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On the sidelines of the 2023 NATO Summit in Vilnius, leaders of the Group of Seven (G-7) countries issued a joint declaration outlining a general framework for negotiating new bilateral security commitments for Ukraine. The proposed commitments—which include weapons transfers, training for Ukrainian forces, and intelligence sharing—aim to help the country strengthen its individual self-defense capabilities while it pursues NATO membership. The declaration is open to Ukraine’s partners beyond G-7 countries, and according to the U.S. State Department, 12 additional countries have already signed on to support the framework.
To make these commitments a reality, Ukraine and its partners will have to navigate thorny policy and legal issues, which include determining the form and substance of the specific bilateral agreements. According to Ukraine’s Office of the President, negotiations between Ukraine and the United States started on Aug. 3.
Upgrading Ukraine’s Security Environment
No More Budapest Memorandums
The G-7 declaration is largely a reaction to Ukraine’s repeated calls on its partners (since last September) to provide long-term and legally binding security guarantees to deter and repel any potential Russian attacks until the country joins the NATO alliance.
The Ukrainian proposal (also known as the Kyiv Security Compact) was put forward as an antipode to the 1994 Budapest Memorandum. As part of the memorandum (which is still in force), Ukraine agreed to relinquish its nuclear arsenal—which at the time was the third largest in the world—and joined the Treaty on the Non-Proliferation of Nuclear Weapons as a non-nuclear state. In return, the United States, United Kingdom, and Russia provided Ukraine with relatively weak security commitments to “respect the independence and sovereignty and the existing borders of Ukraine,” pledging to conduct consultations if any party breaches the memorandum.
Separately, according to former U.S. Ambassador to Ukraine Steven Pifer, U.S. officials orally promised Ukraine they would “take a strong interest and respond” in the case of any Russian violations of the memorandum. The precise nature and scope of these actions, however, were not clarified, let alone put on paper, but according to Pifer, the U.S. response should include military assistance.
The text of the Budapest Memorandum was purposefully designed to be ambiguous, using the term “security assurances” in the English version and the stronger wording “security guarantees” in Ukrainian and Russian versions. The agreement’s wording has created strong debate over whether it was a treaty or simply a political deal.
The memorandum’s ambiguity helped the parties reach the agreement and subsequent political objectives (such as significantly contributing to the non-proliferation regime). The memorandum was also a helpful tool for bolstering support for Ukraine against Russia’s aggression. Still, the underlying commitments were too weak to meaningfully deter Russia’s aggression against Ukraine. As a result, the term “Budapest Memorandum” essentially became a synonym in Ukraine for a meaningless piece of paper, also making Ukrainians especially wary of the term “political assurances.” The Kyiv Security Compact proposal echoed this sentiment, instead asking for “legally binding security guarantees” and explicitly labeling the Budapest Memorandum as “worthless.”
The security commitments outlined in the G-7 countries’ declaration aim to fill significant gaps in Ukrainian security that are not addressed in the Budapest Memorandum. As described above, the proposed security commitments aim to bolster Ukraine’s self-defense against Russia’s aggressive policies while awaiting its accession into NATO. In addition to this goal, the security commitments aim to address other crucial objectives for Ukraine and its partners.
First, the long-term formal agreements (if properly designed) will support the credibility of the partners’ commitments and make going back on their promises more difficult and more politically costly. (This, of course, is not impossible, as even the North Atlantic Treaty cannot be fully policy change-proof.) Importantly, after the full-scale invasion, Ukraine’s partners, on many occasions, promised that they would stand with Ukraine “as long as it takes.” This political commitment was echoed in the recent G-7 declaration. Until now, general commitments have lacked detail, clarity, and long-term policy planning—the formal long-term commitments announced in the G-7 declaration should help remedy this issue.
Second, the credibility of these security commitments may be an important factor in dashing the Kremlin’s persistent hopes that it can prevail in the long run. Russia is counting on Western support for Ukraine to crumble, with a particular eye toward the 2024 U.S. presidential election. Lowering Russian expectations of success by signaling long-term Western support for Ukraine has the potential to bring about a just peace faster and deter Russia’s attacks in the future.
Third, credible and long-term security commitments can also work to improve Ukraine’s attractiveness to business and investments and also contribute to an eventual return of refugees to participate in the country’s reconstruction. Namely, Ukraine’s ability to deter (and defend itself against) future Russian attacks until it becomes a NATO member could contribute to appropriate security conditions for the influx of financial and human capital.
The commitments can also meaningfully assure Ukraine that it will not be abandoned by international partners in the future, which, in turn, offers officials a more predictable posture in foreign policy decision-making. Ukraine proved the credibility of its commitment to fight for independence with tremendous sacrifice and in turn appropriately asks for more credible commitments from its partners in return.
G-7 Declaration Framework
The framework of the G-7 declaration falls short of mutual defense treaties that may involve allies’ armed forces working together, such as the legal obligations in NATO’s Article 5.
The G-7 declaration does, however, set up a general framework for negotiating “specific, bilateral, long-term security commitments and arrangements” based on broad parameters similar to those proposed in the Kyiv Security Compact. The proposed commitments, among other things, include security assistance and modern weapons transfers (across land, air, and sea), bolstering Ukraine’s defense industrial base, intelligence and cyber defense support, as well as training missions and exercises. In addition to these defense commitments, the declaration proposed arrangements to aid “Ukraine’s economic stability and resilience, including through reconstruction and recovery efforts[.]”
But will Ukraine’s partners be ready to formalize these robust security commitments before the “hot stage” of the war ends? As Eric Ciaramella explains in his policy paper, based in part on discussions with relevant Western and Ukrainian policymakers, some observers still believe that the security arrangement is best to leave for future negotiations between Ukraine and Russia, which, in theory, can motivate Ukraine to negotiate at a later time. Although security commitments are crucial for the postwar period as well, kicking the can down the road in this respect (when the length of the war is uncertain) will leave the Ukrainians in a dangerous security limbo, thus contributing to Russia’s hopes that it can outlast Ukraine and its partners. Also, Ukraine, on many occasions, made clear that trading its land for NATO or other status is strictly off the negotiating table. The G-7 declaration’s text seems to resolve this issue (at least at this stage) by mentioning commitments for both the current war and its aftermath, with partners saying that they will “ensure a sustainable force capable of defending Ukraine now and deterring Russian aggression in the future” (emphasis added).
In return, Ukraine pledged to continue implementing various reforms, including in the judiciary, law enforcement, and anti-corruption spheres, and “contributing to partner security [which may include limitations on using West-supplied weapons on the Russian territory] … and accountability measures with regard to partner assistance.”
This political agreement—envisaged in the G-7 declaration and expected to be detailed on a bilateral basis—still falls short of the Kyiv Security Compact’s framework initially proposed by Ukraine. Namely, the Kyiv Security Compact suggested signing “a [multilateral] joint strategic partnership document” with its core partners, “codifying” “security guarantees” to the country, which can later be specified in bilateral agreements with separate guarantors. The joint document, the Kyiv Security Compact mentioned, “should strike the right balance between specific provision and generic commitments” (emphasis added).
Despite the Kyiv Security Compact’s aspirations, the G-7 declaration is littered with generic statements, with an intention to “immediately” kick-start the negotiations on the security commitments. Also, the declaration is not signed and insteads enlists the commitments and intentions on behalf of “the Leaders of the Group of Seven,” likely to highlight that the commitments are personal pledges of the presidents and prime ministers (emphasis added). The declaration’s informal framing may be explained by the desire of at least some participating leaders to limit the number and intensity of promises at this stage.
Designing the Bilateral Security Agreements
The quality of security commitments to Ukraine will substantially depend on the design of bilateral security arrangements. That said, one cannot exclude the possibility that some countries (such as Poland and the Baltic countries) would be ready to consider a multilateral agreement with Ukraine.
The Israeli Model
In this context, President Joe Biden and the authors of the initial Kyiv Security Compact proposal noted that Israel-U.S. security cooperation serves as a relevant example of how the security commitments to Ukraine can be designed while the country’s NATO application is still pending.
As mentioned above, the expected security arrangements will not contain military alliance assistance (in other words, the partner countries’ militaries will not come to the direct assistance of the Ukrainian military). Nor will they repeat the type of shallow commitments set forth in the Budapest Memorandum. Instead, the initiative primarily seeks to create a stable, predictable, and more politically and legally grounded framework to extend into the future the support for Ukraine.
Among other things, Ukraine and its partners would need to agree on some criteria and procedures, including consultations, to determine the nature and quantity of military and other support Ukraine needs at a particular moment to ensure its self-defense capabilities. The U.S. commitment to Israel’s security can provide a model for this substantive criteria. The United States is committed to maintaining Israel’s “qualitative military edge” over neighboring militaries—which is defined as the “technological and tactical advantage to deter and, if necessary defeat, a numerically superior adversary.” To achieve this, Israel relies on “better equipment and training to compensate for being much smaller in land area and population than most of its potential adversaries.” The standard is defined in U.S. law, which requires the U.S. president to regularly assess Israel’s qualitative military edge. Considering that Israel’s security environment differs from the Ukrainian one, and accounting for the fact that its potential adversaries are not nuclear powers like Russia, some experts suggested a potential standard of “qualitative deterrence balance”—which, in other words, is “helping Ukraine match or offset Russian battlefield advantages with a mixture of superior equipment, training, and intelligence, as well as public-private solutions such as cooperation with Western technology firms.”
Similarly, the Taiwan Relations Act, adopted by the U.S. Congress to, among other things, address U.S. military assistance to Taiwan (which also has a nuclear-armed adversary), provides that “the United States will 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” (emphasis added). Whatever standard is chosen, the main point here is that it is sufficient, and possible, to predictably maintain robust and credible Ukrainian self-defense posture in the long haul. (For a more detailed overview of the potential substance of the agreements, see Ciaramella’s analysis).
There might be some challenges in agreeing on precise terms to describe the underlying security commitments. Considering the bitter experience with the term “security assurances” used in the English version of the Budapest Memorandum (see above and here), this particular term is a nonstarter for Ukraine, and any significant similarities with the Budapest Memorandum would likely not be well received by Ukrainians. So far, Ukrainian President Volodymyr Zelenskyy noted unequivocally that the declaration relates to “security guarantees,” which is the same term that was used in the Kyiv Security Compact proposal. At the same time, the G-7 declaration relies on more middle-ground terms such as “commitments and arrangements,” while, for example, British Prime Minister Rishi Sunak used the term “assurances” in this context in the past. In practice, all of these terms can potentially signify both legally binding and political security commitments with varying degrees of partner support up to the use of their military force. It all depends on how the parties define a particular term in an international agreement and how they interpret it. Still, the word “guarantee” is customarily more robust than “assurances.” “Guarantee” often signals a higher intensity of the commitment and is sometimes used in the context of legally binding mutual defense agreements (although even the North Atlantic Treaty’s text does not contain the term “guarantee”). U.S. diplomats’ caution regarding the word “guarantees” is aptly shown by their response to Iran’s request for guarantees of nonrepudiation of a potential new nuclear deal discussed in the past. Namely, U.S. representatives noted: “There is no such thing as a guarantee; that’s not in the nature of diplomacy.” Though security guarantees would be ideal, more neutral terms such as “security commitments or obligations” may potentially help to navigate this complex situation, especially if their meaning (on which their effectiveness depends) is defined in a way that is acceptable to all participating parties.
Where this gets more complicated, however, is in determining whether these proposed agreements will be legally or only politically binding.
Legal, Political, or Ambiguous?
Ukraine strongly and consistently insists on making the planned security agreements legally binding under international law. Besides the infamous story of the ambiguous Budapest Memorandum (which Russia and some of Ukraine’s partners tried to downplay, claiming its political nature), there are clear practical considerations for Ukraine to take such a position.
In the international legal system, without centralized enforcement of agreements, both treaties and political agreements often have similar informal enforcement mechanisms (including states’ desire to keep reciprocal performance from another side, the avoidance of reputational costs, and fear of retaliation by another side). Still, all things being equal, legally binding agreements signal stronger credibility of underlying obligations and often lead to higher costs of violation. Under international law, a violation of a legally binding agreement results in the breaching party’s legal responsibility. Additionally, state officials and members of the public often value legally binding agreements more than political agreements. For example, some recent U.S. studies have shown that arguments based on international law and norms increase public support for policies by 4 to 20 percentage points (although results may differ depending on a particular country and subject matter). Therefore, a binding treaty may have a greater chance of galvanizing public support for protecting pending policies, compared to political deals.
In addition, if a state cannot commit to a legally binding agreement for some reason—say, little to no support for a proposed treaty’s ratification in a state’s parliament—it signals that the state’s intention to comply with a political agreement in the future is far more uncertain than with a treaty. Relatedly, treaties that are subject to ratification by a country’s parliament (or parliamentary consent to ratification) help countries signal to their counterparts that their resolve to comply with the agreement, from both the legislative and executive branches, is strong and allow them to make these international obligations binding under their domestic law.
Still, at least some of Ukraine’s partners (for example, for flexibility reasons) may tilt toward putting the discussed security commitments into a political agreement that is “easier to make” but also “easier to break.” That said, political agreements still matter because they contain state promises, the nonperformance of which may lead to various political costs, including prejudicing the promisor’s reputation and credibility when making similar commitments in the future. For example, the U.S. withdrawal from the Iran nuclear deal—which was widely considered to be a political deal in the U.S.—arguably made it harder for the Biden administration to reach a similar agreement again and thereby achieve connected foreign policy objectives. Relatedly, former U.S. Secretary of State Henry Kissinger famously made the following observation in terms of political commitments: “For what is involved now is confidence in American promises. However fashionable it is to ridicule the terms ‘credibility’ or ‘prestige,’ they are not empty phrases; other nations can gear their actions to ours only if they can count on our steadiness.”
Still, sometimes states choose a third approach: ambiguity. In other words, sometimes states will work to carefully design the wording of an agreement to make it purposefully unclear whether it is legally or only politically binding, allowing each party to take a different reasonable position or jointly maintaining ambiguity at least in public (for example, to overcome the parties’ domestic resistance to a binding or political agreement). Considering the competing international law tests and criteria for defining treaties, it is not hard to do. As described above and elsewhere, the Budapest Memorandum was purposefully designed this way.
Another example of an agreement with no clear-cut determination of its nature in the text is the 2016 Memorandum of Understanding (MoU) on security assistance between the U.S. and Israel. Under the memo, reflecting the “unshakable commitment” to Israel’s security, the United States promised to provide Israel with $38 billion in military aid over 10 years (subject to congressional appropriations) to enable its self-defense and preserve its qualitative military edge. Although MoUs can be both binding and nonbinding under international law, the U.S.-Israel MoU uses wording that generally signifies political agreements (such as “support,” “understanding,” and “commit” instead of “agree” and “shall”), suggesting that the parties most likely intended it to be politically binding. However, the text does not explicitly specify whether it is a legal or political agreement, and neither the U.S. nor Israel has publicly and explicitly clarified the matter. Still, the MoU is successful, considering the level of bipartisan support in the U.S. Congress for the respective appropriations.
Although a legally binding treaty is an ideal outcome for Ukraine, the key factor for an agreement’s longevity and effectiveness will be the credible and long-term support the agreement has in both legislative and executive branches of the partners’ governments. Without such support and collaboration, even a binding agreement can be terminated or violated down the road, for example, by not making necessary appropriations.
Each partner state’s legislative approval of the security agreements can also help to incorporate the underlying security commitments into the partner’s domestic law, which increases the agreements’ resilience. One way to reach this outcome is via a legally binding agreement that requires ratification or consent to ratification by a parliament. In the United States, post-negotiation approval by the legislative branch of a legally binding international agreement can be obtained either with treaties under Article II of the U.S. Constitution (if two-thirds of the senators present concur) or—also legally binding—with ex-post congressional-executive agreements (with majorities in both houses of Congress). However, U.S. practice demonstrates that these types of agreements are rare (in part due to political polarization), with U.S. presidents often making other types of binding (ex-ante congressional-executive and executive) and political agreements without meaningful interbranch collaboration (for example, the Iran nuclear deal and the Paris agreement).
Another approach, although less desirable, is to have an agreement similar in form to the Israel-U.S. MoU and separate legislation codifying the support for Ukraine in a fashion similar to what the U.S. Congress has done for Taiwan via the Taiwan Relations Act or for Israel by codifying the standard of Israel’s “qualitative military edge.” Importantly, in countries where not all ratified treaties become part of domestic law (like non-self-executing treaties in the United States), implementation legislation to incorporate the international obligations into domestic law may still be desirable, even with treaties.
Approaches to framing the security arrangements with Ukraine will vary depending on each partner’s legal and policy considerations. Still, regardless of the approach, productive cooperation between the partners’ parliaments and executives would be needed to maximize the agreements’ credibility and increase the chances of their desired performance.