Ukraine and Taiwan: What Two Case Studies Tell Us About the Effectiveness of Security Assurances
In 1994, Russia signed the Budapest Memorandum, which provided Ukraine with security assurances in exchange for denuclearization. Since then, Russia has repeatedly violated its promise to respect the security and territorial sovereignty of Ukraine, culminating in its February 2022 invasion. Ukraine’s experience has led scholars to wonder whether security agreements can actually be effective. Further, many analysts have discussed potential parallels between the security assurances offered to Ukraine and those offered to Taiwan. An examination of the legal framework behind Ukraine’s and Taiwan’s respective security agreements, however, reveals that security assurances can indeed be effective, albeit under certain conditions.
U.S. President Bill Clinton and Russian President Boris Yeltsin shake hands. Both leaders signed the 1994 Budapest Memorandum. Photo: Wikimedia Commons
By: Samuel Chestna
The Failure of Security Assurances in Ukraine and Parallels to Taiwan
Following the Russian invasion of Ukraine on February 24, 2022, numerous political pundits and legal scholars questioned what the consequences of the conflict might be. From a legal standpoint, one of the most significant questions is what Russia’s invasion means for the future viability and legal enforceability of security agreements, both in the region and across the globe. Indeed, to legal analysts, Mr. Putin’s invasion of Ukraine is disturbing not only because it is a clear violation of international norms, but also because Russia’s invasion evidences the ineffectiveness of a post-Cold War diplomatic triumph: a multilateral agreement known as the “Budapest Memorandum,” in which Russia provided a series of security assurances to Ukraine and committed to respecting Ukraine’s sovereignty and security.
After the dissolution of the Soviet Union and Ukraine’s declaration of independence in 1991, Ukraine inherited 1,900 Soviet nuclear weapons, the third-largest nuclear arsenal in the world at the time. Determined that Russia should be the only post-Soviet state to retain nuclear weapons, the United States commenced negotiations with Ukraine, with the ultimate goal of convincing the Ukrainian government to relinquish its nuclear stockpile and enter the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear-weapon state (NNWS). Due to its lingering security concerns regarding the possibility of Russian invasion, Ukraine initially sought NATO-style security guarantees from the United States and other powers in exchange for denuclearization. However, because no major power was willing to commit to coming to Ukraine’s defense in the event of invasion, the language in the eventual agreement was somewhat softer. The 1994 Budapest Memorandum on Security Assurances (“Budapest Memorandum”) provided that, in exchange for Ukraine’s denuclearization, the United States, Great Britain, and Russia would commit “to respect the independence and sovereignty and the existing borders of Ukraine,” and to “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine.”
Russia’s invasion of Ukraine is a clear violation of its commitments under the Budapest Memorandum. However, although Russia has faced severe consequences in the form of the crippling sanctions imposed upon it since February 24, the Budapest Memorandum itself has provided little recourse. The Memorandum does not obligate the signatory states to come to Ukraine’s defense, nor does it provide clear consequences for Russia’s violation. The only affirmative obligations under the memorandum are its requirements that signatory states “consult in the event a situation arises which raises a question concerning [the signatories’] commitments,” and “seek immediate United Nations Security Council action to provide assistance to Ukraine . . . if Ukraine should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used.” These measures have proven relatively ineffectual, however; although Russia has issued several nuclear threats since war broke out, Russia’s permanent membership on the U.N. Security Council has allowed it to veto any resolution condemning its actions.
The failure of the Budapest Memorandum to provide any recourse against Russia has serious implications not only in Europe, but beyond. As Ukrainian President Volodymyr Zelenskyy argued in a recent speech at the Munich Security Conference, “if [consultations among the Budapest Memorandum signatories] do not happen . . . or their results do not guarantee security for our country, Ukraine will have every right to believe that the Budapest Memorandum is not working and all the package decisions of 1994 are in doubt.”
Ukraine’s experience can be seen as a litmus test for the future credibility of security assurances in general. For example, many pundits have attempted to draw parallels between Ukraine and Taiwan. Taiwan, like Ukraine, has received security assurances from the United States which stop short of obligating the United States to intervene in the event of an attack. Given Ukraine’s fate, one might understandably ask, how can Taiwan trust that the security assurances offered to it are legally or practically binding? Indeed, in a post-February 24th world, and absent a NATO-style mutual defense treaty, can security assurances be valuable at all?
The Budapest Memorandum and the Taiwan Relations Act: A Tale of Two Agreements
Notwithstanding any similarities between Ukraine and Taiwan, there are significant differences in the political and legal context surrounding the security assurances provided to each. The primary document outlining the United States’ security relationship with Taiwan is the Taiwan Relations Act. Unlike the Budapest Memorandum, which was crafted explicitly for the purpose of facilitating Ukraine’s denuclearization, Congress enacted the Taiwan Relations Act in 1979 to maintain a longstanding security relationship with Taiwan without upsetting its newly-established diplomatic ties with the People’s Republic of China. To that end, the Taiwan Relations Act mirrors the Budapest Memorandum in that it does not explicitly commit the United States to defend Taiwan in the event of a conflict, instead merely declaring Congress’ “expectation that the future of Taiwan will be determined by peaceful means,” and that “any effort to determine the future of Taiwan by other than peaceful means . . . [is] a threat to the peace and security of the Western Pacific area and of grave concern to the United States.”
However, while not committing the United States to military action, the Taiwan Relations Act goes further than the Budapest Memorandum, for example by providing that the U.S. Government “make available to Taiwan such defense articles and defense services in such quantity as may be necessary to enable Taiwan to maintain a sufficient self-defense capability.” The Act also contemplates that, in the event of a conflict, “the President and the Congress shall determine, in accordance with constitutional processes, appropriate action by the United States in response to any such danger.” To be sure, a commitment to “determine, in accordance with constitutional processes, appropriate action” is not the same as a legally binding commitment to provide mutual defense. However, as Professor Julian Ku has argued, the United States has used similar phrasing in its official mutual defense treaties. Professor Ku offers the example of the United States’ mutual defense treaty with Japan, which provides that, if either party is subject to attack, the other party “declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” The similarity of language here suggests that the Taiwan Relations Act, while not legally requiring that the United States militarily defend Taiwan, is a categorically stronger guarantee than is the Budapest Memorandum.
There are at least two other significant reasons that the security assurances provided to Taiwan are legally stronger than those provided to Ukraine. First, the Taiwan Relations Act was enacted by Congress and enshrined in U.S. domestic law, whereas the Budapest Memorandum was not. At the very least, the Taiwan Relations Act’s having gone through the legislative process is indicative of a longevity of domestic political commitment that should provide additional assurance that its terms will be adhered to. Second, because the Taiwan Relations Act dealt solely with the bilateral relationship between the United States and Taiwan, and was not a multilateral security agreement like the Budapest Memorandum, the drafters of the Taiwan Relations Act did not have to account for the possibility of another signatory nation “going rogue” and violating the agreement, as Russia has done in Ukraine. In other words, the bilateral nature of the U.S.-Taiwan security relationship, and the mutual trust upon which it is built, makes the Taiwan Relations Act legally and practically simpler than the Budapest Memorandum.
Implications for the Future Use of Security Agreements
While it is impossible to predict the future of either Ukraine or Taiwan, an examination of how security assurances have (or have not) worked in both cases serves as an indicator of how security agreements may be drafted in the future. In the past several weeks, Ukrainian negotiators have suggested the possibility that Ukraine receives new, stronger security assurances as part of an eventual peace deal. It is too soon to conclude what the terms of a new security agreement might be, if such an agreement is ever concluded at all. However, barring Ukraine’s admission to NATO or entry into an equivalent mutual defense agreement, Ukraine may attempt to strengthen its hand by drawing from the framework of the Taiwan Relations Act.
For example, President Zelenskyy might propose a new security apparatus that mirrors the specific language of the Taiwan Relations Act. He might also propose to mirror the structure of the Taiwan Relations Act by opting for bilateral security agreements with trusted nations, rather than a multilateral (and difficult to enforce) deal. Alternatively, Zelenskyy might seek a multilateral security agreement, but with more concrete consequences should any of Ukraine’s security guarantors renege on their obligations. Finally, Zelenskyy could push for Ukraine’s security guarantors to formalize, in domestic legislation, their legal obligations to Ukraine. The feasibility or desirability of any of these options is yet to be seen, but all of these options represent realistic goals that could provide concrete improvements over the Budapest Memorandum.
For its part, Taiwan may understandably see Ukraine as a reason to seek even clearer security guarantees. However, Taiwan should also be assured that the security agreements which failed to protect Ukraine are different from those offered to Taiwan in significant ways. Although the comparisons between Ukraine and Taiwan are not without merit, it is important to note the limits of these comparisons, and it is imperative to craft future security policy in East Asia to meet the unique demands of that region.
Finally, the security agreements offered to Ukraine and Taiwan respectively offer an overarching lesson for the future: despite the failure of the Budapest Memorandum, security assurances can be credible, practicable, and legally enforceable given the right conditions. Governments should not hesitate to enter security agreements simply because the Budapest Memorandum failed. Instead, it is imperative that policymakers learn the right lessons from the failure of the Budapest Memorandum, and avoid these mistakes in the future.
Samuel Chestna is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Brandeis University in 2020.