June 12, 2020

Ukraine’s forgotten security guarantee

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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 It is time to revisit the terms of this historical document, and restore U.S. and U.K. credibility.

The multilateral memorandum, signed in 1994 by Ukraine, the U.S., 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 U.S. to smoldering, radioactive cinder. According to Ambassador Steven Pifer, Ukraine’s 1,900 nuclear warheads, already pre-targeted at the U.S., “could have destroyed every U.S. 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 U.S. 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 percent of Ukraine’s territory ravaged and occupied, with 13,000 casualties and 1.5 million refugees.

There can be no denying that the Budapest Memorandum – on its face – is lopsided in favor of the other three parties (Russia, U.S., U.K.). They were far more experienced in diplomatic wrangling and nuances, and colluded in threatening Ukraine with economic and diplomatic isolation. But there can also be no denying that both sides understood that the agreement guaranteed them as much U.S. and U.K. support as necessary – short of direct military intervention – to ensure against Russian aggression. How else to explain that all four heads of state signed their names to Ukrainian and Russian language documents titled “Security Guarantees” (Ukrainian: “harantiyi”), and to English versions titled “Security Assurances” (Ukrainian: zapevnennia)? 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 U.S. military involvement, but have reason to believe themselves short-changed regarding the level of support implicit in “assurances” and “guarantees.”

Carlo Trezza, Italy’s former ambassador for disarmament and non-proliferation, offers an alternative explanation for the shelving of the Budapest 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 latter view finds support in a detailed 25-page opinion published by Dr. 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?” He 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.”

So what is the relevance of the memorandum to the war in the Donbas and the annexation of Crimea? According to Gen. 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 memorandum’s critics have one more arrow in their quiver to try to bring it down to ground. The U.S. 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. Prof. 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 U.S. and the U.K. have in force throughout the world, though very few are ratified. Prof. 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 U.N. Charter) is negated by Russia’s veto power on the National 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.

The bottom line is simply this. Regardless of some imperfections in drafting, Ukraine paid a heavy price for the Budapest Memorandum and the pledges it contains. But neither the administration of Petro Poroshenko nor that of Volodymyr Zelenskyy has 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 Vladimir 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 U.S., the U.K., 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 U.S., British and/or international courts and world opinion.

Everyone concerned with Ukraine’s freedom, nuclear disarmament and non-proliferation, and restoration of U.S. and U.K. credibility should urge President Zelenskyy to pivot away from the Minsk agreements and towards the Budapest Memorandum, while seeking tougher sanctions on Russia and greater military support to counteract its aggression.

George Woloshyn, MBA, JD, was a senior executive under three U.S. presidents: Ronald Reagan, George Bush and Bill Clinton. He served as the Office of Personnel Manage­ment’s Director of the Office of Federal Investigations, the Federal Emergency Management Agency’s Director of National Preparedness, and as Inspector General of a bank regulatory agency.

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