Filling the Security Void of the Budapest Memorandum

As a ceasefire or armistice between Ukraine and Russia looks increasingly realistic, Ukraine insists on reliable security guarantees to prevent the resumption of hostilities in the future and make it possible for the country to rebuild and develop. During his expected visit to the White House this week, Ukrainian President Volodymyr Zelenskyy is planning to discuss this issue with President Trump in the context of a prospective Ukraine-U.S. minerals agreement. Indeed, a draft of the agreement provides that the U.S. support “Ukraine’s efforts to obtain security guarantees needed to establish lasting peace.”

While making its case for the security guarantees, Ukrainian leadership appeals, among other things, to the failed 1994 Budapest Memorandum. As part of the agreement, Ukraine agreed to give up the nuclear weapons it inherited from the Soviet Union—the third-largest arsenal in the world as of 1991—and joined the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear state in exchange for security commitments from the U.S., U.K., and Russia regarding Ukraine’s sovereignty and territorial integrity. Indeed, Ukraine’s current attempt to ensure security guarantees resembles its relentless efforts in the 1990s.

Today, Ukraine points to the failure of the bargain—nukes for security—which was compromised when Russia’s aggression began in 2014, followed by its full-scale invasion of Ukraine in 2022. To remedy this breach of the agreement, Ukraine calls for a reliable security substitute—especially considering its currently clear-cut legal right to withdraw from the NPT and acquire nuclear weapons. In response, Russia and some Western scholars have downplayed the Budapest Memorandum’s importance and related Ukrainian claims. Considering its relevance to forthcoming negotiations, it is crucial to distinguish facts from myths about this controversial agreement.

Why Did Ukraine Agree to the Memorandum? 

Former U.S. Ambassador to Ukraine Steven Pifer—who also represented the U.S. in the Budapest Memorandum’s negotiations—recently argued that Americans and Ukrainians failed to “foresee in 1993-94 what Russia did in 2014 and 2022. Had Ukrainians foreseen those actions, Kyiv almost certainly would have sought more solid guarantees.” However, a closer examination of the historical record shows that the negotiation dynamics were more complicated.

Following the collapse of the Soviet Union, some Russian officials, members of the Russian Parliament, and the political elite voiced pretensions over Crimea and had significant issues with Ukraine as a fully independent country. During the memorandum’s negotiations in 1993, the Russian Parliament made a claim for the Ukrainian strategic port city of Sevastopol. That significantly worried Ukraine’s political leadership, and Ukrainians hardened their stance in denuclearization discussions in reply to the Russian claims. Ukrainians repeatedly and emphatically asked for an appropriate security substitute for nuclear weapons and even prepared a draft treaty in this respect. One publicly available draft provided for legally binding obligations, including holding consultations with the aim of “ensuring (providing) assistance to Ukraine in eliminating the threat to its national security, violation of the state borders of Ukraine and its territorial integrity, as well as the application of sanctions toward the state, whose actions gave rise to such a situation.” At one point, U.S. Secretary of State James Baker reportedly lost his temper with his Ukrainian counterpart, Anatolii Zlenko, and warned that “appropriate actions” would be taken absent Ukraine’s amenability, alleging that Ukraine’s stubbornness was obstructing the denuclearization negotiations. Ukraine was eventually forced to accept the Budapest Memorandum without robust security guarantees under pressure from the U.S. and Russia, in part because of the power imbalance between the nations and its perilous economic situation.

It seems that at least some Americans also understood the risks for Ukraine. There were even voices in favor of a nuclear Ukraine in the Pentagon, the National Security Council, and academia, who believed that, among other things, it “could serve as a hedge to protect Kyiv’s sovereignty against a possibly resurgent Russia.” In 1992, in light of the previously mentioned Russian claims, future Deputy Secretary of State Strobe Talbott opined that “Ukrainians know there is no state on the face of Earth that has more need for security guarantees against Russia than Ukraine.”

Despite this, the U.S. did not find it appropriate to extend stronger security commitments to Ukraine, prioritizing cooperation with Russia—which resisted strong Western security commitments in the post-Soviet space to preserve its sphere of influence in what they call the “near abroad”—and minimizing the risks of the U.S. needing to act on strong security guarantees. The ensuing security gap left by the Budapest Memorandum has haunted Ukraine since Russia’s unlawful annexation of Crimea in 2014. Indeed, following Russia’s full-scale invasion of Ukraine in 2022, President Clinton expressed his regret about forcing Ukraine into the deal.

The Broken Bargain

Although the Budapest Memorandum has been actively used to galvanize support for Ukraine and put pressure on Russia, Ukraine’s current references to the memorandum’s failure are largely aimed at ensuring its security following the end of hostilities. Indeed, on the occasion of the memorandum’s 30th anniversary, the Ukrainian Ministry of Foreign Affairs conveyed the gist of Ukraine’s position:

Not providing Ukraine with real, effective security guarantees in the 1990s was a strategic mistake that Moscow exploited. This mistake must be corrected. Ukraine must be provided with clear, legally binding security guarantees that align with its significant contribution to global nuclear disarmament and the maintenance of international peace and security.

The agreement’s quid pro quo nature—the nuclear-state signatories’ security commitments (however shallow) and the promise to hold consultations if the commitments are violated in exchange for Ukraine joining the NPT as a non-nuclear state—means that while Ukraine upheld its end of the bargain, the security component has fallen short. 

The memorandum’s security commitments included reaffirmations of various legal obligations and political commitments made by the nuclear state signatories elsewhere, including “to respect the independence and sovereignty and the existing borders of Ukraine” (emphasis added) and to refrain from threat and use of force and economic coercion against Ukraine. The wording “existing borders” was extremely important for Ukraine at the time. Indeed, in the Budapest Memorandum, Russia, for the first time, unconditionally recognized the Ukrainian borders as of 1991, including Crimea, without any qualifications.

Although the substance of the security commitments otherwise was largely not new, the memorandum gathered them in one document and provided for the brand-new procedural tool of consultations—something that was absent elsewhere. Namely, the parties committed to “consult in the event a situation arises which raises a question concerning these commitments” (emphasis added). On top of that, to soften Ukraine’s concerns, the American diplomats orally promised the Ukrainians that if Russia violated the memorandum the U.S. would take a strong interest and respond—although what such a response would entail was reportedly not discussed. The consultation mechanism became handy in 2003 for resolving a conflict between Ukraine and Russia over Tuzla Island in the Black Sea with the involvement of American diplomats. However, following Russia’s unlawful annexation of Crimea, despite some initial attempts at holding the consultations—ignored by Russia—and subsequent Ukrainian appeals to the memorandum, the format did not work. According to Zelenskyy, before and following Russia’s full-scale invasion of Ukraine in 2022, Ukrainian calls for joint consultations remained unaddressed.

In violation of the memorandum’s security commitments, Russia is pursuing aggression against Ukraine and occupying its territories, including Crimea, which it explicitly recognized as Ukrainian at the memorandum’s conclusion. Thus, Ukraine has been left without nukes or security, with existential danger from Russia, and with its territorial integrity in tatters. As the Budapest Memorandum’s quid pro quo unravels, Ukraine fairly requests a security substitute from the Budapest signatories, which should be front and center of future discussions.

To emphasize that the situation must be remedied, in the run-up to and following Russia’s full-scale invasion, Ukraine hinted at its clear-cut legal right to withdraw from the NPT. Article 10 of the NPT explicitly provides for this:

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of the country. [Emphasis added.]

There can be no doubt that the ongoing Russian aggression is jeopardizing Ukraine’s supreme interests. Ukraine’s relevant right is reinforced by the Ukrainian Parliament’s declaration at the NPT ratification that Ukraine would consider any threat or use of force against it by nuclear power as triggering the right to withdrawal under Article 10. Importantly, this right to withdraw from the NPT may dissipate following the definite cessation of hostilities. Thus, following a ceasefire or armistice, Ukraine may essentially lose the legal right to acquire nukes. Ironically, this resembles Ukraine’s decision to abdicate its legal right to nuclear weapons in the 1990s.

Unsurprisingly, recent polls showed that most Ukrainians in principle support the return of nuclear weapons. There have also been reports that some unidentified American officials were revisiting the idea of a nuclear Ukraine. Still, the prevalent reply to this in both the West and Russia remains reminiscent of the guarantors’ position in 1994: Despite a legal right, exercising it would involve extreme costs. Ukraine fairly replies: That’s why we are asking for a reliable substitute.

 Addressing Legal Objections

Did Ukraine have a legal right to nuclear weapons in the 1990s?

Some analysts have questioned Ukraine’s legal right to nukes in the 1990s to downplay Ukraine’s appeals to the memorandum as a true bargain, claiming that these were Soviet, not Ukrainian, weapons. It is important to clarify that the Soviet Union does not equal Russia. As a matter of Soviet law, the Ukrainian Soviet Socialist Republic was a member of the Soviet Union on par with the Russian Republic. Following the collapse of the Soviet Union, under international law, Ukraine and other Soviet republics became successors of the Soviet Union in respect to its treaties and property. Accordingly, Ukraine convincingly claimed ownership over the nuclear weapons together with other military assets on its territory. Although Ukraine had physical, not operational, control over the nuclear weapons, as historians Serhii Plokhii and Marie Sarotte noted, “that did not matter much in the long run, given [Ukraine’s] extensive uranium deposits, impressive technological skills, and production capacities, particularly of missiles; every single Soviet ballistic missile delivered to Cuba in 1962, for example, had been made in Ukraine.” Importantly, the Ukrainian ownership claim was subsequently supported, among other things, by Ukraine joining the Strategic Arms Reduction Treaty (START I) as a successor of the USSR, implying its legal title to the nukes, and Russia writing off Ukrainian energy debts essentially as compensation (although Russia resisted such interpretation).

Moreover, Ukraine also had an argument that it could succeed the USSR nuclear status under the NPT. However, the U.S. and Russia claimed that it would run contrary to the object and purpose of the NPT about the nonproliferation because “the negotiators of the Treaty intended that there could never be more than five nuclear-weapon states parties.” However, the NPT’s text does not mention the “five parties,” defining a nuclear-weapon state in Article IX(3) as “one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967.” Considering that the Soviet Union consisting of its republics, including Ukrainian and Russian ones, manufactured and exploded the nukes before 1967, the NPT succession issue was far from clear.

Is the memorandum an agreement?

West Point Law Professor Robert Lawless argued recently that the memorandum is not “an agreement” but rather a composition of unilateral commitments of the U.S., U.K., and Russia. 

However, this does not correspond to law and facts. International agreements can be legally binding or nonbinding, but whether a particular instrument is an agreement rests on its expression of the convergence of the parties’ wills. The Budapest Memorandum’s transactional nature is confirmed by its text and the circumstances of its conclusion—two primary factors for identifying an agreement in international practice. 

First, the text explicitly mentions that the signatories jointly “confirmed” the commitments listed in the memorandum. Although clauses 1 through 5 of the memorandum relate to the U.S., U.K., and Russia’s promises to Ukraine, clause 6 contains the agreement of all the signatories to hold consultations about the commitments.

 Second, contrary to Lawless’s argument, international law and practice are clear about the ability of “memorandums” to express both binding and nonbinding international agreements (for example, see the International Court of Justice’s [ICJ’s] judgment in Somalia v. Kenya). 

Third, the memorandum’s preamble explicitly connects the signatories’ security commitments to Ukraine’s accession to the NPT and its commitment to eliminate nuclear weapons. Circumstances surrounding the memorandum’s conclusion confirm that this is all part of a singular bargain. Ukraine, and its parliament in particular, explicitly made conditional Ukraine’s accession to the NPT on the signing of the Budapest Memorandum. The Trilateral Statement of the U.S., Ukrainian, and Russian presidents—which preceded the memorandum—was insufficient precisely because Ukraine wanted more than just unilateral commitments, namely the formal agreement expressing the bargain and related commitment to consultations. Moreover, the Trilateral Statement explicitly stated that the security commitments would be issued in exchange for Ukraine becoming a non-nuclear state under the NPT. Lawless seems to contradict himself in this respect by saying that “Ukraine acceded to nuclear disarmament as its side of the bargain” (emphasis added).

Importantly, in a 2014 joint statement with Ukraine, the U.S. and U.K. explicitly confirmed that the memorandum is an “agreement […] that sets out the obligations of signatories in return for Ukraine giving up its nuclear weapons” (emphasis added). Russia also acknowledged that the memorandum was part of “a package of political agreements that impose obligations.” Still, Russia disagreed that it was legally binding and led to new legal obligations.

Is the memorandum legally binding?

Since the start of the Russian aggression against Ukraine in 2014, Russia has been arguing that the memorandum “is not an international treaty” and therefore not legally binding. Some Western scholars and policymakers agree. In a recent blog post, Lawless made a legal case for this position.

However, as I have argued previously, the memorandum is purposefully ambiguous about its legal nature, and there are plausible arguments in favor of its legal bindingness. While the Ukrainian Parliament explicitly conditioned the ratification of the NPT on “the provision of security guarantees to Ukraine by nuclear states via signing the international legal document” (emphasis added), the nuclear signatories were not ready to agree to clearly binding security obligations. One might ask why, if the memorandum’s commitments were so shallow, the guarantors were still not ready to clearly specify its binding status. It is plausible that the nuclear signatories may have just hedged too much, reserving an opportunity to downplay the memorandum’s importance if and when things went south.

Ambiguity helped reach a compromise. The parties went to great lengths to make the memorandum legally ambiguous, convincing members of the Ukrainian Parliament that the memorandum is an “international legal document” with “security guarantees” (essentially legally binding) in order to convince them to ratify the NPT, while also leaving room for the nuclear signatories’s potential claims about the nonbinding nature of the agreement.

International law lacks uniform and clear criteria for differentiating between legally binding and nonbinding agreements. It does not provide a clear answer as to whether the legal binding nature is primarily defined based on the agreement’s text or whether extratextual factors (like the negotiation record) can sometimes prevail over the text when they better convey the parties’ intentions. Indeed, just five months before the memorandum’s conclusion, the ICJ issued its judgment in Qatar v. Bahrain, finding that the “minutes” between the parties constituted a binding agreement simply because they “enumerated commitments,” regardless of the parties’ actual intent. Considering the timing, American, Russian, British, and Ukrainian legal advisers should have been aware that this case would provide plausible arguments for the agreement’s binding nature.

In his piece, Lawless relies on Pifer’s account that the State Department’s lawyers carefully tried to frame the memorandum’s English text in terms that convey political—not legal—commitments. However, the English text of the memorandum does not take precedence over, but rather has equal validity to, the Ukrainian and Russian versions. This is crucial because the Ukrainian text uses a treaty-like language, “enters into force upon signature,” which the ICJ considered an indicator of a legally binding memorandum of understanding in Somalia v. Kenya. 

Also, the Ukrainian and Russian texts, unlike the English one, include the stronger term “guarantees” instead of “assurances.” Importantly, Lawless is not correct that “guarantees” and “assurances” are synonyms in Ukrainian and Russian. Instead, the term “assurances” has its own Ukrainian and Russian equivalents, “zapevnennya” and “zavereniya,” respectively. Importantly, when asked by the journalists “whether the United States now insured Ukraine’s borders,” the U.S. Secretary of State at the time, Warren Christopher, amplified ambiguity further by saying that “the security guarantees do relate to that subject and provide assurance in that connection” (emphasis added). In any case, the word “assurances” in the document’s title does not foreclose the agreement’s legal bindingness if the text and other evidence points to the agreement’s legal nature.

Lawless also argues that the mere “reaffirmations” of the substantive commitments serve as evidence that the memorandum is nonbinding. However, there are disparate views on this in international practice. In Qatar v. Bahrain, the ICJ did not find this to be an issue, while an arbitral tribunal in the South China Sea Arbitration did. Still, as mentioned earlier, the memorandum’s consultations clause—which combines all the commitments in one procedural framework—clearly expresses the parties’ commitments via the operative verb “will,” which can express both binding and nonbinding agreements and is often a perfect choice for ambiguity.

The above confirms my view that the guarantors wanted to make the legal status of the memorandum ambiguous. Indeed, if they (including the State Department’s lawyers) wanted to make the memorandum’s nature clear-cut, they could have explicitly specified it in a fashion similar, for example, to the 1997 NATO-Russia Founding Act. But they didn’t do so because there were real risks that the Ukrainian Parliament would not ratify the NPT without “security guarantees” wording in a plausibly “legal document.” Indeed, the parliament explicitly conditioned the NPT ratification on this. Thus, if the memorandum is nonbinding, the Ukrainian Parliament’s ratification of the NPT—conditioned on the memorandum’s legal status —was deficient.

Following Russia’s aggression in 2014, Ukraine registered the memorandum in the UN under Article 102 of the UN Charter to beef up arguments for its legal nature. It is true that the UN registration is not determinative of the nature of the agreement, but other parties’ non-objection to this fact may be important, as the ICJ found in Somalia v. Kenya. The U.S. and U.K. did not publicly object to the registration, and what’s more interesting, in the previously mentioned joint statement with Ukraine they declared that the memorandum contained “obligations of the signatories,” including to consult. Indeed, the word “obligations” usually denotes legally binding commitments. 

Lawless also tries to support his position with evidence from the nonbinding nature of the Trilateral Statement preceding the memorandum’s conclusion. However, nobody has questioned the status of the Trilateral Statement, and the Budapest Memorandum was concluded on top of it precisely because the Ukrainian Parliament wanted “security guarantees” in a “legal document.”

One may ask why it is important whether the agreement was binding or not when the fact that the promises were not kept, regardless of their legal status, already provides a good basis for Ukraine’s appeals to the memorandum. However, a breach of a legally binding promise is conventionally perceived as more serious, and the claims about the agreement’s nonbinding status are often made to downplay its importance, including its consultation clause—among other things—in the eyes of the public. 

*** 

The upcoming negotiations present an opportunity to fill the security void left by the Budapest Memorandum. Ukraine and its Western partners, including the U.S., have already concluded bilateral security agreements, aimed at ensuring the country’s long-term “credible defense and deterrence capabilities.” This framework of agreements, if further improved and properly implemented (see my suggestions in an earlier Lawfare piece), and combined with obtainable but reliable security guarantees from the U.S., U.K., and/or France, have a shot at remedying the Budapest security gap and paving the way for lasting peace in Ukraine.