Monday

17th Jan 2022

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.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

  • 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

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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.

Even without war, Russia has defeated Europe already

Invasion is unlikely to be Vladimir Putin's preferred option. Yet this game of brinkmanship has another part of the equation. If Russia invades Ukraine, the costs for Europe will be equally devastating.

The EP presidency: why support the right?

This election is marked by the untimely passing of David Sassoli, who steered the parliament through an extremely complex and challenging period. He showed that it was possible to reach agreements through much-needed dialogue, and away from dogmas.

News in Brief

  1. French parliament agrees stricter vaccine-pass system
  2. US speaks to energy firms about EU gas cut-off scenario
  3. Anti-vax protests held in the Netherlands, Hungary, Austria
  4. German MEP spends €690,000 on office renovation
  5. Microsoft identified destructive malware in Ukraine agencies
  6. Danish intelligence crisis deepens
  7. Hackers expose Polish military secrets
  8. Swedish soldiers might leave Sahel due to Russian fighters

Gas and nuclear: a lose-lose scenario for Eastern Europe

The strong advocacy of Central and Eastern European capitals for including fossil gas and nuclear power in the EU's green taxonomy only leads to another unsustainable energy lock-in for the region, leaving their grid exposed to third-country coercion.

Column

Breastfeeding for democracy

Clubs, associations and social networks help to give meaning not just to life, but to the entire democratic system. Be they dinner groups, voluntary fire brigades, citizens' councils, environmental NGOs, neighbourhood committees coaching refugees, and yes, why not, breastfeeding-support groups.

Latest News

  1. James Kanter, Shada Islam are new editors at EUobserver
  2. The loopholes and low bar in Macron's push for a global tax
  3. No love for Russia in latest EU strategy
  4. New EU Parliament chief elected This WEEK
  5. Lead MEP now wants ETS opt-out for homes and private cars
  6. MEPs seek probe into EU commissioner over Bosnia
  7. EU's Borrell contradicts Germany on Russia gas pipeline
  8. It's time for a more geopolitical EU-Turkey cooperation

Join EUobserver

Support quality EU news

Join us