US – Russia 123 Agreement on the Hill

On Thursday, June 12 the House Foreign Relations Committee met for over three hours and heard testimony from members of the Committee, a representative of the Bush administration, and expert witnesses regarding the pros and cons of supporting the Agreement Between the United States and Russia for Cooperation in the Field of Peaceful Uses of Nuclear Energy (Agreement) that President Bush submitted to Congress. As discussed in an earlier blog, the Agreement will have to sit before the Congress for 90 continuous days, and will pass unless Congress enacts a joint resolution of disapproval. Such legislation, H.J.Res 85, has already been submitted by Congressman Edward J. Markey (D – MA), a staunch opponent to nuclear power and thus to civilian nuclear cooperation agreements. The mood of those legislators at the hearing was generally one of skepticism, as members of Congress searched for reasons to support the Agreement.

Committee Chairman Berman (D – CA) began the proceedings by identifying the points of contention and concern: is the Agreement necessary for bilateral cooperation to create a nuclear fuel bank and multilateral fuel assurances to reduce incentives for other countries to acquire sensitive nuclear technology; will the reprocessing cooperation under the Agreement help or hinder nonproliferation goals; and will passing the Agreement be more effective in US efforts to pressure Russia to discourage Iran from developing a nuclear weapons capability?

Congressman Dana Rohrabacher (R – CA) pointed out that the US has left post-Cold War Russia out of the global economic community while we have embraced other countries with questionable policies and practices. This has marginalized Russia and has not served US interests, whereas engaging Russia with the Agreement could allow for more US influence to bear upon Russia’s actions and decisions in the future. This is important, as the US wants to have Russia’s help in pressuring Iran at the same time that Russia is selling conventional weapons and missile technology to Iran, something that is certainly not in the interest of the US. Further, Russia has engaged in nuclear cooperation with Iran outside of the safeguarded Bushehr reactor project, although Russia has made assurances to the US “at the highest level” that such cooperation has ceased.[i] Should Russia be “rewarded” with this Agreement while it is unclear if nuclear cooperation outside Bushehr has indeed ceased and while they engage in such arms transfers to Iran? Does the Agreement help or hurt our chances to influence Russian behavior? These are the questions the Committee sought to resolve; at the end of the hearing, the answers to these issues were still not clear.

Is the Agreement necessary for bilateral cooperation to create a nuclear fuel bank and multilateral fuel assurances to reduce incentives for other countries to acquire sensitive nuclear technology?

Expert witness Robert Einhorn (Center for Strategic and International Studies) pointed out to the Committee that the Agreement creates the legal framework for nuclear cooperation that would be necessary to create a nuclear fuel bank or the basis for some multilateral fuel assurance mechanism. However, there are many such proposals being considered in the international community and by the International Atomic Energy Agency that exist outside of the bilateral parameters of the Agreement. Support for the Agreement should therefore not be judged on the basis of this argument alone.

Acting Under Secretary of State for Arms Control and International Security John C. Rood testified that the Agreement would help US commercial firms, allowing them to sell civil nuclear commodities to Russia – such as reactor fuel and components – and enabling the establishment of new joint commercial nuclear power ventures. Expert witness Henry Sokolski (Nonproliferation Policy Education Center), however, testified that the promise of joint nuclear ventures would not be fulfilled by the Agreement, as Russia has yet to ratify the Convention on Supplementary Compensation for Nuclear Damage (CSC), which would provide liability insurance for US firms in case of a nuclear accident. Until Russia ratifies the CSC, no US firms would engage in such a risky venture he argued, and therefore the Agreement should not be supported on the basis that it would generate revenue for our nuclear industry. He also reminded the Committee that certain transfers of sensitive nuclear technology (SNT) could be approved without the Agreement, pursuant to Sec. 57 of the Atomic Energy Act of 1954.[ii]

Mr. Einhorn submitted that the non-self-executing nature of the Agreement allows the Committee to support it, as each new aspect of nuclear cooperation would need to be accompanied by an export license. Congress, he argued, could deny such licenses if Russia was engaged in behavior the US found unacceptable, as for example if they were found to still be cooperating on nuclear matters with Iran outside of the Bushehr reactor project. Chairman Berman responded by stating that Congress has no authority over export licenses; in fact, these are issued by the Departments of State and Commerce, and the Congress is only empowered to raise questions, concerns, and / or objections about the applications. The Congress should not support the Agreement therefore unless they also support the issuing of export licenses to Russia in general, which brings us right back to our original dilemma.

Will the reprocessing cooperation under the Agreement help or hinder nonproliferation goals?

There is debate among experts and officials as to whether the Agreement promotes President Bush’s Global Nuclear Energy Partnership (GNEP), as well as heated debate about the merits of GNEP itself. According to Secretary Rood, the Agreement would enable the US to pursue one of GNEP’s goals: cooperating with other countries to “develop new technologies like advanced reactors that would consume plutonium and new forms of recycling spent fuel that would reduce the risk of proliferation by not separating plutonium that could be diverted for use by rogue states or terrorists for nuclear weapons.”[iii]

Russia operates advanced burner reactors, and using these reactors for experiments to develop recycling processes that do not separate out pure plutonium is more desirable than spending the time and money to build reactors for such experiments in the US. However, there are many arguments against GNEP and the “recycling” of spent fuel, among them the fact that such processes are not financially attractive when compared to using fresh uranium fuel and the actual increase in nuclear waste such “recycling” would create without long-term storage options. Because reprocessing is not now a cost effective way to fuel reactors, countries that seek to acquire such technology (such as Iran) do so for other reasons, presumably for political influence, national prestige, or to achieve a latent nuclear weapons capability. If the existence of a fuel bank or reactor fuel supply assurances would convince states to forgo such technology, then promoting this cooperation through the Agreement would enhance nonproliferation goals; as stated, however, this connection is not clear-cut.

Mr. Sokolski testified that supporting the Agreement could give the Department of Energy the green light to request and acquire funding for domestic advanced burner reactors and spent fuel reprocessing facilities in the US. This would reverse over 30 years of domestic civilian nuclear policy and contribute to the global stockpile of civilian separated plutonium, already at over 250 metric tons according to the International Panel on Fissile Material. In the end, it is not clear that the Agreement is necessary to engage in SNT transfers for the purposes of conducting experiments on Russian advanced burner reactors nor for the establishment of an international fuel bank or uranium enrichment center in Russia.[iv] Positions on reprocessing and GENP are therefore not a sound basis for either supporting or defeating the Agreement.

Will passing the Agreement be more effective in US efforts to pressure Russia to discourage Iran from developing a nuclear weapons capability?

This is the million-dollar question, and really the bottom line as far as the Agreement is concerned. While the US pursues missile defenses in Europe, has recognized the independence of Kosovo, and is working to expand NATO, bilateral relations with Russia are arguably at a post-Cold War low. The Agreement could help to usher in more friendly relations with Russia’s new President, which then could provide leverage to pressure Russia to help promote US interests, especially in Iran. The testimony was mixed on this issue.

Secretary Rood submitted that entering into negotiations with Russia for the Agreement has already had “a definite and positive impact” on how Russia “came to regard certain nonproliferation issues,” which presumably means that it has pressured Russia to take up a more US-friendly position on Iran vis-à-vis their nuclear program. Rood went on to say that he could not go into the details of how this positive impact has manifest itself, but he noted that the classified annex to the Agreement submitted to Congress “covers these matters thoroughly.” Interestingly, Congressman Brad Sherman (D – CA) replied that neither he nor anyone he knows in the Committee had received any classified information to use when weighing the decision of whether or not to support the Agreement.

Mr. Einhorn also proposed supporting the Agreement, and argued that giving Russia a vested interest in US nuclear trade and technology was the only way to gain the influence with Russia that the US needs to prevent Iran from acquiring a nuclear weapon capability. Mr. Sokolski countered that the Agreement could be seen as appeasing Russia if it is implemented without first getting Russia to stop selling missile technology and advanced conventional weapons to Iran, and would therefore be against US broader foreign policy interests. In other words, it would become more difficult to press other countries to cease cooperation with Iran if we were seen to be “rewarding” Russia with the Agreement despite their continued arms transfers to Iran, and especially while it is unclear whether or not Russia has actually suspended nuclear cooperation with Iran outside of the Bushehr reactor project.

The hearing was adjourned and the Committee members were left to use the testimony they heard to formulate an opinion on how to advise the Congress on the Agreement. It may have been all for nothing however, as the legislative calendar ends on September 26, leaving less than the 90 continuous days of session required for Congress to consider the Agreement. It seems there was not even agreement on this procedural issue, with Secretary Rood stating that pro forma sessions could take place after September 26 that would count toward the 90 day period, although these days are not automatically scheduled. In the end, this issue may be left for the next administration to submit to Congress or let die for the time being.

The problem that remains for the Committee to solve is whether or not supporting the Agreement will positively influence Russia’s behavior, especially in regard to Iran’s nuclear ambitions. Unfortunately, there is no way know in advance what effect the Agreement will have on the actions of Russia in the future, and it is therefore hard to recommend supporting the Agreement in the hopes that Russia will be a more active and willing partner toward US nonproliferation goals. It is important to consider, however, that not supporting the Agreement will have a negative effect on Russia’s future behavior; this is a separate issue and most likely would be true, as Russia would probably see itself as being shut out once again from being drawn into the mainstream of the international economic community. Does the probable negative effect of not supporting the Agreement outweigh the possible positive effect of supporting the Agreement? If you add to this calculation the known fact that Russia continues to sell missile technology and advanced conventional weapons to Iran (and possibly still engages in nuclear cooperation outside of international safeguards), it does not seem as though supporting the Agreement at this time in its current form would be advisable. What would serve our nonproliferation goals better would be to support the Agreement, with the following conditions: Russia must commit to ending trade with Iran in missile technology and advanced conventional weapons; Russia must reaffirm the commitment not to engage in nuclear cooperation with Iran outside of the Bushehr reactor project; and the Congress must be able to terminate the Agreement if Russia is found not to be in compliance with these commitments. In this scenario, Congress can hope for the benefits of better bilateral relations with Russia while ensuring bad behavior that threatens our nonproliferation goals is not rewarded.


[i] U.S. Department of State. Nuclear Proliferation Assessment Statement. Pursuant to Section 123 a. of the Atomic Energy Act of 1954, as Amended, With Respect to the Proposed Agreement Between the Government of the United States of America and the Government of the Russian Federation For Cooperation in the Field of Peaceful Uses of Nuclear Energy. May 13, 2008

[ii] U.S. Atomic Energy Act of 1954 as Amended Through P.L. 105-394. Sec. 57(d)

[iii] John C. Rood, Acting Under Secretary of State for Arms Control and International Security. Statement Before the House Foreign Affairs Committee, Washington, D.C. June 12, 2008.

[iv] U.S. Atomic Energy Act, op cit Sec. 57(d)

4 thoughts on “US – Russia 123 Agreement on the Hill

  1. The problem with a conditional approval is that for Russia it would be the same as an outright rejection of the agreement. Russia has seen a lot of that – conditions will keep coming (Jackson-Vanik amendment is one characteristic example). So, any conditions (however reasonable they may be) is a political non-starter with Russia.

  2. I applaud FAS for blogging about this. The US-RF 123 agreement is important, and I’m dismayed at how many within the arms control community have remained silent on this issue. (There are luminous exception.)

    With respect to Pavel Podvig, I think he is absolutely wrong to dissuade the Congress from exercising its right to oversee and (if it so chooses) to condition or even reject the US-RF 123.

    Dr Podvig is well aware that Russia’s nuclear export policies have long irked many in Washington. That is why President Clinton would not cut this deal in the 1990s; why the Congress passed PL 106-178 in 2000; why the House passed HR 1400 and the Senate finance committee yesterday marked up S 970.

    Yet he would have the Congress forfeit its role as co-equal branch of government. Why? Because the Russians would see any conditions on the US-RF 123, even “reasonable” ones, as political non-starters. Under Dr Podvig’s logic, if Congress were make the reasonable requirement that the President to certify that Russia isn’t engaging in trade in sensitive nuclear technologies (or ballistic missile technologies to nuclear-weapon delivery vehicles) with Iran, then that would be a bad move for the US because this would displease the Kremlin?

    Please.

  3. Lot of things “irk many in Washington”. That does not mean, though, that if the Congress passes a law that somehow automatically makes its concerns legitimate. Please.

    Having said that, it is perfectly okay for the Congress to have questions about Russia’s policies, nuclear trade or any other issue. My point is that blocking the 123 agreement is about the worst way to address these issues (http://www.thebulletin.org/web-edition/columnists/pavel-podvig/dont-block-us-russian-nuclear-cooperation).

  4. No. The worst way to address these issues is ineffectual hand-wringing, which will simply confirm to the hawks in Moscow that there is no downside to incremental acts of aggression such as the Russian invasion of Georgia as long as they are spaced far enough apart in time that Congress is never moved to assert its role as the lawmakers of the United States.

    Unless the Russian Federation’s current leadership knows that their actions will result in direct and unpleasant consequences from the representatives of the American people (i.e., Jackson-Vanik), it will continue to inveigle and threaten our executive branch by turns to get its way. If the Russian people won’t demand accountability from their leaders, it falls to the people of their “partner” in managing nuclear technology across the world.

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