Yes, America has an obligation to help defend Ukraine

When the former Soviet republics declared independence in the early 1990s, Ukraine became the owner of the world’s third-largest nuclear arsenal. At the time, American leaders seemed to think that, as far as our own security was concerned, Russia would be a safer repository than Ukraine for nuclear arms.

We were, to be sure, a bit enamored — first with Soviet President Mikhail Gorbachev and then with Russian President Boris Yeltsin. In retrospect, it is unclear which was more mystifying: thinking that Russia would be a better friend to America than Ukraine, or thinking that Ukraine could be a bigger threat than Russia to America.

Be that as it may, the U.S. applied tremendous pressure on Ukraine to surrender its nuclear arms to Russia and to sign a pledge to become a non-nuclear state. At the time, Ukraine possessed long-range bombers that could deliver nuclear bombs, intercontinental ballistic missiles with nuclear warheads and a range of tactical nuclear arms. Ukraine at first resisted American pressure because, as its leaders said, it feared yet another repeat of Russian imperialism.

But after numerous negotiations and much American arm-twisting, the Ukrainians agreed to our demands. That agreement was memorialized in what is referred to as the Budapest Memorandum, signed by Ukraine, the U.S., the United Kingdom and the Russian Federation in 1994.

The Budapest Memorandum is something of an odd document. It was executed in three languages — English, Ukrainian and Russian. The English-language version is titled “Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons.” The title of the Ukrainian version starts “Memorandum on Security Guarantees” — not “Assurances.”

Ukrainian negotiators have maintained that America promised that if Ukraine were attacked, the U.S. would respond in defense. Former Amb. Steven Pifer, a member of the U.S. negotiating team, has confirmed to me that indeed, although never providing a NATO Article Five-type guarantee, American negotiators did promise the Ukrainians that if they were invaded, the U.S. would take an interest and act in their defense.

But what is perhaps most striking about the Budapest Memorandum is the extraordinary imbalance in bargaining power among the parties. Between 1991 and 1994, the U.S. and Russia basically ganged up on Ukraine to pressure it to denuclearize. Ukraine did do, destroying or transferring to Russia its bombers and rockets.

Some have since argued that, because it is very expensive to maintain a strategic nuclear arsenal, and because it was then undergoing a difficult economic transition, Ukraine would not have been able to afford to maintain the bombers and rockets whose nuclear warheads required frequent and expensive refueling. Perhaps. But during that same three-year pressure campaign, Russia also managed in 1992 to surreptitiously extract for itself the tactical nuclear arms located in Ukraine. Tactical nuclear arms are much easier and less expensive to maintain and would today serve as a valuable deterrent.

When two parties with very unequal bargaining power reach agreement, often because the much weaker party is acting under duress, and the weaker party performs its part of the deal, courts sometimes try to fix the bargain to make it less unfair. To be sure, there are no international courts as there are domestic courts that could force America or Russia to act in compliance with their respective promises in the first paragraph of the Budapest Memorandum, in which they reaffirmed “their commitment to Ukraine ... to respect the Independence and Sovereignty and the existing borders of Ukraine.” But the lack of such a court does not make America’s moral and political obligation disappear.

The U.S. placed intense pressure upon Ukraine to denuclearize, although, given the repeated invasions that Ukraine had endured over the preceding century, it was not in Ukrainian interest to do so fully. But Ukraine did completely denuclearize, as the U.S. had insisted and as memorialized in the Budapest Memorandum.

Since then, Ukraine has twice been invaded by Russia, in 2014 and 2022. Based on the promises it made to Ukraine and on the nature of the negotiations it conducted, the U.S. has an obligation — short of boots on the ground — to provide Ukraine with what it needs to defend its territorial integrity and political independence. Pretending that we have forgotten all about the Budapest Memorandum and the negotiations leading up to it won’t wash, and it certainly is not befitting a great power to ignore its past promises.

Bohdan Vitvitsky is a retired federal prosecutor who served as a resident legal advisor at the U.S. Embassy in Ukraine.

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