Constitution Check: Does a 1994 diplomatic agreement commit the U.S. to defend Ukraine?

Lyle Denniston looks at the Budapest Memorandum, a 1994 deal between the U.S., Britain and Russia about Ukraine, which wasn’t ratified by the U.S. Senate but may become a factor in the crisis there.

Kiev_2THE STATEMENTS AT ISSUE:

“With tension rising in Crimea and pro-Russian forces controlling the peninsula’s main airports, Ukrainian Prime Minister Arseniy Yatsenyuk has called on Russia to ‘not violate the Budapest  Memorandum.’…In the Memorandum, Russia, the United Kingdom, and the United States promised that none of them would ever threaten or use force against the territorial integrity or political independence of Ukraine…All sides agreed that no such occupation will be recognized as legal…”

 – Ron Synovitz, a writer for Radio Free Europe/Radio Liberty, in a story February 28 seeking to explain “The Budapest Memorandum and Its Relevance to Crimea.”  The story quoted a U.S. law professor as saying that the agreement “is binding in international law, but that doesn’t mean it has any means of enforcement.” (Radio Free Europe/Radio Liberty is an international broadcaster, funded by Congress, that seeks to reach audiences in countries without a free flow of information.)

“As of 2014, this Memorandum has not been ratified, which means it is not a legally binding international agreement and there are no means to enforce it.  The Budapest Memorandum on security assurances in exchange for denuclearization cannot be applied to the new Ukrainian government that came to power as a result of a revolution, Russia’s President Vladimir Putin has said.”

 – Story broadcast March 5 by The Voice of Russia, the government of Russia’s official international radio network, discussing “facts you didn’t know” in an apparent response to the Radio Free Europe/Radio Liberty report on the Budapest Memorandum and its potential impact in the Ukraine crisis.

WE CHECKED THE CONSTITUTION, AND…

Decades of wars, invasions, military threats, and broken promises of peaceful intent have enveloped in legal fog the Constitution’s simple declaration that America’s diplomatic obligations are binding on government as “the law of the land.”   So when President Obama and Secretary of State John Kerry spoke in recent days about what the U.S. government will do about the menacing use of Russian troops in the Ukraine crisis, it is far from clear just how they are reading their constitutional duties under a diplomatic pact called the “Budapest Memorandum,” which they cited.

That was a very important international agreement – at least when the governments of the U.S., Britain and Russia signed it in December 1994, as part of a deal to remove nuclear weapons from the territory of the newly independent Ukraine, after it had emerged from the Soviet Union.  While those three nations committed themselves to the integrity of Ukraine’s borders, they did not include any promises about how they would defend that nation if its territory were actually to be invaded.

In the current crisis facing Ukraine, however, it is clear that U.S. government leaders are using the Memorandum as the basis for claims that Russia is acting illegally, and that, therefore, there must be some kind of response by the other signers of that agreement, if not from the international community in general.  Thus, the official U.S. position is that the Memorandum is, in fact, legally binding.

There is not even a hint, so far, that U.S. officials are preparing a military option as a way to enforce that agreement, but Russian President Putin does seem to have developed at least of measure of concern about that, since he is making an argument – on his own and through the “Voice of Russia” network – that the Memorandum is no longer binding, if it ever had been.  That was intended, of course, to preserve Russia’s options.

Under U.S. constitutional history, whether one considers the Budapest Memorandum to be a formal treaty or something less (because it has not been ratified by the Senate), that does not settle the issue of whether it can compel action by the U.S.   Any kind of diplomatic promise is not automatically self-executing; it gets that enforceable status only if it has been implemented by an act of Congress.  Absent that, though, Presidents can use such agreements as justification for actions that they choose to take, using the Executive powers that they claim are assigned directly to the White House by the Constitution.

So, in coming days, the Budapest Memorandum is likely to continue to play a role at least as a justification for a series of steps in response to the crisis along Russia’s southeastern border.   From all public appearances, it seems that the first steps will be to enlist other nations in condemning the Russian troop movements, then to arrange a series of unilateral or multilateral economic squeezes on Russian trade and financial assets, along with an infusion of money into Ukraine’s sagging economy.

If those initial efforts do not deter Russia from further menacing gestures, especially toward the western part of Ukraine (which has distinct pro-European, rather than pro-Russian, tendencies), then U.S. and multilateral efforts might take new forms, such as explicit – and well-publicized — movements of U.S. naval vessels closer to the Crimea area of Ukraine, where President Putan has made the initial deployment of soldiers.

Along the way, Americans paying attention to what their government is doing about this overseas crisis almost certainly will be hearing more about the Budapest Memorandum, and the U.S.-Russia debate over what it means, or does not mean.  However, that focus on a 20-year-old diplomatic pact will be a new sign of how core constitutional questions about the use of government power in a time of global threat so seldom come up as a central part of the discussion.    The Constitution’s Treaty Power clause, like the War Powers clause, has continued to recede in the public conversation about American reactions to global danger.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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