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14 July, 2018  ▪  Volodymyr Vasylenko

Ukraine’s Status as a Non-Nuclear Weapon State: Past, Present and Future

From the Lisbon Protocol to the Budapest Memorandum. When, why and how the concept of Ukraine’s status as a non-nuclear weapon state was designed? Declaration of Ukraine’s status as a non-nuclear weapon state and strengthening of its independent statehood. Negotiations on the outline of Ukraine’s non-nuclear weapon state status under international law: process and outcome. The time of wasted opportunities. Budapest Memorandum: a historic mistake or inadequate actions by Ukraine’s government? Modern model to guarantee Ukraine’s security as a non-nuclear weapon state.

 

From the Lisbon Protocol to the Budapest Memorandum

In May 1992, the Protocol was signed in Lisbon to recognize Ukraine, Russian Federation, Kazakhstan and Belarus as equal successors of the former Soviet Union for the Strategic Arms Reduction Treaty (START-1) signed by the USA and USSR on July 31, 1991. In practical terms, this signaled the recognition of Ukraine’s right to own the share of the soviet nuclear arsenal that ended up on its territory after the restoration of its independence in 1991. Under Art. 5 of the Lisbon Protocol, Ukraine committed to join the Treaty on the Non-Proliferation of Nuclear Weapons signed on July 1, 1968, as a non-nuclear-weapon state.

According to the Lisbon Protocol, Ukraine was becoming a member of START-1 on a par with all other signatories, including the US, and had to ratify it.

START-1 obliged the US and the Soviet Union to reduce the number of strategic nuclear delivery vehicles by 36% and nuclear warheads by 42%. This meant that the Soviet Union had to dismantle 900 delivery vehicles (from 2,500 down to 1,600) and 6,000 warheads (from 10,271 down to 4,271). When the Soviet Union disappeared from the political map of the world, Ukraine ended up with 17% of the soviet nuclear weapon capacity on its territory.

Ukraine could use the Lisbon Protocol framework to interact with the US without Russia in between. It could develop its own position in negotiations and determine the conditions under which it would agree to join the Non-Proliferation Treaty as a non-nuclear-weapon state. The Protocol did not set out any specific deadline for ratification, although Art. 5 said that Ukraine should join it as soon as possible.

According to the Protocol, Ukraine was free to determine when it would ratify it. Therefore, it could also determine the timeframe it deemed necessary for negotiations. The Lisbon Protocol thus marked the irreversible recognition of Ukraine’s status as a non-nuclear weapon state under international law. Eventually, this resulted in the signing of the Budapest Memorandum on December 5, 1994, to guarantee Ukraine’s security upon its joining of the Non-Proliferation Treaty.

Ever since, Ukrainian politicians, experts and average citizens, as well as mass media have seen heated debates on the consequences of Ukraine’s quitting of the nuclear arsenal inherited from the Soviet Union in 1991. The armed aggression by Russia, a signatory of the Budapest Memorandum, against Ukraine has triggered another surge of this debate. 

Some in Ukraine’s civil society, political establishment and expert community harshly criticize its non-nuclear weapon status. They believe that Ukraine thus stripped itself of a reliable security guarantee. A closer analysis of their thinking shows that they view the recording of Ukraine’s status as a non-nuclear weapon state and international guarantees for its security as a one-moment act, not as a complex geopolitical process linked to the restoration and establishment of Ukraine’s independent statehood and the historical context of the late 1980s and early 1990s in which this process took place.

Today, there is general agreement in Ukraine that the Budapest Memorandum has serious flaws. These flaws are widely believed to have caused the many security challenges faced by Ukraine that climaxed with Russia’s armed aggression. What’s lacking is a clear consolidated nationwide stance on how to guarantee Ukraine’s security in the foreseeable future in the modern context.

Alternative opinions are obviously welcome in Ukraine’s society, politics and expert community. But superficial, populistic, unprofessional, unilateralist, biased and often provocative approaches to comprehending, assessing and solving issues that are of extraordinary importance to Ukraine’s future confuse society and distract state institutions from a constructive debate that can lead to justified and realistic solutions which, once implemented, will serve as a reliable guarantee for Ukraine’s security.

While the article below does not claim to serve as the ultimate answer, it is an attempt to provide comprehensive analysis of the key questions triggered by Ukraine’s rejection of its nuclear weapons inherited from the Soviet Union. It seeks to describe the true reasons behind Ukraine’s current security challenges and to offer effective paths to overcoming them while maintaining the non-nuclear weapon state status. 

 

When, why and how the concept of Ukraine’s status as a non-nuclear weapon state was designed

 

Before the Lisbon Protocol was signed, a slew of events had taken place that led to the concept of Ukraine’s status as a non-nuclear weapon state. The key one took place on July 16, 1990 when the Verkhovna Rada of the Ukrainian SSR passed a pivotal document known as the Declaration on State Sovereignty of Ukraine. Its Sect. IX.5 on External and Domestic Security stated that “The Ukrainian SSR solemnly declares its intention to become a permanently neutral state in the future that is not aligned with military blocs and follows three non-nuclear principles: to not accept, produce or acquire nuclear weapons.” 

Later, some Ukrainian politicians questioned Ukrainian origin of this statement, thus launching a conspiracy myth around this issue. A collection of essays on the 20th anniversary of the Declaration on the State Sovereignty of Ukraine had a memoire by Oleksandr Moroz[the leader of Group 239 communist majority in the Verkhovna Rada and of the Socialist Party of Ukraine later – Ed.],where he described the tense process of negotiating of Ukraine’s status as a non-nuclear weapon state item by item. “Some statements, such as an intention of non-nuclear status for Ukraine (proposed by MP and co-chairman of the People’s Movement of Ukraine Ivan Drach), appeared in it that in retrospect increasingly looked like an idea brought into the Declaration from afar.” (Oleksandr Moroz. From the Declaration to Statehood // Declaration on State Sovereignty of Ukraine. The History of Approval, Documents and Testimony. Published in 2010 by Ruta, Zhytomyr, p. 45).

Yuriy Kostenko [MP, Minister of Environment, presidential candidate in 1999, broad member in various security agencies throughout his political career — Ed.]  echoes Moroz’s himt, cautiouslyand with no supportive facts, with more specific assumptions in his generally compelling book, The History of Nuclear Disarmament of Ukraine published by the Yaroslaviv Val house in 2015. Based on his analysis of numerous sources, including analytical materials, media reports and official files from that time, the author chronicles the developments -- complex, controversial and dramatic at times -- in which he took part. Still, Kostenko’s vision of the genesis, nature and purpose of Ukraine’s non-nuclear weapon state concept is superficial.

Using just one fragment of one recording from one plenary session of the Verkhovna Rada, Kostenko claims that the topic of Ukraine’s “non-nuclear-weapons statestatus” (and the respective statement thereofin the Declaration) was “thrown” to Ukraine, then used against it by two nuclear-armed states, the US and Russia, both with their interests. He concludes that “The people who offered that statement (VolodymyrVasylenko,Serhiy Holovatyiand Ivan Drach) may have not realized that they were part of the scenario forecasted by international analytical agencies between the 1980s and 1990sfor thepossibility of theUSSR collapse” (p. 16). This conclusion does not rule out intentional involvement of the Declaration authors in an anti-Ukrainian project designed beyond Ukraine. The assumption voiced by Kostenko, as well as Moroz’s hint from 15 years earlier, are not supported by any evidence. This claim is not an attempt to counter absurd accusations, but to describe the past developments and assess them on the basis of facts rather than assumptions. 

According to Kostenko, “the process of nuclear disarmament for Ukraine had been launched long before it became a state” (p. 17). What he misses, intentionally or not, is that the intention [ofgetting thenon-nuclear-weapon state status – Ed.] was includedin the Declaration on State Sovereignty to spur the restoration of Ukraine’s independence, a priority for the national liberation movement.

Referring to our conversation in which I personally told him about the motivation behind the non-nuclear concept for Ukraine, Kostenko focuses on our desire to include legal foundations for Ukraine’s separation from the Soviet Union in the Declaration. He ignores another significant part of my motivation which was to create the environment for a wide international recognition of Ukraine’s independence and to avoid international isolation for Ukraine. 

Obviously, as the concept of non-nuclear-weapon state status was designed, the positions of both Russia, and the US taken into account. But it was not dictated by them. Nor did it emerge spontaneously on July 12, 1990, as Kostenko claims. Quite on the contrary, it had takenquite a long time to materialize.

Two nuclear superpowers pursued the following goals in the late 1980s: 

  1. to get rid of excessive and economically burdensome stocks of nuclear weapons accumulated in their arsenals;
  2. to encourage as many non-nuclear weapon states as possible to join the Non-Proliferation Treaty and to preserve their monopoly in holding nuclear weapons.

At that point, the issue of non-nuclear status for individual soviet republics was not on the international agenda. It started gaining practical significance as the movement towards the collapse of the Soviet Union gained speed in the early 1990s.

Whoeverled byat any given moment, the Kremlin never even hypothetically considered a possibility of Ukraine gaining the status of a nuclear-armed state. A mere idea of Ukraine’s independent statehood was unacceptable to it. Western democracies, influenced by misleading soviet propaganda and their own wrong assumptions, expected the totalitarian “empire of evil” to transform into a kingdom of freedom, supporting both Mikhail Gorbachev and Boris Yeltsin in their attempts to preserve the Soviet Union. At the same, the West did not rule out possible disintegration of the Soviet Unioncompletely. For that eventuality, the US Departmentof State developed criteria for the recognition of new independent states known as the five principlesof James Baker, then Secretary of State.Quitting nuclear weapons was one of the key conditions for a new state to be recognized.

As a republic within the USSR on whose territory soviet nuclear missiles were located without its consentandcontrolled from the imperial center, Ukraine was neither  an independentstate, nor a nuclear-armed one. In order to gain the status of an independent  nuclear-armed state, it had to declare independence and fully take over control of those weapons. Such a scenario was not on the table: under no circumstanceswould the Soviet Union, the US or their allies support it. In other words, Ukraine had zero chances at that point to restore its independent statehood and become a nuclear-armed state. 

On the one hand, it was right to expect that Ukraine would be demanded to quit the part of the soviet nuclear arsenal located on its territory if it broke off the Soviet Union. On the other hand, formal declaration of non-nuclear status by Ukraine could become a serious additional factor in favor ofthe restoration of its independence -- it could say that remaining part of the Soviet Union as a state with nuclear weapons was incompatible with its own non-nuclear-weapon statestatus.

In that scenario, Ukraine could count on positive treatment from the US and other western democracies and on their support for its independent statehood.

That was the overall context and purpose of shaping the concept of Ukraine’s non-nuclear-weapon state status. The idea of non-nuclear status, however, had emerged earlier, originating from the concept of nuclear-weapon-free zones.They were established to prevent the placement of nuclear missiles on the territories of countries that did not control them, thus reducing the risks of armed conflicts with nuclear weapons in such zones.

On February 14, 1958, Adam Rapacki, the Polish People’s RepublicMinister of Foreign Affairs, proposed establishing nuclear-weapon-free zones in Europe. Under the Rapacki Plan, thesecould include the territories of Poland, Czechoslovakia, the German Democratic Republic and the German Federal Republic. In December 1958, the Polish People’s Republicleaders proposed banning the placement of nuclear weapons in Central Europe (Gomułka Plan).

On June 25, 1959, the Soviet Union proposed the initiative to set up nuclear-weapon-free zones in the Balkans andthe area of the Adriatic Sea. 

Interestingly, the originalidea of nuclear-weapon-free zones had beenalmost implemented beyond Europe. In 1967, the multilateral Treaty of Tlatelolko was signed to ban nuclear weapons in Latin America and the Caribbean Basin. In 1968, the Treaty of Rarotonga with Australia, New Zealand and island states in the region established the nuclear weapon-free-zone in SouthPacific. 

Nuclear-weapon-freezones and the respective institution emerged exactly becausestates with and without nuclear weapons existedin the world.

This divisionwas legally recorded in 1968 in the universal Treaty on the Non-Proliferation of Nuclear Weapons. It was then that non-nuclear-weaponstates raised the issue of their security guarantees as their armies quit nuclear weapons. Special UN Security Council Resolution No255 dated June 19, 1968, was to solve it. It stated that “aggression with nuclear weapons or the threat of such aggression against a non-nuclear-weapon State would create a situation in which the Security Council, and above all its nuclear-weapon State permanent members, would have to act immediately in accordance with their obligations under the United Nations Charter.” 

The goal of the Non-Proliferation Treaty was to stop the emergence of new nuclear-weaponstates in the world. This was expected toreduce the risk of a nuclear war while preserving the monopoly innuclear weapons for the club of nuclear-weaponstates, including the US (1945), Soviet Union (1949), UK (1952), France (1960) and China (1964). 

When the Non-Proliferation Treaty was signed, Ukraine was part of the Soviet Union and member of the UN. It was thus entitled to participating in international talks. In practice, this right was exercised by signing multilateral treaties under the UN framework. 

When the issue of Ukraine’s participation in the Non-Proliferation Treaty arose, the Ukrainian SSR did not have its own army. Therefore, there were no grounds for it to join the Treaty as a nuclear-weapon state. The participation of the Ukrainian SSR in the treaty as a non-nuclear-weapon state was legally possible but caused a practical challenge: its non-nuclear-weaponstatus was incompatible with the locationof the soviet military unitsarmed with nuclear weapons on Ukraine’s territory.

Positioning the Ukrainian SSR as a non-nuclear-weaponpartyto the Non-Proliferation Treaty could triggerdemands to withdraw all soviet nuclear armaments from its territory. This was unacceptable to the soviet leadership. As a result, the Ukrainian SSR did not sign the Non-Proliferation Treaty and did not join it.

Bythe late 1980s and early 1990s, Ukraine was once again actively seeking ways to restore its independence. At that point, a recognition of incompatibility of having nuclear weapons on its territory and having a non-nuclear-weapon state status transformed into the incompatibility of Ukraine remaining part of the Soviet Union as a state free of nuclear weapons.

The driving force behind the mobilization of Ukrainian society to struggle for national and statehood revival was Narodnyi Rukh Ukrayiny [People’s Movement of Ukraine, PMU]. It was that environment that first nurtured the idea of turning Ukraine into a nuclear-weapon-free zone. If implemented, this conceptwas expected to help Ukraine free itself from the diktatof the imperial center and restore its proper statehood.

At the 10th Session of the PMU’s Foundation Assembly on September 10, 1989, Vasyl Chervoniy[founder of the first PMU regional branch, MP — Ed.] proposed a resolution On Demilitarization of Ukraine and Declaration of It As a Nuclear-Weapon-Free Zone. The document he presented stated that the restoration of a sovereign Ukrainian state was impossible as long as the external and domestic security issues were determinedin Moscow exclusively. He also called for “withdrawal of weapons of mass destruction (nuclear, chemical, bacteriological etc.) from Ukraine, the vehicles for delivering such weapons, storage facilities for such weapons, and for declaring Ukraine as a non-nuclear-weapon zone.” The assembly decided to consider the resolution as material to be worked on (Three Days of Nineteen Eighty Nine. Materials From the Foundation Assembly of the People’s Movement for Reconstruction. Kyiv, 2000. Pages 408-411).

The platform of Zelenyi Svit (Green World) Ukrainian Environmental Association, approved at its 1st Foundation Assembly on October 29, 1989, mentioned the non-nuclear-weapon state status as well. It.9 of that program stated that “The Green World supported the declaration of Ukraine as a non-nuclear-weaponzone.”

This shows that national democratic parties supported the idea of turning Ukraine into a zone free of nuclear weapons. It served as the foundation for the concept of Ukraine’s non-nuclear-weapon state status, subsequently finalized and implemented in the Declaration on State Sovereignty of Ukraine.

As I discussed the concept of the nuclear-free status for Ukraine with some MPs, including Borys Markov and Serhiy Holovatiy, I proposed using a wider formula in the text of the Declaration — for Ukraine to quit nuclear weapons and become neutral and non-aligned. At that point, the Union of Soviet Socialist Republics was both a global nuclear power and a leading member of theWarsaw Pact. The idea of declaring Ukraine’s neutral status as a path to separation from the USSR was not new at that point: it had beenrecorded in the platform of Postup (Progress), an illegal group established in the spring of 1972 by History Department students at the Lviv State University. The platform stated that Postup members saw Ukraine as an “independent state with a new quality of social order, the national armed forces and neutral foreign policy separated from the Soviet Union.”

The Declaration onState Sovereignty provided political and legal ground for further steps that would lead to the restoration of Ukraine’s independence —gaining the status of a neutral, non-aligned and non-nuclear-weaponstate was incompatible with remaining within the Soviet Union.

Formal recording of Ukraine’s intention to become a neutral, non-aligned and nuclear-free state in its Declaration on State Sovereignty was an equivalent of declaring its future separation from the Soviet Union.

MP Borys Markov publicly announced the proposal to declare this status for Ukraine. “God himself bids us, the people marked by the star of Chornobyl, to leadthe example asthe first nuclear-armedstate that rejects nuclear weapons inthe world,” he said at the 54th plenary session of the Verkhovna Rada on June 29, 1990. “I therefore propose to add the following statement to this section: In expression of the will of the people for peace, Ukraine declares the policy of permanentneutrality, non-participation in military blocs, rejection of usingforce in international relations, and commitment to three non-nuclear principles.”

This proposal was recorded in the minutes of the Verkhovna Rada’s 54th plenary session while its last sentence wasrepeated on page 21 of the first comparative table for Proposals and Comments Voiced at the First Session of the Ukrainian SSR Verkhovna Rada (12th Convocation) on the Declaration onState Sovereignty of the Ukrainian SSR. The comparative table was distributed to MPs as the basis for further discussions and finalization of the Declaration text.

Based on the agreements reached on amending thedraft Declaration, the Verkhovna Rada’s temporary Committee on Economic Reform and Management of whichMarkov was member decided to add the following statement to the Declaration: “The Republic declares its course towards the policy of permanent neutrality, non-participation in any military blocs, rejection of the use of force in international relations and following of three non-nuclear principles” (Proposals on draft Declaration on State Independence (Sovereignty) of the Ukrainian SSR by the Verkhovna Rada Committee on Economic Reform and Management approved by Committee protocol No3 dated July 10, 1990).

This amendmentproposed thatthe draft Declaration wassent to the permanent Committee on State Sovereignty, Interrepublican and International Relations that was in charge of finalizing the draft taking into account proposals from other VR committees.

The text of this amendmentwas included in page 28 of the second column of the comparative table, compiled late at night on July 10, 1990, and titled Proposals for Draft Declaration. Due to negligence, mistake or intention, however, the amendmenton Ukraine’s neutral, non-aligned and nuclear-free status did not make it into the Draft Declaration Finalized by the Sovereignty, Interrepublican and International Relations Committee. It was a consolidated draft Declaration to be discussed fromJuly 11, 1990, with voting on every article of everysection.The outcome would be the approved Declaration text on which the Rada would further vote as a whole document.

We had to look for solutions in thatsituationwhile urgently finalizing the text of the proposed amendment. The phrase on the “rejection of the use of force in international relations” was definitely out of place in it while the phrase “declares its course” was perceived as an imperative instruction forimmediate action. A better option was to use the phrase “declares its intention to become in the future” -- it would point to actions in an undefined future.

Apart from that, we had a technical task of explaining the sense of “three non-nuclear principles”. For the purpose of convenience in discussions and formulation of the Declaration text, this short phrase was used as defined in Art. 2 of the Non-Proliferation Treaty.

This article of the Non-Proliferation Treaty defined the non-nuclear-weapon state status as a number of clear obligations. Fulfilling these was equal to following some principles. Art. 2 of the Treaty stated that “Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.”

 

If classical legal techniques had been applied in the Declaration on State Sovereignty of Ukraine, it could have merely referred to Art. 2 of the Treaty, or it could have just copy-pasted that fragment of the Non-Proliferation Treaty.

 

Both options proved unacceptable since they overburdened the text and did not fit into the Declaration style. Sound reason led to an atypical but rational option: to explain the essence of every principle with one word that best matched the phrasing of Art. 2 of the Non-Proliferation Treaty.

 

In that situation, I asked Ivan Drach to submit the improved version of the amendment for Sect. 9 of the Declaration, reading as follows: “The Ukrainian SSR solemnly declares its intention to become a permanently neutral state in the future that does not participate in military blocs and follows three non-nuclear principles of not receiving, manufacturing or acquiring nuclear weapons.” 

 

I wrote the updated version of the amendment, a more flexible and accurate one, and better polished, by hand. There was no time amidst the tensions of that plenary session to type and reprint it. Serhiy Holovatiy [newly elected MP and Chairman of the Association of Ukrainian Lawyers — Ed.] supported my version of the text — he witnessed my conversation with Drach.

 

When Drach presented the updated version of the amendment (on July 13, not July 12 as Yuriy Kostenko wrote in his book) at the VR’s morning plenary session, he could not read my handwriting properly and had to interpret the principles of a non-nuclear-weapon state (not to manufacture or distribute the weapons, and ban it on Ukrainian territory). But it was thanks to Ivan Pliushch, then-MP and first Deputy Speaker of the VR (he chaired the plenary sessions so I requested his support of the proposal submitted by Drach), that the amendment was eventually passed with 272 votes at that session. 49 MPs voted against it. Overall, Section 9 was supported by 238 MPs, and 100 voted against it. 

 

We tried but failed to correct Drach’s misreading at that session. The first correction phrasing we proposed read as “non-manufacturing, non-distribution and non-use of nuclear weapons”. The second one spoke of “non-manufacturing, non-distribution of nuclear weapons and a ban on using it.” 

 

Serhiy Holovatiy proposed a better phrased and shortened list of three non-nuclear principles (“refusal to manufacture, acquire or test nuclear weapons”) at the following 66th plenary session. But his option, too, did not properly reflect the respective provisions of Art. 2 of the Non-Proliferation Treaty. As a result, the minutes of those sessions reflect attempts to clarify the phrasings rather than support Kostenko’s claim that “Drach was not entirely familiar with the proposal he submitted”.

 

Drach’s misreading had been corrected at the stage of editing the final text of the draft Declaration before it was submitted for the final vote. The vote took place at the 67th plenary session of the VR, in the morning of July 16, 1990.

 

This shows that the way in which the provision on Ukraine’s intention to become a permanently neutral, non-aligned and non-nuclear-weapon state was included in its Declaration on State Sovereignty was neither weird, nor rushed, nor a foreign-sponsored experiment as Kostenko claims. It was an intentional Ukrainian product of the intellectual process based on a sober assessment of the context and Ukrainian vision of the ways in which Ukraine’s independent statehood could be restored. 

 

What Kostenko gets right is that “the idea was born in a very narrow circle of the People’s Movement”. His claim that “it did not pass any discussion procedures” is blown out of proportion. According to files from that time, proposals based on this concept were analyzed in permanent committees and at VR plenary sessions. The issue of the non-nuclear-weapon state status for Ukraine was also discussed informally. According to Anatoliy Tkachuk, MP of the 12th (1st) convocation VR and co-author of the Declaration, “some MPs had voiced this proposal long before it was made public.” (A. Tkachuk, The Chronicles of the Great Collapse: The Declaration on State Sovereignty of Ukraine As a Key Factor in the Elimination of the Soviet Union // Declaration on State Sovereignty of Ukraine. p. 167-168). Obviously, a wider public discussion in those circumstances made no sense as the communist majority in parliament did not accept the idea of Ukraine’s independence.

 

Oleksandr Moroz, the leader of Group 239 [the communist majority in the first convocation of the VR, active from June 1990 till August 1991 - Ed.], saw the inclusion of Ukraine’s intention to become a neutral, non-aligned and non-nuclear-weapon state in the Declaration as a threat to the existence of the soviet empire. As the 66th plenary session drew to a closing on July 13, 1990, Moroz tried to have the parliament revote the amendment proposed by Drach. He claimed that “it was of great importance. Probably, of the same importance as the whole Declaration.” 

 

Ivan Pliushch who was chairing that session opposed this by not allowing a revote on the decision passed earlier. “We have voted for this paragraph already. We have. The amendment has just been included. We voted for it before noon,” he said.  

 

“Before July 16, as the discussion of draft Declaration was ending, MP Ivan Drach proposed to declare Ukraine as a non-nuclear-weapon state and a non-aligned one. There is still no consensus on this at the Verkhovna Rada. But I’m proud that this was written in the Declaration on State Sovereignty,” Ivan Pliushch wrote 20 years later in The Cornerstone of Statehood // Declaration on State Sovereignty of Ukraine (p. 26).

 

Declaration of Ukraine’s status as a non-nuclear weapon state and strengthening of its independent statehood

 

After the Verkhovna Rada voted for the Act of Declaration of Independence of Ukraine on August 24, 1991, Ukrainian leaders confirmed more than once and at many levels, officially and unofficially, the readiness to stick to the intention to become a non-nuclear-weapon state and to reject soviet nuclear weapons located on Ukraine’s territory.

During his first visit to the US, VR Speaker Leonid Kravchuk met with George H. W. Bush and assured him that the intention announced in the Declaration remained irreversible even after the restoration of Ukraine’s independence. On October 1, 1992, Kravchuk once again declared this at the 46th session of the UN General Assembly. 

Resolution No1697-XII On Non-Nuclear-Weapon State Status of Ukraine passed by the Verkhovna Rada on October 24, 1991, was very important. It outlined practical steps to dismantling nuclear weapons of the former Soviet Union on Ukraine’s territory. On October 25, Hennadiy Udovenko, Ukraine’s Ambassador to the UN, transferred the Resolution to the UN Secretary General. Its full text was distributed as an official document at the 46th session of the UN General Assembly. On November 2, 1991, Leonid Kravchuk sent a letter to the US President with the Resolution attached. Among other things, it stated the following: “The establishment of independent Ukrainian armed forces does not change Ukraine’s intention to be a non-nuclear-weapon state as announced in the Declaration on State Sovereignty.” 

In December 1991, Kravchuk as President of the independent Ukraine, signed documents and agreements within the CIS on behalf of Ukraine that, too, envisaged its status as a non-nuclear-weapon state. 

This consistent commitment to nuclear disarmament backed by the convincing results of the All-Ukrainian Referendum to Approve the Act of Declaration of Independence of Ukraine brought wide international recognition of Ukraine by the leading western countries and the overall international community. During 1992, 132 countries recognized Ukraine. 106 signed agreements establishing diplomatic relations with it. This created solid political and legal ground for the beginning of Ukraine’s relations with the world in a favorable international environment. 

Therefore, it was thanks to the provisions of the Declaration focused on gaining the status of a non-nuclear-weapon state that Ukraine avoided non-recognition, something that had been the final factor in the defeat of the Ukrainian People’s Republic in its struggle against the bolshevik Russia in the early 20th century. Carpatho-Ukraine, too, had no chance to preserve its independence after declaring it on March 14, 1939, in Khust, Zakarpattia. Unrecognized and unsupported by the international community, Carpatho-Ukraine offered armed resistance but was eventually illegally occupied by Hungary with German and Polish support.  

When no country in the world recognized the Ukrainian State declared on June 30, 1941 in Lviv, or the Ukrainian Chief Liberation Council established in Lviv Oblast on July 13, 1944, the armed struggle of the Ukrainian Insurgent Army for the creation of the sovereign and united Ukrainian State turned out to be doomed even though it lasted from the early 1940s until the mid-1950s.

 

Ukraine relied on the Declaration in its successful attempts to counter Russia’s attempts to use the CIS to reintegrate former union republics and implement its neo-imperial comeback. Ukraine ratified the CIS foundation treaty on December 10, 1991, with an important condition that was later reinforced by the special Verkhovna Rada Statement dated December 20, 1991. In that Statement, Ukraine rejected the transformation of the CIS into a statelike body with the status of a subject of international law. Also, Ukraine confirmed its intention to stay away from military blocs. It was not involved in the drafting of the CIS Charter, nor did it join it later. Therefore, it remained just a member of the CIS Foundation Treaty while never being a full-fledged participant and remaining in the status of an observer. Ukraine did not sign many Russia-initiated agreements within the CIS designed to turn it into a new Union.

 

Ukrainian diplomats effectively used the Declaration provisions on Ukraine’s intention to become a neutral and non-aligned state as a ground for refusing to join the Tashkent Agreement signed on May 15, 1992. It established a military bloc known as the Collective Security Treaty Organization today, as a tool to restore and reinforce Russia’s influence in the geopolitical space of the former Soviet Union, and as an alternative to NATO. Ukraine also refused to join the CIS Economic Union Treaty signed in Moscow on September 24, 1993, with the purpose of gradually building a “universal economic space”.

 

The Declaration thus helped Ukraine distance itself from Russia and bloc its attempts to drag Ukraine into its neo-imperial projects that threatened Ukraine’s independence and were aimed against Western democracies. 

 

The initial stage of Ukraine’s establishment on the international arena as an independent state was thus a geopolitical success. The key contributing factor were the Declaration provisions of quitting nuclear weapons and gaining the neutral non-aligned status. The positive outcome of the Declaration implementation confirmed that Ukraine was right to expect international recognition as a result of the intention it stated in the document.

 

Negotiations on the outline of Ukraine’s non-nuclear weapon state status under international law: process and outcome

 

Shortly after, the geopolitical success Ukraine had accomplished thus far was overshadowed by the outcome of the talks on the documentation of its non-nuclear-weapon state status within international legal framework. The talks ended on December 5, 1994, in Budapest with the signing of the Memorandum that guaranteed Ukraine’s security for joining the Non-Proliferation Treaty.

 

Neither the outcome of the talks, nor the text of the Budapest Memorandum were in any manner shaped by the Declaration on State Sovereignty of Ukraine. The talks took place and the Budapest Memorandum was signed after the Declaration had served its purpose.

 

It only declared Ukraine’s intention to follow three non-nuclear principles and to become a non-nuclear state in the future. The Declaration did not define the timeframe for implementing this intention or what kind of cooperation it entailed. Most importantly, it did not mention any commitments that could have hurt Ukraine’s national interests, sovereignty and security. Thus, there was no connection between the Declaration, the process of negotiating how Ukraine’s non-nuclear-weapon state status would be recorded, or the outcome of these negotiations. 

 

In this context, Kostenko’s claims that Ukraine’s intention to become a non-nuclear weapon state in the future, as recorded in the Declaration, was later used against it and pushed the US and Russia to “consistently interpret it as ‘an obligation to disarm immediately’” are ungrounded. No rules of law allow anyone to interpret “an intention to become in the future”, as stated in the Declaration, as “an obligation to disarm immediately”. At best, that intention could be interpreted as an indirect obligation to launch negotiations — and that would be done within a reasonable timeframe later, not immediately. Kostenko’s claim does not rely on any official document or source, nor does it hold ground in view of this obvious and well-known fact.  

 

Long before the Declaration was approved, the key element on which the US and the Soviet Union agreed in the nuclear domain was their shared desire to preserve monopoly in owning nuclear weapons. Russia automatically embraced that approach as the successor state of the Soviet Union. Therefore, regardless of whether Ukraine’s Declaration stated its intention to become a state without nuclear weapons or not, both Russia and the US would inevitably demand the withdrawal of soviet nuclear missiles from Ukraine’s territory. Similarly inevitable were negotiations to determine the timeframe and the conditions under which Ukraine would gain the status of a non-nuclear-weapon state. 

 

It is important to note that the subject of negotiations was not nuclear disarmament of Ukraine -- it did not own nuclear weapons that it manufactured or controlled before or after the collapse of the Soviet Union. The idea of Ukraine having been a state with the third largest nuclear arsenal in the world is a myth. In reality, a separate fragment of soviet nuclear arsenal stayed on Ukraine’s territory after the collapse of the Soviet Union, its strategic component beingsmaller than that of nuclear arsenals in the US and Russia. According to data provided in numerous sources, the 19th and 46th missile divisions of the Missile Troops located in several oblasts across Ukraine had 176 strategic intercontinental ballistic missiles that could hit targets at 10,000 kilometersat the end of 1991. 

The components of the Ukrainian part of this missile unit included 130 liquid-fuel RS-18 missiles (SS-19 under NATO classification and Stilet under the US classification) with six independently-targetable warheads each, and 46 solid-fuel RS-22 missiles (SS-24 under NATO classification and Scalpel under the US classification) with ten independently-targetable warheadseach. The total number of nuclear warheads at the 176 soviet missiles inherited by Ukraine was 1,240. They all targeted the US.

When the Soviet Union disintegrated, different estimates pointed to dozens (anywhere from 30 to 46) TU-160 and TU-95 МС16 strategic bombers located at the military air bases in Pryluky and Uzyn in Ukraine. Their total payload counted several hundred nuclear missiles (anywhere between 274 and 670).

Therefore, Ukraine’s territory hosted a significant share of soviet nuclear missile arsenal developed with Ukrainian resources, among others. However, Ukraine did not have any enterprises producing nuclear warheads, or equipment and specialists to maintain them. It did not have the technologies for safe storage and dismantlingafter expiration. It did not have launch codes for strategic missiles or control systems for battle situations. Moscowmade sure it preserved its monopoly in the manufacturing and use of nuclear charge as the key component of nuclear weapons.

What is important to note is that Ukraine hosted tactical and operational tactical nuclear weapons equipped with several thousand warheads (estimatesrange from 2,800 to 4,200). Ukraine could have refused to give it to the Russian Federation if it had had the political will to do so, placed it under control of the Armed Forces of Ukraine and usedit as deterrence for at least some time.

Apart from that, Ukraine could have postponed the dismantlement of 46 strategic solid-fuel RS-24 missiles -- these were developed and manufactured at Pivdenne KB in Dnipro and PivdenMash bureau -- in order to launch the construction of its own nuclear deterrence force. In other words, Ukraine could later turn into a powerful nuclear-armed state using its soviet legacy and relying on its own potential -- the established production of modern missile equipment and the systems of intercontinental ballistic missile battle control, the production base of numerous defense enterprises, the deposits of uranium ore, uranium processing chemical plants, and the professional teams of Ukrainian design bureaus and R&D centers.

Given the specific historical context in which Ukraine found itself in the early 1990s, it faced a paradox where the status of a non-nuclear-weapon state was the best realistic option for preserving and strengthening its newly restored independence, while keeping and using the nuclear missile arsenal inherited from the Soviet Union didn’t help. The establishment of independent Ukrainian nuclear deterrence force required significant financial resources and time. The newly independent Ukraine had none of those. It faced an inevitable confrontation with Russia and the US, as well as their allies,and risked losing its independence if it did decided in favor of that deterrence force.

Therefore, Ukraine made a choice to dismantle the soviet nuclear missiles it inherited. Yet, it insisted on the right to manage its components as it saw fit as a successor state of the Soviet Union and demanded international security guarantees for its refusal to create its own nuclear deterrence force.

In the process of negotiating its non-nuclear-weapon state status, Ukraine had to solve many complex legal, financial, security, technical, organizational and other issues.

Theactualtalks were preceded by numerous contacts within the Ukraine-Russia-US triangle in the late 1991 and early 1992. During these contacts, Ukraine’s confirmation of its intention to get rid of soviet nuclear missiles was met with requirements to speed up the process at its ownexpense. No proposals were made on security guarantees. Speculations started spreading in Russian and western media questioning the sincerity of Ukraine’s intentions. Eventually, a massive campaign unfolded accusing Ukraine of attempts to establish control over soviet nuclear weapons, to get hold of it and to become a nuclear-armed state. Rare sober and objective publications did not have a very visible effect. This did not help create a good atmosphere for the subsequent talks.

The following factors put Ukraine in a very difficult position from the very beginning of these talks:

Firstly, the government of the newly-independent Ukraine had no clearly defined and consistent nuclear policy, or a carefully designed national position for negotiations on dismantlingsoviet nuclear weapons. 

Secondly, Russia and the US were negotiating from the position of force, pressingUkrainian leaders to quit the soviet nuclear arsenal in a rush and under the conditions that played against Ukraine’s national interests.

Thirdly, the emerging Ukrainiangovernmententities had to deal withthe far more powerful and experienced foreign affairs ministries, special services and propaganda mechanisms from both nuclear powers and their allies that often acted in a situational tandem.

Fourthly, dangerous crisis developments in Ukraine’s economy seriously undermined its capacity to resist the Russian-American pressure and accomplish better results in negotiations.

Ukraine’s position was shaped in the process of those negotiations, with different branches of government having different positions and a lack of a common vision of the goal and the final result of negotiations by their representatives that would best serve Ukraine’s national interests. Both Russia and the US used the lack of coordination in the actions of Ukrainian authorities.

They demanded a transfer of virtuallyall inherited soviet nuclear weapons from Ukraine’s territory to Russia while not responding adequately to its proposals on a fair compensation for the nuclear components of the warheads to be withdrawn, or on the funding for the dismantling of the warhead delivery vessels, shaft missile launch systems, missile fuel etc. These demands were accompaniedbyhidden and open threats of international isolation throughsanctions. The question of international security guarantees for Ukraine remained unanswered for a long time.

The situation changed for the better after a majority formed in the Verkhovna Rada that on November 18, 1993 passed the Resolution on the Ratification of the Strategic Arms Reduction Treaty between the Soviet Union and the United States of America signed on July 31, 1991 in Moscow and the Protocol supplementing it signed in Lisbon on May 23, 1992.

The Resolution clearly stated the conditions under which Ukraine could join the 1968 Non-Proliferation Treatyas a non-nuclear-weapon state and outlined specific question to be discussed in negotiations between Ukraine and the leading powers and international organizations.

As a result, the US became the third party to these negotiations. Its political establishment began to realize that Ukraine was not part of Russia but a self-standingand self-sufficient subject of international law with its own interests that deserved support. 

The US Administration reconsidered its “Russia and nobody else” and “Russia first” approach and refused to view the geopolitical space of the former Soviet Union as a sphere of Russia’s special interests. 

The trilateral talks between Ukraine, Russia and the US ended with the Trilateral Statement of the Ukrainian, Russian and American Presidents signed on January 14, 1994 in Moscow. It took into account some requirements of the Verkhovna Rada’s Resolution mentioned above but left most of others unanswered.

This was a forced but necessary compromise Ukraine accepted. It took into account more of Ukraine’s interests and pave a path towards the Budapest Memorandum.

Based on the Agreement between Ukraine and Russia on the dismantling of nuclear warheads dated September 3, 1993, and the Agreement on Measures to Implement the Trilateral Statement dated May 16, 1994, Russia supplied fuel elements for Ukrainian nuclear reactors in exchange for the withdrawal of nuclear materials from the dismantled warheads from Ukraine’s territory and provided US $1bnin otherassistance. It also agreed to compensate for a large portion of Ukraine’s debt on gas and oil.

The US allocated nearly US $900mn for Ukraine to cover the losses incurred by the countryas it dismantled soviet nuclear missiles on its territory. 

Obviously, Russia and the US compensated for just part of the losses faced by Ukraine from thedestruction of soviet nuclear weapons. According todifferent expert estimates, the nuclear materials from missile warheads were worth anywhere between US $70 and 100bn while all measures involved in the liquidation of soviet nuclear arsenal cost anywhere between US $3 and 5bn.

The signing of the Budapest Memorandum eliminated the risk of international isolation for Ukraine and reinforced its international position. But it did not lead to an effective international mechanism to guarantee its security.

Still, despite the serious flaws of the Budapest Memorandum and the concessions Ukraine was forced to make in demanding a fair compensation for its economic losses, the nation completed the difficult and tense negotiations, winning international authority and gaining important political capital.

 

The time of wasted opportunities

 

The US, their NATO allies and other Western democracies were open to constructive cooperation with Ukraine, treating it not as a defeated enemy but a partner that deserves confidence and support. The West was ready to provide Ukraine with wide-scale support in line with the “helping Ukraine means helping ourselves” approach. Ukraine should have used this cooperation, support and assistance to consistently reform the country, including by strengthening its democratic institutions, making its governance more effective, building a corruption-free political and economic system, creating a proper environment to draw foreign investment, implementing projects to get energy independence from Russia, solving social issues and more.

This did not happen as then-President Leonid Kuchma did not want to or was not able to act in the interests of the state rather than his family and corrupt oligarchic clans and implement a Ukrainocentric domestic and foreign policy rather than a multivector one with the main focus on Russia, a historically existential enemy of Ukraine. 

The window of opportunities to build a successful Ukrainian Ukraine closed not because the West lost interest in Ukraine after its soviet nuclear weapons were dismantled, but because Leonid Kuchma’s regime failed to make a determined geopolitical choice. The end of his presidency was marked by an attack against democratic processes in Ukraine, the halt to its modernization based on European and Euro-Atlantic values, the rejection of the course towards NATO under Russia’s pressure, and shrinking cooperation with the EU.

Weak and unsuccessful attempts to change the situation, make a determined civilizational and geopolitical choice by Kuchma’s successor Viktor Yushchenko were quickly folded under the subsequent presidency of Viktor Yanukovych. With his openly pro-Russian domestic and foreign policy while imitating openness to cooperation with the EU, Yanukovych initiated legislative declaration of Ukraine’s rejection of Euro-Atlantic integration and turned the Party of Regions he led into an organized crime group operating through government institutions and plundering the country.

Systemic flaws in Ukraine’s internal development and its geopolitical undecidedness throughout in the 20 years between the Budapest Memorandum was signed in 1994 and Russia’s aggression against Ukraine started in 2014 had the most damaging effect  on the national security which was almost entirely ruined under Yanukovych. The poor-quality elite that ruled Ukraine in these 20 years wasted the time that should have been used to reform the country and build powerful national armed forces and defense industry. Therefore, Ukraine’s current security challenges are rooted more in its imperfect security policy or a lack thereof rather than the flaws of the Budapest Memorandum.

 

Budapest Memorandum: a historical mistake or inadequate actions by Ukraine’s government?

 

Only the lazy are not linking Ukraine’s security challenges to the flaws of the Budapest Memorandum today. One often hears that it was a historical mistake for Ukraine to sign it. On April 12, Oleksandr Turchynov, Secretary of the National Security and Defense Council, said in an interview with journalist Dmytro Gordon that “Now, after all these developments [Russia’s armed aggression against Ukraine — Auth.] one can come to a conclusion which many will dislike: nuclear disarmament was our historical mistake. The security guarantees we were given are not worth the paper they were written on.” 

In this context, it’s important to note once again: what happened nearly 25 years ago was not nuclear disarmament of Ukraine, but a fixation of its status of a non-nuclear-weapon state. In the early 1990s, this was virtually inevitable and politically justified as it played an extremely important role in cementing Ukraine’s independent statehood.

A historical mistake had been committed by the ruling elite of Ukraine before the Budapest Memorandum was signed. That mistake of criminal negligence was to ignore Russia’s aggressive nature, recognize it as Ukraine’s strategic partner and not build modern national armed forces, equipping them with high-precision missile systems of non-nuclear deterrence.  

The flaws of the Budapest Memorandum manifested themselves in full scale in 2014 when Russia launched an aggressive war against Ukraine. But they had been perfectly obvious even before the document was signed.

Ukraine’s partners in negotiations that were supposed to become the guarantors of its security never made the Budapest Memorandum a legally binding international act, nor did they outline an effective mechanism of measures against the violators of Ukraine’s sovereignty and territorial integrity, including in cases where the violator was one of the guarantor states. Instead, the Memorandum just lists confirmation by its signatories to act according to the available UN Charter and Helsinki Final Act.

It is obvious today that the key reason that provoked Russia’s armed aggression was not just the flaws of the Budapest Memorandum, but the weakness of the Armed Forces of Ukraine and other components of national security. One was the lack of a consistent humanitarian policy in Ukraine focused on strengthening its national identity and ensuring political unity. 

In earlier discussions of a search for deterrence instruments alternative to nuclear weapons, some MPs and representatives of the defense establishment in Ukraine proposed to start creating modern armed forces armed with high-precision missiles with non-nuclear warheads of great destruction power. Their proposals were never answered.

Throughout the years of its independence, Ukraine imitated the development of its Armed Forces. In practice, this imitation has led to their degradation. The ideology of this approach to Ukraine’s military security was rooted in the fact that the the Russian threat was ignored while the Ukrainian establishment idealized the Budapest Memorandum as a crucial factor of guaranteeing Ukraine’s security.  

Oleksandr Turchynov builds his negative assessment of the past developments on the refusal of guarantor states to provide specific military assistance to Ukraine so that it could resist Russia’s aggression. What he forgets is the solid political support of Ukraine — including by the guarantor states — in condemning Russia’s aggression, materialized in the UN GA Resolution 68/262 on Territorial Integrity of Ukraine passed on March 27, 2014. It condemned the annexation of Crimea and called on the international community to not recognize the change in its status. Finally, western democracies have imposed sanctions against Russia which are painful, even if not massive. 

Indeed, international political support for Ukraine did not bring immediate and effective military assistance. This was not only caused by the flaws of the Budapest Memorandum, but by the inability of then-military leaders of Ukraine to quickly and clearly define the state’s position in countering Russia’s armed aggression, and to immediately and decisively respond to the aggressor’s actions at their earliest stage.  The minutes of the National Security and Defense Council session on February 28, 2014, shows that the only point on the agenda was “the issue of factual direct aggression against Ukraine by the neighboring country” (the name of the aggressor state was omitted). All of its participants except for Oleksandr Turchynov voted against the introduction of martial law in Ukraine. Apparently, they stood by the approach of then-Prime Minister Arseniy Yatseniuk who mistakenly insisted that the introduction of martial law would mean the declaration of war against the Russian Federation and trigger the invasion of the Russian army in continental Ukraine. 

The discussion centered around the feasibility of introducing martial law. Nobody, including Turchynov, even mentioned a simultaneous, gradual or alternative introduction of two regimes — martial law and state of war. This was probably because the participants wrongly interpreted them.

In his interview, Turchynov spoke about differentiation between these regimes. However, he inaccurately interpreted the martial law regime as the state of war — like Yatseniuk had done four years earlier. Talking about the measures he applied in that difficult initial stage of Russia’s attack against Ukraine, Oleksandr Turchynov justly blamed his critics, including some generals, of ignorance and inability to differentiate between “declaration of martial law” and “declaration of state of war”. However, he appeared as ignorant when he said that “In accordance with our Constitution and law, we have to declare a war (declare the state of war) in order to use the army and heavy weapons, and destroy the external enemy. Unfortunately, neither in 2014, nor now has Ukraine been ready to declare war against the Russian Federation which has one of the largest arsenals of weapons of mass destruction.”   

This approach shows that Turchynov does not know (or intentionally ignores) the Constitution and international law regulating interstate relations during international armed conflicts.

His statement on the declaration of war by Ukraine to Russia under the conditions when Russia has launched an aggressive war against Ukraine is devoid of logic or reason. With this approach, Ukraine’s protection of itself from the Russian aggression would have to be interpreted as an act of aggression against Russia.

The state of war always emerges automatically as a result of one state’s armed aggression against another regardless of whether the war has been declared or not, and regardless of the will or desire of the state that was attacked. Under modern international law, announcing the state of war by a state that was attacked cannot be viewed as declaration of war. It is only legal or political confirmation of an act of aggression committed against the state depending on what kind of a national act announces that state of war. Therefore, the interpretation of the state of war as the declaration of war is fundamentally wrong.

From the perspective of international law, an aggressive war that triggers the state of war is a fact of law and a legal foundation for the victim state to exercise its integral sovereign right to self-defense from aggression under Art. 51 of the UN Charter.

Art. 106.19 of the Constitution of Ukraine should be interpreted in this context, whereby the President “submits to the Verkhovna Rada of Ukraine a request to announce the state of war [highlighted by the author] and, in the event of an armed aggression against Ukraine, decides on the use of the Armed Forces of Ukraine and other military units established in compliance with the laws of Ukraine”. The same goes for Art. 106.20 whereby the President “decides in compliance with the law to introduce general or partial mobilization and martial law [highlighted by the author] in Ukraine or in some parts of it in the event of a threat of attack, threat to the independence of Ukraine.”  

The state of war mentioned in Art. 106.19 of the Constitution should be interpreted differently than martial law regulated by Art. 106.20 of the Constitution. The state of war is a legal recognition of the situation that appears in the event of an armed aggression against Ukraine, and the moment from which Ukraine begins to use its Armed Forces in line with Art. 51 of the UN Charter on the right of member-states to individual and collective defense from aggression.

Martial law introduces a temporary restriction of constitutional rights and freedoms to the extent necessary to guarantee national security not just in the event of an armed attack, but whenever a danger of such attack looms or in any other situations that threaten the independence of the Ukrainian State. Introduction of these regimes is a path to creating the best possible conditions for countering an armed aggression and protecting national security, and cannot be interpreted as a declaration of war in any event.

Both Oleksandr Turchynov who was Acting President, and President Petro Poroshenko who was elected on May 25, 2014, have refrained from exercising the powers to introduce the state of war as envisaged in It. 19 of the Constitution.  Following their decisions, the use of the Armed Forces and other military units to defend Ukraine from an aggression as stated in Art. 51 of the UN Charter was until recently qualified as the “anti-terrorist operation”.

Ukraine as a UN member has not used all the opportunities listed in Art. 51. It has not sent a formal notification on Russia’s armed aggression or on the measures applied to exercise its right to self-defense to the UN Security Council.

In his inaugural address on June 7, 2014, Petro Poroshenko stated briefly that “Russia had occupied Crimea” and that “a real war planned and launched in the Ukrainian Donbas is ongoing in Ukraine”. What he mostly spoke about was “violated peace inside the country”, “the policy of peace and calm in Ukraine”, and “peaceful dialogue within the country.”   

The Ukraine-Russia Treaty on Friendship, Cooperation and Partnership remained in effect, its Art. 1 stating that “the High Negotiating Parties as friendly, plenipotentiary and sovereign states found relations based on mutual respect and trust, strategic partnership and cooperation.” Diplomatic relations were not closed. There were no signs of Ukraine introducing sanctions against Russia as aggressor state.  

In other words, Ukraine had no clearly formulated, properly documented and publicly announced national legal position to qualify Russia’s actions as a crime of armed aggression and its treatment of Ukraine as that of aggressor state. In practical terms, the world viewed this as a confirmation of the myth claiming that the conflict in Eastern Ukraine was internal where Russia was not involved directly but was just providing support to insurgents in their armed struggle against the “fascist Kyiv junta”, which was actively spread by the Kremlin’s diplomats, special services and propaganda.

As Ukraine’s leaders were unable or unwilling to give a timely and accurate definition of the state’s position on countering Russia’s armed aggression and its consequences, the international community received a powerful misleading signal reinforced by the fifth column and pro-Russian political forces in western democracies. Under these conditions, Ukraine’s partners including the guarantor states refrained from providing military assistance to Ukraine, assuming that this would further provoke the expansion of Russia’s armed incursion into an internal Ukrainian conflict and aggravate it. 

In the context of Russia’s real conduct, the cynicism of the leaders in some Western democracies is obvious. Unfortunately, mistakes made by Ukrainian leaders have greatly contributed to the creation of foundation for this.

Therefore, the flaws of the Budapest Memorandum were not the only trigger of Russia’s armed aggression against Ukraine and a preventing factor in the delivery of weapons Ukraine needed to counter the aggression and make its Army more resilient.

 

Modern model to guarantee Ukraine’s security as a non-nuclear-weapon state

 

Russia’s aggression against Ukraine, the deaths and wounds of Ukrainian patriots and the suffering of civilians forced Ukrainian authorities to wake up and focus their efforts on developing the national armed forces, as well as going back to Ukraine’s vector at full-fledged NATO membership.

Some in Ukraine’s government and civil society responded to the ineffectiveness of the Budapest Memorandum by proposing that Ukraine drops its non-nuclear-weapon state status. On September 19, 2014, then-Defense Minister Valeriy Heletei said that Ukraine would be ready to return to discussing the restoration of its status as a nuclear-armed state unless it received security assistance from the West.

Draft laws and resolutions were registered at the Verkhovna Rada envisaging the rejection of Ukraine’s non-nuclear-weapon status and the developing of its own nuclear weapons. On March 25, 2014, Batkivshchyna and UDAR MPs registered a bill on Denouncing the 1968 Non-Proliferation Treaty.  

On July 3, 2014, Svoboda MPs registered a draft resolution on the Verkhovna Rada’s Statement on Restoring the Status of Nuclear-Armed State.

On December 6, 2016, Radical Party MPs registered the bill on recognizing the Law on Ukraine’s joining the Non-Proliferation Treaty invalid and restoring Ukraine’s rights on nuclear weapons.  

Two petitions were registered on the President’s website in September 2015 and January 2017 (under No22/006761 and 22/032437 respectively) to restore Ukraine’s nuclear potential. These were created by citizens Yaroslav Mykhailiuk and Ihor Yerushevskiy.

None of these initiatives were supported by the top political and military leadership of Ukraine, the Verkhovna Rada or civil society. Suffice it to say that the Defense Minister’s statement did not attract any spotlight, while the bills registered by MPs were not discussed at the parliamentary plenary sessions and petitions gained 71 and 181 votes out of the 25,000 needed for them to be reviewed. 

Meanwhile, the media still fuel the discussion on Ukraine’s rejection of the nuclear-weapon-state status by spreading critical expert opinions. The presence of this issue in the media space is harmful for Ukraine as it sets its allies and other members of the international community against it. It also feeds anti-Ukrainian operations of  Russian diplomats and propaganda. 

In practical terms, the idea of Ukraine developing its own nuclear weapons — even as deterrence against aggression — is counterproductive. If Ukraine begins to implement it, it will undermine its security. Developing such weapons is not a one-moment act, but a complex and lengthy process that takes huge financial resources, a lot of time and uniform support from society which Ukraine does not have. Quite on the contrary, if Ukraine did try to implement this idea, Russia would most likely expand its armed aggression against Ukraine and initiate anti-Ukrainian sanctions at the UN Security Council which would lead to international isolation of Ukraine.

This would push away its allies and partners and lead to sanctions against Ukraine instead of their assistance and sanctions against Russia. 

This would also end Ukraine’s cooperation with international financial institutions or the attraction of foreign direct investment, while Ukraine’s path to the EU and NATO would be blocked. Ukraine would remain facing Russia alone without even becoming a nuclear-armed state. This would lead to a real risk of losing independence. 

Unrealistic fantasies of some representatives of Ukrainian political and expert community should not distract it from developing and implementing policies aimed at building Ukraine-oriented army with motivated people and modern weapons and equipment. This includes people who suggest that Ukraine should demand the signatories of the Budapest Memorandum to improve it, recognize it as a legally binding international treaty, turn it into a multilateral international agreement or into bilateral defense agreements and so on.

The best guarantee for Ukraine’s national security in the modern context is reliance on its own Armed Forces coupled with full-fledged NATO membership. The development of Ukrainian Armed Forces should take place in close cooperation with NATO and its member-states, and follow NATO standards. Ukraine already has plenty of powerful organizational and institutional tools for this. These include the Ukraine-NATO Commission, the Annual National Program, the trust funds, the Enhanced Opportunities Program, the Comprehensive Assistance Package etc.

Ukraine’s priority in cooperation with NATO should be compatibility with its forces and steps to purging Russian agents from its security sector with schemes and methods like those used previously elsewhere in Central and Eastern Europe. The latest cleaning of a defense agency and special services from Russian agents took place in Montenegro in 2016. This allowed the country’s leaders to prevent a coup planned by Russia’s special services to halt its movement towards NATO membership.

An upgrade of Ukrainian defense industry focused on reforming and developing the shipbuilding, space and aviation sectors, and launching arms and equipment manufacturing projects with NATO countries should become an important element in Ukraine’s cooperation with NATO.

The specifically Ukrainian context requires consistent humanitarian policy to create effective resistance to Russia’s language, cultural, propagandist, historical and religious expansion as a critical tool in making Ukraine more resilient to Russia’s hybrid war. It is important to realize that the Armed Forces alone will not be able to resist Russia’s aggression if their mentality is poisoned by the Russian World ideologies. Instead, their mindset should be shaped on the basis of Ukrainian tradition and values. 

This means that Ukraine has to stop viewing the flaws of the Budapest Memorandum as the source of all of its security troubles and develop a modern strategy to reinforce its defense capacity, then implement it consistently on the national and international level.

RELATED ARTICLE: Volodymyr Vasylenko: “Government bodies were first and foremost responsible for a civilized regulation and solution of the conflict”

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BIO

Volodymyr Vasylenko is an expert in international law, a statesman and academic. Born in 1937 in Kyiv, he graduated from the Law Department of the Kyiv Shevchenko University in 1959, and earned his L.D. in International Law in 1964. In 1972-1992, he worked as legal advisor to the Ministry of Foreign Affairs. He was delegate to the founding meeting of the People’s Movement of Ukraine (Narodnyi Rukh Ukrayiny), and member of the assembly committee and the First Convention of the Great PMU Council. In spring 1990, he drafted the first version of the Declaration on State Sovereignty of Ukraine, then participated in the drafting of the final act as consultant to the Verkhovna Rada. In 1992-1995, he served as Ukraine’s Ambassador to Benelux and representative to the EU and envoy to NATO. In 1998- 2002, he was Ambassador to Great Britain and Ireland. Mr. Vasylenko represented Ukraine at the UN General Assembly many times. In 2001, the UN General Assembly elected him member of the International Criminal Tribunal for Yugoslavia where he worked as a judge until January 2005. In 2006- 2010, Vasylenko represented Ukraine at the UN Human Rights Council. In 2010, he was Ukraine’s envoy to the International Court of Justice in the Romania versus Ukraine case. He is currently member of the People’s Committee to Protect Ukraine, a merited lawyer of Ukraine, Ambassador Extraordinary and Plenipotentiary of Ukraine, Doctor of Law, and professor.

 

Translated by Anna Korbut 

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