The Budapest Memorandum Revisited

The Budapest Memorandum provides the legal and moral basis for the US to provide Ukraine with military assistance

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 The Budapest Memorandum gives legal and moral basis for the US to provide Ukraine with military assistance, writes in VoxUkraine op-ed Irina Paliashvili of RULG-Ukrainian Legal Group (RULG). Paliashvili insists, that  in light of renewed peace efforts by Germany and France, such assistance will be part of the solution and will safeguard any potential peace deal. 

In the past few days, there has been an extensive discussion in the US about assisting Ukraine with defense weapons, and a consensus was formed in the expert community that this is high time for the US to do so. This conclusion is confirmed in the report “Preserving Ukraine’s Independence, Resisting Russian Aggression: What the United States and NATO Must Do”, recently released by three leading US think-tanks and co-authored by eight highly respected senior US diplomatic and military officials. The same call has been repeatedly made by individual US lawmakers, culminating on Tuesday with an appeal to President Obama by a bipartisan group of Senators urging him to provide defense weapons to Ukraine in the face of ongoing Russian military aggression.

The solid legal and moral ground for such measures lays on the surface: it is called the Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons, signed on 5 December 1994 by the Presidents of Ukraine, the Russian Federation and the United States of America, and the UK Prime Minister, which is known as the “Budapest Memorandum. The technical and legal intricacies of its language can be discussed ad nauseam, but nothing can change its bottom-line: the three signatories – the US, the UK and Russia – confirm and reaffirm “their commitment to Ukraine in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to respect the independence and sovereignty and the existing borders of Ukraine”.

It is also well-known and well-documented that Ukraine was persuaded by the US (supported by the UK) to give up its large nuclear arsenal, the single most solid guarantee of its security, territorial integrity and importance in global affairs, in exchange for guarantees of its sovereignty and borders. The US, which spearheaded the effort to take the nuclear arsenal away from Ukraine and transfer it to Russia, publicly undertook the responsibility for the territorial integrity and sovereignty of Ukraine.

The Budapest Memorandum’s core issue was nuclear non-proliferation, the single most serious issue for the world’s collective security. How then can the Budapest Memorandum not be taken seriously? Who will trust the US and its allies when they urge the states seeking nuclear weapons to abandon this goal in exchange for guarantees? No level of irresponsibility, first and foremost by the world’s major super-powers, can be tolerated on this issue.

In fact there are numerous international-law documents on respect of borders and territorial integrity of the states (in particular the obligations Russia undertook on multinational, trilateral and bilateral levels to respect the borders in general and to respect the borders and territorial integrity of Ukraine in particular), but the Budapest Memorandum focuses specifically on the non-proliferation issue, and contains specific commitments, given specifically by the US and the UK in exchange for specific commitments by Ukraine.

There is no doubt that Ukraine has delivered on its commitments under the Budapest Memorandum promptly, fully and in a good faith.

The two guarantors, the US and the UK, are in a possession of overwhelming and undeniable evidence of continuing violation by Russia of “sovereignty and the existing borders of Ukraine”, first by occupying and annexing Crimea, and then by invading and waging war in Eastern Ukraine.

Until now the Budapest Memorandum was sidelined because the US and the UK joined a group of their allies in general undertaking of a host of diplomatic and economic measures to end the aggression against Ukraine and restore Ukraine’s territorial integrity. Unfortunately these measures failed: Russia is presently engaged in a new major escalation of its aggression, causing numerous casualties and a humanitarian catastrophe on the Ukrainian territory.

Under these circumstances, as US lawmakers stated in their appeal to President Obama on Tuesday: “a change in our response is also needed”. The US and the UK must now deliver on their commitments under the Budapest Memorandum, which is the legal and moral basis for the US to provide Ukraine with military assistance because all other protection mechanisms have been exhausted with no result. The most recent efforts by Germany and France to broker a peace deal may or may not be successful, but if a peace deal is achieved, the US assistance with defense weapons will be part of the solution and will safeguard any potential peace deal.

It is now time for the US to honestly confront its responsibility, and for the UK, as its co-signatory, to put similar measures into action. As to other European allies, such as Germany, the Budapest Memorandum gives them flexibility to join or not to join these particular US measures, but it does not give them flexibility to oppose them, or to prevent the US and the UK from fulfilling their legal and moral commitments. Moreover, it would be in their best interest to follow the US leadership and support such measures both morally and in kind.


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