Budapest Memorandum
Not a treaty and doesn't contain guarantees
We don’t do clickbait at Fallout but we do like to take on difficult and maybe obscure subjects. That’s why Ben had a podcast about river crossing months before analysts noticed Ukraine has a very big river and lots of small ones. But some analysts and institutes (ISW for instance) use maps without rivers. Because… they don’t see or appreciate rivers.
I’ve been hearing constant nonsense (the word brought back to life by Ulyanov the Genocider) about the Budapest Memorandum or the “Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons” between Ukraine, the Russian Federation, the UK and the USA. The text is here.
See the title… it says assurances.
For an example of nonsense:
Jason Pack talks a lot of nonsense here, which cover all the talking points raised by others who haven’t read the document and project onto it (a situation rather like the lawsuit brought by Ukraine against Russia in the ICJ - its not about Russian genocide):
He claims there were defense guarantees in the text. - However the parties do NOT provide defense guarantees similar to art 5 of NATO. Each party says they will respect Ukraine. Each party says they will refrain threat or use of force against Ukr territoriality integrity. Refrain from economic coercion.
Pack claims that the parties didn’t fulfil their obligations under the memorandum (well one invaded in 2014 and 2022 which was a breach, I suppose he was angry at the UK and USA) - The only call to action and obligation to action and react against a violation of the Memorandum by another party is to seek immediate Security Council assistance which goes to the brick wall of Russian veto which happened immediately on the US sponsored resolution on 25 February 2022. All of the countries signing the memorandum, except for Ukraine, have security council vetoes (Russia’s is problematic) so this was always a faulty provision. Russia is in breach of assurances, the UK and USA are not.
Pack makes allusions to NATO article 5 as a basis for action in Ukraine. It isn’t. I have no idea how art 5 NATO covers Ukraine. Article 5 did not cover the Libya situation (which was grounded in the responsibility to protect (R2P) under the 2005 UN resolution re: genocide, not Libya specifically). Article 4 was used as a reference mechanism. Article 5 was only used for 9/11.
There was serious friction in NATO over some countries not taking part in the R2P action - but not because there was a breach of Article 5.
Pack says that the lack of reaction to violation of the Memorandum makes it likely NATO won’t act in collective defense. Which makes the assumption the Memorandum was a treaty (it wasn’t), it contained guarantees (assurances are not guarantees) and that NATO countries can’t be trusted to act in common defense. All invalid.
If you don’t believe me (and the text is clear, you can verify it for yourself) - check out these links:
The Memorandum is not a treaty:
“In addition, Acting Ambassador Kuzmenko cited the 1994 Budapest Memorandum on Security Assurances, signed by the US, UK, and Russia, which provided guarantees on Ukrainian territorial integrity in exchange for Ukraine relinquishing its nuclear arsenal. He considered that the Memorandum was still “valid”, and that Russia had “direct obligations under it”, even though it was a declaration rather than a legally binding document. The Ukrainians would be interested in “upgrading” the document, and he felt that it could provide “ground for negotiations”. (UK House of Lords report quoting Ukrainian Ambassador Kuzmenko). Eugene Czolij may disagree but he’s wrong on this.
Throughout negotiations and in the text there were no guarantees, just assurances:
“The Ukrainian negotiators signaled that reaffirming existing multilateral commitments did not amount to a sufficient guarantee of Ukraine’s security.18 Yet, Ambassador Popadiuk informed the MFA that the US was unlikely to undertake any stronger commitments.19 Indeed, he proved correct and the wording of this early draft remained substantively unchanged in the Budapest Memorandum signed two years later. Moreover, the US refused to grant security assurances or engage in economic or political cooperation with Ukraine until it ratified START I/Lisbon and joined the NPT” (Wilson Center Issue Brief 3 - The Breach: Ukraine’s Territorial Integrity and the Budapest Memorandum - Mariana Budjeryn)
“Outlining the course of the negotiations, James Timbie noted that Ukraine’s leaders pushed hard to obtain robust and legally-binding security guarantees from the United States. But the United States, wary of undertaking any new security commitments, was unwilling to provide them. In the end, the negotiators found a politically acceptable compromise by crafting assurances that reiterated pledges to respect Ukraine’s territorial integrity and inviolability of its borders, and to refrain from the use or threat of military force, already contained in the UN Charter and the Helsinki Final Act of the Organization for Security and Cooperation in Europe (OSCE), as well as negative and positive NPT-related nuclear security assurances” (Budapest Memorandum at 25: Between Past and Future - Mariana Budjeryn and Matthew Bunn)
NATO can’t be trusted in self-defense - NATO is very much supporting Ukraine, which is decisive to its up-to now defense. I think the NATO response to an attack on an actual member country might be more vigorous. NATO has beefed up its garrisons in the East and the failure of the Russian army must also strengthen alliance resolve. Maybe the French might actually help Poland in case of an attack. Or not.
But perhaps the USA can be assumed to defend Poland even if the French and Germans give up over a country far away of which we know little. NATO is already threatening full out war.
The Russians are calling their troubled genocidal war a war against NATO…
NATO has drawn a line and its not at Warsaw, Berlin or Paris. The US 101st Airborne Division is in Romania… just waiting to cross into Ukraine.
And the airport at Rzeszów, SE Poland, near the Ukrainian border, is perhaps the busiest airport in Poland currently. Certainly the best protected.
And a final note - READ THE TEXT BEFORE COMMENTING, DON’T PROJECT. This war is emotional - which is why I co-wrote a book but stick to the facts and the law.
I’ve got personal abuse when pushing back on the subject of the content of the memorandum. Look, it’s a terrible document (also see the identical Memorandum of Security Assurances in connection with Accession of the Republic of Belarus to the Treaty on Non-Proliferation of Nuclear Weapons). So are the Minsk Agreements. Don’t shout at the lawyer analysing the text. I didn’t write or negotiate the memorandums. I am not distorting their meaning or content. Some very very clever and experienced international lawyers from the UK and USA made sure there weren’t guarantees. Those countries weren’t giving guarantees to Poland and the Baltics - who were already well on their way to joining NATO. Ukraine was a post-Soviet state where the key issue was safeguarding its nukes - not protecting its sovereignty. The West was deluded into thinking that Ukraine with nukes was more dangerous than (crumbling) Russia.
Let me make it clear - Russia is engaging in genocide war but that doesn’t mean the USA and UK broke a treaty or guarantee. I do believe that NATO should intervene directly.
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PS Update 24 May 2023
The case is paralysed at the ICJ because maybe filing a million supporting briefs isn’t a good idea.