The US-Ukraine Security Agreement: Indispensable but Irresolute

Executive Summary:

• The US-Ukraine security agreement is the most comprehensive among recent bilateral agreements with Kyiv. Like the others, however, it is not legally binding but rather a statement of intentions or a memorandum of understanding.
• The agreement conveys uncertainty regarding Washington’s resolve to fully support Ukraine while at war. It stops short of clarifying the strategic rationale for supporting Kyiv and providing a definition of victory and the means commensurate to that end. 
• Supporting Kyiv to win the war would require a higher level of military assistance and lifting restrictions on Ukraine’s use of weapons received from the United States and other North Atlantic Treaty Organization states.

The US-Ukraine security agreement constitutes the flagship among the bilateral agreements signed this year by 23 North Atlantic Treaty Organization (NATO) member states with Kyiv. Designed to support Ukraine’s self-defense against Russia’s war of annihilation, the agreements are similar in conception and specifics (see EDM, August 6, 7). The US-Ukraine agreement, however, is the broadest in scope, and the United States is the largest donor of military assistance to Ukraine. This agreement will, therefore, decisively affect Ukraine’s capacity for self-defense, one way or another, depending on how it is implemented in the future.

The agreement’s substantive core is Article II, with its annex detailing military and security assistance provisions and their implementation. The article has, like the agreement as a whole, the character of a framework document, while its annex fills in the actionable measures. Most other articles cover national security-related economic assistance, some political ramifications, mutual consultations, and, crucially, the agreement’s legal standing and lifespan (“Bilateral Security Agreement between the United States of America and Ukraine,” The White House; President of Ukraine, June 13). 

Legal Standing

The 23 bilateral security agreements are not legally binding and do not involve parliamentary ratification. Each document bears the signature of a head of state or government from a NATO member state alongside Ukrainian President Volodymyr Zelenskyy’s signature. Exceptionally, the signatures of US President Joe Biden and Zelenskyy do not appear on the bilateral agreement posted by their respective offices. However, there is no doubt that the presidents duly signed it. From the US standpoint, this document is an executive agreement resting on Biden’s presidential authority, thus leaving it up to the next president in 2025 to decide whether to keep it in force.

The document amounts to a wide-ranging statement of intentions or an ambitious but nonbinding memorandum of understanding, potentially to be filled in by specific commitments as the annex to Article II would imply. Even there, however, “nothing in this annex is intended to give rise to rights or obligations under domestic or international law.”

A guarded, hedged terminology also conveys some uncertainty regarding the level of US resolve to fully support Ukraine while at war. The document never offers “guarantees” nor assumes “obligations.” On a level below those, the term “commit” is employed. The words most frequently chosen to descend to the next lower rung on the scale include “intend to,” “plans to,” “the policy is,” “may” or “could” take particular actions. There is plenty of contingency there.

Purpose

In line with the Biden administration’s policy, this agreement stops short of clarifying the strategic rationale (e.g., containment of Russia in Europe) for supporting Ukraine’s defensive war. Equally, it falls short of providing a definition of victory and the means commensurate to that end. Under Article II (Defense and Security Cooperation), the agreement is “intended to support Ukraine’s efforts to win today’s war and deter future Russian military aggression” as well as “to assist Ukraine in maintaining a credible defense and deterrence capability.” While focusing on current wartime requirements, US assistance also seems to anticipate postwar ones.

Funding

Under Article II, the US Executive Branch “intends to seek from the US Congress appropriation of funds to sustain a Ukrainian credible defense and deterrent capability, in war and peace.” Additionally, under Article VII (Disputes and Implementation), “All cooperation and activities under this agreement … shall be subject to the availability of funds.” Reflecting this uncertainty, the US-Ukraine agreement does not stipulate funding levels for 2025. Once the US Congress approves the current $61 billion assistance package after a five-month hiatus in May 2024, it will be spent.

Lifespan

Under articles IX (Entry into Force) and XI (Termination), the US-Ukraine agreement has entered into force upon signature, will remain in force for ten years, and may be extended or amended by mutual consent. Either party may terminate the agreement, however, with six-month advance notice. These stipulations are common to all 23 bilateral security agreements. The possibility of rapid termination has not been officially explained, leading to speculation that it may be traded off as part of a package agreement with Russia to end the hostilities (see accompanying article).

War Outcome

This agreement is “intended to support Ukraine’s efforts to win today’s war and deter future Russian military aggression” (Article II). Under the implementation provisions in the annex, “The United States reaffirms its unwavering support for Ukraine’s defense of its sovereignty and territorial integrity within its internationally recognized borders.” Under Article V (Just Peace), “The parties recognize that Ukraine will not be secure until its sovereignty and territorial integrity are fully restored through a just peace that respects Ukraine’s rights under international law including the UN Charter … a just and lasting peace that has broad global support.”

Attaining these goals would presuppose a far higher level of military assistance to Ukraine, both in volume and quality, than has hitherto been the case. A “war-winning” strategy would also require lifting restrictions on Ukrainian use of weapons received from the United States and other NATO states. The US-Ukraine agreement and those signed by London, Berlin, and other allies with Kyiv do not presage such changes. Beyond the agreements’ letter, London and Berlin, as well as Washington, have reaffirmed these restrictions. Barring those changes, the West’s “unwavering support” for Ukraine’s territorial integrity and internationally recognized borders will remain a legal postulate and a political condition that is not enforceable in practice.