Almost three dozen years have passed since December 5, 1994, when representatives of four UN member states that owned nuclear weapons at that time, namely: Ukrainian President L. Kuchma, US President B. Clinton, Russian President B. Yeltsin and British Prime Minister G. Major signed in Budapest the Memorandum on security guarantees in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
Viktor Shyshkin made an excellent legislative analysis on why the U.S. and UK should respond on requests Ukraine addresses them nowadays.
This memorandum as a type of international legal agreement entered into force upon its signature (penultimate paragraph). Three weeks earlier, on November 16, 1994, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On the Accession of Ukraine to the Treaty on the Non-Proliferation of Nuclear Weapons of July 1, 1968", where it was declared in Article 6 that the Law entered into force after the nuclear states gave Ukraine security guarantees, formalized by signing the relevant international legal document.
I would like to mention that these decisions were passed by the second president and the second parliament despite the fact that in November 1993 (the first parliament) the Verkhovna Rada of Ukraine voted for ratifying the Strategic Arms Reduction Treaty (START), but with 13 additional conditions, stipulating that only 36% of launchers and 42% of warheads were to be liquidated on the territory of Ukraine.
The new political leadership of our country assumed that the Budapest Memorandum was such an international legal document, and in connection with its signing, the specified Law on Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) also entered into force. These two acts became the legal basis for developing a set and sequence of actions for the nuclear disarmament of Ukraine and transferring all components for such weapons to the Russian Federation.
In this article, I do not aim to characterize the complex of direct disarmament actions. I want to focus your attention on the following: for all fair criticism of the essence and content of the memorandum and personally its developers together with the signatories, there is simply NO other document today at least saying something about the obligation of its signatories to Ukraine and allowing us to demand at least something from these guarantors. And certain state institutions, which under the Constitution of Ukraine are responsible for foreign policy, security, defense and defense capability of our country, are obliged to use the provisions of this memorandum, reminding the members of the nuclear club that, by taking away our nuclear weapons, they took obligations regarding our territorial integrity and security. Because in a situation of massive military aggression by such a superpower as the Russian Federation against our bleeding people, everything that should benefit the state of Ukraine must be used, instead of following pro-Moscow tales about "uselessness", "no quality", "ridiculousness" of the memorandum. I repeat: we do not have any other document which would specify at least some obligations to Ukraine.
We have no right to be pleaders of the signatories of the memorandum. Poland, the Baltic countries, Slovakia, and the Czech Republic have no obligations towards us, only fraternal goodwill, but the USA and the UK have, and also indirectly France and China, which has now turned its back on us, because these two countries approved and supported the Budapest Memorandum with relevant statements.
I want to focus on some aspects of legislative confirmation of the legitimacy of the Budapest Memorandum. And here, strangely enough, I will be helped not only by acts of international law, but also by the legislation of the aggressor state against Ukraine.
First, this is a cry of detractors - is a memorandum an international treaty? According to the provisions of Subclause "a" of Clause 1 of Article 2 of the Vienna Convention on the Law of Treaties of 1969 (entered into force in 1980), the international treaty is defined as: "...an international agreement concluded between States in written form and governed by international law ... whatever its particular designation".
This statement is incorporated in Paragraph 2 of Article 1 of the Federal Law of the Russian Federation on International Treaties of July 15, 1995. The Budapest Memorandum is designated as an international treaty in the official search systems of the Russian Federation regarding the legislative framework and acts of international law and its text is included in the official "Collection of documents of the Ministry of Foreign Affairs of the Russian Federation". These documents give the right to assert that the Budapest Memorandum is a type of international treaty.
Second, on manipulations around the issue that the Budapest Memorandum has not been ratified. The document states that it enters into force upon its signature. According to Article 6 of the specified law of the Russian Federation, the consent of the Russian Federation to be bound by an international treaty can be expressed by: signing the treaty, ratifying, exchanging documents, approving, adopting, joining the treaty, using any other way of expressing consent agreed upon by the parties, and according to Clause 1 of Article 24 of the law, "international treaties enter into force for the Russian Federation ... in the order and within the terms stipulated in the treaty or agreed between the parties."
The above provisions of the Russian legislation are fully complying with the aforementioned Vienna Convention and, moreover, in accordance with Part 4 of Article 15 of the Constitution of the Russian Federation in the version of 1993, which was in effect at the time of concluding the Budapest Memorandum, if an international treaty of the Russian Federation sets other rules than those provided for by the national legislation, the rules of international treaty shall apply. Hence, ratification is only one of the many ways of giving consent to the binding nature of an international treaty, and if a document states that it entered into force upon signature, it is clear that it does not require any other form of the state consent to its binding.
In the comprehensive list of treaties subject to ratification included in Part 2 of Article 7 of the Law of Ukraine "On International Treaties of Ukraine" dated December 22, 1993 No. 3767-ХІI (in force on the date of signing the memorandum in Budapest), the memorandum is not mentioned. Moreover, subparagraph "g" of paragraph 2 of this article envisages also that only those international treaties, the ratification of which is provided for by law or the international treaty itself, are subject to ratification. The above norms undoubtedly contain an answer not only to foreign, but also to our homegrown critics of this document, who, collaborating with Moscow, call to disregard it in our demands to the signatories of the memorandum, hiding behind the thesis that it was not ratified.
Third, the validity and binding nature of the Budapest Memorandum in the general international aspect is confirmed by the following documents sent to the UN and registered there for the general public:
- appeal to the UN General Assembly and Security Council A/49/765*S/1994/1399* of December 19, 1994 in the form of a letter on behalf of the permanent representatives of Ukraine (A. Zlenko), Great Britain (D. Hannay), the Russian Federation (S. Lavrov), the USA (M. Albright) to the 59th session of the UN General Assembly with a request to distribute the text of the Budapest Memorandum as an official document of the UN General Assembly and Security Council;
- appeal to the permanent United Nations Conference on Disarmament CD/1285 of December 21, 1994 in the form of a letter from the specified permanent representatives of four states requesting the registration of the Budapest Memorandum and the accompanying letter as "official documents of the Conference on Disarmament and their distribution to all states ... participating in work of the Conference."
Therefore, by presenting the Budapest Memorandum as an official document of the most influential international organization in the world, which is the UN, the signatory states thereby confirmed its validity and binding nature. The very fact of registering the Budapest Memorandum as an official document of the UN is also a confirmation of its international legal validity.
Fourth, the difficulties in "forcing" the signatories of this document to fulfill the obligations of the guarantors. Unfortunately, the Budapest Memorandum does not specify the actions of the signatories to ensure Ukraine's security in the event of armed aggression against it. Besides, they are using far-fetched legal and philological differences in the interpretation of the phrase "security assurances" in the English-language version, which, supposedly, should be understood as assurances and not guarantees. According to those who seek to avoid "a merchant's word of honor," the phrase "security guarantees" should be used to ensure "security guarantees."
There may be some misunderstandings and philological inadequacies, I will not argue. But, in my opinion, this is not a sufficient argument to avoid the proper fulfillment of obligations regarding the guarantees of our security and protection against military aggression after the de facto piratical disarmament of Ukraine. By the way, I would like to note: the last paragraph of the Act specifies that it was signed in four equally authentic copies in the Ukrainian, English and Russian languages, and there are no philological differences precisely in the understanding of "security guarantees" between the texts presented in Ukrainian and Russian. In addition, let's carefully and thoughtfully analyze the text of paragraph 4 of the mentioned memorandum — "Great Britain, the USA, the Russian Federation confirm their commitment to seek immediate Security Council action to provide assistance to Ukraine as a party to the Treaty on the Non-Proliferation of Nuclear Weapons, which no longer possesses nuclear weapons, should it become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used." Thus, the signatories have an obligation to seek immediate action from the UN Security Council if Ukraine becomes a victim of aggression. Let me remind you that the Security Council consists of five permanent and several non-permanent members of the UN. All 5 permanent members are related to the memorandum: three of them are signatories; China and France have approved it with their statements, that is, they all have obligations.
These obligations appear if Ukraine has become a victim of an act of aggression. Resolution 3314 (XXIX) of the UN General Assembly of December 14, 1974 and the Rome Statute of the International Criminal Court on the crime of aggression tell us what an act of aggression is and who is a victim of an act of aggression. Some manipulators may say that this norm would apply if Ukraine became a victim of aggression with the use of nuclear weapons. Nothing like that, you need to carefully and thoughtfully read the above paragraph. It contains 2 components: the first one — "should Ukraine become a victim of an act of aggression" without reference to any type of use of weapons; the second one — "should Ukraine become an object of a threat of aggression in which nuclear weapons are used." Firstly, these two components are separated by time frames — the first component indicates an action that has already taken place (aggression has already taken place), and the second component indicates a threat of aggression that may occur in the future with the use of nuclear weapons. Secondly, these two components are separated from each other by the disjunctive conjunction "or", which confirms their philological and meaningful separation. A nuclear attack concerns only the second component of this part of the norm. The Constitutional Court of Ukraine, in the official interpretation of the norms of laws, has repeatedly commented on the legal meaning of grammatical conjunctions in the constructions of normative texts. Connective and disjunctive conjunctions generate different legal consequences.
Attempts to misrepresent the provisions of the Budapest Memorandum, and even more so to deny its legally binding nature, especially today in the conditions of full-scale aggression of the Russian Federation against Ukraine, are helping Kremlin politicians to impose Moscow's narratives on the world community. It is extremely necessary for the relevant state structures of Ukraine to persistently demand from our foreign partners the conscientious implementation of all agreements reached in 1994 and provided by them in exchange for our nuclear disarmament, as well as promises and implementation of the Budapest assurances guaranteed to Ukraine, so that they do not think that they are generously giving us something.
From a speech at the scientific and practical conference "National Resistance: Problems, Solutions, Prospects", March 30, 2023, at the Union of Officers of Ukraine.
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