I am quite aware of the Budapest Agreement and have written of it elsewhere. My essay was not an exhaustive discussion of every relevant agreement. Yes, in a literal sense Russia violated it when it organized a referendum that overwhelmingly approved the transfer of Crimea to Russia. But “international law” contains provisions that, under certain conditions, excuse refusal to implement an agreement. Under international law there are two relevant principles: (1) pacta sunt servanda, and (2) rebus sic stantibus. The first says that agreements must be implemented; the second “provided things remain the same.” Now, one can argue whether or not a given situation meets these criteria. In domestic law, we have a Supreme Court to settle (not to everyone’s approval!) such questions. In international law we don’t, though the UN Security Council was designed to have an institution for enforcement of commitments to the United Nations Charter.
So what would a Russia lawyer (Vladimir Putin studied law under Sobchak in what was then Leningrad) say about the Budapest Memorandum? Well, first of all he would point out that when it was signed there had been no expansion of NATO beyond its membership in 1991 when the Russian Federation became independent. Russia strictly observed its obligations in the Budapest Memorandum for 13 years, but in 2014 it was confronted with a radically different international situation. A rebellion in Ukraine, begun in the Western provinces, illegally removed an elected president and demanded membership in NATO, which had already expanded up to Russia’s borders elsewhere. Therefore, the principle of “rebus sic stantibus” did not apply and Russia was entitled to ignore the earlier agreement.
Aside from the purely legal arguments, there are other principles that are relevant. The first is that if an individual or country wants to make a claim in the legal system, it should come into court with clean hands. Has the United States always been diligent to implement the agreements it has made? Unfortunately, the answer is clearly “No!” First of all, regarding the change of national borders, the U.S. agreed in the Helsinki Final Act of 1972 that borders could only be changed by mutual agreement of both parties. That was a political commitment, not a legal commitment. (I’m not sure just what the difference is, but it is what President Ford said when he signed the agreement.) That agreement was one of the principal instruments we had to support democratic change in the Soviet Union and Eastern Europe since it was balanced by a commitment by the Communist countries of respect a list of human rights.
Before the crisis in Ukraine in 2014 the U.S. violated commitments it had made. In invading Serbia without a declaration of war and without UNSC approval it violated a commitment in the UN Charter in making war against a country that had not attacked it and had not been authorized by the Security Council to do so on other grounds. As a result of that war it occupied Kosovo, a province of Serbia, and then recognized it as an independent country. The latter without Serbia’s approval. And that was not all. The second Bush administration conducted an aggressive. illegal war against Iraq, removed its government, and unleashed a new wave of terrorism that was particularly dangerous to Russia.
I consider it not at all irrelevant that the majority of the people living in the Crimea prefer to be in Russia rather than Ukraine. (Actually, their first choice, if they had ever been asked, would likely have been independence.) Since the time of Woodrow Wilson, the U.S. has argued in favor of a “right” of self-determination. Even from the standpoint of creating an independent Ukraine, it should be obvious that nothing weakens a country more than trying to rule people who don’t want you to rule them. Politically, Ukrainian nationalists would easily control the country, even with the Donbas, if Crimea were not part of it. The ousted president, Yanukovich, would never have been elected president if Crimea had not been part of Ukraine at the time.
Finally, I am sure that President Putin would point out that in three instances that occurred before 2014, the U.S. supported the separation of a province from a state on grounds of the right of self determination: Eritrea from Ethiopia, West Timor from Indonesia, and South Sudan from Sudan.
Just one final note regarding the Budapest Memorandum. Some are saying that the Ukrainian parliament made a big mistake when it agreed to “give up” nuclear weapons. If it had them, they imply, they would be treated differently. This argument is deeply and fundamentally mistaken. Note the following facts: These were Soviet weapons that were destined to be liquidated under the START II agreement with the United States. They were located on Ukrainian soil but the codes to release them were in Moscow with the Russian government. If they were retained by either government that would be in violation with a legal commitment to the United States. So, with or without the Budapest Agreement, if Ukraine had managed to keep them and to secure control over them they would have been in violation of an important treaty commitment to the United States.
Abstracting the Budapest Agreement from all the many important agreements, conditions, factors, principles and influences that are relevant is not a very useful or relevant consideration if one is interested in solving Ukraine’s and Russia’s current problems peacefully. A peaceful solution is vital to both and I believe it is also vital to the United States and all the countries of Europe
From: Jack Matlock, Ph.D. <jack.matlock@duke.edu>
