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Old 11th February 2015, 04:07
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The Budapest Memorandum Revisited

by Dr. Irina Paliashvili

Until now the current US Administration undertook a cautious position with regards to the Budapest Memorandum, downplaying its significance. Under present circumstances it is no longer possible to maintain this position without undermining not only the US credibility in the world, but also the collective efforts aimed at nuclear non-proliferation. Instead […] 


by Dr. Irina Paliashvili

Until now the current US Administration undertook a cautious position with regards to the Budapest Memorandum, downplaying its significance. Under present circumstances it is no longer possible to maintain this position without undermining not only the US 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 US confronts its high responsibility with regards to its commitments and leadership role, and this will not only strengthen the US 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 US to provide Ukraine with encompassing assistance, 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 US about assisting Ukraine with defense weapons, and a consensus was formed in the expert community that this is high time for the US 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” Preserving Ukraine’s Independence, Resisting Russian Aggression | Brookings Institution, recently released by three leading US think-tanks and co-authored by eight highly respected former US senior diplomatic and military officials. The same call has been repeatedly made by individual US lawmakers, culminating on 3 February with an appeal to President Obama by a bipartisan group of Senators urging him to provide defense weapons to Ukraine in the face of ongoing Russian military aggression.

The solid legal and moral ground for such measures lays on the surface: it 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 5 December 1994 by the Presidents of Ukraine, the Russian Federation and the United States of America, and the UK Prime Minister, which is known as the “Budapest Memorandum” United Nations Official Document. The technical and legal intricacies of its language can be discussed ad nauseam, but nothing can change its bottom-line: the three signatories – the US, the UK 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 US (supported by the UK) 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 US, 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 US 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 US, the UK 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 US and the UK, are in a possession of overwhelming and undeniable evidence of continuing violation by Russia of “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 US and the UK 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 the Ukrainian territory.

Under these circumstances, as US lawmakers stated in their appeal to President Obama on Tuesday: “a change in our response is also needed”. The US and the UK must now deliver on their commitments under the Budapest Memorandum, which is the legal and moral basis for the US 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, the US assistance with defense weapons will be part of the solution and will safeguard any potential peace deal.

It is now time for the US to honestly confront its responsibility, and for the UK, 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 US measures, but it does not give them flexibility to oppose them, or to prevent the US and the UK from fulfilling their legal and moral commitments. Moreover, it would be in their best interest to follow the US leadership and support such measures both morally and in kind.

The original article was published in VoxUkraine on February 5, 2015

Written by Dr. Irina Paliashvili
RULG – Ukrainian Legal Group, P.A.
Chair, Legal Committee of the U.S.-Ukraine Business Council (USUBC)
Co-Chair, ECA (Europe-Caucasus-Asia) Legal Forum
Washington, DC, USA
The Budapest Memorandum Revisited | Strata Forum
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