Wednesday

29th Mar 2017

Opinion

Russia and the Budapest memorandum

The Budapest Memorandum of 5 December 1994 - officially the Memorandum on Security Assurances in Connection with Ukraine's Accession to the Treaty on the Non-Proliferation of Nuclear Weapons - was signed by the Presidents of Ukraine, the Russian Federation and the US, and the Prime Minister of the UK to provide national security assurances to Ukraine.

China and France joined its provisions at a later stage in the form of individual statements.

Dear EUobserver reader

Subscribe now for unrestricted access to EUobserver.

Sign up for 30 days' free trial, no obligation. Full subscription only 15 € / month or 150 € / year.

  1. Unlimited access on desktop and mobile
  2. All premium articles, analysis, commentary and investigations
  3. EUobserver archives

EUobserver is the only independent news media covering EU affairs in Brussels and all 28 member states.

♡ We value your support.

If you already have an account click here to login.

  • Crimea: By militarily invading and annexing the region, Russia has acted in breach of its obligations (Photo: Evgeni Zotov)

In return for the security assurances by the great powers, Ukraine decided to give up what was then the world’s third largest nuclear weapons stockpile and acceded to the Non-Proliferation Treaty.

The memorandum consists of 6 provisions and is not restricted to threats or the use of nuclear weapons.

Articles 1 and 2 impose clear-cut obligations on Russia to respect the political independence and territorial integrity of Ukraine, within its “existing borders” of 1994, and not to threaten it or use force by any means.

By militarily invading and annexing Crimea, Russia has acted in breach of its obligations under the Budapest memorandum.

In spite of what its name suggests, the memorandum qualifies as an international agreement under the terms of the 1969 Vienna Convention on the Law of Treaties.

It thus creates legally binding obligations for the guarantor states and could become the object of inter-state litigation before the International Court of Justice. However, the chances of that happening are slim.

Russia has not issued a declaration recognizing as compulsory the jurisdiction of the court. This means that Moscow retains the right to decide on a case-by-case basis whether the court has jurisdiction.

Given the circumstances it is unlikely that the Kremlin would accept the Court’s jurisdiction to hear a dispute over the Budapest memorandum filed by Ukraine or any of the other permanent members of the UN Security Council which have signed up to it.

In the same vein, Putin’s Russia seems unfazed that it is violating general principles of international law underpinning the current world order, i.e. those contained in the UN Charter (Articles 2.4 and Article 2.7), and the 1975 Helsinki Final Act.

Under the terms of the UN Charter, the use of force in another state’s territory is only justified when mandated by the UN Security Council - quod non - or in case of self-defence. Since there was no prior armed attack from the Ukrainian armed forces against Russia, the latter exception cannot be invoked either.

The argument first advanced by Moscow to justify its military intervention was that it acted in defence of Russian speakers and passport holders whose human rights and fundamental freedoms were said to be violated by a fascist regime in Kiev which seized power by unconstitutional means.

However, in the absence of hard facts presented by Moscow to back up the claim of gross and persistent violations of Russian minority members’ fundamental rights by the new Ukrainian authorities, the brief interruption of a law on regional languages by the Rada does not provide the legal cover to effectively invoke self-defence or the claim of “Responsibility to Protect,” a principle which - ironically - Russia has fanatically sought to prevent from solidifying under international law.

A subsidiary argument presented at the UN Security Council by ambassador Vitaly Churkin was that Russia had intervened upon the written invitation of Viktor Yanukovych, the deposed yet “legitimate” President of Ukraine, to establish peace and stability in his homeland.

Moscow keeps repeating that Germany, France and Poland should honour the terms of the February 21 agreement (by which Yanukovich agreed with the opposition leaders of the Maidan movement to restore the Constitution of 2004, to form a national unity government, and hold early Presidential elections) which they signed.

However, it strikes one as particularly odd for Russia to promote the application of an agreement which it refused to sign up to when it had the chance.

What the Kremlin also seems to forget is that Yanukovych was subsequently abandoned by his own party and impeached by the Ukrainian Parliament.

Most damningly in the misguided motivation for Russia’s military intervention in Ukraine is Churkin’s statement that Yanukovych’ letter to President Putin was dated 1 March, whereas Russian troops had already taken up positions around strategic locations on the Crimean peninsula on 28 February.

By Russia’s own admission, therefore, it had already violated binding norms of international law.

The latter seems emblematic for the “couldn’t care less” attitude of Putin’s Russia.

So far, the Kremlin has not bothered to seriously rebut allegations by the US and the EU that it has violated the terms of the Budapest memorandum.

More worryingly, the Moscow allows itself to be inconsistent with its own commitments and is reneging its own words.

This has all the trappings of a panicking dictatorship, which crushes dissent at home and portrays confidence in winning a great battle with the enemy abroad. How can anybody trust what Putin’s Russia says or commits to in the future?

The writer is an analyst at the Brussels-based think tank, the Centre for European Policy Studies

Ukraine: The Empire strikes back

If the international community allows Russia to partition Ukraine despite the Budapest treaty, it will send a terrible signal.

On 'doing' Ukraine

Russian TV anchors have started to rebel against Putin's propaganda, while Ashton "does" Ukraine, and the Maidan adds two and two.

Analysis

Lukashenka: End of an era?

The political spring in Belarus ended just as the actual season began, but greater changes loom after 23 years of dictatorship.

Column / Brexit Briefing

The Union under threat

The effect of Brexit will be much more profound on Northern Ireland than on Scotland. Some kind of border controls with Ireland seem inevitable.

Analysis

Lukashenka: End of an era?

The political spring in Belarus ended just as the actual season began, but greater changes loom after 23 years of dictatorship.

News in Brief

  1. UK delivered its Article 50 letter to the EU
  2. Support for Germany's anti-EU party fading
  3. Turkish intelligence not welcome in Germany
  4. US senate approves Montenegro’s Nato bid
  5. Scottish MPs give go ahead to seek referendum
  6. Uber pulls out of Denmark over new taxi-regulation
  7. EU court validates sanctions on Russia's Rosneft
  8. Luxembourg to team up with Ireland in Apple tax appeal

Stakeholders' Highlights

  1. The Idealist QuarterlyCan Progressive Stories Survive Our Post-Truth Era? After-Work Discussion on 6 April
  2. ACCAG20 Citizens Want 'Big Picture' Tax Policymaking, According to Global Survey
  3. Belgrade Security ForumCall for Papers: European Union as a Global Crisis Manager - Deadline 30 April
  4. European Gaming & Betting Association60 Years Rome Treaty – 60 Years Building an Internal Market
  5. Malta EU 2017New EU Rules to Prevent Terrorism and Give More Rights to Victims Approved
  6. European Jewish Congress"Extremists Still Have Ability and Motivation to Murder in Europe" Says EJC President
  7. European Gaming & Betting AssociationAudiovisual Media Services Directive to Exclude Minors from Gambling Ads
  8. ILGA-EuropeTime for a Reality Check on International Day for the Elimination of Racial Discrimination
  9. UNICEFHuman Cost to Refugee and Migrant Children Mounts Up One Year After EU-Turkey Deal
  10. Malta EU 2017Council Adopts New Rules to Improve Safety of Medical Devices
  11. Nordic Council of MinistersNordic Energy Research: How to Reach 100 Percent Renewable Energy
  12. Party of European SocialistsWe Must Renew Europe for All Europeans

Stakeholders' Highlights

  1. MEP Tomáš ZdechovskýThe European Commission Has Failed in Its Fight Against Food Waste
  2. ILGA-EuropeEP Recognises Discrimination Faced by Trans & Intersex People
  3. Nordic Council of Ministers25 Nordic Bioeconomy Cases for Sustainable Change
  4. European Free AllianceSupporting Artur Mas: Democracy and Freedom Cannot Be Convicted
  5. UNICEFSyria Conflict 6 Years On: Children's Suffering at Its Worst
  6. International Partnership for Human RightsDomestic Violence in Tajikistan: Time to Right the Wrongs
  7. European Trust SummitCorporate Strategy and Public Affairs in a Low-Trust World - Conference 31 May
  8. Malta EU 2017Agreement Reached to Involve Consumers in Financial Services Policymaking
  9. Nordic Council of MinistersNordic Cities Gather Against Violent Extremism & Introduce Nordic Safe Cities
  10. World VisionFears and Dreams of Syria's Children and Their Peers Around the World
  11. Malta EU 2017Maltese Presidency and EP Agree on Visa Liberalisation for Ukraine
  12. Mission of China to the EUEU Window Chinese Government Academic Scholarship 2017/18 - Apply Now