Until now the current U.S. administration has taken a cautious position with regard to the Budapest Memorandum, downplaying its significance. Under the present circumstances, it is no longer possible to maintain this position without undermining not only U.S. credibility in the world, but also the collective efforts aimed at nuclear non-proliferation.
Instead of shying away from the Budapest Memorandum, it makes sense to revisit it and to reverse the current position. This will be an important signal to the world that the U.S. confronts its high responsibility with regard to its commitments and leadership role, and this will not only strengthen the U.S. credibility, but will also result in many other advantages, most importantly putting an end to the Russian aggression against Ukraine.
The Budapest Memorandum provides the legal and moral basis for the U.S. to provide Ukraine with multi-faceted aid, including military assistance. In light of renewed peace efforts by Germany and France, such assistance will be part of the solution and will safeguard any potential peace deal.
In the past few days there has been an extensive discussion in the U.S. about assisting Ukraine with defense weapons, and a consensus was formed in the expert community that this is high time for the U.S. to do so. This conclusion is confirmed in the report “Preserving Ukraine’s Independence, Resisting Russian Aggression: What the United States and NATO Must Do” (http://www.brookings.edu/research/reports/ 2015/02/ukraine-independence-russian-aggression), recently released by three leading U.S. think tanks and co-authored by eight highly respected former U.S. senior diplomatic and military officials.
The same call has been repeatedly made by individual U.S. lawmakers, culminating last week with an appeal to President Barack Obama by a bipartisan group of senators urging him to provide defensive weapons to Ukraine in the face of ongoing Russian military aggression.
The solid legal and moral ground for such measures is called the Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons, signed on December 5, 1994, by the presidents of Ukraine, the Russian Federation and the United States of America, and the prime minister of the United Kingdom, which is known as the “Budapest Memorandum” (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/ 49/765).
The technical and legal intricacies of its language can be discussed ad nauseam, but nothing can change its bottom line: the three signatories – the U.S., the U.K. and Russia – confirm and reaffirm “their commitment to Ukraine in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to respect the independence and sovereignty and the existing borders of Ukraine.”
It is also well-known and well-documented that Ukraine was persuaded by the U.S. (supported by the U.K.) to give up its large nuclear arsenal, the single most solid guarantee of its security, territorial integrity and importance in global affairs, in exchange for guarantees of its sovereignty and borders. The U.S., which spearheaded the effort to take the nuclear arsenal away from Ukraine and transfer it to Russia, publicly undertook the responsibility for the territorial integrity and sovereignty of Ukraine.
The Budapest Memorandum’s core issue was nuclear non-proliferation, the single most serious issue for the world’s collective security. How then can the Budapest Memorandum not be taken seriously? Who will trust the U.S. and its allies when they urge the states seeking nuclear weapons to abandon this goal in exchange for guarantees? No level of irresponsibility, first and foremost by the world’s major super-powers, can be tolerated on this issue.
In fact there are numerous international-law documents on respect of borders and territorial integrity of the states (in particular the obligations Russia undertook on multinational, trilateral and bilateral levels to respect the borders and territorial integrity of Ukraine), but the Budapest Memorandum focuses specifically on the non-proliferation issue, and contains specific commitments, given specifically by the U.S., the U.K. and Russia in exchange for specific commitments by Ukraine.
There is no doubt that Ukraine has delivered on its commitments under the Budapest Memorandum promptly, fully and in a good faith.
The two guarantors, the U.S. and the U.K., are in a possession of overwhelming and undeniable evidence of continuing violations by Russia of the “sovereignty and the existing borders of Ukraine,” first by occupying and annexing Crimea, and then by invading and waging war in eastern Ukraine.
It is understandable that until now the Budapest Memorandum was sidelined because the U.S. and the U.K. joined a group of their allies in their general undertaking of a host of diplomatic and economic measures to end the aggression against Ukraine and restore Ukraine’s territorial integrity. Unfortunately these measures failed: Russia is presently engaged in a new major escalation of its aggression, causing numerous casualties and a humanitarian catastrophe on Ukrainian territory.
Under these circumstances, as U.S. lawmakers stated in their appeal to President Obama: “a change in our response is also needed.” The U.S. and the U.K. must now deliver on their commitments under the Budapest Memorandum, which is the legal and moral basis for the U.S. to provide Ukraine with military assistance because all other protection mechanisms have been exhausted with no result. The most recent efforts by Germany and France to broker a peace deal may or may not be successful, but if a peace deal is achieved, U.S. assistance with defensive weapons will be part of the solution and will safeguard any potential peace deal.
It is now time for the U.S. to honestly confront its responsibility, and for the U.K., as its co-signatory, to put similar measures into action. As to other European allies, such as Germany, the Budapest Memorandum gives them flexibility to join or not to join these particular U.S. measures, but it does not give them flexibility to oppose them, or to prevent the U.S. and the U.K. from fulfilling their legal and moral commitments. Moreover, it would be in their best interest to follow U.S. leadership and support such measures both morally and in kind.
Dr. Irina Paliashvili is lawyer educated in Georgia, Ukraine and the United States (with a Ph.D. in international law from Kyiv State University and an LL.M in international and comparative law from George Washington University). She serves as the chair of the Legal Affairs Group of the U.S.-Ukraine Business Council, member of the International Bar Association’s Law Firm Management Committee Advisory Board and member of the Advisory Board of Best Lawyer, as well as member of the board of trustees of the Kyiv School of Economics (KSE). She is regularly included in the Hundred Best Lawyers of Ukraine (Clients› Choice) based on the survey conducted annually by Yurydychna Gazeta, a leading legal publication in Ukraine, and is designated a “Lawyer of the Year” in several practice areas in Ukraine by Best Lawyers, which is regarded as the definitive guide to legal excellence in the U.S. and around the world.