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A legal obligation to use force to protect Ukraine? The 1994 Budapest Agreement

 

The Signing of the Budapest Agreement

With the tense situation in Ukraine, there has been much discussion about the so-called Budapest Memorandum, in which the United States, Great Britain, and Russia reaffirmed their commitment to “to respect the independence and sovereignty and the existing borders of Ukraine.” Two questions: Is this a legally binding agreement under international law? Does this agreement mean that the United States is under an international legal obligation to to use military force to support the new Ukrainian government?

Is this a legally binding agreement under international law?

Based on the language of the agreement, it would seem to be binding as a matter of international law. Some have raised the question of whether the Senate has provided advice and consent and whether the President ratified the treaty. A review of the official State Department publication Treaties in Force indicates that the Budapest Agreement was not formally submitted to the Senate for approval. Nonetheless, as a matter of international law that would not effect the legal status of the Agreement.

Does this agreement mean that the United States is under an international legal obligation to to use military force to support the new Ukrainian government?

No.  The pertinent portions of the Memorandum provide:

1. The Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America reaffirm their commitment to Ukraine, in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to respect the independence and sovereignty and the existing borders of Ukraine;
2. The Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations;
3. The Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America reaffirm their commitment to Ukraine, in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to refrain from economic coercion designed to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to secure advantages of any kind;
4. The Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America reaffirm their commitment to seek immediate United Nations Security Council action to provide assistance to Ukraine, as a non-nuclear-weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons, 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;

5. The Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America reaffirm, in the case of Ukraine, their commitment not to use nuclear weapons against any non-nuclear weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons, except in the case of an attack on themselves, their territories or dependent territories, their armed forces, or their allies, by such a State in association or alliance with a nuclear-weapon State;

6. Ukraine, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland and the United States of America will consult in the event a situation arises that raises a question concerning these commitments. (Emphasis added)

Based on these provisions, the legal obligation on the part of the United States and Russia and the UK is, under paragraph 1, “to respect the independence and sovereignty and the existing borders of Ukraine.” But what happens if one state does not do this? The only specific obligation is under paragraph 6, which provides that the parties “will consult in the event a situation arises that raises a question concerning these commitments.” So, clearly there is no obligation to use force. The requirement under paragraph 5– to seek action by the Security Council– seem to be triggered only if Ukraine is a victim of aggression or the threat of aggression when nuclear weapons are involved. That does not seem to be the case here, and even if it were, the obligation would be to take the matter to the Security Council, where, of course, Russia has a veto.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.