Russia is clearly in violation of its legal obligations under the Budapest Memorandum, but the Western powers – despite Kyiv’s intimations to the contrary – are not. Under the Budapest Memorandum – signed on Dec.5 1994 – Ukraine agreed to surrender control of its nuclear arsenal in exchange for security guarantees from Russia, the United States and the United Kingdom. In 2009 moreover, the U.S. and Russia agreed that the “assurances recorded in the Budapest Memoranda will remain in effect.”
Although Russian Foreign Minister Sergey Lavrov argues that the Budapest Memorandum “contains only one obligation—i.e., not to use nuclear weapons against Ukraine,” this is patently false.
Clause One commits the signatories to “respect the independence and sovereignty and the existing borders of Ukraine.” In Clause Two meanwhile, the parties “reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations.” It’s clear that Moscow’s use of military force in Crimea as well as its hybrid war in the Donbas constitute violations of both Clauses One and Two. Indeed, even if one takes at face value Moscow’s fanciful claims that it plays no role in the Donbas, President Vladimir Putin himself has openly admitted the deployment of Russian troops to Crimea.
Moreover, the guarantee in Clause Two possesses no language limiting it to nuclear weapons only. This means that Moscow’s deployment of conventional weaponry to both Crimea and the Donbas clearly constitutes a violation of Clause Two.
Finally, Clause Three mandates that the parties “refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind.” Russia’s initiation of a trade embargo on Ukraine represents a clear attempt by Moscow to use the type of “economic coercion” against Ukraine that Clause Three specifically enjoins it from doing. Broadly speaking then, Russian actions vis-à-vis Ukraine constitutes prima facie evidence that Moscow blatantly breached its the Budapest Memorandum obligations.
The situation with the U.S. and UK is far less straightforward though. Clearly, neither the U.S nor UK violated any the first three clauses of the Budapest Memorandum. The question is whether Budapest mandates Washington and London take specific actions in defense of Ukraine? To answer this question we must turn to Clauses Four through Six of Budapest.
In Clause Four, the parties reaffirmed “their commitment to seek immediate United Nations Security Council action to provide assistance to Ukraine, as a non-nuclear-weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons, if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used.” The Western powers met this requirement in March, 2014 when the U.S. arranged a vote in the U.N. Security Council mandating non-recognition of the Russian “referendum” supporting the annexation of Crimea. Unsurprisingly, Russia – as a permanent member of the Security Council – vetoed this Resolution. The Russian veto though does not obviate the fact that the Western powers met their obligation under Clause Four to bring the Russian annexation to the Security Council.
Clause Five is much more straightforward. The parties promise “in the case of Ukraine, their commitment not to use nuclear weapons against any non-nuclear weapon state party to the Treaty on the Non-Proliferation of Nuclear Weapons, except in the case of an attack on themselves, their territories or dependent territories, their armed forces, or their allies, by such a State in association or alliance with a nuclear-weapon State.” Neither Russia, the U.S. or UK of have used nuclear weapons against Ukraine, nor has Ukraine allied with either of the nuclear-armed Western powers to attack Russia.
Finally, the Western powers also met Clause Six’s requirement to “consult in the event a situation arises that raises a question concerning these commitments.” The U.S., UK and Ukraine met in Paris on March 5th, 2014, specifically to discuss Russia’s actions in Crimea vis-à-vis the Budapest Memorandum.
In a subsequent statement, the State Department noted that the “purpose of the meeting was to discuss the urgent question of the Budapest Memorandum, the agreement signed by the Governments of the United States of America, the United Kingdom and Russia in 1994. The United States had conveyed an invitation to the Russian Federation to the meeting. We deeply regret that the Russian Federation declined to attend.” While Russia’s refusal to attend the Paris meeting is indicative that knew it was in breach of Budapest, this does not impact the fact that the Western powers met their obligation under Clause Six to consult.
Although it’s tempting with the benefit of hindsight to criticize Ukraine for giving up its nuclear weapons, it really had no other choice. As former President Leonid Kravchuk explained to Germany’s Deutsche Welle, in 1994 Ukraine possessed no ability to remain as a nuclear power even if it had wanted to. All the control systems for the nuclear weapons on its territory were maintained in Moscow, meaning the weapons were de-facto unusable for Kyiv. Moreover, even if Ukraine had wanted to maintain the nuclear warheads, Kyiv could not afford the $65 billion cost required to do so. Finally, Kravchuk also points out that had Ukraine refused to surrender its nuclear weapons, it faced Western isolation, since the missiles were actually aimed at the U.S.
In sum, Kravchuk simply sought the best possible deal he could obtain in exchange for surrendering Ukraine’s nuclear weapons, and ultimately was forced to sign a document with very little teeth behind it. As one analyst points out, “as to affirmative steps—obligations to act—it [Budapest Memorandum] identified only very limited steps that the parties would take in the event of a breach of the guarantee.” Indeed, former U.S. Ambassador to Ukraine Steve Pifer – who was part of the American negotiating team on the Budapest Memorandum -explained to his Ukrainian counterparts during negotiations that the Budapest Memorandum did not in any way imply that U.S. military assistance to Ukraine would be forthcoming in the event of a breach. While there’s nothing wrong with asserting the U.S. owes Ukraine more aid under Budapest, wishing this were the case does not make it so.
To be clear though, while the Western powers are not technically in breach of Budapest, they have arguably done no more than the bare minimum required. Moreover, nothing about Budapest prevents Ukraine’s Western supporters from making any number of moral and strategic arguments supporting the provision of additional support to Kyiv. Indeed, Ukraine and its numerous allies in Congress should ensure that President-elect Trump and his senior national security team understand the meaning of the Budapest Memorandum and why Russia remains in breach of it.
Perhaps most critically of all, Kyiv’s diplomats should link the Budapest Memorandum to nuclear non-proliferation, since Ukraine’s experience offers a terrible example for future would be proliferators considering a non-nuclear course. As Pifer himself asserts, “if a North Korean diplomat were to ask his or her Ukrainian counterpart how the Budapest memorandum worked out, the response would not be a happy one.” German Chancellor Angela Merkel also makes the same argument, wondering “Who would give up their nuclear capability” if there was no “quid pro quo” for security?
In this regard, Ukraine and its supporters can legitimately argue that nuclear security concerns require the U.S. and the U.K. to define their Budapest obligations in a more expansive manner, rather than relying on the technical the language of the Memorandum itself.
