Insecurity Assurances: Asserting Human Rights to Remedy Breaches of Security Assurances
Vol. 39 Associate Editor
In 1994, Ukraine’s then-President Kuchma surrendered the remaining portion of the Soviet nuclear arsenal on Ukraine’s territory for security assurances from the United Kingdom, the United States, and the Russian Federation. The language of the agreement reflects a delicate power balance at the end of the Cold War and, at the time, was a solution to a potential crisis of nuclear weaponry falling into nefarious hands. The Budapest Memorandum on security assurances to Ukraine turns twenty-three this year, but the last three years of Russian-Ukrainian relations have rendered the security assurances of the agreement moot. Although ninety-three states have signed and 191 states are party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the number of states that have had nuclear weapons and surrendered them to become non-nuclear states is quite low. In fact, the three former Soviet states which signed the Budapest Memorandums – Ukraine, Belarus, and Kazakhstan – and South Africa are the only ones which possessed nuclear weapons and voluntarily became non-nuclear states. Additionally, these four cases of nuclear disarmament occurred at major turning points in each state’s security, with South African disarmament occurring after a ceasefire agreement in a regional conflict connected to the Soviet Union; and Ukraine, Belarus, and Kazakhstan following independence after the collapse of the Soviet Union. While South Africa unilaterally dismantled its nuclear program and signed the NPT, the former Soviet states agreed to do so after receiving security assurances from the Russian Federation, the United States, and the United Kingdom. Relinquishing weapons in exchange for promises of protection is not new or innovative. Weapons for deterrence are less necessary when someone else is shouldering the burden of deterring threats or the threat no longer exists in the same manner. What makes Ukraine’s disarmament unique, however, is the signed agreement by perennial adversaries confirming:  respect for “the independence, and sovereignty and the existing borders of Ukraine,”  “obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except in self-defence or otherwise in accordance with the Charter of the United Nations,” and  that they would “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.” While these assurances are provided for in various ways under other international treaties – including the United Nations Charter – under the Vienna Convention on the Law of Treaties (VCLT), Article 2, Section 1(a), Ukraine’s agreement in Budapest meets the criteria of a treaty and Ukraine relied on these assurances when it became a non-nuclear state. Unfortunately, the Budapest Memorandum did not outline enforcement mechanisms should a party violate the agreement. The NPT provides Ukraine’s duties once it disarmed and it is not difficult to imagine the penalties it would face for rearmament, but there is relative silence on penalties for the other parties breaching the agreement. Article 60, Section 2 of the VCLT provides one course of action for when a state causes a material breach of a multi-lateral treaty. For a party especially affected by the breach, in this case Ukraine, it may, “invoke [the breach] as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State.” Russia annexed Crimea and sent weapons and military personnel to fight alongside separatists in the Donbas in early 2014, blatantly violating the Budapest Memorandum, among other international laws. According to the VCLT, Ukraine would be able to invoke this as grounds for suspending the treaty and, at least in theory, would be able to suspend its own performance of its treaty obligations. This would mean Ukraine having the right to leave the NPT and redevelop nuclear weapons, which is fortunately something that even hawkish Ukrainian leaders would not support. Instead, sanctions from the United States and Western Europe and ongoing negotiations in Minsk have been the route for restoring peace in the post-Soviet world. Progress, if any, is slow, but much preferable to Ukraine rebuilding the world’s third largest nuclear arsenal. The development of nuclear weapons did not end in the early 1990s, of course, and the five states which signed the NPT as nuclear states – the United States, United Kingdom, Russian Federation, China, and France – have been negotiating and will continue to negotiate disarmament of other states with varying degrees of nuclear capabilities. Some have wondered whether Russia’s actions in 2014 make creating a legal agreement for the nuclear disarmament of North Korea even more challenging. To imagine what a treaty for North Korean disarmament would look like, past agreements provide hints, but the answer remains elusive. There would need to be an immense shift in politics and leadership in North Korea, considering both current global leadership and past precedent, for voluntary disarmament to be realistic. While North Korea’s weapons are not used exclusively for deterrence, as weapons in the Cold War were, it is conceivable that disarmament would resemble that of Ukraine, Belarus, and Kazakhstan towards Russia, with China being the recipient of North Korean weapons as the closest ally nuclear state. Reflecting on the Donbas, however, North Korea would most likely seek more concrete terms for security assurances and penalties for breach from Russia, the United States, and, of course, China should a change in leadership come to Pyongyang. For states with nuclear weapons and stronger ties to the international community, such as India and Israel, it is conceivable that the events in the Donbas and Crimea will discourage the process of becoming non-nuclear state signatories of the NPT. So, then what legal remedies exist for Ukraine after this breach, since leaving the NPT and returning to nuclear state status is not realistic? Ukraine filed a claim in the International Court of Justice against Russia in January 2017 under violations of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Court’s decision in April 2017 requires the Russian Federation to refrain from imposing “limitations on the ability of the Crimean Tatar community to conserve its representative institutions, including the Mejlis” and to “ensure the availability of education in the Ukrainian language” under the obligations of CERD. On the question of aggression in Eastern Ukraine, the claim made by Ukraine regarding Russian financing and support of separatist groups under the Terrorism Financing Convention, the Court avoided making a direct ruling. Instead, the court “remind[ed]” Ukraine and Russia of the Security Council’s endorsement of the ‘Package of Measures for the Implementation of the Minsk Agreements’” and said that it expects the parties to work together to achieve full implementation. As of late October 2017, battles continue in the Donbas, with four Ukrainian soldiers killed and four wounded on October 25, 2017 alone. Another forum for Ukraine to pursue claims is in the European Court of Human Rights. The European Convention on Human Rights (ECHR), to which both Ukraine and Russia are signatories, guarantees rights to property, free elections, prohibition of discrimination, freedom of movement, a right to life, and a right to respect for family life. Ukrainian individuals from Crimea and the Donbas region who have been personally impacted by the war have human rights claims against the Russian Federation, some for multiple violations of the previously mentioned protected rights. Ukraine could file on behalf of its citizens, and argue that it surrendered a powerful form of deterrence to the Russian Federation for specific security assurances; that this form of deterrence could have reasonably prevented the Russian Federation from annexing Crimea and providing such support to separatists; that the Russian Federation violated these security assurances and was the direct cause of human rights violations in Ukraine; and that the Court, in order to recompense Ukrainian citizens for the human rights abuses they have suffered, must obligate the Russian Federation to set up a fund to be paid to Ukrainian victims and their executors and compensate Ukraine for costs associated fighting back against the human rights of its citizens. While this is imperfect, of course, and will likely not remove the Russian Federation from Crimea, it may put pressure on the state to decrease or stop support for separatists in the Donbas because of the additional financial burden. This, of course, assumes the Russian Federation would pay into such a fund, and thus may require additional sanctions by European countries who are signatories of the ECHR. Where diplomacy has failed to provide a solution, perhaps international courts can provide some relief for those most seriously impacted and make supporting continued aggression in the Donbas less appealing. Should Ukraine pursue such a case in the European Court of Human Rights and succeed, this could provide a useful precedent for answering what happens when a treaty on security assurances is breached by a powerful state.
 Leonid Kuchma held office from 1994 through 2004, when the Orange Revolution erupted partially in response to vote rigging in favor of his handpicked successor, Viktor Yanukovych. During his tenure, his government was criticized for anti-democratic practices. More recently, Mr. Kuchma was a negotiation representative for Ukraine during the Minsk Agreements to end the war in the Donbas. Mr. Yanukovych lost the 2004 election, eventually became President of Ukraine in 2010, and fled Ukraine in February 2014 during the Euromaidan protests.  Ukraine signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear state, surrendered its weapons to the Russian Federation, and received security assurances from the United Kingdom, United States, and Russian Federation. Permanent Rep. of Ukr. to the U.N., Permanent Rep. of Russ. to the U.N., Permanent Rep. of the U.K. to the U.N., & Permanent Rep. of the U.S. to the U.N., Letter dated Dec. 7, 1994 from the Permanent Rep. of Ukr. to the U.N., the Permanent Rep. of Russ. to the U.N., the Permanent Rep. of the U.K. to the U.N., & the Permanent Rep. of the U.S. to the U.N. to the Secretary-General, U.N. Doc. A/49/765 (Dec. 19, 1994), http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_1994_1399.pdf (hereinafter “Letter from the Permanent Reps. to the U.N. from Ukr., Russ., U.K., & U.S. to the Secretary-General”). Belarus and Kazakhstan signed similar agreements to surrender their weapons, though there were far fewer to remove. At the time it surrendered its weapons, Ukraine had the third largest stockpile in its possession. Taras Kuzio, The Crimea: Europe’s Next Flashpoint? 37 (2010), https://www.peacepalacelibrary.nl/ebooks/files/372451918.pdf.  The text of the agreement emphasizes respect for Ukraine’s political independence and borders, refraining from economic coercion and using weapons against Ukraine, and providing assistance should Ukraine be threatened by nuclear weapons. Letter from the Permanent Reps. to the U.N. from Ukr., Russ., U.K., & U.S. to the Secretary-General, supra note 1.  The Budapest Memorandum was signed in December 1994. Letter from the Permanent Reps. to the U.N. from Ukr., Russ., U.K., & U.S. to the Secretary-General, supra note 1. In February 2014, Russian special forces began an occupation of the Crimean Peninsula, a territory legally part of Ukraine, which continues today. In March 2014, violence erupted in the Donbas region of Eastern Ukraine, soon after becoming a war in which the Russian military has provided weapons, personnel, and other support to separatist forces and engaged with the Ukrainian military.  Treaty on the Non-Proliferation of Nuclear Weapons: Status of the Treaty, United Nations Off. for Disarmament Aff., http://disarmament.un.org/treaties/t/npt (last visited Oct. 29, 2017).  Interestingly, the development of a nuclear arsenal in South Africa was based on deterrence, partially due to a fear of attacks by regional Soviet allies using Soviet weapons. J. W. de Villiers, Roger Jardine, & Mitchell Reiss, Why South Africa Gave Up the Bomb, Foreign Aff., Nov.-Dec. 1993, https://www.foreignaffairs.com/articles/south-africa/1993-12-01/why-south-africa-gave-bomb. The Nuclear Threat Initiative explains that following a cease-fire with Angola, “improved security of South Africa’s borders proved pivotal to the country’s decision to dismantle the nuclear weapons program.” South Africa, Nuclear Threat Initiative, http://www.nti.org/learn/countries/south-africa/nuclear/ (last visited Oct. 29, 2017).  South Africa, supra note 6.  Letter from the Permanent Reps. to the U.N. from Ukr., Russ., U.K., & U.S. to the Secretary-General, supra note 1, at 2.  “1. For the purposes of the present Convention: (a) “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Vienna Convention on the Law of Treaties, art. 2(1)(a), May 23, 1969, 1155 U.N.T.S. 331, https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf.  In September 2014, Leonid Kuchma, the Ukrainian signatory of the agreement and President at the time, said that Ukraine had been “cheated” by the Budapest Memorandum after Russian aggression in Crimea and the Donbas. Other Ukrainian leaders have expressed similar sentiment. Steven Pifer, The Budapest Memorandum and U.S. Obligations, Brookings Inst. (Dec. 4, 2014), https://www.brookings.edu/blog/up-front/2014/12/04/the-budapest-memorandum-and-u-s-obligations/. The text of the Budapest Memorandum also signals that the security assurances were made in direct relation to Ukraine agreeing to disarm and sign the NPT. “Upon instructions from our Governments, we have the honour to transmit herewith the text of the Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons, signed on 5 December 1994 by the Presidents of Ukraine, the Russian Federation and the United States of America, and the Prime Minister of the United Kingdom of Great Britain and Northern Ireland (annex I), and the text of the Joint Declaration issued on 5 December 1994 by the leaders of our States (annex II).” Letter from the Permanent Reps. to the U.N. from Ukr., Russ., U.K., & U.S. to the Secretary-General, supra note 1, at 1.  Vienna Convention on the Law of Treaties, supra note 9, at art. 60(2)(a).  Terrorism Financing Racial Discrimination in Ukraine (Ukr. v. Russ.), Application Instituting Proceedings, 2017 I.C.J. (Jan. 16), http://www.icj-cij.org/files/case-related/166/19314.pdf.  Application of International Convention for Suppression of Financing of Terrorism and of International Convention on Elimination of All Forms of Racial Discrimination (Ukr. v. Russ.), Order, 2017 I.C.J. (Apr. 19), ¶ 102, http://www.icj-cij.org/files/case-related/166/19394.pdf.  Id. at ¶ 103-04.  ATO News: Situation Update, east of Ukraine as of morning, Ministry of Def. of Ukr. (Oct. 25, 2017), http://www.mil.gov.ua/en/news/2017/10/25/ato-news-situation-update-east-of-ukraine-as-of-morning-october-25-2017/.  Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20.III.1952, Art. 1, https://rm.coe.int/168006377c.  Id. at Art. 3.  Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4.XI.2000, Art. 1, https://rm.coe.int/1680080622.  Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 16.IX.1963, Art. 2, https://rm.coe.int/168006b65c.  Convention for the Protection of Human Rights and Fundamental Freedoms, 4.XI.1950, Art. 2, https://rm.coe.int/1680063765.  Id. at Art. 8.