The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?

Angela Merkel, Chancellor of Germany, brought renewed attention at the Munich Security Conference this month to the Budapest Memorandum, an instrument adopted some twenty years ago by Ukraine, the Russian Federation, the United Kingdom and the United States.  The Chancellor said that the Russian Federation, by invading eastern Ukraine and annexing Crimea, “has broken its commitment to the Budapest Memorandum.”  Merkel asked, “Who would give up their nuclear capability if their territorial integrity were not respected?”

The Budapest Memorandum, or to give its long form title, Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), was adopted in connection with Ukraine’s agreement at the time to relinquish the nuclear weapons in its territory, these having formed a substantial part of the arsenal of the former USSR.  In its Declaration at time of accession to the NPT, Ukraine further stated that “[t]he threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from a nuclear power… will be considered by Ukraine as exceptional circumstances which jeopardize its interests.”  The Russian Federation in 2014/2015 clearly is in breach of the terms of the Budapest Memorandum.  The Russian Federation, under paragraph 1, “reaffirm[ed]” its commitment “to respect the independence and sovereignty and the existing borders of Ukraine.”  Even if crediting the Russian Federation’s arguments for use of force against Ukraine, forced annexations and separations of territory constitute breach, and of a serious character—points further addressed in my forthcoming book, Aggression against Ukraine: Territory, Responsibility and International Law.

Separately, policy makers now face questions whether, and to what extent, to give military support to Ukraine.  The questions are reflected, for example, in differences between the U.S. and German governments and in differences between the U.S. government and former U.S. officials.  In that connection, if the Budapest Memorandum establishes legal obligations and is not a mere political declaration (about which see my piece in the forthcoming Polish Yearbook of International Law), it may be asked what legal obligations does it establish for the two western parties, the United Kingdom and United States?  Moreover, what consequences does the conduct of those parties under the instrument have—in particular, for the non-proliferation régime “in Connection with” which the instrument was adopted?

Refraining from military intervention as breach?

Deutsche Welle has said that “[t]he Budapest Memorandum… was respected by neither the Russians nor the West.”  That has been the predominant view expressed by media commentators discussing the Budapest Memorandum. A policy writer, considering Chancellor Merkel’s remarks at the Munich Security Conference, said, “she could have added that the Western signatories of the Budapest Memorandum, the United States and the UK, as well as other European countries, allowed Russia to run roughshod over the deal. Western countries didn’t live up to their commitments either” (emphasis added).

Ukraine itself evidently sees matters in a similar light.  Ukraine’s Parliament on 13 March 2014 addressed “the guarantor States of the security of Ukraine,” calling on them to “meet their obligations” under the Budapest Memorandum “and apply all possible diplomatic, political, economic and military measures.”  The implication is that the memorandum establishes obligations on the UK and U.S., presumably obligations to take certain action(s) in response to Russia’s breach.

The obligations in the Budapest Memorandum

The clear core of the Budapest Memorandum is an affirmation—or re-affirmation—of the territorial integrity of Ukraine within its borders at the time of the dissolution of the USSR.  This is the commitment noted above in paragraph 1.  Under paragraph 2, the parties also

“reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations.”

An obligation of the same or similar content applies to the parties by virtue of general international law.  The memorandum’s distinctive guarantee is that of paragraph 1 affirming “the existing borders”—and thus making clear that no party has a territorial claim against Ukraine.

Paragraphs 1 and 2 (and paragraph 3 as well, regarding economic coercion) indicate commitments to refrain from certain acts.  The ILC at one stage in its work on State responsibility considered distinguishing between obligations of abstention (obligations de ne pas faire) and obligations of action (obligations de faire) (see, e.g., Gaetano Arangio-Ruiz’s preliminary report, paras. 44 ff), but this would not have been in keeping with the general applicability of the rules of responsibility in respect of every primary obligation “regardless of its origin or character” (Articles on State Responsibility, Art. 12).  In considering primary obligations, the distinction between action and omission is nevertheless important.  It is particularly so in respect of use of force.  There, the default rule is abstention; and, when responsibility arises, action more often than omission is the type of conduct involved.  And so it should be.  Use of force is a field in which the greatest care must be taken before building into the law, or into any operational code, a requirement to act; the dangers of automatic response in the field of force are well-attested.  Obligations of abstention and obligations of action, whatever general international law makes of them, thus are distinguished for these purposes.  North Atlantic Treaty Article 5 is not to be confused with UN Charter Article 2(4)—nor with the Budapest Memorandum.

The parties in 1994 did not adopt an obligation of military action.  The memorandum does require that the Russian Federation, United Kingdom and United States take certain, essentially procedural, steps, in certain circumstances.  First (under paragraph 4), “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,” the other three parties “reaffirm” that they will “seek immediate United Nations Security Council action to provide assistance to Ukraine.”  This is an obligation of conduct, not an obligation of result.  In fact, the United States and United Kingdom did “seek… action” by the Security Council, and very soon after Russia’s aggression began.  This was the draft resolution of 15 March 2014 (in the event, vetoed).  Even here, it may be doubted whether the quest for Security Council action was obligatory.  The obligation in that regard is in circumstances where the act or threat of aggression is one “in which nuclear weapons are used.”  Nuclear weapons as at 15 March 2014 had not been used and (at least not overtly) threatened (the allusions later made to such weapons in the context of escalating hostilities are cause for serious concern).

‘A second requirement of action is found under paragraph 6, which stipulates that the parties “will consult in the event a situation arises that raises a question concerning these commitments.”  No doubt such a “situation” has arisen.  The United Kingdom and the United States have “consult[ed]” on the matter, along with Ukraine and a number of western European States.

It would oversimplify, however, to say that this is the end of the matter. The Budapest Memorandum is not an isolated instrument.  It belongs to the NPT framework—explicitly, in view of its title, and in view of its recitations welcoming Ukraine’s accession to the NPT as a non-nuclear-weapon State and “[t]aking into account the commitment of Ukraine to eliminate all nuclear weapons from its territory.”  As the German Chancellor asked, “Who would give up their nuclear capability” if there was no “quid pro quo” for security?  It is hard to resist speculating that the memorandum, having been linked to conduct on the ground for one party, entails some symmetrical, compensatory obligation of conduct on the part of the other parties, not just a pledge of restraint.

Non-proliferation as context, object and purpose

It is correct to note the linkage between the commitments contained in the Budapest Memorandum and non-proliferation, not just as a political matter but (assuming that the instrument is legally binding) also for purposes of interpretation.  Taking the preamble as part of the context (see comment (13) to the draft text of the eventual VCLT Art. 31), the linkage to the NPT is explicit.  The NPT thus is relevant to interpreting the guarantees contained in the memorandum: these are not guarantees adopted in the abstract but, rather, in connection with disarmament.  The object and purpose of the NPT similarly are relevant to interpreting the memorandum which invokes it.  So, applying the general rule of interpretation, which also means keeping within the constraints of good faith and the ordinary meaning of the terms of the treaty, the Budapest Memorandum is to be interpreted in accordance with the non-proliferation régime.

What is clear is this.  The events in 2014-2015 in Ukraine are an unfortunate example for the non-proliferation régime.  States considering NPT obligations will see in the western response under the Budapest Memorandum reason to doubt the prudence of relinquishing (or foregoing) nuclear weapons.  The problem has been noted for example in PACE; and in the Preparatory Committee for the 2015 NPT Review Conference; not to mention by Ukrainian jurists and writers on non-proliferation.

This is clearly a problem for the future of non-proliferation, but it is difficult to see that the existing terms oblige the parties to solve it in a prescribed way.  The difficulty is that States negotiate under particular circumstances, and they accept the bargains that the terms of their treaties record.  A bargain duly entered does not change every time circumstances change.  The exceptional character of rebus sic stantibus is reflected in VCLT Article 62.  The change since early 2014 between Ukraine and Russia is fundamental in the relevant sense as concerns a range of their treaty relations: Russia is in serious breach.  But a mutual defense obligation, entailing military aid on the ground, would not arise for a third State absent an explicit commitment.

True, general considerations of fairness are not irrelevant here.  It has been suggested that international judges, not least of all at the ICJ in boundary disputes, will look for equitable balance between the parties, even if this places a certain strain on treaties that they are called upon to interpret.  The terms as agreed by the parties nevertheless remain, and not all instruments are symmetrical on their terms or in their practical effects (about which see, e.g., Fitzmaurice’s second report on the law of treaties, para. 126).

In concluding the Budapest Memorandum, the western parties did not accept terms that oblige them to carry out a military intervention—or, for that matter, to render other forms of military support; and this should come as no surprise.  The text gave Ukraine a guarantee to the extent expressed.  As to affirmative steps—obligations to act—it identified only very limited steps that the parties would take in the event of a breach of the guarantee.  The lawyers’ drafting thus faithfully reflected the diplomats’ caution.

The question for the time ahead is whether either the lawyers or the diplomats adequately considered how practice under the Budapest Memorandum might affect the wider legal-strategic environment.  The concern is now growing—and well-grounded—that the practice in 2014-2015 has placed non-proliferation in jeopardy.  The Budapest Memorandum succeeded in de-nuclearizing the State in whose territory was found the third largest stockpile of nuclear arms in the world at the time.  This was on the basis of a bargain.  Other States considering nuclear bargains in the future likely will ask hard questions about what it is they are receiving in return.  Proliferators and would-be proliferators will take the fate of the Budapest Memorandum as a cautionary tale.  It is to be asked whether the Budapest Memorandum, carefully lawyered though it seems to have been, was good legal strategy—and, what steps the parties can take today to secure its object and purpose.