The Budapest Memorandum and the Russia-Ukraine Crisis

Editor’s Note: This is adapted from a longer article in the latest issue of International Affairs.

As the war in eastern Ukraine simmers, one of its first casualties is still discussed with regret and frustration: the Budapest Memorandum. In 1994, on the margins of the Budapest Summit of the Conference on Security and Cooperation in Europe (CSCE), Russia, the United Kingdom, and the United States convened to provide security assurances to Belarus, Kazakhstan, and Ukraine. In return these three countries transferred the Soviet-made nuclear weapons on their soil to Russia and acceded to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as non-nuclear-weapon states.

Russia’s violations of its Budapest Memorandum commitments to Ukraine have dismembered the country (with the annexation of Crimea) and forced it into an open-ended war, with grave implications for NATO and the European Union. Russia’s actions have also undermined the global nuclear nonproliferation regime and the international legal order.

Origins of the Budapest Memorandum

The Budapest Memorandum for Ukraine (formally entitled the Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons) was the product of negotiations about the disposition of the Soviet Union’s nuclear weapons. When the Soviet Union disintegrated in 1991, its nuclear weapons were deployed or stored on the territory of four of the fifteen successor states: Belarus, Kazakhstan, Russia, and Ukraine. This raised important questions about safety and security as well as command and control; and Moscow and Washington agreed that Russia should be the sole nuclear-armed successor of the Soviet Union.

The United States recognized that it would have to offer security assurances to Belarus, Kazakhstan, and Ukraine to persuade them to transfer the Soviet-made nuclear weapons on their soil to Russia and join the NPT as non-nuclear-weapon states.

In coordination with London and Moscow, Washington assembled a package of security assurances. These assurances were set out in Budapest Memoranda concerning Belarus, Kazakhstan, and Ukraine. France and China — the other NPT-recognized nuclear-weapon states — offered their own assurances on a unilateral basis.

The Budapest Memorandum concerning Ukraine reaffirmed commitments to respect Ukraine’s independence, sovereignty, and existing borders (in accordance with the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe, CSCE); to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and from any use of weapons against Ukraine, except in self-defense or otherwise in conformity with the United Nations Charter; and to refrain from economic coercion against Ukraine, in accordance with the CSCE Final Act. The Memorandum also repeated the positive and negative security assurances extended to all non-nuclear-weapon state parties of the NPT.

Russia’s Violations of the Budapest Memorandum

Russia’s annexation of Crimea in March 2014 was a clear violation of the Budapest Memorandum. Ukraine posed no threat to Russia, so Moscow could not claim to be acting in self-defense. Nor did Russia have a mandate from the UN Security Council to intervene in Ukraine, much less to annex part of its territory. Moscow has continued to conduct a multi-faceted war against Ukraine, with support for the separatists and Russian armed forces on Ukrainian soil.

According to the Budapest Memorandum, the four parties “will consult in the event a situation arises that raises a question concerning these commitments.” William Hague, then the British foreign secretary, urged Russia “to accept the invitation to attend talks under the Budapest memorandum in Paris.” Hague and U.S. Secretary of State John Kerry met with the Acting Foreign Minister of Ukraine, Andriy Deshchytsia, in Paris on March 5, 2014, but Russian Foreign Minister Sergei Lavrov declined to attend. The U.S./U.K./Ukraine Press Statement indicated that the parties “deeply regret” Russia’s decision not to participate.

Russia has denied that it has violated the Budapest Memorandum, on the grounds that the Ukrainian government has changed. In March 2014, Russian President Vladimir Putin said that Ukrainian President Viktor Yanukovich’s departure in “an anti-constitutional coup” — or a “revolution” — had brought about the emergence in Ukraine of “a new state with which we have signed no binding agreements.”

The Russian argument implies that agreements are not concluded between countries, but between governments, and that they create no enduring obligations if there is a change of government in one of the parties. The long-standing principle of international law, however, is that treaties and other international agreements are concluded by governments on behalf of states.

Grim Consequences for Ukraine’s Security

Russian intervention has made Ukraine the scene of a “frozen conflict.” Kiev faces continuing combat and profound vulnerability to various Russian instruments of coercion. Russia’s annexation of Crimea, its economic and energy coercion of Ukraine, and its political-military intervention in eastern Ukraine have demonstrated yet again Moscow’s rejection of NATO’s vision of cooperative security in the Euro-Atlantic region. Indeed, Russia has undermined the UN Charter-based international order by flouting its legal obligations and, as with the case of Georgia in 2008, attempting to modify international borders by force to its geostrategic advantage.

In December 2014 the Ukrainian parliament approved legislation to end the country’s “non-aligned” status in view of the “aggression against Ukraine from the side of the Russian Federation, its illegal annexation of the autonomous republic of Crimea, waging of a so-called ‘hybrid war,’ military interventions in eastern regions of Ukraine, and constant military, political, economic and informational pressure.” In signing this law, President Petro Poroshenko predicted that Ukraine would be ready for NATO membership in five or six years and implied that a referendum on the question would be organized.

NATO Responses

Despite their willingness to provide certain forms of assistance to Ukraine, the NATO allies are not prepared to run the risk of war with Russia for the sake of this country. Welcoming Ukraine into the alliance would mean accepting the risk of armed conflict with Russia; and the allies are far from reaching a consensus in support of Ukrainian membership.

The NATO allies decided in April 2014 “to suspend all practical civilian and military cooperation between NATO and Russia,” while continuing “political dialogue in the NATO-Russia Council.” In September 2014, at the Wales Summit, the allies approved a Readiness Action Plan focused on assuring the Central and Eastern European Allies of NATO’s commitment and capacity to defend them, with increased exercises, prepositioned equipment, and reinforcement infrastructure. While reaffirming and strengthening their commitment to collective defense of the Alliance, the Allies have retained their crisis management tasks and expeditionary capabilities, as well as their programs to work with partners, including Ukraine. Allied interactions with Ukraine have focused on crisis management and what the Allies call “cooperative security,” including partnership activities, not collective defense.

Ukraine renounced its post-Soviet nuclear status and joined the NPT as a non-nuclear-weapon state in return for assurances that have proven in practice to be unenforceable and unreliable not only in terms of direct military intervention but also in terms of the supplies of lethal military equipment for self-defense requested by Kiev. In the current debates within and among NATO nations about the extent to which they are willing to provide military assistance to Ukraine, some of the proponents of such assistance have referred to Russia’s disregard for its Budapest Memorandum promises.

The Russian government has engaged in “nuclear signaling” and exercises, as well as show-of-force maneuvers along NATO and European Union borders with nuclear-capable aircraft. Russia’s tacit nuclear threats appear to have contributed to the reluctance of Western governments to arm the Kiev government’s forces and enable them to impose greater costs on Russia in response to its aggression. Although such costs might diminish Putin’s domestic support and help to deter further aggression, Moscow’s implicit threats of escalation to nuclear conflict seem to have had an impact on decision-making in NATO governments.

Security Assurances and Nuclear Nonproliferation and Disarmament

Russia’s disregard for its Budapest Memorandum commitments may have a grave impact on the credibility of major-power security assurances. These assurances have been regarded as important instruments in efforts to persuade new nuclear-weapon states (such as North Korea) to join the NPT as non-nuclear-weapon states, and to convince non-nuclear-weapon states developing nuclear options (such as Iran) to cease activities inconsistent with the NPT.

Undermining the credibility of security assurances means degrading the sustainability of the global nuclear nonproliferation regime. Proliferators are likely to cite Russia’s sabotaging of the Budapest Memorandum as an argument to justify their own programs. The security assurances did not provide security for Ukraine, and some observers have criticized London and Washington for their restraint almost as much as Moscow for its action.

Except for economic sanctions against Russia and limited military aid to Ukraine, London and Washington have taken little action beyond what the Budapest Memorandum specifically prescribed — to convene consultations, which were snubbed by Russia. This has provoked concern that Japan, South Korea, and other U.S. allies may lose confidence in U.S. commitments and become more disposed to consider seeking their own nuclear deterrence capabilities or at least to increase their investments in hedging measures.

Russia’s Priorities

Russia’s actions have placed into question not only Ukraine’s security, but also the future of measures intended to promote nuclear arms control, disarmament, and nonproliferation. The Budapest Memorandum was an element in a positive narrative of progress toward nuclear force reductions and negotiated constraints on nuclear capabilities. It appears that Russia signed the memorandum when it was expedient to do so and ignored it when it posed an obstacle to the annexation of Crimea and further intervention in Ukraine.

In March 2014, President Putin contended that Russia had several justifications for its action regarding Crimea: that Soviet leaders had committed an “outrageous historical injustice” in placing Crimea and other historically Russian territories under Ukrainian rule; that Crimea and Sevastopol are “dear to our hearts, symbolizing Russian military glory and outstanding valour;” and that Russian speakers and Russian citizens in Ukraine were victims of efforts “to deprive” them “of their historical memory, even of their language and to subject them to forced assimilation.” Putin also asserted that “Nationalists, neo-Nazis, Russophobes and anti-Semites” had carried out a “coup” in Kiev at the direction of “foreign sponsors” in the West; that this “coup” meant that there was “no legitimate executive authority in Ukraine now;” and that the residents of Crimea and Sevastopol had asked Moscow for help in pursuing self-determination on the model of the Kosovo precedent. Putin argued, moreover, that “western partners, led by the United States,” had “lied to us many times, made decisions behind our backs, placed us before an accomplished fact,” notably “with NATO’s expansion to the East, as well as the deployment of military infrastructure at our borders;” and that Ukrainian membership in NATO would put “NATO’s navy … right there in this city of Russia’s military glory, and this would create not an illusory but a perfectly real threat to the whole of southern Russia.”

These have remained the principal themes in Russian expositions of Moscow’s motives, with scant attention to the implications for international order and nuclear nonproliferation and disarmament of disregarding the Budapest Memorandum assurances about Ukraine’s territorial integrity. By undermining prospects for nuclear nonproliferation, the Russians have undercut their own security interests; but they have demonstrated by their actions and declared policy rationales that they have political and strategic priorities that they consider more urgent and compelling than promoting nuclear nonproliferation.

These priorities may include controlling not only Crimea and Sevastopol but also adjacent Ukrainian territories. Russia’s increased investments in its Black Sea Fleet, its recently established Mediterranean Task Force, and the improvements in Crimea’s air defenses and strike forces underscore the fact that Crimea and Sevastopol constitute military assets applicable to many purposes.

Implications for International Order

Russian leaders have made clear that — despite economic sanctions and international condemnation — they are willing to disregard long-standing legal and political norms, including those expressed in the Budapest Memorandum, in pursuit of strategic and economic advantages and the fulfillment of national identity goals.

Russia’s violations of the Budapest Memorandum are significant precisely because this document drew together and reaffirmed several fundamental obligations. While the CSCE Helsinki Final Act is not a treaty and is therefore politically rather than legally binding, the UN Charter has been a bedrock foundation of international law since 1945.

The argument that Russia has a history- and ethnicity-based right to disregard recognized international borders in order to revise territorial decisions made by Khrushchev and other Soviet leaders sets a precedent with the potential to cause great upheavals. Using force to modify legally established borders and gain territory on the grounds of historical and ethnic grievances poses a fundamental challenge to international order.

In December 2014 the U.S. State Department’s International Security Advisory Board took note of “the annexation of Crimea, the first time that one nation has seized and annexed territory from another in Europe since the end of World War II, and one where Russia was in direct violation of pledges subscribed to in the Helsinki Final Act and the Budapest Memorandum of 1994.”

In his October 2014 Valdai speech, Putin repeatedly declared that Crimea had exercised a UN Charter right to self-determination in seeking membership in the Russian Federation. This argument could furnish a rationale for an indefinite number of territorial expansions of the Russian Federation.

The NATO and European Union countries have formulated near-term responses, including the Alliance’s Readiness Action Plan, practical assistance to the Ukrainian government, and economic sanctions against Russia. Averting a further breakdown in the principles of international order spelled out in the UN Charter and the Helsinki Final Act — and reaffirmed in the Budapest Memorandum — will, however, depend on re-establishing consensus with Moscow on the requirements of international law. This will remain a remote prospect as long as Russia pursues its dangerous and revisionist course regarding its international legal obligations.

David S. Yost is a professor at the U.S. Naval Postgraduate School, Monterey, California. His publications include NATO’s Balancing Act (United States Institute of Peace Press, 2014), Strategic Stability in the Cold War: Lessons for Continuing Challenges (Institut Français des Relations Internationales, 2011), and NATO and International Organizations (NATO Defense College, 2007). The views expressed are those of the author alone and do not represent those of the Department of the Navy or any U.S. government agency.

Photo credit: www.kremlin.ru