Editor’s note: For quite a while now, social media enthusiasts have been using the hashtag #tbt (or, in long-form, “Throwback Thursday”) as a way to reminisce about the past. Now Lawfare has decided to get in on the action by means of a new feature. Each week, Lawfare will turn back in time to a specific event, and briefly explain how it relates to today’s security and/or legal environment.
Welcome to Lawfare’s second #tbt.
The Daily Beast brought us jarring news this week: in Ukraine, soldiers are bracing for “full-scale war” as a tenuous ceasefire between the government in Kiev and Russian-supported rebels disintegrates. That agreement, struck in September, isn't the only one at risk of sliding into the dustbin of history. Russian incursions also threaten the so-called Budapest Memorandum of 1994---perhaps the more consequential of the pair, given its importance to non-proliferation.
Its history is important, if complex. Twenty years ago, following the collapse of the Kremlin’s empire, the world suddenly found thousands of nuclear weapons spread across several newly separate, sovereign nations. Among other newly-independent republics, Ukraine had inherited physical, if not operational, control over the world’s third-largest stockpile of nukes---roughly 1800 warheads and an arsenal bigger than China, Britain and France combined. While Russia retained possession of most of the necessary infrastructure to make use of these nuclear armaments, the threat of nuclear proliferation had grown dramatically overnight. In a sweeping effort to consolidate and secure the former Soviet Union’s nuclear stockpiles, Russia, the UK, the US, and Ukraine concluded two years of negotiations with what came to be known as the Budapest Memorandum. All four governments signed it on December 5th, 1994.
Among other things the Memorandum---the full text of which can be found here---promised signatories would:
- “respect the Independence and Sovereignty and the existing borders of Ukraine”
- “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine”
- “refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind”
In light of the Russian annexation of Crimea earlier this year and the continuing instability in eastern Ukraine, many journalists and scholars have pointed to the memorandum as the focal point for the current conflict. Ukraine, the US, Russia and even Belarus have invoked it, as a means of criticizing alleged transgressions by other actors. Amidst the chaos of war, several questions swirl: Does the Memorandum hold any lingering power? Does it require US or UK intervention to secure Ukraine’s territorial integrity? How does each state invoke it to justify their current actions? Finally, could the Memorandum have been concluded differently, in a fashion that might have prevented the current hostilities?
After overviewing the Memorandum, we sketch out some preliminary answers to these questions below.
The Context of the Memorandum
As the last vestiges of the USSR collapsed, Ukraine, like other former members of the Soviet bloc, voted for its independence as a sovereign state in 1991. It therefore stepped into an unusual position. Owing to the USSR’s policy of fragmenting its nuclear arsenal and infrastructure across constituent republics, several of the nascent states had either sizable nuclear arsenals (Ukraine), developed disbursement infrastructure (Kazakhstan), or both (Russia).The United States and the new Russian Federation both rightly made securing nuclear weapons a critical objective, both for regional security and for the broader non-proliferation regime. For its part, the United States hoped to stave off a world with thousands of loose nukes quietly sitting in politically unstable and relatively poor countries; Russia wanted to avoid the strategic encirclement that would result if multiple states, potentially hostile to its interests, acquired nuclear weapons. Prominent among Kiev’s concerns was the country’s territorial integrity, a fact reflected in frequent textual references throughout the Memorandum. In exchange for Ukraine's cooperation and release of nuclear weapons in its possession, the world’s nuclear weapons powers brokered an agreement that would---at least on paper---assure Ukraine’s sovereignty and alleviate its political concerns, while also extending economic assistance and diplomatic relations.
Why was Kiev so concerned? For starters, Ukraine is what Samuel Huntington would later call a “cleft country"---one displaying serious tensions between two different identity groups of relatively equal strength. In Ukraine’s case, hundreds of years of Polish and Russian colonization created a division between Ukrainian-speakers and Russian-speakers in general, and ethnic Ukrainians and ethnic Russians in particular. As the country achieved independence, many in Ukraine grew anxious about a nightmare scenario. The fear was that a resurgent Russia might seek once more to assert control over “Little Russia”---Ukraine---by means of an uprising by domestic Russian sympathizers, or even by means of a full-out invasion.
Twenty years later, events seem to call the Memorandum's wisdom into question. Several scholars have pointed to the document's “weaknesses”---including its official title, which promises merely “security assurances" rather than “guarantees.” The distinction is subtle but important, as latter is the stuff of more mandatory pacts like the US-Japan treaty alliance. In the latter, Washington has issued an ironclad promise to militarily intervene on Tokyo’s behalf in the event of warfare. “Security assurances,” by contrast, carry no comparable, binding duty to send in the gun boats. A prominent scholar put it well when he characterized the agreement as providing just cause for a state to intervene, in the event of a threat to Ukraine’s territorial sovereignty---but as not imposing any obligation to do so.
There's more. Although signatories “reaffirm their commitment” to Ukraine in many passages, the Memorandum requires signatories to do almost nothing concrete, in the event that Ukraine’s sovereignty--- territorial or political---is violated. There aren't any hard enforcement mechanisms. The only real measure in this repsect appears in Article 4 of the Memorandum, wherein signatories pledge to defend Ukraine from aggression by seeking “immediate United Nations Security Council action to provide assistance.” There's a catch, though: that clause is restricted to certain aggression “in which nuclear weapons are used.” But as the Kremlin has made clear recently, you don't need to drop hydrogen bombs in order to peel off Ukrainian provinces.
This does not mean that the Budapest Memorandum was or is worthless. Firstly, it emphasized and reinforced obligations that all of the signatories had already agreed to via the UN Charter. Secondly, it strongly stressed the importance of Ukraine’s territorial viability, and directly referenced the danger of one state using “economic coercion” to flex its muscles against Kiev. It also recognized the importance of a few stakeholders in Ukraine’s future and speedily resolved a pressing proliferation dilemma. All this helped to reaffirm, if only politically, something already legally protected pursuant to the UN Charter: Ukraine's sovereignty. In that respect, the Memorandum made it that much harder for would-be aggressors.
The Legality of the Annexation of Crimea and Russia’s “Hybrid War” in eastern Ukraine
Nevertheless, the Kremlin annexed Crimea and continues to conduct a “hybrid war” in Ukraine’s east. That raises a legal question: How do the signatories, especially Russia, justify their actions legally?
The West says that by annexing Crimea and abetting separatism in the provinces of Donetsk and Luhansk, Russia has flouted two different bodies of law: Memorandum provisions that bar economic or military interference in Ukrainian affairs, and UN Charter rules governing Ukraine’s territorial integrity. Others have pointed out that Russia’s actions conflict even with the country’s own constitution, which says in Article 15, Section 4 that “if an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied.”
In response, Russia has let fly with a barrage of contradictory legal rhetoric---much of it also grounded in the Memorandum. Putin's government alleges that the United States and the European Union originally violated the sovereignty of Ukraine by illegally intervening in the country and using its influence to overthrow the elected Yanukovych government and install a “fascist” regime in Kiev. The Kremlin further asserts that the West imposed economic sanctions while also funding pro-European democracy promotion, in contravention of the accord.
In light of that charge, Russia ironically has justified its incursion in Crimea by suggesting that the provisions of the Budapest Memorandum do not apply if conduct contrary to it occurs because of “domestic, political or socio-economic factors.” Another counter-argument is that Russia never “negotiated to limit borders” in the Budapest Memorandum, despite recognizing Ukraine’s “existing borders.” That's not all. Some Russian legal analysts claim that Russia has historical ties to Crimea, which was a part of the Russian Soviet Federative Socialist Republic until 1954. In this vein, they assert that Russia’s current actions find historical support in the Indian invasion of Goa in the 1960s, and the USSR’s annexation of South Sakhalin Island following World War II.
The list of legally or factually questionable claims goes on and on, and includes what is perhaps the most widely advanced claim of all: that the “illegitimate” regime in Kiev is conducting a genocide against ethnic Russians and Russian-speakers in Ukraine. In this telling, Russia has a duty and a right to intervene to stop a humanitarian catastrophe. This was a tactic Russia also invoked in its 2008 war with Georgia.
Could the Ukraine Crisis have been Prevented?
Russia's (somewhat) undercover assault on Ukraine, and the threat of overt Russian invasion, has caused reasonable strategists to ask: In the first place, should Ukraine ever have given up its nuclear weapons in exchange for security assurances from (among others) the Russian Federation? On its face, the question is valid. So is this related one: Had Ukraine instead kept its nuclear weapons, could Ukraine have blocked Russian intervention in the May revolution altogether?
It's a counterfactual, so we can't and don’t know the answer. Perhaps Russia would have decided to forego intervention against a nuclear-armed Ukraine; it isn't always rational to bring existential threats to bear against nuclear-armed states. On the other hand, conflicts between India and Pakistan over the disputed region of Kashmir have proven that war can occur even under the nuclear umbrella. Moreover, Russia might well have sought to annex parts of even a nuclear-armed Ukraine, through the actions of “local militants,” non-state actors or popular referenda. Indeed, proxy war is arguably even more likely under the nuclear umbrella than outside of it, thanks to something deterrence theorists call the “stability-instability paradox.” Which is to say: Russia might have opted for annexation anyway, Budapest Memorandum or no---though without the Budapest Memorandum, we would face the status quo along with the deadly spectre of nuclear war to boot. (That, along with a host of other potential problems---dicey security for stored Ukrainian weapons and the high cost of maintaining weapons infrastructure, to name only a few of the big ones.)
Could the United Kingdom and the United States offered Ukraine more than security assurances---or even firm pledges of military assistance when needed? Probably not. Steve Pifer, a senior fellow at the Brookings Institution and former US Ambassador to Ukraine, notes that neither George H. W. Bush nor the Clinton administration were prepared to offer those sorts of commitments. Both felt that the Senate would not produce the two-thirds vote for treaty ratification anyway; a more aggressive stance vis-a vis Ukraine also would have meant a bold expansion of NATO, and caused Russia to bristle. (For all this, Pifer nevertheless argues that the Washington and London have a responsibility to respond aggressively and to inflict political, diplomatic, and economic punishments on Moscow.)
The 1994 Budapest Memorandum will be interpreted---reasonably as well as unreasonably--for some time to come. The situation in Ukraine also remains in flux; moreover, the Memorandum is but one of several international instruments purporting to shore up Ukraine's political and territorial integrity. In these respects, the Memorandum's true legacy has yet to come into full view.
Still, this much seems clear: Ukraine’s sovereignty was surely compromised, despite security assurances from Memorandum signatories, and despite Kiev’s forsaking of its nuclear stockpiles. In that regard the Memorandum has shown some serious cracks. And these could have dramatic and systemic ramifications, as the French Foreign Minister, Laurent Fabius, explained recently:
It could mean that countries that have nuclear weapons won't want to give them up, while countries that don't have them may want to acquire them because that will be the only way to protect their territorial integrity.