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Strengthening U.S.-Russian Cooperation on Nuclear Nonproliferation: Recommendations for Action C Cooperative Threat Reduction Negotiations: Lessons Learned Susan Koch This paper discusses possible lessons learned from the negotiations between the United States and Russia on the Cooperative Threat Reduction (CTR) Umbrella Agreement and its Extension Protocol in 1992 and 1999, respectively.1 It does so by suggesting the major factors contributing to the success of the negotiations. Two cautionary notes are in order. First, this paper does not draw any explicit conclusions regarding the relevance of the CTR negotiation history for specific other nonproliferation or weapons reduction agreements between the United States and Russia. Second, the views presented are the personal, not official, ones of a former United States government official. Much of the discussion considers internal decision making within the Russian government. That discussion is necessarily speculative; Russian colleagues may have quite different, better-informed views. UMBRELLA AGREEMENT NEGOTIATIONS: JANUARY TO JUNE 1992 The negotiations between the United States and Russia of the original CTR Umbrella Agreement may carry few, if any, lessons for contemporary agreements. Coming immediately after the fall of the Soviet Union, the negotiations occurred at a unique moment in the history of Russia, of the other former Soviet states, and of the bilateral relationship with the United States. As such, many of the factors behind conclusion of the Umbrella Agreement would not be repeated. It is difficult, and likely would be mistaken, to attempt to isolate one or two primary factors responsible for the speedy, successful negotiation of the CTR Umbrella Agreement. Instead, several converged simultaneously, overlapping and reinforcing each other. First, there was a strong, shared U.S. and Russian interest in the substantive cooperation envisaged in the original Nunn-Lugar legislation, passed by the U.S. Congress in December 1991. Most important was the common aim to persuade Ukraine, Belarus, and Kazakhstan to abandon the nuclear warheads left on their territory and to ensure the warheads’ safe, secure, and rapid transport to storage and then dismantlement in Russia. In addition, both the United States and Russia looked for significant reductions in Russia’s weapons of mass destruction and delivery systems. They saw this Russian “strategic overhang” as a phenomenon of the past—unnecessary, unaffordable, and counter-productive in the new, post-Soviet era. That factor was in turn closely related to the sides’ shared concern about the danger that the breakdown of the Soviet state would lead to widespread proliferation of weapons of mass destruction and related material and expertise. Preventing a “brain drain” of newly unemployed, underemployed, and/or underpaid weapons scientists and engineers was a major initial concern, joined shortly by the need to provide appropriate, post-Soviet physical security for weapons and materials. Overlaying all of those factors was the dire economic situation facing Russia and the other former Soviet states. Russia could not afford to retain—or to provide security for—its huge stockpiles of weapons of mass destruction, related materials, and delivery systems or the massive complex that developed, produced, and deployed them. At the same time, it could not afford the costs of reducing the weapons, materials, and infrastructure. The Nunn-Lugar program offered a means to reduce weapons and materials; to secure those which remained; and to provide alternate employment for weapons scientists, engineers, and technicians. Both the United States and Russia were also concerned about the potential impact of the severe economic situation and lack of a political/economic/security structure in the 1 The official title of the Umbrella Agreement is “Agreement Between the United States of America and the Russian Federation concerning the Safe and Secure Transportation, Storage and Destruction of Weapons and the Prevention of Weapons Proliferation.” The name “Cooperative Threat Reduction” was coined in 1993, a year after signature of the agreement.
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Strengthening U.S.-Russian Cooperation on Nuclear Nonproliferation: Recommendations for Action other former Soviet states, particularly in Ukraine, Belarus, and Kazakhstan. It was feared that the resulting difficulties could simultaneously increase those governments’ incentive to retain the nuclear weapons on their soil (providing a significant claim to important international status), make them incapable of retaining those weapons safely and securely, and leave them vulnerable to the blandishments of proliferators. The shared U.S. and Russian substantive concerns which facilitated completion of the Nunn-Lugar Umbrella Agreement in 1992 were joined by the presence of procedural incentives and the absence of procedural obstacles to agreement. The Umbrella Agreement and the framework for the Strategic Arms Reduction Treaty (START) II were major, reinforcing deliverables for the June 1992 summit, the first between the U.S. and Russian presidents. The June 17, 1992, strategic arms framework agreement2 and the subsequent January 1993 START II encapsulated, in both symbol and reality, much of the new strategic relationship between the United States and Russia, providing for major reductions in strategic warhead levels and a ban on multiple-warhead intercontinental ballistic missiles. The link between strategic reductions and Nunn-Lugar cooperation was explicit; both the June 1992 Joint Understanding and START II provided that reductions could be completed some years before the final deadline if the United States could contribute to the financing of the destruction of strategic offensive arms in Russia. Finally, the Nunn-Lugar Umbrella Agreement was concluded in something of a legal and regulatory vacuum for Russia. There were few, if any, precedents in international agreements, or constraints in domestic law and regulation, for the new Russian state concerning assistance issues like freedom from taxation, liability protections, and privileges and immunities for government personnel engaged in Nunn-Lugar projects. For its part, the United States did build on a large body of precedent, drawing for the Nunn-Lugar agreement on existing defense assistance agreements with other states. EXTENSION PROTOCOL NEGOTIATIONS: JANUARY TO JUNE 1999 By 1999, many, if not most, of the factors behind the negotiation of the CTR Umbrella Agreement in 1992 had changed dramatically. On the positive side, the program had become far larger, more important, and longer lasting than either side had expected in 1992. The original agreement had a seven-year duration, tied to the predicted construction time for the fissile material storage facility at Mayak (expected to be the longest-duration Nunn-Lugar project). Even in the mid-1990s, the United States Department of Defense publicly estimated that all CTR work would end in 2001. However, by 1999, it was clear that the program’s work was far from complete. Given the success and importance of CTR to both sides, the United States expected that extension of the Umbrella Agreement would be a simple affair, accomplished through a straightforward exchange of diplomatic notes amending the agreement’s expiration date from June 1999 to June 2006. However, Russia called for significant amendments to the agreement, particularly regarding tax exemption, liability protections, and privileges and immunities. The problems in the negotiation of the CTR Extension Protocol did not stem from a diminution on either side of the substantive interest in the cooperation. To be sure, several of the shared U.S. and Russian aims in establishing Nunn-Lugar cooperation were no longer relevant. One critical common objective in 1992—the denuclearization of Ukraine, Belarus, and Kazakhstan and safe return of their nuclear warheads to Russia—had been successfully achieved by the end of 1996. Further, CTR was no longer the sole United States nonproliferation cooperative effort in Russia. “Brain drain” programs initially funded by CTR were now led by the United States Departments of State and Energy, with their own agreements separate from the CTR Umbrella Agreement. The U.S. Departments of State and Energy also had instituted a large number of important new nonproliferation cooperative programs with Russia, such as plutonium disposition, export control and border security, and biological engagement. On the other hand, U.S.-Russian cooperation under CTR itself was much broader and more extensive than either side had envisioned in 1992. For the first three years of the program (fiscal years [FY] 1992 to 1994), total CTR funding was $852 million, of which projects in Russia accounted for 51 percent ($436 million). For the three years up to the Extension Protocol negotiations (FY 1997 to 1999), CTR funding had increased to $1.185 billion. Moreover, Russia’s share of the total had increased to 73 percent ($866.5 million). Long-standing CTR projects like strategic arms elimination and chemical weapons destruction had grown significantly and had been joined by new efforts like nuclear warhead storage and transport security. Closely linked to the sides’ continued interest in the substance of CTR cooperation was Russia’s financial situation. Especially with the economic setback in August 1998, Russia’s ability and willingness to pay for CTR-type work remained seriously constrained. Moreover, CTR assistance meant jobs in Russia’s military-industrial complex. While the economic and employment impact of CTR in Russia was limited, it was important—even essential—in certain areas of high value to the central and local governments. One of the best examples was strategic submarine dismantlement, which was contracted directly with Russian submarine shipyards. 2 The framework agreement was officially entitled The Joint Understanding on the Elimination of MIRVed ICBMs and Further Reductions in Strategic Offensive Arms.
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Strengthening U.S.-Russian Cooperation on Nuclear Nonproliferation: Recommendations for Action Thus, the United States and Russia continued to place a high substantive and economic value on CTR cooperation. Ultimately, that proved decisive, leading to the signature of the Extension Protocol in June 1999. However, several other factors had changed significantly since the original Umbrella Agreement was signed, seriously complicating the negotiations and putting their outcome in question. First, CTR did not have the same political salience, particularly for Russia, that it had in 1992. The U.S.-Russian relationship was no longer novel, no longer characterized by the great, somewhat naive optimism and sense of change which marked its first months. CTR was now a routine matter rather than an important element of a new strategic era. Moreover, there was not the immediate political pressure of a summit or other senior-level meeting for which CTR extension would be an important deliverable or failure to extend a highly visible defeat. Closely related, by 1999 Russia had a large body of relevant domestic laws, regulations, and international agreements which did not yet exist in 1992. Some agreements provided precedents on key issues—especially liability protections, tax exemption, and privileges and immunities—which differed from those in the CTR Umbrella Agreement. For example, the July 1998 agreement on plutonium disposition cooperation had no privileges and immunities provision and exempted intentional acts by individuals from liability protection.3 Further, the Russian government maintained that some CTR Umbrella Agreement provisions—again, liability protections are a prime example—now conflicted with Russian domestic law. Finally, the Russian government likely viewed many parts of the CTR Umbrella Agreement as politically problematic. They were seen as artifacts of the early days of Russian independence, of a time when the Russian government was too inexperienced and too eager to forge a positive relationship with the United States to negotiate an agreement that best served its interests. The broad provisions on exemption from taxes, other duties, and customs inspections, on audits and examinations, on liability protections, and on privileges and immunities probably were viewed as especially difficult for a major, equal partner to accept. For its part, the United States strongly opposed any significant substantive changes to the CTR Umbrella Agreement. As a matter of principle, the United States government believed that it could not agree to weaker provisions than those which had governed seven years of successful and growing cooperation. That view was heightened by the fact that the CTR program with Russia was expected to remain extensive for many years. That administration view was reinforced by the expectation that the U.S. Congress would view negatively any diminution in CTR Umbrella Agreement protections for the United States government and its contractors. The U.S. Congress had over the years increased constraints on the program, sometimes authorizing and appropriating lower annual budgets than the administration requested and ending certain CTR activities such as defense conversion. The administration fully expected that acceptance of an Extension Protocol with terms less favorable than those in the original Umbrella Agreement would significantly increase congressional opposition to the CTR program, leading at a minimum to further budgetary and substantive constraints. The result of those conflicting U.S. and Russian views and interests was, for some months, an impasse. The Russian government refused to extend the Umbrella Agreement without significant changes, particularly to the provisions regarding exemption from taxes and other duties, liability protections, audits and examinations, and privileges and immunities. The United States for its part rejected the Russian-proposed changes, except for some limited ones that did not go to the core of either U.S. or Russian concerns. The impasse was broken for a variety of reasons. The key movement was on the Russian side. First, the major Russian ministries benefiting from CTR cooperation seemed to form a stakeholders coalition, which was able to work together to develop and win approval of the final approach. The Ministry for Foreign Affairs led an effective interagency team, including Ministries of Defense and Atomic Energy officials closely engaged in CTR projects, that was able to overcome resistance in nonstakeholder ministries. Some observers have noted that the interagency decision process in Russia was particularly complicated by a May 1999 governmental reorganization. Second, the Russian stakeholders’ determination to find a solution and their leverage with other ministries were undoubtedly strongly reinforced by the United States government’s preparations for expiration of the CTR Umbrella Agreement. In mid-May 1999, the United States Department of Defense officially notified CTR contractors that all programs in Russia would be shut down on June 17 if the Umbrella Agreement Extension was not signed before then. The U.S. negotiators informed their Russian counterparts of the notice in advance, making clear that the action was not taken willingly, that it was not “brinkmanship” or any other type of threat. Instead, the U.S. Department of Defense had no choice but to issue the 30-day shutdown notice required under its contracting arrangements, given the very real possibility that the CTR Umbrella Agreement would expire. The United States also made clear to Russia that it was firmly committed to CTR cooperation and hoped that extension was still possible but that it had no flexibility on the key Russian demands. The combination of the impasse in the negotiations, the U.S. and Russian stakeholders’ interest in continuing CTR, 3 “Liability protection” is used here to refer to agreement provisions addressing both the potential exposure of the United States government, its personnel, its contractors, and/or their personnel to Russian government or third-party claims, and potential Russian government responsibility for third-party claims.
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Strengthening U.S.-Russian Cooperation on Nuclear Nonproliferation: Recommendations for Action and the near-term prospect of an end to that cooperation was critical to the final success. However, by themselves they were not sufficient. The final, essential element was the creativity shown by the Russian negotiators—most likely by the Foreign Ministry—in proposing a solution that would satisfy all sides’ interests. Specifically, the Russian side proposed in late May 1999 that the Extension Protocol be provisionally applied until national procedures for its entry into force had been completed. For the United States, those “national procedures” were satisfied by simple signature of the extension. For the Russian Federation, they entailed parliamentary ratification of the agreement, required because of the conflicts between its provisions and Russian domestic law. The solution met U.S. requirements by continuing without change the major substantive elements of the original Umbrella Agreement, and Russian requirements by obviating any conflict between the CTR extension and domestic law. The solution also met both sides’ interests by allowing CTR work in Russia to continue without any hiatus, even if the Russian ratification process was long delayed.4 It also appears that the Russian Foreign Ministry had been careful to ensure Russian interagency support for the approach before proposing it to the United States. To do otherwise would have risked a time-consuming, and potentially uncertain, internal approval process once the United States accepted the approach. The time for that was not available, given the imminence of the expiration deadline.5 Instead, it took the Russian government several weeks to develop the “provisional application” proposal; once it did so, the United States was able to agree quickly, and the final text was concluded shortly thereafter. While Russian development of the “provisional application” solution had the greatest impact leading to the successful negotiations, the United States also was willing to use its limited flexibility. The United States viewed the changes that it accepted in the Extension Protocol as clarifications of the original provisions rather than substantive amendments. For Russia, however, they narrowed the potential sweep of some of the original Umbrella Agreement provisions. Thus, for example, the Extension Protocol specifies that freedom from customs inspections applies only to official United States government aircraft or vessels, in accordance with customary international practice. Similarly, the Extension Protocol provides that privileges and immunities extend only to official United States government personnel, not to contractors, and that exemption of assistance from import and export fees does not extend to exemption from Russian export control procedures. APPLICABILITY OF LESSONS LEARNED In a narrow sense, the direct experience of the negotiations for the CTR Umbrella Agreement and Extension Protocol has little application to other nonproliferation cooperation agreements between the United States and Russia. In the years since the June 1999 extension, the Russian government has refused to bring new projects under the CTR Umbrella Agreement unless they are directly led and funded by the U.S. Department of Defense CTR program. The implementing agreements between the Russian Ministry of Atomic Energy (Minatom) and the U.S. Department of Energy on Material Protection, Control and Accounting and End to Weapons-Grade Plutonium Production are more apparent than real exceptions. Both projects were started with CTR funding and covered by implementing agreements between Minatom and the U.S. Department of Defense. The new implementing agreements after the projects and their funding were transferred to the U.S. Department of Energy and were thus viewed as extensions of existing arrangements rather than wholly new ones. Russia has also refused to replicate the CTR Umbrella Agreement liability provisions in other agreements. For its part, the United States long insisted on those provisions, particularly in light of the pending ratification of the CTR Umbrella Agreement and of the Russian government’s use of other precedents in the Extension Protocol negotiations. (It is worth noting that other CTR Umbrella Agreement provisions which had been viewed as problematic in 1999 are now generally accepted. Those include tax exemption, privileges, and immunities for government personnel and—at least in principle—access to sites to confirm the need for and use of funds.) In a broader sense, however, the experience of negotiating the CTR Umbrella Agreement, and especially the Extension Protocol, may carry important lessons for other cooperative efforts—both for the United States and Russia and for other countries. First, the fact of the existence of the Umbrella Agreement itself was important. Although it limited U.S. flexibility in being able to accept changes to the agreement, it had the benefit of precedent for both sides. More important, it encompassed a broad range of cooperative projects. Each side might be willing to accept the failure of negotiations for one cooperative effort rather than compromise its position on one 4 Russian ratification of the CTR Extension Protocol has in fact been delayed. As of March 2005, the Russian government had still not submitted the agreement to the Duma. 5 The extension protocol was completed with little time to spare. Because the original agreement was signed by the two presidents, the sides agreed that it would be most appropriate for the two ambassadors to sign the extension. The United States ambassador to Russia signed in Moscow on June 15, 1999; the text was hand carried to Washington, D.C.; and the Russian Ambassador to the United States signed on the morning of the 16th. That required a slight change in the U.S. legal position on when the Umbrella Agreement would expire. The United States had held that the deadline was midnight on the 16th in the farthest eastern (i.e., earliest) portion of Russia. When it became clear that the logistics of signature and transportation between the two countries would not make that possible, the United States decided that midnight in Washington, D.C., was a valid deadline.
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Strengthening U.S.-Russian Cooperation on Nuclear Nonproliferation: Recommendations for Action or more provisions; the long stalemate in U.S.-Russian plutonium disposition negotiations may be a case in point. In the CTR case, however, a large number of cooperative activities was at stake, including strategic arms elimination, chemical weapons destruction, nuclear warhead and material storage and transport security, defense and military contacts, and other efforts. The costs of failure were much higher than they would have been for a single-project agreement. Second, and closely related, the substance of CTR cooperation had evolved over time, so that the sides’ interest in the effort did not diminish, even as some initial important motives for the program were no longer relevant. The Umbrella Agreement was drawn broadly enough to encompass work that had not been envisaged when it was first negotiated. Thus, for example, CTR’s initial work in nuclear security was intended primarily to facilitate denuclearization in Ukraine, Belarus, and Kazakhstan and warhead dismantlement in Russia. By 1999, nuclear security work had actually increased, designed to prevent proliferation from Russia as well as warhead reduction. Overall, the emphasis of the program was shifting from arms reduction to nonproliferation; that trend has accelerated since 1999, reflecting major changes in the U.S.-Russian relationship and shared threat perceptions. Third, and just as closely related, the breadth and importance of cooperation under the CTR Umbrella Agreement meant that there were several important CTR stakeholders among Russian agencies. In contrast, only one or two agencies might benefit directly from a single-project agreement, with correspondingly less weight in the Russian government decision-making process. Moreover, the benefit to the Russian government from ongoing CTR projects was real and measurable. Failure to extend the Umbrella Agreement would mean the loss of major ongoing efforts which addressed stated Russian priorities, rather than of hypothetical future possibilities or of efforts which Russia had not identified as priorities. In addition, the Russian government, and likely especially the Foreign Ministry, had an overall political interest in the continuation of the cooperation. Although the general political motive regarding the U.S. and Russian relationship which underlay CTR cooperation had changed greatly since 1992, it was still important. For both the United States and Russia, expiration of CTR cooperation would have been a real political failure. Finally, the success of the extension negotiations owed much to the human factor. The Russian negotiators were extremely skillful in forging and maintaining consensus within their own government and in devising a creative solution to the impasse in the negotiations. It is difficult to imagine alternatives to the “provisional application” approach that would have been equally acceptable to both the United States and Russia. It is also difficult to speculate on the internal Russian process that led to its development. But it worked. In sum, the key factor behind the success of the negotiations of both the CTR Umbrella Agreement and its Extension Protocol was the strong common U.S. and Russian interest in their conclusion. The sources of that common interest can be many. On the substantive side, it appears necessary to have either a strong political incentive and expectation of future benefit (as in the 1992 negotiations) or a practical interest in ongoing cooperation that carries measurable, important benefits that address both sides’ priorities (as in the 1999 negotiations). Procedurally, intragovernmental support for the cooperation is also required. A forcing function like a presidential summit is very useful, but not essential, if the necessary consensus within and between governments can otherwise be achieved.
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