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Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

On assurances without guarantees in a “shelved document”

Idealizing the Budapest Memorandum cannot and must not be a “step” in the shaping of Ukraine’s foreign policy
15 December, 2009 - 00:00

The previous issue of The Day published on December 8, 2009, an interview with Oleksandr Chaly, “Document from the ‘shelf’,” devoted to the 15th anniversary of signing the Budapest Memorandum. This subject has caused quite a stir and needs to be discussed in depth. We are presenting the viewpoint of Prof. Volodymyr Vasylenko who was Ukraine’s Ambassador Extraordinary and Plenipotentiary to the Benelux and representative of Ukraine at NATO and took part in drawing up the conceptual principles and specific provisions of the Budapest Memorandum.

To start with, negotiations on security guarantees for Ukraine as a state that had voluntarily forsaken the world’s third largest nuclear arsenal were held not only in Budapest and not only in December 1994. Begun in April 1992 and held first with the US and then with the UK, Russia, and France, the talks ended on December 5, 1994, with the signing of the Budapest Memorandum on Security Assurances, whereby Ukraine became a party to the Nuclear Non-Proliferation Treaty. In addition to Ukraine’s President Leonid Kuchma, this document was signed by Russian President Boris Yeltsin, US President Bill Clinton, and UK Prime Minister John Major.

China gave Ukraine security guarantees unilaterally in the governmental statement dated December 4, 1994, as did France in a declaration that was handed in to Ukraine’s delegation together with a covering letter signed by President Francois Mitterand on December 5, 1994.

As it follows from the Memorandum and the above-mentioned unilateral acts, the five nuclear states, permanent members of the UN Security Council, did not make any special commitments with respect to Ukraine – they only reaffirmed their commitment, in accordance with the principles of the UN Charter and the CSCE Final Act, to respect the independence, sovereignty and the existing borders of Ukraine, to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, as well as 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. Besides, they reaffirmed their commitment to seek immediate United Nations Security Council action to provide assistance to Ukraine should it become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used, and their commitment not to use nuclear weapons against any non-nuclear-weapon state party to the Treaty on the Non-Proliferation of Nuclear Weapons.

The only specific obligation that the three nuclear states – the US, Russia, and the UK – took was that they “will consult in the event a situation arises which raises a question concerning these commitments.” This means that the aforesaid nuclear states must take part in these consultations at Ukraine’s demand. However, the Memorandum has no clauses that set out the procedure of convening and conducting such consultations, making and implementing decisions, or explain the nature of sanctions against the potential offender. The documents in which China and France gave Ukraine security assurances do not call for an institution of mandatory consultations. The Chinese declaration only says about the government’s inclination to a “peaceful settlement of differences and disputes by way of fair consultations.” The declaration of France does not mention consultations at all.

Therefore, the form and content of the Memorandum and the above-mentioned unilateral acts show that, unfortunately, the Budapest talks on giving Ukraine security guarantees did not eventually result in a comprehensive international agreement that creates an adequate special international mechanism to protect our national security. Tellingly, the authentic English-language copies of the Memorandum use the term “security assurances” which is far weaker than “security guarantees.” The unilateral declaration of France also speaks about “security assurances” (assurances de securite) rather than security guarantees.

Yet the achieved agreement was significant for both Ukraine and the entire international community. This helped solve a major problem that caused serious tension in the relations between Ukraine and the leading geopolitical players, not in the least Russia, and created the danger of a global nuclear catastrophe. Ukraine no longer feels strong international pressure which, if continued, might have posed a threat of international isolation or even sanctions against this country. The Budapest Memorandum has created favorable conditions for Ukraine to strengthen its international position and prestige. Ukraine has found new opportunities to establish cooperation with the world’s influential democracies and make a free choice of civilization. After signing the Budapest Memorandum, Ukraine is further developing its relations with the EU and NATO, not in the least because this document does not offer a proper mechanism for this county to defend its sovereignty, independence, and territorial integrity.

In his lengthy interview, Mr. Chaly says categorically that this course is erroneous and that the Budapest Memorandum should form “the basis of our foreign-policy strategy of security” and be “a key element of Ukraine’s future foreign-policy strategy.” Instead, Ukrainian diplomacy has opted for an “approach of bloc allegiance,” locked this document in the “bottom drawer” and began to build Ukraine’s international principles of security “on the basis of the policy of accession to NATO” rather than on the Memorandum’s provisions. To buff up his invectives and arguments, he asserts: “The Budapest Memorandum is an international political and legal document that has defined the geopolitical status of Ukraine as a non-aligned, neutral state and given it the required security guarantees.” This statement has absolutely nothing to do with reality. There is not a shadow of a hint in the Budapest Memorandum about a neutral or non-aligned status of Ukraine.

Apparently, Mr. Chaly envies the laurels of those who say, in an attempt to deceive our citizens, that the Ukrainian Constitution has a provision on Ukraine’s neutral status. I once promised to present a truckload of whisky to the one who will find this provision in the Constitution. With due respect for Mr. Chaly’s persona, I am ready to present him with two truckloads of whisky if he manages to find at least an indirect reference to Ukraine’s neutral status in the text of the Budapest Memorandum.

By its very nature and content, the Budapest Memorandum cannot lay the groundwork for this country’s foreign-policy course because it is designed to be applied in exceptional, critical, situations only. This is why this document was “shelved” and Ukrainian diplomats extremely rarely tried to resort to it. And there is nothing abnormal or condemnable in that “only in the critical periods of our modern-day history was it invoked as a likely instrument of national security protection.” Naturally, the Memorandum has never been applied also due to the absence of provisions on a viable crisis-management mechanism.

Mr. Chaly reviles the Ukrainian political elite for NATO membership aspirations because “Russia, as a Budapest Memorandum guarantor country, has always taken a dim view of Ukraine’s accession to NATO.” By this logic, Ukraine should chart its foreign-policy course in line with Russia’s demands that are illegitimate from the angle of international law, rather than on the basis of its national interests. The Budapest Memorandum does not have even one provision that forbids Ukraine to freely exercise its sovereign right to be member of any international organization. Ukraine’s course towards NATO membership has always been legitimate and in no way jeopardizes the legitimate interests of Russia. But this course does not fit in with the neo-imperial policy of Russia whose ruling elite cannot put up with the fact of an independent Ukraine, continues to consider Ukraine a part of their country, and dreams that it will return to the maternal fold of a revived Great Russia. The reason why Putin’s Russia is hysterically rejecting Ukraine’s aspiration to join NATO is that this aspiration will make it absolutely impossible for Russia to stage an imperial comeback.

Therefore, the root cause of a “permanent conflict with the Russian Federation” is not the Ukrainian foreign policy aimed at entering NATO but Russia’s illegitimate and unfriendly actions that are supposed to prevent Ukraine from joining the alliance, the reluctance or, maybe, inability of the current Russian leadership to overcome their imperial complexes and build a relationship with Ukraine on the basis of international law rather than from a position of strength.

Unfortunately, Ukrainian-Russian relations are not the relations between the two sovereign states that respect each other in accordance with international law – it is a situation when Russia is carrying out a large-scale special operation that is aimed against Ukraine in contravention of elementary requirements of international law and good-neighborliness and is eventually supposed to eliminate Ukraine’s political independence. Preventing Ukraine from joining NATO is one of the most important components of this special operation. Addressing the extended meeting of the Federal Security Service in Moscow on January 29, 2009, President Dmitri Medvedev of Russia said: “There still is an unstable sociopolitical situation in some of the neighboring states, and attempts are still being made to expand NATO, also by way of the so-called accelerated admission of Georgia and Ukraine to the alliance. Quite naturally, this required resolute and highly coordinated efforts on the part of the law-enforcement bodies and other uniformed services. I must say that the Federal Security Service has in general fulfilled the tasks it was assigned.”

Last year Russia’s State Duma held a debate on the budgetary funding of a propaganda campaign to support the status of Ukraine as a neutral state. Oddly enough, all this coincides with the publication of various materials in the Ukrainian media, which try to prove the necessity of Ukraine abandoning its NATO membership course and even suggest introducing a clause on non-aligned status into the new Constitution of Ukraine.

There are a lot of serious studies which prove that the status of a neutral and non-aligned state is unacceptable for Ukraine, for it is ephemeral, costly and one that cannot solve this country’s security problems. This viewpoint is shared by the vast majority of high-profile academics, political scientists and politicians. With this in view, I will only note that the proclamation of Ukraine as a neutral state will only encourage, rather than stop, Russia’s further aggressive actions against Ukraine. Let me cite a very telling episode in the Russian-Georgian relations, which preceded the large-scale use of armed force by Russia against Georgia in the summer of 2008. When Russian President Vladimir Putin and his Georgian counterpart Mikhail Saakashvili met in Novo-Ogariovo in February 2008, the latter proposed the following compromise: “We are refusing right now to sign all that you do not like, we are immediately dropping our intentions about NATO and the European Union, we are abandoning any kind of neighborhood policy, but I strongly request you to promise that you will solve the conflicts only by means of agreements and in real terms and that you will return us the territories you occupied.” Putin said in reply: “…we have our own goals about you and others, and we will do our best to achieve them.”

How Russia has achieved its goals about Georgia is common knowledge. So it is now Ukraine’s turn.

Accepting the proposal to strengthen the Budapest Memorandum’s legal guarantees, as Ukraine assumes the status of a neutral and non-aligned state, will be a shameful act of surrender and sellout of national interests. And no juridical word-juggling will hide or justify this.

Naturally, one should welcome the attempts to improve the Budapest Memorandum. But even if a more effective mechanism is created to guarantee Ukraine’s security (which I think is of little likelihood), it cannot and must not be an alternative to our country’s Euro-Atlantic integration course. NATO membership will be not only the most effective instrument of Ukraine’s security but also a reliable guarantee of the inviolability of the civilization choice this country has made. It should be noted in this connection that today’s NATO is not a military bloc but a collective security mechanism which is, together with the EU, an important component of the Euro-Atlantic space of civilization. Therefore, it is at least uncivil to characterize Ukraine’s strategic course towards NATO membership as an “approach of bloc allegiance.”

For some well-known reasons, the course of Ukraine towards European and Euro-Atlantic integration is inconsistent today: sometimes this course is called into question by certain politicians for considerations of expediency and sometimes it is openly resisted by chauvinistic anti-Ukrainian forces.

With due account of the objective vital needs of Ukrainian society and in the very interests of Ukraine’s national security, there is no alternative to our country’s course towards full-fledged NATO and EU membership. This is all the more evident in the light of the latest statements and actions by the Russian leadership which regards Ukraine as a lost part of their own territory rather than an independent state. Hence is unwarranted interference in Ukraine’s internal affairs, blackmail and pressure, a real danger of encroachments on the territorial integrity and political independence of Ukraine. In the current situation, Ukraine’s public should demand that the president and the government increase the funding of the national Armed Forces. One must make efforts not to carry out dubious projects that obviously run counter to national interests but to boost the efficiency of the Ukrainian army as a practical instrument of defending the independence and territorial integrity of Ukraine and a key factor of achieving its Euro-Atlantic goals.

The final and full-fledged accession of Ukraine to the European and Euro-Atlantic space will ensure not only the security and stability of the Ukrainian state but also the European standards of wellbeing, the environment, social guarantees, labor law, medical care, and the free development and personal freedom of every individual. All this does not and cannot exist, by definition, in Russia whose leadership is incurably ill with the imperial syndrome, great-power chauvinism, and authoritarianism.

So pursuing a course towards Ukraine’s full-fledged NATO and EU membership is a moral and legal imperative for any president any government of Ukraine, which should be accompanied by radical reforms indispensable for meeting membership criteria as well as by a strenuous effort to impartially inform Ukrainian citizens about the nature of these alliances and the advantages of being their member. Of paramount importance in the NATO membership issue is the opinion of the Ukrainian people, but they should not express it now, as the anti-Ukrainian chauvinistic forces are demanding, because a considerable part of the populace remains, unfortunately, misinformed. A referendum on Ukraine’s accession to NATO should only be held after the Ukrainian government has made a formal request to be admitted to the alliance. There is no doubt that the properly informed citizens of Ukraine will say “yes” to our country’s NATO membership and, hence, to their security and the reliable guarantee of their rights, basic freedoms, and wellbeing.

Volodymyr Vasylenko is a professor, Doctor of Law, international law expert, former Ambassador Extraordinary and Plenipotentiary of Ukraine to the Benelux

By Volodymyr VASYLENKO
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