From day one of Russia’s assault on Ukraine (ongoing since February 27), Ukrainian government leaders, politicians and diplomats have continually invoked the 1994 Budapest Memorandum signed by Ukraine, the United States, Russia and the United Kingdom. That Memorandum is widely believed to provide security “guarantees” to Ukraine and a mechanism to activate them by “guarantor” powers, in the event of Ukraine’s independence and territorial integrity being threatened. International mass media are also widely referencing “guarantees” to Ukraine under the Budapest Memorandum; while Washington and London have feebly attempted to engage Moscow in some dialogue based on that document.
Russia’s unopposed seizure of Crimea, and open threats to extend the conflict deeper into Ukraine, have tested the Budapest Memorandum and proved it to be useless. By perpetuating an illusion of security guarantees, the Memorandum has contributed to distracting Ukraine from developing a common security agenda with the West while the opportunities existed.
The “Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons” is an inter-state document, signed by the presidents of Ukraine, Russia, and the United States and the prime minister of the United Kingdom (Leonid Kuchma, Boris Yeltsin, Bill Clinton and John Major, respectively) on December 5, 1994, in Budapest, during a summit of the Organization for Security and Cooperation in Europe (OSCE). No time frame is set to the document’s applicability; its duration is unlimited. France and China acceded to the terms of the Budapest Memorandum later, in their national capacities (http://documents-dds-ny.un.org/doc/UNDOC/GEN/N94/507/64/pdf).
Under this document the US, Russia, and the UK extend security assurances to Ukraine, in return for Ukraine’s joining the nuclear non-proliferation treaty and abandoning (i.e., transferring to Russia) the huge arsenal of nuclear weaponry that Ukraine had inherited from the Soviet Union. The Budapest Memorandum was intended as a moral-political reward for Ukraine in the short term, and a safeguard to Ukraine in the future vis-à-vis Russia. All signatories including, undoubtedly, Russia itself clearly understood that Russia was the only conceivable source of threats to Ukraine’s sovereignty and territorial integrity.
The word “guarantees,” however (contrary to universal suppositions), never occurs in the Budapest Memorandum. It uses the term “assurances,” which implies far less than guarantees. Even the term “assurances” occurs only in the title, but does not appear in the body of the document. It is missing there because provision of assurances must involve some activating mechanism, whereas this document does not create such a mechanism.
The Memorandum and the obligations therein are not regarded as binding by its signatories. It is an unratified document, since it does not envisage any ratification procedures. In a codicil, the signatories pronounce the Budapest Memorandum “applicable upon signature.” Applicable means less than the term “in force” could have meant, if it had been used.
Under the December 1994 document, the three nuclear powers “reaffirm” most relevantly: their “commitment to respect Ukraine’s independence and sovereignty and its existing borders”; their “obligation to refrain from the threat or use of force against Ukraine’s territorial integrity or political independence”; and their “commitment to refrain from economic coercion” against Ukraine. They go on to promise not to attack Ukraine with nuclear weapons, and to resort to the United Nations Security Council if Ukraine is attacked or threatened with nuclear weapons.
The first three “reaffirmations” are of practical interest, as opposed to the purely theoretical contingency of a nuclear attack. “Reaffirming” (without strengthening) a pledge can be a redundant gesture, inherently signifying that the pledge has already been made. It is redundant in the case of the Budapest document, inasmuch as the signatory great powers had already undertaken those obligations and commitments under legally binding international pacts, whereas the Budapest Memorandum has no legal or binding value. Russia is breaching the legal and the non-binding documents with equal unscrupulousness.
According to the Budapest document, “the United States, Russia, and Britain will consult, in the event a situation arises which raises a question concerning these commitments.” Thus, the Budapest Memorandum does not empower Ukraine itself to demand consultations among the three powers. It does not envisage a quadripartite format to include Ukraine, but only trilateral consultations about Ukraine among the great powers. And it does not specify a mechanism for calling such trilateral consultations—an omission that allows Russia easily to refuse consultations. The Memorandum stops short of mentioning any implementation mechanism beyond consultations. Russia successfully diluted the document to such an extent during the negotiation.
It was a fatal flaw to include Russia in a security arrangement designed for Ukraine. All signatories knew that only Russia could be expected to engage in the type of conduct that the Budapest Memorandum was intended by its Western proponents to forestall. The inclusion of Russia resulted in a weak document, a non-functional arrangement, and impunity for Russian actions against Ukraine.
The Budapest Memorandum could have been invoked in 2003, when Russia attempted to grab the Tuzla island in the Kerch Strait from Ukraine. It could have been invoked a number of times over Russia’s resort to “economic coercion” (see above) against Ukraine, e.g., the 2006 and 2009 gas supply cutoffs, or the 2013 trade restrictions intended to compel Ukraine to renounce the association agreement with the European Union. It should be invoked more effectively than it has been during the present crisis, so as to hold Russia at least politically accountable for breach of word. It also provides a cautionary warning to the West against signing any more agreements with Russia affecting the fate of Ukraine.