On December 5, 1994, the leaders of the United States, the Great Britain, Russia and Ukraine (B.Clinton, J.Major, B.Yeltsin and L.Kuchma) concluded the Budapest Memorandum «On security guarantees in connection with the accession of Ukraine to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT, 1968)». Two other nuclear states and the UN Security Council permanent members - China and France - formally expressed similar guarantees to Ukraine in the form of relevant statements (Statement of the Government of China of 04.12.1994 and the Declaration of France with the accompanying letter of President F.Mitteran of 05.12.1994), although formally not signed the Memorandum. The main difference between these two statements and the content of the Memorandum is the absence of the paragraph on compulsory consultation in case of situations that affect the issues of these obligations. Ukraine, for its part, undertook to withdraw all nuclear weapons from the territory of the country, at that time the third largest nuclear arsenal in the world. Note that tactical nuclear weapons were withdrawn from Ukraine in 1992, and the entire nuclear disarmament process was completed in 1996. The last stationary silo launcher of intercontinental ballistic missiles RS-22 (SS-24) was destroyed in Ukraine in 2001.
The year 2014 - the 20 jubilee year for the Memorandum was the year of start of the Russian aggression against Ukraine, the collapse and the destruction of the international guarantees / assurances enshrined in this international legal instrument. In recent years, we have been able to find in the international media some statements and comments from high-ranking politicians and even scientists from the countries that signed the Budapest Memorandum, and not only Russians, who unreasonably tried to disprove the validity of the Budapest «guarantees» and the obligation to implement them for all parties. But, the initiators of these rebuttals and falsifications were the Russian politicians and the Kremlin «lawyers».
In this paper, we present a series of irrefutable proofs of the opposite. Namely, the Budapest Memorandum is an international legal binding treaty, valid for its signatories - guarantors of the independence, territorial integrity and inviolability of the borders of Ukraine. First of all, it concerns the Russian Federation - the main violator of the Budapest guarantees\assurances.
These guarantees/commitments are as follows:to respect the independence and sovereignty and the existing borders of Ukraine; to refrain from the threat of force or its use against the territorial integrity and political independence of Ukraine and that no weapons will ever be used against it except in cases of self-defense...; refrain from economic coercion and so on. These international guarantees were destroyed by Russia`s 2014 military annexation of the Crimea and the subsequent aggression in the Donbas region of Ukraine, which continues to this days. As for the other Budapest guarantor-countries, they, formally not violating their obligations could not resist and prevent Russian aggression.
The fact that the RF is not going to comply with its obligations to respect the territorial integrity and inviolability of the borders of Ukraine became clear at the end of 2003 in connection with events around the Ukrainian Sea spit Tuzla in the Kerch Strait between Azov and Black sea. After those events, the proposals of some politicians about the expediency of renewal of Ukraine's nuclear status began to sound full. Although, Russia violated the Budapest Memorandum even before, when it exerted economic pressure on Ukraine, in particular, on the supply of energy to Ukraine, the introduction of unjustified restrictions on Ukrainian exports of certain types of agricultural and other products.
In 2009, on the eve of the 15th anniversary of the Budapest Memorandum in the Ukrainian Parliament and the expert community, a discussion was held on the need for its ratification, granting it the status of a «political-legal document», or the adoption of another«binding document on guaranteeing Ukraine's security». In the opinion of the then Chairman of the Verkhovna Rada (Parliament) of Ukraine V. Lytvyn, such a document could remove the urgency of the necessity of Ukraine's integration to NATO. Former Secretary of the National Security and Defense Council, a leading Ukrainian security expert V.Gorbulin insisted on the need to transform the Budapest Memorandum into a multilateral legally binding international treaty. While, then Ukrainian President V.Yushchenko considered the need for Ukraine to conclude bilateral treaties with guarantor-countries, similar to the Ukraine-US Charter on Strategic Partnership of December 19, 2008, to replace the Budapest Memorandum.
On March 2010 the appeal of the Verkhovna Rada to the nuclear states was made public with a call to strengthen security guarantees to Ukraine, which voluntarily abandoned nuclear weapons. In connection with the 15th anniversary of the Memorandum, official diplomatic correspondence of Ukraine with the guarantor-countries on the top level took place. The guarantor-countries of Ukraine, primarily Russia and the United States, expressed at that time the readiness to confirm and strengthen the guarantees provided to Ukraine. However, such proposals and assurances were not implemented in practical terms and did not go further than general political statements, intentions and theoretical discussions.
According to the Ukrainian participants in the negotiations on the preparation of the text of the Memorandum, the strategy of the Ukrainian delegation was that the final text must be legally binding. At the same time, the strategy of its partners was to emphasize the political nature of the guarantees. As a result, a compromise was reached - an international legal treaty that fixes real political and legal guarantees\assurances of Ukraine's independence, sovereignty and territorial integrity and establishes a special mechanism for their diplomatic protection in case of violation of them.
A certain weakness of the guarantees given to Ukraine by nuclear states may be evidenced by the fact that the English text of the Memorandum (in its title) used the term «security assurances», which is weaker than the term «security guarantees». It is noteworthy that in the Russian-language text of the Memorandum, as well as in the Ukrainian-language text, the term «security guarantees» is used but not «assurances».
According to one of the American participants in the negotiation process for the preparation of the Memorandum, the former US Ambassador to Ukraine, and now the Senior Fellow at the Brookings Institutions Center on the United States and Europe S.Pifer, during the talks, the discussion was about what term to use «guarantees» or «assurances», since the first term was used for provision of guarantees to NATO members, which includes military commitments. But at that time, the US administration was not ready to provide Ukraine with any military commitments; moreover, it was clear that the Senate would not provide the opportunity to ratify a treaty with such tight commitments. According to S.Pifer, the Memorandum was planned as a political agreement and provided for «specifically unspecified assurances, but not military guarantees». At the same time, sides of the Memorandum have a clear commitment to respond, even if they are not required to use military force. Therefore, the lack of a rigid Western response to Russian aggression, according to the American diplomat, discredits Western security guarantees and negatively affects the stability of non-proliferation regimes. A similar position is shared by a number of other Western and Ukrainian researchers and politicians.
Starting from the spring of 2014, from the beginning of Russian aggression and annexation of the Crimea, from the Russian side, «arguments» of politicians and even some scholars - specialists in international law and international relations are voiced in order to «justify» Putin's aggressive actions, in particular, to discredit the legal value of the Budapest Memorandum. In order to prove the failure of such an «arguments», we turn to provisions of Russian domestic law, as well as to the documents of international law.
There is a view that since the Budapest Memorandum has not been ratified by any of its signatories, the document «has not passed the process of giving it legal force through appropriate parliamentary procedures», that gives Russia «a real legal excuse». Russia allegedly does not have the appropriate obligations, and the Memorandum itself allegedly can be considered legally null and void.
Such «argumentation» does not withstand serious professional criticism, because, firstly, in the final provisions of the Memorandum it is stated that: «This Memorandum will become applicable upon signature» and therefore does not require ratification. In accordance with part 4 of Article 15 of the Constitution of the Russian Federation (RF) of 12 December 1993, if an international treaty, where the RF is a part, establishes rules other than those provided by the legislation of the country, then the rules of the international treaty apply. As is known, the procedure for the conclusion, implementation and termination of international treaties of Russia are determined by the Federal Law on International Treaties of the RF dated July 15, 1995. This Law applies to all international treaties of the RF, regardless of their type and name: contract, agreement, convention, protocol, other types and titles of treaties (paragraph 2, Article 1). It also applies to international treaties in which the RF is a party as a country-successor (follower) of the Soviet Union (paragraph 3, Article 1). In accordance with Article 6 of the Law, the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. Such a rule of the said Law of the RF fully complies with the provisions of the Vienna Convention on the Law of Treaties (signed in Vienna in 1969 and entered into force in 1980). The RF is a State Party to this Convention as the successor of the USSR, which joined the Convention in 1986. Thus, ratification is only one of many ways to give consent to the obligation to implement an international treaty, and if the document states that it comes into force upon signature, then obviously it does not require any other agreement on its entry into force. Moreover, in accordance with paragraph 1 of Article 24 of the said Law: «International treaties enter into force for the Russian Federation ... in the order and terms envisaged in the treaty or agreed upon between the parties». A similar rule is defined in the Vienna Convention on the Law of Treaties. The principles upon which the relations of conclusion of international treaties are regulated in the said Law are generally accepted and used also to the Budapest Memorandum.
In accordance with part 4 of Article 15 of the Constitution of the RF, the generally accepted principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system.
Despite the fact that, in accordance with Article 15, subparagraph (g) of the aforementioned Law, Russia's international treaties concerning disarmament or international arms control, the maintenance of international peace and security (so can be considered the Budapest Memorandum) are subject to ratification, since the latter was signed earlier, than the Federal law on International Treaties of Russia entered into force, the said rule on the mandatory ratification has no retroactive effect in time (the general legal principle of irreversibility of the law in time is fixed, in particular, in the first part of the Article 54 of the Constitution of the RF) and does not apply to the Memorandum. In addition, this Law does not specifically provide for the application of its norms to relations that arose before the date of its entry into force.
In accordance with Article 2, paragraph 1 (a) of the Vienna Convention, the term «international treaty» is defined as: «an international agreement concluded between States in written form and governed by international law, …and whatever its particular designation». Thus, the Budapest Memorandum is an international treaty of the Russian Federation, binding for its implementation.
It should also be noted that in the official electronic search systems of the Russian Federation on the legislative framework and acts of international law, the Budapest Memorandum appears as an «international treaty». Its text is contained in the official collection of documents of the Ministry of Foreign Affairs of the RF , as well as in the manual «Nuclear nonproliferation», officially recommended for Russia`s universities` and graduate students, diplomats as well as for experts in the field.
In addition to the above, an important international legal confirmation / proof of binding force for the parties (including for Russia) of the Budapest Memorandum are the following two official UN documents: 1) GA and UN Security Council document A / 49/765 * S / 1994/1399 * dated 19 December 1994, in the form of a letter from the Permanent Representatives to the UN of Ukraine, the United Kingdom, the Russian Federation and the United States (A.Zlenko, D.Hannay, S.Lavrov, and M.Albright) to the 59th GA session with a request to distribute the text of the Budapest Memorandum as an official document of the General Assembly and the UN Security Council; 2) document of the United Nations Conference on Disarmament CD / 1285 of 21 December 1994 in the form of a letter from the Permanent Representatives of the four States to this Conference requesting the registration of the Budapest Memorandum and the cover letter «as official documents of the Conference on Disarmament and their distribution to all participating States of the Conference». By presenting the Memorandum as an official document of the most influential international organization in the world, which is the UN, the States parties to this international legal document thus confirm its validity and binding nature.
It is also important to note that, in accordance with Article 6 of the Law of Ukraine «On Ukraine's Accession to the Treaty on the Non-Proliferation of Nuclear Weapons of July 1, 1968», adopted on November 16, 1994: «This Law enters into force after the providing the security guarantees by the nuclear states to Ukraine by signing of the relevant international legal document». Thus, if the Budapest Memorandum is not a document that provides Ukraine with security guarantees and is «legally null and void», as some Russian politicians and experts claimed, it would mean that Ukraine is not a party to the NPT as a non-nuclear country and has the legal right to possess nuclear weapons.
Statements regarding allegedly useless legal liability of the Budapest Memorandum, if they were fair, would automatically make it absurd and discredit all the actions of the high-level leaders at the level of the heads of states related to the conclusion of this international treaty, since this would mean that the contracting parties conclude at the highest level legally «insignificant» document that would be contrary to the logic of those events, and also would not be consistent with the fundamental and universally accepted principle of international law - the principle of conscientious fulfillment of the international obligations based on the international legal practice «pacta sunt servanda»
At the official level, the Russian side, nevertheless, recognizes the binding nature of the Memorandum for its implementation, although partly and indirectly. In the statement of the Ministry of Foreign Affairs of Russia dated 1 April 2014 in connection with allegations of violation of its commitments under the Memorandum, states, in particular, that «the RF strictly adhered to and observes the obligations stipulated in the Budapest Memorandum to respect the sovereignty of Ukraine ... which cannot be said about the policy of Western countries, which during the events on Maidan have clearly despised this sovereignty». It also emphasized that according to «the general element of the Budapest Memorandum and the concept of «negative guarantees» in its classical sense, the only obligation is not to use and not to threaten by nuclear weapons against non-nuclear states. Such Russia's commitment to Ukraine in no way was violated». However, such statements contradict each other, because if the obligations of the signatories of the Memorandum concerned only «an obligation not to use and not to threaten the use of nuclear weapons», this would contradict with the above-mentioned maxim in the same statement («... what not we can say about the policy of Western countries, which during the events on Maidan clearly ignored this sovereignty»), - since the Russian side, by claiming this, did not mean the use or threat of use by Western countries of nuclear weapons against Ukraine.
Some comments from critics, which, based on the provisions of part two of Article 7 of the Law of Ukraine «On International Treaties of Ukraine» of December 22, 1993, No. 3767-XII (which was in force on the date of signing of the Memorandum and until 03.08.2004), tend to consider that this international treaty allegedly subject to ratification, may also be unequivocally and reasonably rejected, since the Memorandum by its nature does not apply to any of the types of treaties (and does not relate to relations regulated by them), which are specified in the exhaustive list in part two of Article 7 of this Law as such to be a subject to ratification. In clause «g» of paragraph 2 of Article 7 of the Law it is determined that only those international treaties are subject to ratification, the ratification of which is provided for by the law or the international treaty itself. As you know, neither by the Budapest Memorandum nor by the Ukrainian legislation in force on the date of its conclusion the ratification procedure was envisaged.
In this regard, Ukraine, considering the Budapest Memorandum as an international treaty, in full compliance with the law of Ukraine «On International Treaties of Ukraine» in force on the date of Memorandum`s conclusion, agreed to the entry into force of the Memorandum from the moment of its signing, without specifying the conditions for the exchange of instruments of ratification. Working out its draft Ukraine did not insist on ratification by other participants, in particular, by the Russian Federation. The specified condition for the entry into force of the Memorandum from the moment of signing («become applicable upon signature») fully complies with both Russian law and the Vienna Convention on the Law of Treaties.
The aggressive actions of Russia against Ukraine in the Crimea and Donbas have become a violation of not only the Budapest Memorandum, but also a number of other fundamentally important international legal acts, including: the UN Charter; Helsinki Final Act of 1975 and a dozen other OSCE core documents; Agreement on the establishment of the CIS of December 8, 1991; Declaration on the observance of the sovereignty, territorial integrity and inviolability of the borders of the CIS participating-states of 15 April 1994; Trilateral Statement on Security Assurances of Ukraine by the Presidents of the USA, Russia and Ukraine dated January 14, 1994; the Framework Treaty on friendship, cooperation and partnership between Ukraine and the Russian Federation of 1997; other Ukrainian-Russian bilateral agreements; NPT as well as other international legal instruments. Serious guarantees are also contained in the Ukraine-US Charter on Strategic Partnership of December 19, 2008. On December 4, 2009 In the Joint Statement of the Presidents of Russia and the United States, the commitments were also confirmed regarding the unchanged assurances\guarantees set forth in the Budapest Memorandum. Such assurances\guarantees from the RF had been also repeatedly confirmed in the official statements of the leadership of the Russia`s Ministry of Foreign Affairs, in particular in April 2010.
The flagrant mockery of the international law principles and the world democratic community were «explanations» by official Russia of its aggressive actions in Ukraine. First, on March 4, 2014. President V.Putin, in his peculiar style, said that if you agree that in February 2014, there was a revolution in Ukraine, then it should be considered that a new state arose on its territory, for which Russia did not sign any binding documents. According to a similar logic, the more it should be assumed that since Russia is a different state compared to the USSR (formed as a result of no less revolutionary process of the collapse of the Soviet Union), Russia cannot in any way claim either to the territory of Eastern Prussia (Kaliningrad Oblast), nor on the Northern Territories of Japan (the South Kuril islands of Iturup, Kunashir, Shikotan, Habomai), nor on the territory of the part of the Leningrad region and Karelia, which retreated to the USSR as a result of the Soviet-Finnish Winter war of 1939-1940. It is noteworthy that in December 1939 the General Assembly of the League of Nations, identifying acts of aggression by the Soviet Union against Finland excluded the USSR from the League of Nations. Today we can state that due to its organizational structure and modalities as well as political will, the UN is not able to take similar actions with respect to Russian aggression against Ukraine.
On March 19, 2014 Russia's Ministry of Foreign Affairs, in the same provocative and mockery form, denied its involvement in violations of the Budapest Memorandum and accused the US, the EU and the new Ukrainian authorities that allegedly acted «against the political independence and sovereignty of Ukraine in violation of the obligations under the Budapest Memorandum». In early April 2014, it was cynically declared that «Russia has not made an obligation to force part of Ukraine to remain in its composition against the will of the local population, and the provisions of the Budapest Memorandum do not apply to circumstances that have become the result of actions of domestic political or socio-economic factors». The Russian Foreign Ministry's statement that: «Ukraine's loss of territorial integrity has been the result of complex internal processes, to which Russia and its obligations under the Budapest Memorandum have no relation» is absolutely hypocritical.
Some American international analysts, in connection with violations of the Budapest assurances\guarantees, spoke in favor of sending NATO forces to Ukraine, as well as of the application of Article 4 of the North Atlantic Treaty, which provides for consultations of member-states in case of a threat to their security and territorial integrity. In recent years, Ukraine, at least three times, in the person of its Foreign Minister P.Klimkin, has raised the issue on the convening of such consultations, which, of course, did not find support from Russia as an aggressor country.
Important mechanism for ensuring global international security are international legal regimes for the non-proliferation of weapons of mass destruction (nuclear, chemical and bacteriological). The cornerstone of the international legal system for the non-proliferation of nuclear weapons is the NPT where most countries of the world are parties, with the exception of Israel, India, North Korea (DPRK) and Pakistan - the states that actually possess nuclear weapons, although they are not officially recognized as «nuclear states». The guarantees provided by the Budapest Memorandum were a prerequisite for Ukraine’s joining the NPT as a «non-nuclear» country. The failure of these safeguards has a negative impact today on negotiation processes for addressing non-proliferation issues in the world, among which, first of all, are the most resonant, such as the Korean and Iranian nuclear problems.
The failure of the Budapest guarantees is a signal for the world that the only reliable way to ensure the security of states is to develop their own nuclear weapons. Not one dozen "threshold" countries, and those who had intentions and technological capabilities to create such weapons, are deeply in thought today on this issue, and the situation around Ukraine is a clear example for them of the fuzziness of hopes for a «guarantees» of nuclear states. North Korea is the first country to draw the appropriate conclusions, especially since among the participants on the Six-Party Talks mechanism for the Korean nuclear issue settlement are the three «nuclear» states (the US, Russia and China) that declared the Budapest «guarantees» to Ukraine. Thus, it is unlikely that in the medium term we should expect fundamental changes in the negotiation process to resolve the Korean nuclear issue. Without having the ability to counteract the US and its allies in the region by conventional military means and fearing US actions aimed at overthrowing the ruling regime, the DPRK will continue to develop a nuclear program as a guarantee of regime survival. Failure of the Budapest and other international guarantees for Ukraine should strengthen the confidence of the totalitarian regime of the DPRK in the faithfulness of the chosen strategy for the further development of nuclear weapon and means of its delivery as deterrence weapon. According to some experts` assessments, North Korea possesses between 25 and 70 nuclear weapons, but there's a debate over whether it has the reliable technology to successfully launch one toward the mainland U.S. The affirmative answer to this question seems to be only a matter of fairly close time. One should not be particularly flattered by some progress in improving the rhetoric and continuing the dialogue regarding the denuclearization of the Korean peninsula, which occurred in May-June 2018. According to some reliable international experts` assessments, regardless of the smiles in the USA-DPRK summit in Singapore on 12 June, 2018 many in Japan, South Korea, Israel and the USA doubt that North Korea is sincere in its intentions to destroy completely its military nuclear facilities and fulfill nuclear disarmament. Hopes for a positive continuation, again, are based on the guarantees vital to the North Korean regime and willingness to provide them by the USA.
Another acute problem of nuclear non-proliferation, negotiated within a multilateral format (involving the US, the UK, France, Germany, Russia, the EU and China) were the talks on halting the Iranian uranium enrichment program. Official Tehran, in exchange for refusing to enrich uranium and production of plutonium, seeks to obtain US guarantees of the absence of military plans to eliminate the Iranian regime, mitigate and further cancel US sanctions that negatively affect the economy of the country, as well as uninterrupted supply of reactor fuel for facilities of peaceful nuclear energy. It can be predicted that, in this case, the failure of Budapest guarantees for Ukraine will also affect the further formation of Iran's position on nuclear non-proliferation and its credibility with Western partners' guarantees, despite progress made in 2015.
The logic of the leaderships of North Korea and Iran can be as follows: if the «guarantees» of «nuclear» states do not work for Ukraine, a European democratic country, a responsible member of the world community, then they will hardly work for countries that are called the «axis of evil», «rogue» or «pariah» countries in the western rhetoric.
A vivid example may also be the dramatic events in Iraq, which in 2003 was subjected to intervention and the overthrow of the regime of dictator S.Hussein, despite the cooperation of the country with the IAEA and observance of the relevant UN resolutions. A similar situation had taken place with regard to the Libyan program on weapons of mass destruction. Although the leader of this country, M.Gaddafi, under international pressure agreed to terminate the program, this did not save his regime from overthrowing as a result of the civil war in the country in 2011 with the support of NATO member-countries.
It is noteworthy that this opinion was actually supported by the main ideologist and architect of today's Russian foreign policy, S.Karaganov, in one of his recent publication: «The wave of nuclear weapons proliferation is widening. After Israel, India, Pakistan, who received it with impunity and, especially after …. Iraq, Libya abandoned nuclear programs, it is senseless to expect North Korea to abandon it. The same logic fits the joining of Crimea to Russia. … it violated the promise to respect the territorial integrity of Ukraine, contained in the Budapest Memorandum. The moral justification for the nonproliferation regime has been undermined».
- The complex set of problems of non-proliferation of nuclear weapons, as well as the obvious failure, seemingly reliable, international guarantees of the territorial integrity and inviolability of the borders of Ukraine in exchange for voluntary denial of nuclear weapons is a serious destabilizing factor of erosion, if not destruction, of international legal systems for the non-proliferation of weapons of mass destruction, and not just only nuclear weapon. The main factor that triggers such tendencies is the formation of a firm distrust to the «international guarantees», which, in the face of aggression and flagrant violation as well as neglect of international norms and principles, show inefficiency, impuissance and helplessness. By participating in international nonproliferation forums, official representatives of Ukraine should more actively emphasize such a danger.
- To demand today from the world additional legally binding guarantees of security, territorial integrity and inviolability of the borders of Ukraine, as suggested by some Ukrainian politicians, is not relevant, since, firstly, the timeliness of such claims was lost 24 years ago, and, secondly, it may cause a wave of similar requirements from other states of the so-called «gray zone», which are not included today in the collective/cooperative security systems. And most importantly, this does not need to be done, Ukraine only needs to demand from its partners the honest and effective implementation of the agreements already reached and the implementation of assurances guaranteed for Ukraine in the Budapest Memorandum. First of all, it is necessary to take more active and determined measures of economic and political pressure on Russia on the part of Western guarantors in order to ensure the approximation of its foreign and security policy in the post-Soviet space to the civilized norms of international relations.
- As has been shown in this article, the Budapest Memorandum is not a «legally void» document of anything significant from the point of view of the nuclear liabilities to Ukraine. From the point of view of international law, this is a fundamentally incorrect thesis. The Memorandum is a full-fledged international treaty, the obligations of which Ukraine has been fully and timely implemented. Russia's reluctance to recognize the obvious facts of its aggression against Ukraine, as well as the attempts by other signatories of the Memorandum to evade their part of responsibility, lead to that demagogic rhetoric around this international legal document, which has been voiced, primarily by the Russian side, during the past three years. The legal facts of Russia's violations of its obligations under the Budapest Memorandum, as well as a number of other fundamentally important international legal instruments, noted above, should become the legal basis on which Ukraine's lawsuits against Russia should be formed in international judicial institutions.
- It is believed that despite the importance of international legal mechanisms for ensuring security, the most effective way to address the pressing security problems Ukraine has been facing is to continue to build up its own defense and security capabilities as well as to actively integrate into the Euro-Atlantic collective security system of democratic nations, whose effectiveness and reliability have been tested by time.
*Information about the author:
Ihor Lossovskyi – Ph.D., Extraordinary and Plenipotentiary Envoy of Ukraine