In 1994, the United States, United Kingdom, and Russia signed the Budapest Memorandum, offering security assurances to Ukraine in exchange for giving up its nuclear weapons and joining the Non-Proliferation Treaty. If the U.S. were to end its support for Ukraine and instead impose sanctions or other non-military coercive measures against Ukraine, could this shift violate U.S. commitments under the memorandum? Even if the memorandum is considered a political agreement rather than a legally binding treaty, could principles of international law — such as good faith legitimate expectations, or estoppel — prevent the U.S. from taking such actions?
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The status of this particular memorandum is unresolved at international law.
What makes obligations at international law
Another answer explains the recognized sources of obligations in international law: What gives rise to binding obligations at international law?
- treaties,
- customary international law, and
- unilateral declarations.
When would a memorandum create binding obligations?
For an example where the International Court of Justice had to determine whether a memorandum created obligations at international law, see Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment, I.C.J. Reports 2017, p. 3, especially paragraphs 36–50.
Arguments both ways regarding the Budapest Memorandum
Some view the Budapest Memorandum as not creating any new binding obligations. See e.g. Robert Lawless, "Ukraine Symposium – The Budapest Memorandum's History and Role in the Conflict":
The Budapest Memorandum is not a treaty and did not reflect any new international legal obligations for any of the signatory States. Rather, the Memorandum was meticulously drafted to avoid giving any impression of legal obligation.
However, other commentators note that the above meticulous avoidance was only in the English version. A deeper comparison between the multi-language versions of the memorandum reveal ambiguity. See Mykhailo Soldatenko, "Constructive Ambiguity of the Budapest Memorandum at 28: Making Sense of the Controversial Agreement":
the signatories designed the memorandum’s text in such a way that it could be reasonably interpreted both as a treaty under international law and as just a political deal. Ukraine could treat the memorandum as a treaty, among other things, for the NPT ratification by its parliament, while the guarantors reserved the opportunity to claim its political nature.
International law provided the signatories with perfect conditions to do so. An international practice can be divided roughly into two tests to define when states intended an agreement to be “governed by international law” under the 1969 Vienna Convention on the Law of Treaties (VCLT). While both tests examine the same factors—such as the agreement’s text, substance, and conditions of conclusion—the difference lies in the primacy of either actual intent (intent test) or its objective manifestation (objective test). There is no uniformity between international tribunals on the uniform criteria in this regard, let alone between states. Things are complicated further by the fact that a binding agreement may contain political commitments.
Against this legal background, the states constructed the ambiguous wording, among other things, by putting different terms in equally valid English, Ukrainian, and Russian texts. Namely, Ukrainian and Russian texts were not just translations but, rather, authentic texts of the memorandum on a par with the English text.
He goes on to summarize that:
- the memorandum does not expressly state its nature as treaty or political commitment
- the label "memorandum" does not preclude it being a treaty under the Vienna Convention on the Law of Treaties
- the English version refers to assurances, but the Ukranian and Russian versions refer to guarantees
- the versions differed in how they described the coming-into-force of the memorandum, also creating ambiguity as to its status.
Jen
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