Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

Flimsy assurances

23 years ago the West and Russia first disarmed Ukraine with the Budapest Memorandum
7 December, 2017 - 12:07
DECEMBER 5, 1994. BUDAPEST / Photo from the website WIKIMEDIA.ORG

December 5, 1994 became a turning point in Ukraine’s history. That day saw the signing of an international agreement between the US, UK, Ukraine, and Russia on Ukraine’s non-nuclear status, the Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons, also known as the Budapest Memorandum. The document was signed by the President of Ukraine Leonid Kuchma, Russia’s Boris Yeltsin, the UK PM John Major, and the President of the US Bill Clinton.

Under the document, Ukraine obliged to destroy all nuclear weapons on its territory. Notably, at that moment Ukraine’s nuclear stockpile was the world’s third largest. In exchange for this, Washington, Moscow, and London undertook to:

1 Respect Ukrainian independence and sovereignty and the existing borders.

2 Refrain from the threat or use of force against Ukraine.

3 Refrain from using economic pressure on Ukraine.

4 Seek immediate United Nations Security Council action to provide assistance to Ukraine, “if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used.”

Moreover, the guarantors confirmed their obligations to refrain from the use of nuclear arms against Ukraine and consult with one another “if questions arise regarding these commitments.”

However, with the annexation of Crimea and aggression in Donbas (with earlier examples, such as the tensions around Tuzla or the “gas wars”) by one of the signatories, Russia, the Budapest Memorandum was in fact violated. Its contents raised questions too, since the document does not provide clear mechanisms in case of its being violated by a signatory.

Former vice prime minister of Ukraine and former foreign minister of Ukraine Kostiantyn Hryshchenko said in his recent interview to The Day that Ukraine did not use even those mechanisms which are provided in the document. “It says that a state which has given up its nuclear weapons can demand urgent consultations in case of violation of its territorial integrity or if it comes under economic pressure. Except for some sobbing, I never heard a single clear demand to call such consultations,” said Hryshchenko. He also added that consultations must be held with those countries which have not violated their obligations under the Budapest Memorandum. “Not that we would get anything material from it, but at least we would have foothold to exercise pressure at least on the US and UK. Yet we never used, and still do not use, even these available opportunities. Likewise, if we do not like a certain part of the Minsk agreements, we should probably not have to support them, agreeing to endorse the document in the UN Security Council resolution. In other words, the foreign policy lacks ‘brains,’ it lacks a well-thought strategy on what we seek and how we want to achieve our goal,” remarked our interlocutor.

The Day asked another former foreign minister of Ukraine (2007-09) Volodymyr OHRYZKO for a comment on the present-day significance of the Budapest Memorandum for Ukraine, especially after Russia violated it and it virtually misfired and failed to guarantee the inviolability of Ukraine’s borders.

“Assessing the Budapest Memorandum at the time of its signing, one could admit that it has played its positive role as it enabled Ukraine to move ahead and avoid eventual sanctions, which might have been imposed if Ukraine had not signed it, and solve the issue of ridding Ukraine from the deadly weapons. All this was happening at a time when the civilized community believed in international law and the binding force of a signature under documents.

“Our mistake was that we would not realize and see that Russia was not changing at all, it was the heir of the same chauvinistic, colonial traditions which have always been (and sadly, will most probably remain) typical of Russia as an imperial state.

“I believe we have not insisted on the idea of implementation of the provisions under the Budapest Memorandum. It contains good and right things, the only thing it lacks is the tools of their implementation. The consultation formula, alas, did not work, and could not have worked as no aggressor country will agree to any consultations concerning its own aggression.

“Therefore, my assessment is various. If back then we had been able to press to the end and elaborate the implementation mechanism, the situation would be different now. But since this document is mostly of declarative nature, on the parts of the guarantors of our security, it failed to work.

“Today we hear that Western politicians, as if on command, start saying that the memorandum does not contain any binding provisions. Then I am confronted with a question: how is that possible, if it does contain legally binding obligations for Ukraine? International practice does not know treaties in which one party undertakes obligations while the other does not. This can only be true in case of colonies. And since Ukraine was not, and is not, a colony, it means neglect of obligations by both the eastern and western signatories.

“Russia’s blatant violation of not only the Memorandum, but of international law as a whole, is a separate story. Yet in this case I mean our Western partners and signatories, who for some reason believe that their leaders’ signatures are not legally binding.”

Do you believe it is possible to hold the consultations envisaged by the Budapest Memorandum?

“Theoretically it is, but then the matter of the memorandum is rendered nonsensical. We could certainly hold separate consultations with the US, France, the UK, or China. But what will this give us, if the document was signed with all permanent UN Security Council members? The consultations only mean that it is a collective decision which needs to be passed on the matter of the signed document.

“Following Russia’s aggression against Georgia, when I was foreign minister, I think Ukraine ought to have urgently concluded security treaties with the three Western signatory countries, Russia excluded. What a shame that both back then and today our Western partners refuse to sign such a treaty. I find this position not really adequate. It was a blatant case of violation of international law, with an annexation of territory, and now a war is going on. In the West everyone has a perfect idea of what the so-called DNR and LNR are. People understand that in fact this is Russia’s war against Ukraine, but nevertheless they do not draw proper and sufficient conclusions. That we still have not received the necessary weapons, only testifies to the sad fact that our Western partners do not fully realize the degree of danger posed by the Russian Federation.”

What kind of standpoint should Ukraine’s government and diplomacy take then?

“We need to think about such ways of ensuring our security which we really need, disregarding all formal bans imposed on Ukraine under some international agreements. First of all, I mean medium-range missiles which might become a very serious deterrent for any aggressor.

“It means that we need to concentrate all our effort on armament and the training of the armed forces, which would mean such losses for the aggressor which might deter him from even thinking about aggression.

“As for our partners in the West, we need to keep persuading them that such Russia is a threat and certainly no partner for the Western democracies. In reality, no kind of cooperation with Russia, even in the matters of countering terrorism, can withstand criticism. Because Russia is a terror-supporting country, and fighting terrorism together with Russia is like fighting shadows. Russia’s faked efforts in Syria, North Korea, or any other international trouble spots are only attempts to assume a role of a global state which demands respect. In reality, ideas of a possible settling of international conflicts with the help of Russia are absurd, they show a lack of understanding, or of desire to understand, Russia’s real goals. For Russia, the West is an existential enemy, and it will fight it with all means available.”

By Natalia PUSHKARUK, The Day