for legislation in the U.S. House of Representatives that encourages democracy in Iran increased following allegations that Iranian President-elect Mahmoud Ahmadinejad played a role in the 1979 hostage-taking of Americans, Agence France-Presse reported yesterday (see GSN, June 30). “This bill seeks to hold Iran accountable for its actions, and to help neutralize threats from this pariah state that seeks to harm our nation and persists in its efforts to acquire materials and technology to construct even deadlier weapons,” bill sponsor Representative Ileana Ros-Lehtinen (R-Fla.) said in a prepared statement. “Election of a leader with Ahmadinejad's past is par for the course by Iran, a rogue nation whose unsavory behavior and associations render it one of the United States' greatest national security threats,” she added. “In particular, Iran's nuclear program combined with its support for terrorist organizations worldwide, raises the prospect of a potential transfer of WMD materials or components to terrorist organizations.” The Iran Freedom Support Act would provide financial support for Iranian pro-democracy groups and increase U.S. efforts to curb Iran’s nuclear ambitions. Following allegations this week that Ahmadinejad took part in the embassy takeover and hostage crisis, the number of co-sponsors to the legislation increased from 250 to more than 300, AFP reported (Agence France-Presse/Yahoo!News, June 30). The Bush administration vowed to investigate the allegations, the New York Times reported today. “Obviously his involvement raises many questions,” said President George W. Bush. Former U.S. intelligence officer William Daugherty, who was taken hostage by the student group, maintains that Ahmadinejad took part in takeover of the U.S. Embassy in Tehran. In an e-mail to fellow hostages Charles Scott, Donald Sharer and David Roeder, Daugherty wrote, “I assume you've noticed that the new Iranian president was one of [expletive] who was behind the takeover of the embassy and our incarceration. Not to mention having expressed a determination to pursue a nuclear program that will allow them to develop a nuclear weapon” However, Abbass Abdi, a leader of the student organization responsible for the embassy seizure, said Ahmadinejad was not involved. “He was a student at a different university and we kept the plan secret among our own members who we trusted. He called after the embassy was captured and wanted to join us, but we refused to let him come to the embassy or become a member of our group,” he said. “I don't think he was part of it,” said Mohammad-Reza Khatami, who was also involved in taking hostages. “I cannot remember him at all” (Fathi/Brinkley, New York Times, July 1).
Ukraine reaffirmed yesterday that it would remain a nuclear weapon-free nation, even if it were to join NATO, a move President Victor Yushchenko has said he would like to complete by 2008 (see GSN, Aug. 2, 2002; People’s Daily Online, July 1). “If someone is convinced that after Ukraine joins NATO there will be nuclear weapons on our territory, I want to assure them: there will be no nuclear weapons on our territory,” said Defense Minister Anatoliy Grytsenko (Agence France-Presse/Defense News.com, June 30). After several years of negotiation following the 1991 collapse of the Soviet Union, Ukraine agreed to transfer to Russia all of the nuclear weapons it had inherited. “We voluntarily renounced the status of the nuclear force,” Grytsenko said. “Why then would we allow the deployment of someone else’s nuclear weapons?” (People’s Daily Online). NATO leader Jaap de Hoop Scheffer traveled to Kiev this week to discuss and promote the alliance’s possible expansion. “I know that many people here in Ukraine still think of the Cold War when they think of NATO,” he said Monday, but the organization “is a different NATO than the NATO of the Cold War. … Today’s NATO is designed to help provide security in a new world.” Domestic opposition to Ukrainian alliance membership is growing, according to public opinion surveys. A May poll indicated that 55.7 percent of Ukrainians opposed the move, up from 48 percent in February (Agence France-Presse).
Russia yesterday blew up a silo-based launcher for its RS-20B Voyevoda ICBM, known in the West as the SS-18 Satan, ITAR-Tass reported (see GSN, June 16). The Russian Defense Ministry previously eliminated another launcher this year. “Another four SBLs of the Kartaly missile division will be scrapped by the end of this year,” a source said. “The combined unit was taken off combat duty in May and by December it will be completely disbanded according to reform plans for the Strategic Missile Troops,” the source said. Russian silo-based launchers are being deactivated under the START 1 Treaty with the United States. Two divisions of Strategic Missile Troops remained armed with more than 80 Voyevoda missiles, ITAR-Tass reported (ITAR-Tass/BBC Monitoring, June 30). The lower house of Russia’s parliament today approved an agreement under which Canada will provide funding and technical support for elimination of Russian nuclear submarines and chemical weapons, ITAR-Tass reported. While the Duma document does not indicate a specific funding amount, a Canadian official previously indicated that Ottawa had set aside $220 million for the effort (Sofia Filippova, ITAR-Tass, July 1). Russia plans to eliminate all decommissioned nuclear vessels — estimated by one Duma lawmaker at 90 submarines and two surface ships — by 2010, Atomic Energy Minister Alexander Rumyantsev said today. The vessels are breaking down in naval shipyards, stoking fears of radioactive leaks or diversion of nuclear materials, the Associated Press reported. Rumyantsev said Russia has enough money to dispose of the ships and submarines, but that foreign funding would quicken the process, according to Interfax (Associated Press, July 1).
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