Mark HibbsZNPP: Peaceful Use Verification Obligations

President Vladimir Putin, on the basis of a military invasion and improvised “referenda” widely deplored by many states and the United Nations, declared on September 30 that the Russian Federation will annex four occupied territories in Ukraine. Beginning soon Russia may take steps to impose its authority in these territories, perhaps prioritizing certain matters including nuclear energy where Russian leaders may conclude that exerting firm Russian control would reap status or strategic benefits. 

If Russia’s March 2014 annexation of Crimea serves as its nuclear blueprint, Russia can be anticipated to interrupt and terminate the IAEA’s ongoing and routine implementation of nuclear safeguards, carried out under Ukraine’s safeguards agreement with the IAEA, in any annexed Ukrainian territory. If so, in Zaporizhzhia Russia may challenge established multilateral non-proliferation understandings as well as specific understandings of individual Western governments concerning nuclear items they permitted to be transferred to Ukraine over which Russia has wrested control by force. These understandings are, for example, expressed in a 1998 bilateral agreement for nuclear cooperation between Ukraine and the United States.  Future Russian interference with IAEA safeguards in Ukraine might also contravene related arrangements governing nuclear trade and nonproliferation obligations between Ukraine and Sweden. 

Since 1998 the IAEA implements safeguards in Ukraine under Ukraine’s legally binding bilateral safeguards agreement with the IAEA, Infcirc-550. This agreement follows from Ukraine’s 1995 accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear weapons state party; henceforth all of Ukraine’s nuclear materials were legally subject to IAEA peaceful-use verification under Infcirc-550. Russia is a nuclear weapon state party to the NPT, and so unlike Ukraine it is not obligated to untertake full-scope safeguards on all its nuclear materials and activities. For territory that Russia has reclaimed from Ukraine, it would appear that in Russia’s view Infcirc-550 does not apply, as it is an agreement between the IAEA and Ukraine.  

In March 2014, Russia occupied and then annexed Crimea after holding a snap “referendum” there that was elsewhere broadly denounced as contrary to international law. After the tally, Russia promptly took control of all nuclear materials in Crimea and terminated routine IAEA verification mandated by Infcirc-550 at locations in Crimea. In practice, this meant that nuclear materials declared by Ukraine and associated with the IR-100 research reactor at the Sevastopol National University for Nuclear Energy and Industry were no longer subject to routine peaceful-use verification by the IAEA. After Russia’s seizure of nuclear assets, the Ukraine government formally objected and reasserted its claim to legal ownership and regulatory authority concerning all nuclear materials in Crimea. To my knowledge, all nuclear materials in Crimea declared by Ukraine to the IAEA under Infcirc-550 between 1998 and 2013 were of Russian or former Soviet-origin. 

The status of obligations attached to nuclear material on Ukrainian territory occupied by Russia in 2022 presents a different picture. There, the Zaporizhzhia Nuclear Power Plant (ZNPP), Europe’s largest, hosts six light-water (VVER) power reactors of Soviet/Russian design. In addition to Russian-supplied nuclear fuel, most of which is stored at the site in irradiated form, four of the six reactors at ZNPP use uranium dioxide fuel supplied by U.S. vendor Westinghouse and manufactured at a Westinghouse nuclear fuel fabrication plant in Västerås, Sweden. The Swedish nuclear fuel plant was formerly owned and operated by Asea-Atom, a Swedish nuclear power plant and fuel vendor.

Thus in Zaporizhzhia and unlike in Crimea, Russia will control nuclear items having imported content and obligations under bilateral agreements between the US and/or Swedish governments, respectively, with the government of Ukraine. Ukraine may also have legal obligations vis-a-vis the European Union for these items since nuclear export authorizations in EU member states follow from EU-wide commodity control regulations. Sweden and the US–also Russia and Ukraine–are members of the Nuclear Suppliers Group, the world’s most important multilateral nuclear export rule making body. In 1993, the NSG’s members agreed by consensus that the export of designated items for nuclear use requires as a condition that all nuclear materials and activities in a recipient non-nuclear weapon state must be subject to full-scope safeguards. 

The 1998 Ukraine-US Agreement for Cooperation Concerning Peaceful Uses of Nuclear Energy states that IAEA full-scope safeguards are a requirement for supply of US-obligated nuclear fuel to Ukraine, and that implementation of IAEA safeguards under Article III (4) of the NPT as expressed in Infcirc-550 fulfills Ukraine’s safeguards obligations to the US for US-obligated power reactor fuel. 

What Recourse?

Were Russia to interfere with or terminate IAEA safeguards activities at ZNPP in contravention of Infcirc-550, how would Ukraine’s Western nuclear fuel suppliers respond? The Ukraine-US agreement states that if “circumstances demonstrate that the IAEA for any reason is not or will not be applying safeguards in accordance with the agreement,” then the parties “shall consult and immediately enter into arrangements with the IAEA or between themselves which provide assurance equivalent to that intended to be secured by the system they replace.” Article 10 states that the parties might reach an “agreement” with “another nation” concerning “rights equivalent… to material,, equipment, or components… subject to this agreement” such that “implementation of any such rights will be accomplished by such other nation or group of nations.” “Another nation” meaning Russia in this case?

In lieu of IAEA inspections at Sevastopol after Russia seized Crimea, since 2014 the IAEA tried to obtain some confidence that the IR-100 reactor and its nuclear material were in peaceful use, in part by discreetly relying on information provided by Russian sources. But diplomats familiar with the Ukraine-US Cooperation Agreement said that the language of Article 10 was not conceived and was never intended by the agreement’s drafters to be invoked should Russia in the future invade Ukraine and interfere with IAEA verification in territory it occupied. “We were dealing then with another, a different Russia,” one negotiator of the Ukraine-US agreement said. In the event of any Russian interference with routine IAEA safeguards including on any US-obligated items, he said, the US would want to make sure that it did not participate in any remedial actions that could be construed to be validating Russian occupation of Ukraine’s sovereign territory. The same logic would obtain for Sweden in the case of any nuclear export from Sweden to Ukraine for use in ZNPP. 

In the final analysis, how serious is this safeguards challenge posed by Russia’s aggression? Compared with the entire gamut of traumatic and dire threats unleashed by Russia’s war–which cast a dark shadow over the August 2022 NPT Review Conference as the conflict in Ukraine raged–the near-term risks represented by a Russian stifling of safeguards at ZNPP are likely to be small or even minimal. The hazard would be magnified if weapons-usable materials were involved (at ZNPP there are none) and if Russia were to lose control of nuclear materials. To be sure, Western states and industry supplying Ukraine with nuclear fuel will not be pleased by the prospect that wares they shipped to a partner and ally might be, in effect, confiscated by their adversaries and competitors. But there’s no acute nuclear proliferation threat: Russia is bristling with nuclear arms and weapon-ready nuclear materials; it doesn’t need to divert and reprocess seized Ukrainian power reactor fuel to make plutonium for weapons.

On its own terms, the scenario of a plausible Russian challenge to safeguards at ZNPP is sobering enough: An NPT nuclear weapon power invades a neighboring non-nuclear weapon state, takes control of that state’s safeguarded nuclear materials and installations, and then prevents the IAEA from fulfilling its binding obligations under international law to verify that the occupied country’s nuclear materials are used for peaceful purposes. The rules and procedures of international nuclear governance matter, also in Ukraine. Russia and the Soviet Union actively participated in the formation of these rules; they didn’t result from a Western conspiracy. 

In Crimea, Russia beginning eight years ago interfered with IAEA peaceful-use verification on Ukrainian territory that many states believe Russia illegally occupies, without having felt a pinch at the IAEA Board of Governors in Vienna. But that was then. Since February, Western states have shown firm resolve to help Kyiv overcome Russia’s brutal war-making. Were Russia to deny IAEA safeguards access to ZNPP, some states might renew pressure to sanction Russia’s state-controlled nuclear sector and/or revisit whether Russia’s IAEA membership should be suspended under Article XIX (B.) of the IAEA statute. But such measures are hardly a foregone conclusion: Russia is a leading global provider of nuclear materials, nuclear power equipment, and know-how; it is engaged and embedded in many nuclear-related activities involving IAEA member states, and so far, the IAEA’s collective membership–including states which have participated in assisting Ukraine’s nuclear power development–has not been willing to penalize Russia’s nuclear industry.