Ukraine Symposium – The Budapest Memorandum’s History and Role in the Conflict

Last month of 2024 marked the 30th anniversary of the signing of the Budapest Memorandum, part of an agreement by which Ukraine gave up its nuclear arsenal in return for security assurances by Russia, the United States, and the United Kingdom. The Memorandum, signed on December 5, 1994, was a major event in international relations. Its significance is relevant not only in the context of the dissolution of the Soviet Union and the beginning of the post-Cold War era. It also serves as a key moment in the nuclear arms control movement, as well as an important example of international dispute resolution, especially in the context of relations between powerful States.

On 3 December of last year, Ukraine’s Ministry of Foreign Affairs released a statement marking the anniversary of the Memorandum. In the statement, Ukraine decried how Russia “blatantly disregarded” its obligations under the Memorandum “and international law in general,” in pursuit of its ongoing “aggression against Ukraine.” According to Ukraine, at the time it was signed the Memorandum was “to become a significant step in strengthening global nuclear disarmament and serve as an example for other states to give up nuclear weapons,” while at the same time rewarding Ukraine for responsibly relinquishing its nuclear arsenal with “guarantees of security, sovereignty and territorial integrity.”

Instead, according to Ukraine, the agreement failed to fulfill its functions and “set a dangerous precedent that undermined confidence in the very idea of nuclear disarmament.” Furthermore, this failure “has led to a catastrophic increase in security threats” around the world, as well as “active attempts by various countries from the Indo-Pacific region and the Middle East to the Euro-Atlantic area to create or expand their existing nuclear arsenals.”

On 5 December, a spokeswoman for the Russian Ministry of Foreign Affairs responded to the Ukrainian statement. She accused Ukraine of engaging in acts of “anti-Russia propaganda” and a “disinformation campaign” comprised of “legally untenable insinuations about Russia.” The spokeswoman asserted that Russia “has strictly complied with the provisions” of the Budapest Memorandum, which was “not an international treaty,” but rather a “package of political agreements.” According to Russia, it was Ukraine that had “failed to honor its commitments,” in part by “openly encourage[ing] nationalism in its radical forms” and through the “heroization of Nazi criminals” in State policy.

Furthermore, the Russian spokeswoman accused the “United States and a number of EU countries” of having “blatantly disregarded Ukraine’s sovereignty” and “unceremoniously interfered in its internal and external affairs” by “dragg[ing] it into bloc confrontation-driven schemes against Russia.” She warned that such conduct could increase the “risks of a direct military clash between nuclear powers.”

It is worth revisiting the Budapest Memorandum, especially in light of its 30th anniversary, the recent dire accusations by both Ukrainian and Russian officials in connection with the agreement, and the larger context of the ongoing armed conflict in Ukraine. In this post, I review the history of the Memorandum, its legal status and terms, and its role in the current context of the Russia-Ukraine armed conflict. The Memorandum’s history and its role in current affairs serves as an example of the power of international diplomacy, a reminder of the importance of properly identifying the legal status of international agreements, and a warning of the consequences of States reneging on their legal and non-legal commitments.

Post-Soviet Ukraine: An Independent State with a Nuclear Arsenal

During the Cold War, the Soviet Union stored thousands of nuclear weapons in Ukraine, then one of the Soviet republics. In 1991, upon the collapse of the Soviet Union, Ukraine became an independent State. It inherited the Soviet nuclear arsenal on its territory, instantly making it the third largest nuclear power in the world.

Both Russia and the United States recoiled at the notion of a nuclear-armed Ukraine. Additionally, although somewhat controversial within domestic political discourse, many in Ukraine supported relinquishment of its nuclear arsenal. Indeed, in its 1990 Declaration of State Sovereignty, Ukraine asserted its “intention of becoming a permanently neutral state that … adheres to three nuclear free principles: to accept, to produce and to purchase no nuclear weapons.” Almost immediately after Ukraine gained independence, the three States began discussing how Ukraine would transfer the nuclear weapons from its territory.

Each of the three states had its own reasons for pursuing the transfers. The United States aimed to eliminate or remove nuclear weapons on Ukrainian territory “as part of a broader effort to ensure that the break-up of the Soviet Union did not increase the number of nuclear weapons states.” Similarly, Russia’s goal was to consolidate the Soviet nuclear arsenal on Russian territory, so that “Russia emerged as the sole-post-Soviet nuclear weapons state.” (After the Soviet Union fell, Russia quickly came to agreements with the other former Soviet republics, including Belarus and Kazakhstan, on transfer of Soviet nuclear weapons from those States to Russia).

Before agreeing to give up its nuclear arsenal, Ukraine sought guarantees that its sovereignty and territorial integrity would be respected. Additionally, Ukraine wished to secure financial assistance, both as remuneration for the valuable nuclear fuel it possessed as well as to defray the costs of transferring and eliminating nuclear weapons from its territory. These specific considerations were nested within Ukraine’s broader aims to firm up its international standing as an independent and sovereign State and to establish favorable relationships with the United States and other major Western powers.

Negotiations Leading to the Budapest Memorandum

A key question related to the nuclear weapons on Ukrainian territory was whether, and if so how, the newly independent Ukraine would join the Strategic Arms Reduction Treaty and the nuclear Non-Proliferation Treaty.

The Strategic Arms Reduction Treaty was a bilateral arms control agreement between the United States and Russia. Known as START I, it required each State to reduce the number of strategic nuclear weapons in its nuclear stockpiles. (The numeral distinguished it from a second bilateral nuclear disarmament treaty (START II), although the latter never entered into force. START I expired in 2009.) START I was signed in 1991, but the fall of the Soviet Union delayed its entry into force. Both the United States and Russia wanted to ensure that neither Ukraine’s independence nor the nuclear weapons on its territory, disrupted the implementation of the treaty.

Meanwhile, the Treaty on the Non-Proliferation of Nuclear Weapons is a multilateral treaty designed to halt the spread of nuclear weapons and further the aim of achieving nuclear disarmament. The Treaty has 191 States parties. It distinguishes between nuclear-weapon States parties and non-nuclear-weapon States parties. Under the treaty, the nuclear-weapon States parties are China, France, Russia, the United Kingdom, and the United States. All other parties are considered non-nuclear-weapon States parties. As the name implies, non-nuclear-weapon States parties are prohibited under the treaty from receiving or manufacturing nuclear weapons. The United States and Russia both sought for Ukraine to join the Non-Proliferation Treaty as a non-nuclear-weapon State.

Separately, in 1992, the United States, Russia, and Ukraine (as well as Belarus and Kazakhstan, as Soviet successor States) negotiated and signed the Lisbon Protocol, a treaty which, among other things, obligated Ukraine, as one of the successor States to the Soviet Union, to assume the Soviet obligations under START I. The Protocol also committed Ukraine to joining the Non-Proliferation Treaty as a non-nuclear-weapon State party “in the shortest possible time.”

After some delay, the Ukrainian parliament ratified START I and the Lisbon Protocol. However, the Ukrainian resolution ratifying the Protocol included several significant conditions, including Ukraine obtaining security guarantees and financial assistance for transferring the nuclear weapons out of its territory.

Effectively, the Ukrainian parliament’s ratification resolution established a Ukrainian view that satisfaction of its requests was a prerequisite to bring START I into force, as well as to secure Ukraine’s accession to the Non-Proliferation Treaty. This occurred within the context of significant tension within the Ukrainian government, with many officials and legislators expressing signs of hesitation about a commitment to relinquish the nuclear arsenal on Ukrainian territory and the requirements set forth in the Lisbon Protocol.

High-level negotiations took place between 1991 to 1994. Eventually, the United States, Russia, and Ukraine established an agreement in principle, memorialized in a Trilateral Statement signed on January 14, 1994 by the presidents of the United States, Russia, and Ukraine in Moscow. According to the agreement Ukraine would relinquish the nuclear weapons in return for security assurances and financial assistance. The financial assistance would both compensate Ukraine for the highly valuable enriched uranium it possessed, as well as defray the costs associated with dismantling and transporting the nuclear weapons on its territory. Additionally, Ukraine would also accede to the nuclear Non-Proliferation Treaty as a non-nuclear weapon State party.

On December 5, 1994, the presidents of the United States, Russia, and Ukraine—Bill Clinton, Boris Yeltsin, and Leonid Kuchma—met in Budapest, Hungary. At the meeting, Kuchma transmitted Ukraine’s instrument of accession to the Non-Proliferation Treaty, which led to START I entering into force between the United States and the former Soviet States (including both Russia and Ukraine). The long negotiation process concluded with the United States, Russia, and the United Kingdom signing the Budapest Memorandum, which extended security assurances to Ukraine.

The Terms of the Budapest Memorandum

The Budapest Memorandum is formally entitled Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Properly understood, the Memorandum is not the source of the agreement among the signatory States. Rather, the Memorandum merely (although nonetheless importantly) reflects commitments of security assurances made by the United States, Russia, and the United Kingdom toward Ukraine.

Those security assurances include a commitment “to respect the independence and sovereignty and the existing borders of Ukraine.” Furthermore, they include an acknowledgment of the obligation under Article 2(4) of the UN Charter to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine. This includes refraining from using weapons against Ukraine (except when international law allows, for example in a case of self-defense).

Additionally, the U.S., U.K., and Russian security assurances include “not to use nuclear weapons against any non-nuclear-weapon state party” to the Non-Proliferation Treaty—which now included Ukraine—except in narrowly drawn circumstances, such as in response to an attack against them by such a State acting alongside a nuclear weapon State. They also include a commitment to seek immediate Security Council assistance for Ukraine “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.” (Notably absent from the Ukraine negotiations were France and China, the other two permanent members of the UN Security Council. Separate from the Budapest Memorandum, France and China each provided similar security assurances to Ukraine in connection with its nuclear disarmament).

The Budapest Memorandum welcomes Ukraine’s accession to the Non-Proliferation Treaty, as well as Ukraine’s “commitment … to eliminate all nuclear weapons from its territory within a specific period of time.” However, as mentioned above, it would be incorrect to conclude that the Memorandum constitutes the agreement among the signatory States regarding these elements. Rather, as discussed below, the Budapest Memorandum was carefully crafted with the intention not to reflect any legal obligations on the part of the United States or Russia.

The Legal Status of the Budapest Memorandum

The Budapest Memorandum is not a treaty and did not reflect any new international legal obligations for any of the signatory States. Rather, the Memorandum was meticulously drafted to avoid giving any impression of legal obligation.

For example, both during the three-year negotiation period and in the drafting of the Memorandum, U.S. State Department officials insisted on using the term “assurances” instead of “guarantees” to describe the security commitments. Although Ukraine initially framed its request as seeking security “guarantees,” the United States wished to avoid this term as it “implied a deeper, even legally-binding commitment.”

Complicating this terminological issue was the fact that the Ukrainian and Russian languages use one word for both English words: guarantee; and assurance. To address this issue, during a key meeting involving delegations from all three States, U.S. officials “read for the formal negotiating record a statement to the effect that, whenever ‘guarantee’ appeared in the Ukrainian and Russian language texts of the Trilateral Statement, it was to be understood in the sense of the English word ‘assurance.’”

The Budapest Memorandum by its terms creates no new international law, whether in terms of rights or obligations. It references several international legal obligations, including, for example, the obligation to refrain from the threat or use of force and other obligations under the UN Charter. However, as the Memorandum makes clear, these are preexisting legal obligations.

Furthermore, the Memorandum does not use the terms “agree” or “agreement.” Rather, it refers to all commitments as “reaffirmations,” which suggests not new pledges but rather reiteration of prior commitments. These features of the Memorandum and the context of the negotiation more broadly demonstrate that the signatory States—at least the United States and Russia—had no intention “to be bound as a matter of international law, such that non-compliance would amount to an ‘internationally wrongful act’” under the international law of State responsibility. Even the Trilateral Statement—the document signed the United States, Russia, and Ukraine in January 1994 in Moscow—was titled as a “statement” rather than an “agreement” because, “on advice of State Department lawyers … a statement was politically-binding while an ‘agreement’ might seem to be legally-binding.” (See here for a recent analysis, although in a different context, of the distinction between law-making agreements and non-legally binding commitments and understandings).

Finally, the operative paragraphs of the Budapest Memorandum refer almost exclusively to Ukraine only as an object of the commitments, but never as having obligations. (The one exception is paragraph 6, which states that the signatory States, including Ukraine, “will consult in the event a situation arises that raises a question concerning these commitments”). This further undermines any effort to characterize the Memorandum in legal terms or to refer to it as an agreement (legal or otherwise).

True, the preambular paragraphs of the Memorandum note Ukraine’s accession to the Non-Proliferation Treaty as a non-nuclear-weapon State, as well as Ukraine’s “commitment … to eliminate nuclear weapons from its territory.” However, given the negotiating positions of the parties, it is clear that these references were purposefully included in the preamble, rather than in the operative section. Furthermore, it is telling that neither reference suggests a new legal obligation, nor is characterized in terms of an agreement between the signatory States (once again using the term “commitment” rather than “agreement”).

Concluding Remarks

The Budapest Memorandum represents a significant point in post-Cold War relations and nuclear disarmament. Its importance can be understood by considering what the world would have been like had Ukraine refused to negotiate and instead decided to retain the world’s third largest nuclear arsenal. Indeed, some in Ukraine have expressed regrets about Ukraine’s decision to relinquish nuclear power status. These regrets are no doubt sharpened by Russia’s aggressive war against Ukrainian territory and sovereignty, which has now been ongoing for ten years.

The Memorandum is also important because it reminds us of the important distinction between political commitments and legal obligations. When negotiations began, Ukraine “sought legally binding guarantees from the [United States] that it would intervene should Ukraine’s sovereignty be breached.” Although it was forced to settle for less, Ukraine nonetheless has sought to frame the Memorandum in international legal terms, including perhaps by registering it with the Secretariat of the United Nations in 2014 for inclusion within the UN Treaty Series (although the Treaty Series includes not only treaties but also “international agreements”).

Notwithstanding Ukraine’s claims regarding international law, the Budapest Memorandum is a non-legally binding document reflecting political commitments rather than international law. This fact should not be overstated. It seems implausible that, had the Memorandum reflected legal obligations, Russia would have refrained from breaching Ukraine’s sovereignty and invading its territory.

Nonetheless, the parties to the agreement, non-legal though it may be, “clearly intended that it not be devoid of meaning altogether.” Regardless of the legal character of the Memorandum, Ukraine “acceded to nuclear disarmament as its side of the bargain.” In any event, recent public discourse between Ukrainian and Russian officials regarding the legal character of the Memorandum demonstrates that States care deeply about the normative status of their commitments. In this regard, international law remains relevant, including in the context of today’s most pressing global security challenges.

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Robert Lawless is an Assistant Professor in the Department of Law and Managing Director of the Lieber Institute for Law & Land Warfare at the United States Military Academy, West Point.

 

 

 

 

Photo credit: U.S. Government, William J. Clinton Presidential Library