The United States’ legal basis for intervention in Ukraine

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Despite being twice as large in terms of population and territory compared to Romania, Ukraine is unknown to most Romanians.

Common knowledge only includes the basics, such as the fact that it used to be part of the USSR or, quite wrongly, that Ukrainians speak Russian. Ukrainian is distinct from Russian, much in the same way Romanian is different from Italian.

Another little-known fact about Ukraine is that it used to be the world’s third biggest nuclear power, barring Russia and the USA. The fall of the Soviet Union in 1991 left Ukraine with a highly developed nuclear infrastructure for both civilian and military purposes.

To this day, Ukraine is still the second biggest nuclear power in the world besides France, with its 15 nuclear reactors, spread across 4 nuclear plants – Zaporizhzhia, Yuzhnoukrainsk , Rivne and Khmelnytskyi, a gross installed capacity of 13.000 MW (almost 10 times that of Cernavoda), abd more than 50% of its domestic electricity produced using nuclear energy.

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With regards to the military, Ukraine had inherited nuclear weapons from the former USSR. Namely, 176 intercontinental ballistic missiles (ICBMs), 1,240 nuclear warheads and 44  nuclear-armed strategic bombers.

Not only that Ukraine had nuclear weapons, but it had also been able to produce, maintain and upgrade them. Design and manufacturing took place in Dnipro, while targeting and guidance systems were produced in Kharkiv.

While the Ukrainians had physical access to the missiles, the nuclear launch codes  belonged to Russia. Nevertheless, there was still fear of illegal transfers of those weapons towards other countries that would be hard to control.

Belarus and Kazakhstan, which had remained on their own territory with nuclear weapons, were also in the same situation.

The newly emerged states did not have sufficient credibility to manage nuclear silos, so it was agreed that disarming them would be the best course of action.

The Lisbon Protocol, signed on May 23, 1992, by representatives of Russia, Belarus, Ukraine and Kazakhstan, stipulated that the four states would assume obligations of the Soviet Union under the START I Treaty for the reduction of strategic weapons, which had been signed a year before by the United States and the USSR.

The Protocol came into effect on December 5, 1994, the day the Budapest Memorandum was also signed.

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The Budapest Memo

The Budapest Memorandum of 5 December 1994 established that the United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland reaffirmed their commitment to Ukraine in accordance with the principles of the OSCE Final Act, to respect the independence, sovereignty and existing borders of Ukraine.

The memorandum does not directly enforce military aid in the event that Ukraine is attacked. If Ukraine is the victim of aggression and nuclear weapons are used, the signatory countries are only expected to refer the matter to the UN Security Council – Article 3 of the Memorandum.

The OSCE does not provide a legal basis for defense in the event of aggression either, as the Helsinki Final Act of 1975 does not impose any sanction for the aggressor, nor does it provide a procedure to follow for states under attack or their allies. The document of 1975 is reminiscent of the naivety of the era and its stability. It did not stop the war in former Yugoslavia, and it did not help Ukraine either.

Article 1 is the only section of the Budapest Memorandum that leaves room for signatory countries to intervene in the event of an aggression against Ukraine by directly referencing the UN Charter.

Signed on June 26, 1945, the Charter of the United Nations directly addresses the „inherent right of individual and collective self-defense” of states in Article 51 and is the only basis for an intervening in a conflict to aid the victim.

While in this case, the UN charter does not give the US and UK a legal basis for defending Ukraine through direct military action, it does serve as a basis for arms aid.

Coincidentally, Article 5 of the NATO Treaty requires members to provide aid to the country under attack (this aid does not necessarily mean direct participation).

It would be impossible to make direct participation mandatory, since the Treaty cannot replace constitutional procedures for declaring war.

Returning to the topic, we note that perhaps it isn’t by chance that the protagonists of this war are precisely the four signatories of the 1994 Memorandum, i.e., the USA, Russia, Great Britain, and Ukraine.

Another interesting tidbit – although none of the four belligerent countries are part of the EU, they happen to be the only military forces that matter in the European continent.

With its impressive air and naval power, France could have been part of this club of continental forces, but so far it has trivialized itself through endless phone calls with the Kremlin. And there is no point in mentioning the unrealistic visions of a collective European army.

After all, Russia and Ukraine are the only ones at war right now, the latter being backed up by the US and UK, as well as Poland, which is quickly learning to be the new regional leader of Eastern Europe.

Other than that, so-called „security providers” are watching from the sidelines, very well trained to bring a glass of water when needed.

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The lend-lease law

The US House of Representatives approved the reenactment of a World War II law, the so-called Lend-Lease law, to increase military support significantly and rapidly for Ukraine in the face of an unprovoked invasion by Russia.

The law gives the Biden administration much more leeway when it comes to the military equipment it sends to Ukraine and how quickly it can decide what aid to send, not only to Ukraine, but also to NATO countries on the eastern flank of the Northern Alliance -Atlantic countries, now „frontline countries”, notes the Associated Press.

The law passed with an overwhelming majority of 417 votes in favor and only 10 against and is set to be signed into law by President Joe Biden.

„With the full support of the US Congress, Ukraine will win”, said Gregory Meeks, a member of the House Foreign Affairs Committee, after the vote.

Ukraine Democracy Defense Lend-Lease Act of 2022″ is based on a World War II program designed to help Europe fight back against Hitler and „was supported by almost every member of Congress” in the US, except 10 members of the House of Representatives who voted against, emphasized the White House.

Aid to Ukraine has been a „ray of light” of bipartisan support on Capitol Hill, with Democrats and Republicans largely rallying around the call to help the nation facing Russian attack.

The Lend-Lease law was originally approved by the US Congress in March 1941 and gave President Roosevelt virtually unlimited authority to send military aid (munitions, tanks, planes, trucks, and food) to Allied countries fighting Nazi Germany, without violating the neutrality status that the United States had at that time.

The law stated that military aid is given to any nation „considered vital to the security of the United States„. This law allowed the country to become the „arsenal of democracies”.

During the war, the United States provided the Soviet Union with thousands of aircraft, tanks, and trucks as well as millions of tons of consumer goods as part of the Lend-Lease program . These were vital to the survival of the Soviet Union, something that Russia kept silent about throughout its existence after World War II.

American aid to the Soviet Union from 1941 to 1945 consisted of the delivery of 427,000 trucks and various transport vehicles, 1,911 locomotives, 13,000 armored fighting vehicles, over 2 million tons of petroleum products, and over 4 million tons of food products.

Supplying was done mainly through Arkhangelsk, the northern port on the White Sea, after American naval convoys escaped the packs of German U-boats patrolling the waters of the Atlantic Ocean.

Supply routes were also created through the Persian Gulf, with entry into the Soviet Union from Iran, but also through ports in the Russian Far East. These routes were safer, but they were also located at a great distance from the front line.

Russia never officially acknowledged the massive American aid, opting instead to take sole credit for the eradication of Nazism and focusing exclusively on the heroism of the Soviet soldier.

Also read: Russian spies misunderstood Ukraine and misled the Kremlin, before the war

Power of War

The US Constitution divides the power of war between Congress and the president. Only Congress can declare war and provide appropriate military funding, but the President is Commander-in-Chief of the armed forces.

The War Powers Resolution of 1973 (also known as the War Power Act ) is a resolution of the US Congress designed to provide the US President with the ability to initiate or escalate military action abroad, while also limiting it.

As part of the government’s already established system of checks and balances, the law aims to allow a quick response but check executive power when engaging US military forces in an armed conflict without the consent of the US Congress

The resolution requires that presidents notify Congress within 48 hours of military action and prohibits the armed forces from remaining engaged for more than 60 days. The situation appears to have been generated by the secret US bombing of Cambodia as the withdrawal from Vietnam was winding down.

Despite the opposition of then-President Richard Nixon , the Resolution became law after the US withdrawal from Vietnam in early 1973.

During April 2022, Congressman Adam Kinzinger announced the introduction of a joint resolution that would authorize the use of US armed forces to defend the territorial integrity of Ukraine if Vladimir Putin escalates his attacks.

The resolution will give the president of the United States an authorization to use the armed forces to respond if the Russian Federation uses chemical, biological or nuclear weapons against Ukraine.

„After World War II, America made a clear stand—a commitment to freedom—that put autocrats on the defensive and strengthened democracies around the world. Over the past decade, we’ve seen that resolve waver, and tyrants like Vladimir Putin have exploited those vulnerabilities,” the Congressman said.

Also read: When you hear about the „loss of sovereignty”, take a look at the Kremlin’s propaganda!

The Truman Doctrine

The Truman Doctrine refers to an American foreign policy that originated during the Cold War. Its primary goal was limiting Soviet geopolitical expansion during the Cold War . It was announced to Congress by President Harry S. Truman on March 12, 1947.

President Truman told Congress that “the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures.” and argued that because totalitarian regimes have coerced free peoples, they inherently pose a threat to international peace and United States national security .

The Truman Doctrine derived from the events in Greece, where the Communists were trying to overthrow the monarchy and the legally elected government. British troops, which had helped liberate Greece from the Germans in 1944, had restored the monarchy, but encountered real difficulty when aiding it in the fight against Greek communists, who were in turn aided by those in Yugoslavia , Bulgaria and Albania , at the behest of Moscow .

British Foreign Secretary Ernest Bevin requested American aid, and President Truman announced in March 1947 that US policy would be „to support free peoples resisting attempts at subjugation by armed minorities or by external pressure.” Greece immediately received massive aid in terms of money, arms, training, and assistance, which enabled the defeat of the communists by 1949. Turkey, which was also under threat, received substantial American aid.

The Truman Doctrine could theoretically be seen as a very modern form of the Monroe Doctrine, and it even seems to be representative of the latter’s decline in importance in the first half of the 20th century.

Of course, there are different opinions on this topic that would unambiguously condemn the Monroe doctrine when it comes to the Dnieper and Donbas. That’s what it seems like at first glance.

Let’s look a little more closely at what happened over time. Conceived in 1823 and indeed intended exclusively for the Western Hemisphere, it operated from the outset in the exclusive geographic area of the Americas as a new regional power rising at the time in the Atlantic and the Caribbean. Its promoter, US President James Monroe, framed it as a development of foreign policy in the sense of excluding any interference of European countries in what he called „the internal affairs of the Americas”.

Originally designed to protect American territory, the doctrine constantly evolved in the 200 years since its conception, playing an important role in US international engagement, including by military means.

The doctrine was upheld and modernized by Theodore Roosevelt, who added the „Roosevelt Corollary” in 1904: ” In view of the Monroe Doctrine, chronic wrongdoing on the American continent requires the intervention of the international police of a civilized nation.”

These words refer to a task considered to be the responsibility of the United States, in relation to the territorial expansionism of European countries.

A century later, however, President Barack Obama’s Secretary of State, John Kerry , told the Organization of American States in November 2013 that „the era of the Monroe Doctrine is over”. Several commentators have noted that Kerry’s call for a reciprocal partnership with the other countries in the Americas is more in line with Monroe’s intentions.

But what about Europe?

It is a geographical reality that the easternmost outposts of the free world are currently Sulina, Romania and Narva, Estonia.

The Founding Act on Mutual Relations, Cooperation and Security between NATO and Russia, signed 25 years ago, provided, among other things, measures aimed at „preventing any concentration of conventional forces”, especially in Central and Eastern Europe. However, by attacking Ukraine and forfeiting any kind of dialogue with the Alliance, Russia „invalidated the content of this Founding Act”, Mircea Geoană emphasized in an interview given to AFP in Vilnius. According to NATO’s Deputy Secretary General, the Alliance no longer has „any restrictions” to equip itself with a „robust posture on the eastern flank”.

NATO’s position on the continent and American leadership in Eastern Europe render both doctrines, which essentially have the same set of values (the defense of American democracy both directly and indirectly, by defending other democracies) valid in Ukraine from an American point of view.

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Provisions of the Budapest memorandum of December 5, 1994, regarding the denuclearization of Ukraine

  1. The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland reaffirm their obligation to refrain from the threat or use of force against the territorial integrity or political independence of Ukraine and that none of the weapons will be used against Ukraine except in self-defense or otherwise in accordance with the Charter of the United Nations .
  2. The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland reaffirm their commitment to Ukraine, in accordance with the principles of the CSCE Final Act, to refrain from economic coercion with the intention of subordinating their own interest the exercise by Ukraine of the rights inherent in its sovereignty and thus to obtain advantages of any kind.
  3. The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland reaffirm their commitment to seek immediate action by the United Nations Security Council to provide assistance to Ukraine as a non-weapon state nuclear weapons, signatory to the Treaty on the Non-Proliferation of Nuclear Weapons , should Ukraine become the victim of an act of aggression or the object of a threat of aggression in which nuclear weapons are used.
  4. The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland reaffirm, in the case of Ukraine, their commitment not to use nuclear weapons against non-nuclear-weapon states signatories to the Treaty on the Non-Proliferation of Nuclear Weapons, except in the case of an attack on them, their territories or dependent territories, their armed forces or their allies, by such a State, in association with or in alliance with a nuclear-weapon State.
  5. The United States of America, the Russian Federation, and the United Kingdom of Great Britain and Northern Ireland will consult in the event that a situation arises that raises an issue with these commitments.

Citește varianta în limba română: Armele juridice ale Americii în războiul din Ucraina

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Horatiu Ovidiu Baias
Horatiu Ovidiu Baias
Horațiu Baias este procuror de 30 de ani. Deși îndeplinește condițiile de pensionare încă din 2017, a ales să rămână activ. A fost procuror criminalist 5 ani, în perioada 1997-2002. Lucrează la DNA din 2005 și a deținut succesiv funcțiile de procuror șef adjunct secție, procuror șef Serviciu Tehnic, procuror șef serviciu informații clasificate. A făcut parte din delegații oficiale în deplasări externe și a avut întâlniri oficiale cu anchetatori din Balcanii de Vest, respectiv Croatia, Serbia, Muntenegru și Albania, precum și în spațiul ex sovietic - Republica Moldova, Ucraina, Armenia și Kazahstan. Sub egida UE și OECD, a participat alături de alți anchetatori la misiuni de monitorizare a unor țări în evaluarea luptei împotriva corupției ( Albania, Serbia și Armenia). A fost în Kiev în 2012, la o conferință, și de 2 ori în 2017, când a stabilit relații de colaborare, training și schimb de experiență cu NABU (DNA-ul ucrainean).

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