George Woloshyn: Clearing the cobwebs from the Budapest Memorandum

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The Budapest Memorandum guaranteed  Ukraine’s security in exchange for its nuclear weapons.  Out of the four signatories, only Ukraine has kept its pledges.  Even in the face of overt hostility, aggression, and invasion of Crimea by Russia, not one of the other three signatories has come even close to fulfilling its explicit and implied guarantees for protecting Ukraine’s sovereignty. The Minsk agreements are an irrelevant sideshow, that attempts to supersede and disavow the more fundamental security arrangements inherent in the Budapest Memorandum.  It is time to revisit the terms of this historical document, and restore US and UK credibility.

The multilateral memorandum, signed in 1994 by Ukraine, the US, Russia, and Britain, resulted in Ukraine renouncing its status as the world’s third-largest nuclear power, and forswearing future nuclear ambitions.  In return, the other signatories provided “security assurances” of Ukraine’s territorial integrity, independence, sovereignty, and freedom from interference.  They vowed to  “consult” concerning any violations, and to invoke immediate National Security Council action should Ukraine ever be attacked or threatened with nuclear force. France and China, in separate documents, affirmed their concurrence.  Belarus and Kazakhstan signed identical memorandums upon receipt of similar security assurances.

Ukraine “paid” for those assurances by relinquishing a nuclear stockpile that not only provided for its own freedom from Russian aggression and interference but also eliminated a grave nuclear threat. Its missiles – if left under continuing Russian operational control – could have reduced the whole of the US to a smoldering, radioactive cinder.  According to Ambassador Steven Pifer, Ukraine’s 1,900  nuclear warheads, already pre-targeted at the US,  “could have destroyed every US city with a population of more than 50,000 three times over….”  No other country contributed more to American, British, and world security from nuclear devastation than Ukraine. Significantly, Ukraine set a precedent for nuclear disarmament and non- proliferation that was heralded as the bedrock of global efforts to avoid a nuclear apocalypse.

In return  (per Mr. Pifer), “Washington wrote Kyiv a check for US support in the Budapest Memorandum – albeit hoping that it would never be cashed.” But now, six years into a war that has lasted longer than World War II,  and Russia’s breach of every commitment it made in the memorandum, that check has “bounced” for  “insufficient funds” to honor its “assurances.”  Leaders of other nations with nuclear ambitions –  a’ la North Korea’s Kim Jong-un or Iran’s Hassan Rouhani – would have reason to doubt similar “checks” from Washington after observing 7% of Ukraine’s territory ravaged and occupied, with 13,000 casualties, and 1.5 million refugees.

This may be an appropriate time to revisit the Budapest Memorandum and gain a better understanding as to the reasons for its seeming disavowal by many Ukrainians and Westerners.  As is often the case, we may have treasures in the attic, but, unless someone comes along and sweeps away the cobwebs and the dust it may never be discovered. So let us do a little house-cleaning and sweep away some of the cobwebs.

The single biggest “stumbling block” with the Memorandum appears to be the distinction between two similar words:  “assurances” versus “guarantees”.  A further complexity is found in that  ALL FOUR parties agreed to the use of BOTH words – “assurances” in English and “guarantees” in Ukrainian and Russian.  According to the Vienna Convention of the Law on Treaties (and the Memorandum is most assuredly a “Treaty”),  both the English and the Ukrainian/Russian versions are to be given equal weight.

Unless it can be shown that one side sought to deceive the other by slipping in words with different meanings,  we can only assume that all knew and acquiesced in their intent and meaning.

So what was the intent and meaning?   Simply this: all sides understood that the agreement guaranteed Ukraine as much US and UK support as necessary – short of direct military intervention  to ensure against aggression  (Russian or otherwise).

Hence the Ukrainian and Russian versions used the word  “guarantees” (Ukr: harantiyi),  and the English version was entitled “Security Assurances” (Ukr: zapevnenyam).  There may not be a great deal of light between these two key words, but all parties understood the difference to mean no direct military involvement. Consequently, Ukrainians have not asked for direct US military involvement, but have reason to believe themselves short-changed the level of support implicit in “assurances” and “guarantees.”

Another cobweb that needs to be cleaned out is the distinction between a  “political statement” and a “legally binding” agreement.

Carlo Trezza, former ambassador for disarmament and non-proliferation, offers his view on the shelving of the memorandum.  He claims that its “greatest weakness” is that it is “only politically, and not legally, binding.”  He theorizes that the text of the agreement makes a political statement affirming certain principles to which all agreed, but does not commit parties to do much more than “consult” or seek United Nations action.

The ambassador may be correct on the protocol but falls short on the substance.

His dismissal of the memorandum’s legally binding nature requires suspension of disbelief. No nation would agree to surrender its nuclear arsenal and risk its independence and security in exchange for… what?… afternoon tea at the Mayflower?

The “consultation” could only have meant Ukraine’s right to invoke the parties to convene (even if one chooses not to come) and take steps towards “assuring” or “guaranteeing”  the commitments made in the memorandum.  This view finds support in a detailed 25-page opinion published by Thomas D. Grant, one of the world’s foremost international scholars and legal experts, under the title,  The Budapest Memorandum of 5 December 1994: Political Engagement or Legal Obligations? 

Grant concludes: “The state whose security the memorandum guaranteed ….recognized the precariousness of its situation. Whatever the character of the other parties’ commitments, legal or political, the guaranteed state acceded to nuclear disarmament as its side of the bargain…To the extent that it is accepted that the instrument stipulates legal obligations, their context is the law of non-proliferation.”

The memorandum’s critics have one more arrow in their quiver to try to bring it down to the ground.

The US Constitution defines a “treaty” as one that has been ratified by the Senate. The memorandum is not a  “treaty” within that definition. It is a “congressional-executive agreement,” the closest to a Senate- ratified “treaty.”

But is it “binding”?

Yes.

Professor Barry Kellman, a noted authority on  international laws of security, considers the memorandum to be “binding in international law.”

In fact, it is as “binding” as the overwhelming majority of agreements the US and UK  have in force throughout the world,  though very few are “ratified.”

Kellman also thinks that the memorandum  does not have “any means of enforcement.”

Again he’s right, but neither do the vast majority of non-commercial agreements.

The one enforcement mechanism (Chapter VII of the UN charter) is negated by Russia’s veto power on the Security Council.  It should be noted, however, that the NATO Treaty also has “no means of enforcement”  other than the trust, honor, and integrity of its members. Yet it has kept Europe secure for 70 years. Ukraine, having contributed more than any other member to NATO’s security, is entitled to no less.

So what is the relevancy of the memorandum to the war in Donbas, and annexation of Crimea?

According to General Ihor Smeshko, Ukraine’s leading expert on the memorandum: “It is the only international document that could secure Ukraine’s territorial integrity and preclude the use of military, economic, diplomatic, and informational aggression against us.”

As a recognized international treaty, it is governed by the terms of the 1969 Vienna Convention.

Under its terms, the memorandum:

(a)  binds the states to “good-faith” performance;

(b) came into full force when signed (regardless of any state ratification requirements ); 

(c)  continues indefinitely;

(d) allows for juridical interpretation of terms in their context and in the light of their object and purpose (including the parties’ intent as per aforementioned comments on  “assurance” vs. “guarantee.”). In short, it stands as a brazen challenge to Russia’s credibility in honoring its commitments, and as a potential scarlet letter of shame and dishonor for America and England if they fail to do so.

The bottom line is simply this. Regardless of some imperfections in drafting, Ukraine paid a heavy price for the memorandum and the pledges it contains. But neither the Petro Poroshenko nor the Volodymyr Zelensky administrations have publicly and steadfastly invoked its expressed and implied “quid pro quo.”

Such a diplomatic initiative, based on the memorandum as the touchstone for the parties relations, can turn the tables on Putin, encourage the other two parties to ratchet up the pressure on Russia,  acquire more advanced defensive military aid, and stake out the high moral and legal ground Ukraine occupies under it.  It is vital not only for Ukraine, but for the US, UK, and world security to restore faith in nuclear disarmament and non-proliferation programs.

Furthermore, as a recognized international treaty, the memorandum supersedes – both under Ukrainian and Russian law! – any so-called  “Minsk agreement,” especially one extorted to the sound of Russian tanks crossing the border. It offers reasons and venues to work out its imperfections in direct negotiation, or by appeal to US, British and/or international courts and world opinion.

Everyone concerned with Ukraine’s freedom, nuclear disarmament and non-proliferation, and restoration of US and UK credibility should urge Zelensky to pivot away from Minsk and towards the memorandum while seeking tougher sanctions on Russia and greater military support to counteract its aggression.

By George Woloshyn.

George Woloshyn is a retired senior executive and Senate-confirmed presidential appointee in the Reagan Administration. He had served as head of government-wide civilian personnel security, national security emergency preparedness, and as inspector general of a regulatory agency. He has also been active in philanthropic programs involving Ukraine.

Post Author: Intercourier

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