Ambassador Jack Matlock on Ukraine, Russia, and the West's Mistakes
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.
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