On 5 December 1994, at an OSCE conference in Budapest, Ukraine, the United States of America, the Russian Federation and the United Kingdom of Great Britain and Northern Ireland signed a Memorandum on Security Assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons (the Budapest Memorandum).
Most importantly, in consideration for Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons, the US, the UK and Russia affirmed in the Budapest Memorandum: (a) their commitment to Ukraine to respect the independence and sovereignty and the existing borders of Ukraine; (b) 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; and (c) their commitment to Ukraine 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.
Since the signing of the Budapest Memorandum, Ukraine has met its obligations under the Budapest Memorandum by turning over the world’s third-largest nuclear arsenal; Russia has blatantly breached its obligations under the Budapest Memorandum by invading Crimea and parts of eastern Ukraine, as well as by escalating its military aggression against Ukraine, namely by shelling residential areas (including a kindergarten and a school yard) of several towns on the eastern border of Ukraine, recognizing as independent regions the Russia-controlled Luhansk and Donetsk so-called “people’s republics” and deploying Russian troops to carry out “peacekeeping functions” in eastern Ukraine, the whole also in clear contravention of the Charter of the United Nations, the Helsinki Final Act and the Minsk Agreements; while the US and the UK consider their commitment to be limited largely because they provided “assurances” (English text of the Budapest Memorandum) and not “guarantees” (as per the Ukrainian text of the Budapest Memorandum, which also states that it was: “Signed in four copies having equal validity in the English, Russian and Ukrainian languages”).
After the President of Ukraine invoked the Budapest Memorandum during his speech at the Munich Security Conference on 19 February 2022, Germany’s Ambassador to Ukraine reacted the very next day on the TV channel “Ukraine-24” by stating that the Budapest Memorandum is not legally binding under international law. It is rather peculiar that, in a time of such acute tensions, the ambassador of a non-signatory country would have been one of the first to react and contradict the head of state of a Budapest Memorandum signatory country, not to mention the victim of Russia’s unlawful military aggression, on the binding nature of this international agreement.
On that count, it is worthwhile to note that, according to Article 2 of the 1969 Vienna Convention on the Law of Treaties, the Budapest Memorandum is a “treaty” since it is “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
Moreover, the 1969 Vienna Convention on the Law of Treaties provides that:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.