Posted on March 11, 2024



Sorry, Dahlink

If Budapest is toothless, then so is Article 5


Daniel Clark



In a March 1st posting on the National Review blog "The Corner," Michael Brendan Dougherty set his sights on an easy target in retiring senator Mitt Romney, but misfired. In response to a recent interview the former presidential candidate gave to CNN, Dougherty wrote, "First problem is that [Romney] mischaracterizes the Budapest memorandum as pledging us 'to help defend the people of Ukraine.' It does no such thing, and it cannot be construed that way."

Okay, so the memorandum makes no mention of "the people of Ukraine." What it does say is that its signatories (the United States, Great Britain and Russia) "reaffirm their commitment ... to respect the independence and sovereignty and the existing borders of Ukraine," and that they "reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine." Romney understands this (or construes it, if you will) to amount to a defense of the Ukrainian people. How reasonable is it to draw a semantic distinction, as Dougherty does, such that a multilateral agreement to respect a nation's sovereignty and political independence is not essentially a defense of its people?

As long as Dougherty insists on parsing words, it must be pointed out that there is a difference between a pledge and a commitment. A pledge is a binding promise. When Dougherty says that the Budapest Memorandum "does not pledge military aid," he is correct, because the document does not spell out what must be done in the event of a violation. Romney did not use the word "pledge," though. What he said was that failure to support Ukraine "will make it very clear to people around the world that you really can't trust America's word, because we made a commitment in 1994 to respect the sovereignty of Ukraine, to help defend the people of Ukraine if they were attacked." In fact, the commitment of all three nations to respect Ukrainian sovereignty is right there in the document.

The Budapest Memorandum is not a treaty. It is an agreement that was signed by President Bill Clinton, Prime Minister John Major and President Boris Yeltsin, to persuade Ukraine to turn its Soviet-era nuclear weapons over to Russia, presumably to be destroyed. Ukraine understood that Russia had designs on conquering it, and would never have trusted a simple promise from its government that it would not invade. The guarantee of security that convinced Ukraine to give up its nuclear deterrent came from the United States. Nobody ever supposed that there was a need for the U.S. and Britain to promise not to violate the territorial integrity of Ukraine. The Ukrainians surrendered their nukes with the understanding that the Western powers would hold Russia to the agreement. Admittedly, the deal does not contain a "pledge" of military aid, but our commitment could hardly be more clear.

In the absence of a mechanism to compel us to honor that commitment, opponents of aid to Ukraine are taking the Animal House approach, telling the Ukrainians in so many words that they screwed up. They trusted us. In addition to the basic immorality of that, it would obviously become a negative factor in any negotiation our country has with any other country in the foreseeable future. Certainly any similar attempt to contain nuclear proliferation would be a nonstarter, after we had created the very outcome that the Budapest Memorandum was designed to prevent. Not only that, but doubts would be cast over all of our already existing international commitments, including those to our NATO allies.

The common understanding of Article 5 of the NATO Charter is that if Russia were to invade an NATO member state, all other members of that organization would then be at war with Russia, but that isn't necessarily the case. What Article 5 says is that in the event that one party is attacked, each of its NATO allies "will assist the Party or Parties so attacked by taking forthwith, individually or in concert with the other Parties, such actions as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area." This does not compel the use of armed force, but only suggests it among those actions a party may deem necessary. What if we deem it not to be?

For example, Russia has put Estonian Prime Minister Kaja Kallas on a wanted list, for her alleged crime of tearing down Soviet-era monuments. In Estonia, that is. This has been widely dismissed as a symbolic action, but what if it isn't? The obvious message behind it is that the Russians believe Estonia is theirs over which to rule. If Russia were to launch an operation into Estonia, a NATO country, for the purpose of apprehending Kallas, how would America respond?

If we read Article 5 the same way Dougherty reads the Budapest Memorandum and W.C. Fields read the Bible ("looking for loopholes"), we will notice that it does not mandate military action. Economic sanctions and diplomatic isolation against Russia are pretty well maxed out, however, which would seem to leave few non-military options. In our current political climate, it wouldn't be long before somebody proposed that we "assist" Estonia by deeming it necessary for it to turn over Kallas for trial in Russia, in hopes that this concession would end the conflict, thereby restoring the security of the North Atlantic area.

That wouldn't be too different from the advice that self-described realists are now offering about Ukraine. For that country's own good, they say, we must encourage it to surrender territory to Russia, and assume that Russia will be satisfied with that outcome. Part of this encouragement would be the withholding of aid, which the Ukrainians would only use to prolong their suffering anyway. In order to save Ukraine from itself, the argument goes, we must pressure it into accepting defeat. Of course, such an arrangement would only buy Russia time to replenish itself until it was prepared to attack again, but the assumption here is that Ukraine is a goner anyway. "Realism," don't you know. The important thing is that America will have been extricated from the conflict.

That's a heck of a message to deliver to our allies in NATO and around the globe. First, we rally them to our side with a rousing Prince Hal speech, and then we retire in solitude to the tavern like Falstaff once the fighting begins. What's worse is what it says to our adversaries, including Vladimir Putin. Once he has seen us welch on our commitment to Ukraine, invading a NATO member like Estonia might strike him as a brilliant tactical maneuver. If America backs down, based on the dubious assertion that we are not pledged to defend the people of Estonia, the whole alliance will be exposed as a perfidious fraud.

At this time, it might seem as if Russia lacks the wherewithal to launch another invasion, but perhaps it just needs to pick its opponents more carefully. According to Global Firepower, a think tank that measures the relative military strength of nations, Ukraine ranks #18 out of 145. Estonia is #87, Lithuania #88 and Latvia #99. If we help Russia negotiate its way out of its Ukrainian morass, surely it remains powerful enough to gobble up these far tinier neighbors, once the inhibition imposed by the NATO alliance has been lifted. It can always come back for another bite out of Ukraine when it is through.

Maybe the American political opponents of Ukraine don't see anything wrong with that. Maybe the disintegration of NATO is part of what they've been after all along, which appears to be an abdication of American leadership around the world. If that's the case, then they have a responsibility to the American people to make that argument publicly and be willing to defend it, even if they are not pledged to do so.



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