What is the Budapest Memorandum and how does it impact the current crisis in Ukraine?

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As Russian forces continue to battle for control of some of Ukraine's most populous cities, experts have highlighted that Russian President Vladimir Putin's decision to invade the former Soviet Union republic is a direct violation of the Budapest Memorandum.

However, this isn't the first time the agreement has been broken, with the assurances from those Western countries involved having provided little aid for Ukraine over the years.

According to the Wilson Center's Nuclear Proliferation International History Project, a global network of researchers and institutions studying international nuclear history, the Budapest Memorandum was struck in 1994 and was a key agreement in assuring Ukraine's sovereignty and territorial integrity from Russia.

With the memorandum, the United States, the United Kingdom and Russia committed "to respect the independence and sovereignty and the existing borders of Ukraine" and "to refrain from the threat or use of force" against the country.

Under the terms of the memorandum, Ukraine agreed to transfer its nuclear arsenal, which was inherited from the collapsed Soviet Union, to Russia for decommissioning. According to the Wilson Center, this enabled Ukraine to join the Nuclear Nonproliferation Treaty (NPT) as a non-nuclear state.

Under the NPT, only five countries are permitted to hold nuclear weapons, those being China, France, Russia, the U.K. and the U.S. All other NPT countries are banned from developing a nuclear arsenal. Those that have, such as India, Pakistan and North Korea, are not part of the NPT.

In exchange for giving up its nuclear arsenal, the U.S. and U.K. agreed to "security assurances" with Ukraine to provide aid should the country become the victim of a threat or act of nuclear aggression, if deemed necessary. At the time, Ukraine pushed for "legally binding guarantees," but they were declined.

"The perceptions of Russian threat to the territorial integrity of Ukraine that underpinned its demands for security guarantees in the early 1990s have proved justified," Central European University PhD candidate Mariana Budjeryn wrote in a study for the Nuclear Proliferation International History Project.

"Bereft of allies and weakened by perennial bad governance that led to an internal political crisis, Ukraine became an easy target for Mr. Putin."

According to former U.S. diplomat Steven Pifer, who participated in the memorandum talks, the meaning of the security assurances was intentionally ambiguous so as not to guarantee America would have to send troops to Ukraine in a fight against Russia.

Pifer said in a December 2019 letter for the Brookings Institute it was understood that if there was a violation of the memorandum, there would be a response incumbent on the U.S. and the U.K. However, that response was not explicitly defined.

"Washington did not promise unlimited support. The Budapest Memorandum contains security 'assurances,' not 'guarantees.' Guarantees would have implied a commitment of American military force, which NATO members have. U.S. officials made clear that was not on offer," he wrote.

DIFFERENCE IN DOCUMENATION

Aurel Braun, a professor of international relations and political science at the University of Toronto, told CTVNews.ca there is a misunderstanding in international law that all documents are politically and legally binding.

For example, with the Budapest Memorandum, Braun explained that the U.S. and U.K. only have to take the security action they deem necessary. Theoretically, he said this means the countries could send ambulances to aid Ukraine, as it is up to the U.S. and U.K. to decide on the interpretation of the assurances in the memorandum.

"Any instrument in international law has to be interpreted… so it's not that clean cut as to how it functions," Braun said in a telephone interview Thursday. "It is not sort of that you have on the one hand, actually certainty, and on the other hand, zero obligations. International law is much more elastic."

Braun noted an assurance is different from that of a guarantee, as is how the Budapest Memorandum was formed, compared to other instruments of international law.

While the memorandum was formed much like a treaty, Braun said it was not ratified by each state's senate, which is required of a formal treaty. He said this does not make the memorandum legally binding.

However, Braun said the memorandum still holds meaning and value, despite it not being a "strong law." He added that instruments of international law are not "iron-clad," as countries choose their obligations to one another under them.

"The fact that this is a written document that in many ways it meets the criteria of the Vienna Convention... this is why some would say it's legal," Braun said. "They're mistaken... but it doesn't need to be legally binding. It's not an either or situation… [the memorandum] is politically important and it creates that kind of ethical obligation."

WHY CARE ABOUT THE BUDAPEST MEMORANDUM?

Russia first broke its commitments under the Budapest Memorandum in 2014 with the annexation of Crimea. At the time, the U.S. and the U.K. stepped up effort to strengthen Ukraine's armed forces through training and by providing lethal defensive arms, but there has been criticism since that more could have been done to help prevent future Russian aggression.

University of Guelph political science professor Edward Koning told CTVNews.ca that Western countries, including Canada, do not have a "legal obligation" to send troops to fight against Russia forces in Ukraine. This is also the case under NATO rules, as Ukraine is not currently a member of the military alliance.

However, whether Western countries have a "moral obligation" to offer military aid to Ukraine is a different question, he said.

"Clearly, Russia has violated the memorandum on multiple occasions since [it was signed], but what that means for the other original signatories, let alone for other members of the United Nations, is less clear. It would be clearer if there were a serious threat that Russia would consider using nuclear weapons," he said in an email Thursday.

Koning noted the Budapest Memorandum "does not amount to as formidable a protection" as a defence alliance would, which "obligates all member states to assist militarily in case of a declaration of war against any of its member states."

Russia's violations of the Budapest Memorandum and its most recent attacks on Ukraine have provoked concerns among experts about their implications for international order and security.

Robert Austin, associate director of the Centre for European, Russian and Eurasian Studies at the Munk School of Global Affairs and Public Policy in Toronto, previously told CTVNews.ca that any "abrupt" reordering of international borders should matter to all countries, regardless of whether nuclear weapons are involved or what alliances the countries belong to.

Austin explained in a telephone interview that Putin has decided "Ukraine actually doesn't have the right to exist as a state" anymore and is taking action to bring the country back under its rule.

"That is a major challenge in and of itself because if you think of the repercussions of that, you can imagine a number of other states that might take a similar position regarding existing international borders that we all deemed to be acceptable," Austin said.

He added that the "decidedly hostile" actions of Russia cut against everything Western countries stand for, "which is ultimately, sovereignty and the right to determine your own foreign policy."

"We should understand that a group of people -- an entire nation -- is being declined the right to decide their future, and I think that that matters a lot, and that shouldn't just matter to a Canadian, that should matter to anyone," Austin said.