Paper is alive –
The Budapest Memorandum of 1994
“Paper is patient” says the popular saying, “Paper is alive” says the historian. Historians have the task of recalling what happened, who acted or who did not act while others did.
Particularly in the age of electronic media, where statements are disseminated immediately and in monologue with equal weight, rather than according to the expertise of the speaker or the facts, historians are just as crucial as they are absent from television studios or public debates.
This is as true for the war in Europe as it is for the recent war in the Middle East, where the narrative is dominated and controlled by a gang of terrorists. More on this in another article.
The Budapest Memorandum comprises three agreements that were signed at the Conference of the Organisation for Security and Cooperation in Europe in Budapest on 5 December 1994. The contracting parties were the Russian Federation, the USA, the United Kingdom, Kazakhstan, Belarus and Ukraine.
In the agreements, the Russian Federation, the United Kingdom and the United States gave security guarantees to Kazakhstan, Belarus and Ukraine in connection with their accession to the Nuclear Non-Proliferation Treaty and in return for the elimination of all nuclear weapons on their territory.
In particular, the agreements clarify and reaffirm previously existing obligations, namely to respect Ukraine’s sovereignty and existing borders, the UN ban on the use of force and other obligations. Reference is made to the Helsinki Final Act:
The well-known and jointly agreed ten principles of the Helsinki Final Act en OSCE 39501 are
- Sovereign equality, respect for the rights inherent in sovereignty
- abstention from the threat or use of force
- inviolability of frontiers
- Territorial integrity of states
- Peaceful settlement of disputes
- Non-interference in internal affairs
- respect for human rights and fundamental freedoms, including freedom of thought, conscience, religion or belief
- Equality and self-determination of peoples
- Co-operation between States
- Fulfilment of obligations under international law in good faith
The OSCE has 57 participating States in Europe, Central Asia and North America. The Holy See is also an active member. https://www.osce.org/participating-states
The Charter of the United Nations (Article 2(4) of the Charter of the United Nations states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations.”) and the Treaty on the Non-Proliferation of Nuclear Weapons.
As for the Budapest Memorandum the articles in alignment to the two international fundamental treaties are:
– Article 1 reaffirms the commitment of the signatory states to respect sovereignty and existing borders and refers to the Helsinki Final Act as the basis for the principles of sovereignty, inviolability of frontiers and territorial integrity.
– Article 2 reaffirms the obligation to refrain from the use of force and refers to the Charter of the United Nations as the basis for the prohibition of the use of force.
– Article 3 reaffirms, with further reference to the Helsinki Final Act, the obligation 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.
– Article 4 reaffirms the commitment to immediately engage the UN Security Council in support of Ukraine in the event that Ukraine, as a non-nuclear-weapon state and participant in the Nuclear Non-Proliferation Treaty, is threatened with nuclear weapons.
– Article 5 reaffirms the commitment to refrain from the use of nuclear weapons against non-nuclear weapon states that are participants in the Non-Proliferation Treaty.
– Article 6 contains the promise to consult in the event of conflicts.
Ukraine came into possession of nuclear weapons in the course of the dissolution of the Soviet Union. At that time, Ukraine possessed the third largest nuclear arsenal in the world, but had no operational control over it, as Russia was in possession of the activation codes required for the use of nuclear weapons.
The Budapest Memorandum was a precondition for the signing and ratification of the Nuclear Non-Proliferation Treaty and the Nuclear Test Ban Treaty. By 1996, all nuclear weapons of the former Soviet Union had been transferred to Russia, which, as the legal successor state of the Soviet Union, has the right to possess nuclear weapons. The document was signed by all participating countries and deposited with the United Nations as a treaty under international law.UN Budapest Memorandum volume-3007-I-52241 ; UN COR-Reg-52241-Sr-65115
China and France issued their own statements on Ukraine’s security guarantee. In addition, French President François Mitterrand wrote a personal letter to this effect on 5 December 1994. The United States assured Ukraine that it would react accordingly if Russia were to breach the agreement.
Legal nature of the memorandum
Significantly, comments that the memorandum was not actually legally binding were only made after the occupation and “annexation” of Crimea to the Russian Empire. The US side claimed that the memorandum was an agreement and not a treaty. – The interpreters in the US State Department did not realise that the memorandum refers to and cites concluded treaties deposited with the UN in the essential parts of its content.
Respect for Ukraine’s sovereignty and the inviolability of its borders were recalled in the memorandum, but had already been valid and ratified since the Helsinki Final Act, as was the United Nations Charter in the places already cited.
Even if these repetitions of content were not accepted, the fact that the memorandum was deposited and registered with the United Nations may be sufficient to trigger the signatory states’ obligation to stand by the invaded Ukraine.
When the Russian political scientist Vladislav Belov, on the other hand, points out that the memorandum was not ratified by the State Duma and is therefore “only to be regarded as a declaration of intent by the then Russian government under Boris Yeltsin, but not as binding under international law”, he cannot be spared the suspicion of a lack of literacy and understanding of the Russian language, as all official translations of the memorandum (English, Ukrainian and Russian) state : Validity with signature ! Entry into force: 5 December 1994 by signature; Entrée en vigueur : 5 décembre 1994 par signature.
When the German ambassador in Kiev, Anka Feldhusen, claimed in an interview in November 2020 that the memorandum was nothing more than a political declaration and not an international treaty, she was certainly loyal to the CDU/CSU and SPD government led by Chancellor Merkel (Deputy Federal Chancellor and Finance Minister was Olaf Scholz) Loyalty to the facts would have been more appropriate for a German civil servant after 08 May 1945. Немецким инвесторам нужны одинаковые правила для всех и судебная реформа на Украине – посол Германии. In: Интерфакс-Укракраина. Retrieved on 9 April 2023.
