Can Ukraine legitimately get nuclear weapons

  • 21.02.2022

Author: Ivan Horodyskyi

NB! This document analyzes only the legal and political sides of the issue, not considering real Ukraine’s capacity to create nuclear weapons.

Political statements regarding the Budapest Memorandum as well as criticism of nuclear disarmament that occurred in the 1990s regularly appear in the media space and provoke active discussions in the society. But these discussions normally do not take into account the legal and political context of Ukraine’s giving up nuclear weapons as well as its international commitments. Any steps related to Ukraine’s repudiation of its commitments related to nuclear disarmament and any initiatives towards restoration of its nuclear status may trigger tough international reaction and weaken the positions of our state in the foreign policy.

Ukraine acquired its non-nuclear status in 1994 when it signed the Budapest Memorandum and gave up nuclear weapons it possessed after the collapse of the USSR. Politicians and representatives of the authorities regularly call into question the expediency of this giving up with their statements and assume the possibiltiy of repudiating the commitments undertaken by Ukraine under the Budapest Memorandum. That evokes active discussions in the society around the possibility of nuclear weapons acquisition by Ukraine.

However, the following issues are not being discussed: will rejection of the Budapest Memorandum create legitimate grounds for rejecting Ukraine’s non-nuclear status? Does Ukraine have any other international commitments related to nuclear disarmament? What could be the consequences of the steps aimed at own nuclear program development for Ukraine?


Ukraine’s commitments concerning rejection of nuclear weapons

The nuclear disarmament initiative was launched by Ukraine and was of a unilateral nature right from the beginning. The movement towards the non-nuclear status could be seen back in the Declaration of State Sovereignty of Ukraine as of July 16, 1990, where it was indicated that “the Ukrainian SSR... shall follow three non-nuclear principles: not to accept, not to produce, and not to acquire nuclear weapons”. Already after the proclamation of Independence on October 24, 1991 the Verkhovna Rada passed the Statement on Non-Nuclear Status of Ukraine, which indicated the following: “Ukraine will carry out the policy aimed at complete destruction of nuclear weapons and its deployment components located in the territory of the Ukrainian State”. Later this direction was confirmed by the Address of the Verkhovna Rada “To the Parliaments and Peoples of the World” as of December 5, 1991, where the following, in particular, was mentioned: “Ukraine will not be a nuclear state. With this in view Ukraine intends to start negotiations with all the states concerned in order to conclude international agreements. […] Ukraine intends to join the 1968 Treaty on the Non-Proliferation of Nuclear Weapons as a non-nuclear state”.

Ukraine’s intention to carry out nuclear disarmament was articulated in the Agreement establishing the Commonwealth of Independent States  as well as in the Agreement on Joint Measures on Nuclear Weapons between Ukraine, Russia, Belarus, and Kazakhstan, concluded in December 1991. The key document at that stage was the Lisbon Protocol to the Strategic Arms Reduction Treaty (СНО-I) as of May 23, 1992, which presupposed that “Ukraine would join the 1968 Treaty on the Non-Proliferation of Nuclear Weapons as soon as possible as the state that “does not possess nuclear weapons”.

Thus, Ukraine was the first to declare its intention to acquire a non-nuclear status, and it declared it in both unilateral acts, and in its international commitments. Rejection of nuclear weapons was one of the steps towards the acquisition of this status.

At the same time, Ukraine asked the question about its security guarantees in case it gave up nuclear weapons. The guarantees were mentioned for the first time in the Resolution of the Verkhovna Rada “On Additional Measures Aimed at Ensuring Non-Nuclear Status Acquisition by Ukraine” as of April 9, 1992. In particular, it mentioned the following: “Destruction of nuclear weapons dislocated in the Ukrainian territory should take place given the national security of Ukraine is guaranteed”. Besides that, when the Lisbon Protocol was ratified by the Verkhovna Rada, the decision was passed not to ratifiy Art. V and the reservation was made that “Ukraine as the state with nuclear weapons will be heading towards the non-nuclear status and will get rid of the nuclear weapons located in its territory stage by stage on condition its gets reliable guarantees of its national security”.

The respective guarantees were recorded in the Budapest Memorandum of December 5, 1994 (the guarantor-states were Russia, the USA, Great Britain, China, and France). This document completed legal drawing up of the process of nuclear disarmament of Ukraine and fixed the guarantees provided to Ukraine in exchange of its acquisition of the non-nuclear status.

The Russian Federation as the guarantor-state under the Budapest Memorandum has made a gross violation of its commitments, while other guarantor-states have not reacted to these violations and have not taken the respective steps, in particular, in the consultation format. However, the Budapest Memorandum does not presuppose any mechanisms for withdrawal or repudiation of commitments made under it. It should be noted that Ukraine gave up nuclear weapons it possessed back then under the Memorandum, and it has really performed its commitments. Thus, since now Ukraine already does not possess any nuclear weapons, its repudiation of the Budapest commitments will not have any real sense in it.

However, Ukraine has got commitments concerning non-acquisition of nuclear weapons under the Treaty on the Non-Proliferation of Nuclear Weapons  (NPT) that came into effect for our state simultaneously with the Budapest Memorandum, on December 5, 1994. Respectively, any actions aimed at the restoration of Ukraine’s nuclear status will constitute a violation of this international commitment.

There exists a legal opportunity for Ukraine to repudiate its commitments under the present Treaty. Article Х of the Treaty allows for withdrawal from it due to the circumstances that “jeopardize the supreme interests” of the party to the Treaty with a three-months’ advance notice, however, even withdrawal from the Treaty does not automatically mean that this will allow Ukraine to develop its own nuclear weapons. This is proven by the example of South Korea – the only state that has withdrawn from the NPT, but this has not made its nuclear program legitimate for the international community that imposed sanctions on it.

Current practice shows that the international community considers launching and development of own nuclear programs by non-nuclear states to be a violation of the principle of non-proliferation and applies sanctions to them. This refers, in particular, to Iraq, Iran, North Korea, Lybia, etc. Similarly, Ukraine cannot get such weapons from the nuclear states that are parties to the Treaty without violation of its commitments under the NPT since they have commitments concerning its non-proliferation. And the attempts to get such weapons from nuclear states that are not parties to the NPT, for example, India or Pakistan, besides being unrealistic in principle, may face strong international resistance.

Respectively, in spite of the legal chance to repudiate its commitments regarding nuclear disarmament, Ukraine does not have a possibility to acquire nuclear weapons with no international consequences. Any initiatives in this direction may result in the loss of international support in the conditions of the Russian-Ukrainian conflict, imposition of sanctions, grave political and economic consequences.


Ukraine and the Budapest Memorandum: what comes next

Acquisition of the non-nuclear status was a voluntary and unilateral initiative of Ukraine; giving up the nuclear weapons Ukraine possessed after the collapse of the USSR constituted one of the components of this process. Non-fulfillment of security commitments regarding Ukraine by the guarantor-states that are parties to the Budapest Memorandum does not constitute the grounds for the restoration of its nuclear status.

Ukraine has commitments under the Treaty on the Non-Proliferation of Nuclear Weapons, which exclude the possibility of launching programs to develop this type of weapons. There exists a legal possibility to withdraw from the Treaty, but this does not mean that development of its own nuclear program will automatically become legitimate. Any attempts of this kind may be treated as violation of Ukraine’s commitments under the international law, lead to sanctions and Ukraine’s foreign policy isolation, critically weaken Ukraine’s international positions in the conditions of the war on Russia.

The Ukrainian authorities should exclude any hints of the expediency of possessing nuclear weapons or its acquisition from their rhetoric. The issue of guarantees under the Budapest Memorandum should be raised exclusively in the legal and diplomatic dimensions, in particular, via addressing international judicial institutions, articulating the prospective threat of proliferation of nuclear weapons in the world in case security guarantees in relation to Ukraine are not followed, etc.