Ukraine and the 1994 Budapest Memorandum

My friend and colleague at Monterey, Philipp Bleek, has been growing weary of the frequent mischaracterization of the 1994 Budapest Memorandum, particularly as its relates to Ukraine’s renunciation of nuclear weapons.

He was kind enough to share his weary reflections based on a new article he’s published, the work of our mutual colleague Jeffrey Knopf, and the very strange notion of actually reading the text of the Memorandum.

Reading the (not so) fine print

or

Why Ukraine wasn’t a nuclear power in the early 1990s and the West has no legal obligation to come to its aid now

Philipp Bleek

Following Putin’s Crimean land grab and ongoing mischief in eastern Ukraine, Kiev’s mid-1990s decision to give up the nuclear weapons on its soil after the collapse of the Soviet Union has suddenly gotten a lot more attention. But armchair pundits have been mischaracterizing both Ukraine’s early-1990s nuclear capabilities and the commitments it received in exchange for giving them up.

The fact that Ukraine never had operational control over the weapons in its possession is often ignored. While it had physical control, it’s not clear former Soviet military personnel would have executed Ukrainian launch orders, and regardless Kiev lacked the codes to overcome the permissive action links, electronically encrypted locks to prevent unauthorized use. (Conversely, Ukraine might have been capable of impeding a Russian attempt to launch nuclear weapons on its soil.) As negotiations over the weapons’ status dragged on into the mid-1990s, Western intelligence agencies were reportedly concerned that Ukraine was making efforts to gain operational control over the weapons, but no reports have emerged that it was successful in doing so. And when Ukraine publicly suggested it might seek operational control, Russia made clear this would constitute an act of war.

It’s possible Ukraine might eventually have managed to obtain control over the weapons. But at a minimum the frequent characterization of Ukraine (as well as Belarus and Kazakhstan) as nuclear-armed states that chose to disarm misses some key nuances. (Relatedly, a fellow policy wonk in Kiev reports that rumors are circulating that Ukraine covertly retained some tactical nuclear weapons that might come into play now. That seems highly implausible, if admittedly difficult to conclusively rule out.) And even if Ukraine had somehow managed to hold onto nuclear weapons, it’s far from clear they would have helped rather than hurt in the current situation. During the political instability after President Yanukovych fled to Russia in February, command and control of those weapons would presumably have been uncertain—much as it was in the Soviet Union during the 1991 coup against Gorbachev—and Moscow would have had substantial motivation to intervene aggressively to ensure the weapons were secure. (Founding publisher Jeffrey Lewis has a lengthier discussion here.)

As for the purported treaty commitment to come to Ukraine’s aid, that appears to be based on a misreading (or non-reading) of the 1994 Budapest Memorandum that extended guarantees to Ukraine in exchange for its joining the Nuclear Nonproliferation Treaty as a non-nuclear weapons state. Signed by Russia, the United States, and the United Kingdom (with France and China, the other two NPT nuclear weapons states, separately making similar commitments), the document was part of the price Ukraine demanded in order to join Belarus and Kazakhstan in transferring nuclear weapons on their soil after the collapse of the Soviet Union to Russia, a diplomatic coup for the Clinton administration, eager to prevent the emergence of new nuclear-armed states.

A lot of folks, including apparently a former British ambassador to Moscow, now seem convinced that NATO’s failure to respond more robustly to Russia’s crass annexation of Crimea, and perhaps more of Ukraine in the coming weeks, violates commitments the United States and United Kingdom made under the agreement. One gets the impression that many of those opining about the Budapest Memorandum haven’t read it, despite the fact that it’s readily accessible online, only a few hundred words long, and written in what passes as exceptionally clear language in the often arcane world of international law. At the risk of being snarky (and what fun is an Arms Control Wonk blog post without a little snark?), it’s tempting to cite Senator Daniel Patrick Moynihan’s famous query after the Clinton administration failed to foresee the 1998 nuclear tests India’s Bharatiya Janata Party (BJP) conducted shortly after winning election and consistent with their published election manifesto: “Why don’t we learn to read?”

In that spirit, let’s review the key points of the Budapest Memorandum (there are only six, condensed a little here, available in their full glory at the various links above). Russia, the United States, and the United Kingdom all committed to:

1) Respect the independence, sovereignty, and existing borders of Ukraine;

2) Refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and pledged that none of their weapons will ever be used against Ukraine except in self-defense or otherwise in accordance with the UN Charter;

3) Refrain from economic coercion;

4) Seek immediate United Nations Security Council action to assist Ukraine, should it be threatened or attacked with nuclear weapons;

5) Not use nuclear weapons against Ukraine unless attacked by Ukraine in association or alliance with a nuclear-armed state;

6) Consult if a situation arises that raises a question concerning these commitments.

That’s it. Russia is pretty clearly in violation of its end of the bargain (though Moscow argues the West is the violator for having “indulged a coup d’etat” that ousted President Victor Yanukovich). Washington and London have obligations to consult with Moscow—of which they’ve been doing plenty—but it’s hard to read any further obligations into the agreement.

Russia’s cavalier disregard for Ukraine’s sovereignty is doubly troubling because it sets a rather unhelpful nonproliferation precedent. There is something close to consensus among scholars and policymakers that security guarantees—the more robust sort, anyway—do play a key role in dissuading countries from pursuing their own nuclear arsenals (shameless plug, I have a just-published article that seeks to bolster that consensus). Whether and to what degree lesser guarantees, of the sort Ukraine received and the nuclear weapons states have extended to non-nuclear weapons states in the context of the Nuclear Nonproliferation Treaty, aid nonproliferation efforts is more contentious.

To the extent that such lesser assurances matter, the precedent of Russia’s seizure of Crimea, and perhaps more of Ukraine in the coming weeks, in blatant violation of its commitments in Budapest, seems unlikely to encourage future countries mulling giving up nuclear or other potential deterrent capabilities. But arguably neither did NATO’s military support to the effort to topple Gaddhafi not long after he agreed to renounce his nuclear, biological, and chemical weapons programs (though it’s worth emphasizing that in Gaddhafi’s case those capabilities weren’t very robust).

Ukraine’s leaders in the mid-1990s, and for that matter Gaddhafi’s regime more recently, were presumably under no illusions about how binding commitments they received were. But leaders in Kiev, and perhaps also Tripoli, appear to have calculated that even less-binding commitments would have some political effect. As my colleague Jeffrey Knopf, who has published some of the most thoughtful scholarship on security assurances, pointed out in response to an earlier draft, future nonproliferators may not be willing to settle for so little.