Tightening the Ukraine-NATO Knot

TedSnider

July 19, 2023

On July 11 and 12, NATO leaders met in Vilnius Lithuania for the annual NATO summit. The important summit brought into focus the many contradictions and conundrums in the difficult NATO-Ukraine knot.

The Membership Action Plan

In the weeks leading up to the summit, President Joe Biden was asked if the U.S. would “make it easy” for Ukraine to join NATO, referencing talk of dropping the requirement for a Membership Action Plan (MAP) for Ukraine. The MAP advises NATO aspirants on reforms they have to make to meet NATO standard for admission. Biden pointedly answered, “No. Because they’ve got to meet the same standards. So we’re not going to make it easy.”

But after the first day of the summit, NATO announced that Ukraine could skip the MAP, because “we recognise that Ukraine’s path to full Euro-Atlantic integration has moved beyond the need for the Membership Action Plan.”

But the paradox was resolved by what came next. While saying that “Ukraine’s future is in NATO,” NATO said nothing about when that future would be. They also said that NATO “will be in a position to extend an invitation to Ukraine to join the Alliance when Allies agree and conditions are met.” In other words, Ukraine does not need a MAP to advise on the reforms they need to make to join NATO, but they need to make all the reforms that are needed to join NATO. They have to fulfill the MAP without having a MAP.

The paradoxical nature of the announcement he had waited a year for was noted by Ukrainian President Volodymyr Zelensky, who lashed out, “It’s unprecedented and absurd when time frame is not set neither for the invitation nor for Ukraine’s membership. While at the same time vague wording about ‘conditions’ is added even for inviting Ukraine.”

And Ukraine will have to make those reforms because, as Biden said just days before the summit, “Ukraine isn’t ready for NATO membership.” White House national security spokesman John Kirby said, “Now there’s some reforms — good governance, rule of law, political reforms — that Ukraine needs to work on.” The most interesting item on the list, highlighting the contradiction in the NATO-Ukraine knot, is “political reforms.” Biden told CNN two days before the summit that there are “other qualifications that need to be met, including democratization and some of those issues.” That is a paradoxical requirement for membership since Biden has framed the war as a battle between democracy and autocracy and declared Ukraine democracy’s champion against the Russian autocratic threat. Though the champion of democracy in the war, Ukraine needs reformation to “democratize” before it can get into NATO.

That’s a knotty paradox: Ukraine will get easier entry into NATO by being exempted from an MAP as long as they fulfill the MAP, and to fulfill the MAP, the champion of democracy will first have to become a democracy.

The Summit Communiqué Precludes Negotiations

The U.S. has long claimed that the war will have to end at the negotiating table and that their motivation for supporting Ukraine on the battlefield was to put them in a stronger position prior to negotiations. But the NATO communique after the summit contained two declarations that make negotiations impossible. If there are to be no negotiations, then, judging by the state of the battlefield, the war can either end with a Ukrainian defeat or  go on indefinitely. Neither option is doing any favor to Ukraine, whom the NATO summit was meant to offer security.

The first is NATO’s insistence that “Ukraine’s future is in NATO” and that “[w]e reaffirm the commitment we made at the 2008 Summit in Bucharest that Ukraine will become a member of NATO.” A legally binding promise that Ukraine will never become a member of NATO is non-negotiable for Russia. Taking that item off the table renders a negotiated settlement impossible. As Putin said again the day after the NATO summit, “the threat of Ukraine’s accession to NATO is the reason, or rather one of the reasons for the special military operation.” It was the refusal of the U.S. to allow talk of a guarantee that Ukraine would not become a member of NATO after Russia’s December 2022 security proposal that led Putin to turn to “military-technical measures.”

The second is NATO’s insistence that “[w]e do not and will never recognize Russia’s illegal and illegitimate annexations, including Crimea.” That Crimea is part of Russia is non-negotiable, not just to Putin, but to any Russian leader. It is also non-negotiable to the majority of Russians and the majority of Crimeans, as shown repeatedly in polls. The refusal to recognize Crimea as Russia is the refusal to negotiate an end to the war.

That too is a knotty paradox: NATO support for Ukraine is meant to strengthen Ukraine in negotiations to end the war but the NATO communiqué precludes the possibility of negotiations to end the war.

The Promise of Membership Precludes Membership

The third contradiction is that the promise of NATO membership to Ukraine precludes the possibility of NATO membership for Ukraine.

As NATO Secretary General Jens Stoltenberg pointedly stated, “unless Ukraine prevails, there is no membership to be discussed at all.” But Ukraine has clearly and repeatedly stated that prevailing means recapturing Crimea and all of the Donbas. And recapturing, or attempted recapturing of Crimea and all of the Donbas, means war. Russian officials have repeatedly warned that an attack on Crimea would be viewed as an attack on Russia. When U.S. National Security Advisor Jake Sullivan recently said that “What we have said is that we will not enable Ukraine with U.S. systems, Western systems, to attack Russia. And we believe Crimea is Ukraine,” Russian Ambassador to the U.S. Anatoly Antonov responded that a Ukrainian attack on Crimea would be viewed by Moscow in the same way “as an attack on any other region of the Russian Federation.” Even U.S. Secretary of State Antony Blinken has acknowledged, “A Ukrainian attempt to retake Crimea would be a red line for Vladimir Putin that could lead to a wider Russian response.”

Prevailing means recapturing Crimea. But attempting to recapture Crimea means the continuation of the war. The continuation of the war means Ukraine hasn’t prevailed. And if Ukraine doesn’t prevail, “there is no membership to be discussed at all.”

There is a second reason why the promise of NATO membership precludes the possibility of NATO membership. It is not simply that continued war means Ukraine has not prevailed. The promise of NATO membership assures the continuation of the war because continuation of the war precludes NATO membership.

In order to join NATO, aspirants must have “a commitment to resolve conflicts peacefully.” They cannot be at war. NATO requires that “States which have ethnic disputes or external territorial disputes, including irredentist claims, or internal jurisdictional disputes must settle those disputes by peaceful means in accordance with OSCE principles. Resolution of such disputes would be a factor in determining whether to invite a state to join the Alliance.”

A country has an “irredentist claim” as long as it claims the right to restore any part of their country that they believe used to belong to them. So as long as there is fighting over Ukraine’s claimed territory or as long as Russia continues to defend Crimea — which is forever — Ukraine will have an irredentist claim that precludes its membership in NATO.

And that’s the loophole that forms the third knot of the Ukraine-NATO conundrum. If NATO promises membership to Ukraine, Russia has two options. They can make the promise impossible by defeating Ukraine and imposing neutrality, or, as long as victory eludes them, they can keep the war going indefinitely, since ongoing war also makes fulfillment of the promise impossible. Either way, the promise of NATO membership to Ukraine precludes the possibility of NATO membership for Ukraine.

The NATO summit in Vilnius, Lithuania produced a series of paradoxes that have only tied the NATO-Ukraine knot up even tighter, including over Ukraine’s path to membership and the possibility of negotiations. And, in the end, it produced a self-destructive paradox over the very possibility of membership itself.

 

Was ‘No NATO Expansion East’ More Than a Promise?

TedSnider

July 17, 2023

At the NATO summit in Bucharest in 2008, eventual membership in NATO was promised to Ukraine and Georgia with the statement that “NATO welcomes Ukraine’s and Georgia’s Euro-Atlantic aspirations for membership in NATO. We agree today that these countries will become members of NATO.” Russian President Vladimir Putin “flew into a rage,” and, according to a Russian journalist quoted by John Mearsheimer, warned that “if Ukraine joins NATO, it will do so without Crimea and the eastern regions. It will simply fall apart.”

A decade and a half later, Putin sent the message to Ukrainian President Volodymyr Zelensky: “Tell me you’re not joining NATO, I won’t invade.”

Putin is consistently accused in the West of dangerous melodrama and of historical revisionism when he points to NATO’s broken promise that it wouldn’t expand east if the Soviet Union permitted a united Germany to join NATO.

In 2007, Putin complained, “What happened to the assurances our western partners made after the dissolution of the Warsaw Pact? Where are those declarations today? No one even remembers them.” A year later, former Soviet leader Mikhail Gorbachev complained that the United States “promised that NATO wouldn’t move beyond the boundaries of Germany after the Cold War but now half of central and Eastern Europe are members, so what happened to their promises? It shows they cannot be trusted.”

Then U.S. Secretary of State James Baker has claimed that the discussion of NATO expansion applied only to East Germany, not to Eastern Europe: “There was never any discussion of anything but the GDR (East Germany].” A 2014 NATO report claimed, “No such pledge was made, and no evidence to back up Russia’s claims has ever been produced.”

But declassified documents now reveal that NATO was lying, and that it is Baker, and not Putin, who was engaging in historical revisionism.

After complaining that no one remembers the West’s assurances, Putin went on to remind his audience what they said: “I would like to quote the speech of NATO General Secretary Mr. Woerner in Brussels on 17 May 1990. He said at the time that: ‘The fact that we are ready not to place a NATO army outside of German territory gives the Soviet Union a firm security guarantee.’ Where are those guarantees?”

Putin was quoting correctly. He might have added, as we know from the recently declassified documents, that Woerner also “stressed that the NATO Council and he are against the expansion of NATO (13 out of 16 NATO members support this point of view).” The NATO Secretary General also assured the Russians on July 1, 1991 that, in an upcoming meeting with Poland’s Lech Walesa and Romania’s Ion Iliescu, “he will oppose Poland and Romania joining NATO, and earlier this was stated to Hungary and Czechoslovakia.” (Document 30)

As for Baker’s insistence that no such promise was made, he articulated some of the most important statements of that promise. On February 9, 1990, Baker famously offered Gorbachev a choice: “I want to ask you a question, and you need not answer it right now. Supposing unification takes place, what would you prefer: a united Germany outside of NATO, absolutely independent and without American troops; or a united Germany keeping its connections with NATO, but with the guarantee that NATO’s jurisdiction or troops will not spread east of the present boundary?”

Baker has been dismissive of this statement, categorizing it as only a hypothetical question. But Baker’s next statement, not previously included in the quotation, but now placed back in the script by the documentary record, refutes that claim. After Gorbachev answers Baker’s question, saying, “It goes without saying that a broadening of the NATO zone is not acceptable,” Baker replies categorically, “We agree with that.” (Document 6)

There are a number of other declassified statements that now solidify the evidence against Baker’s claim. The most important is Baker’s own interpretation of his question to Gorbachev at the time. At a press conference immediately following this most crucial meeting with Gorbachev, Baker announced that NATO’s “jurisdiction would not be moved eastward.” He added that he had “indicated” to Gorbachev that “there should be no extension of NATO forces eastward.”

And while Baker was meeting with Gorbachev, Deputy National Security Adviser Robert Gates was asking the same question of KGB leader Vladimir Kryuchkov in clearly non-hypothetical terms. He asked Kryuchkov what he thought of the “proposal under which a united Germany would be associated with NATO, but in which NATO troops would move no further east than they now were?” Gates then added, “It seems to us to be a sound proposal.” (Document 7)

On that same busy day, Baker posed the same question to Soviet Minister of Foreign Affairs Eduard Shevardnadze. He asked if there “might be an outcome that would guarantee that there would be no NATO forces in the eastern part of Germany. In fact, there could be an absolute ban on that.” How did Baker intend that offer? In Not One Inch, M.E. Sarotte reports that in his own notes, Baker wrote, “End result: Unified Ger. Anchored in a changed (polit.) NATO—whose juris. would not be moved eastward!” According to a now declassified State department memorandum of their conversation, Baker had already in this conversation assured Shevardnadze, “There would, of course, have to be ironclad guarantees that NATO’s jurisdiction or forces would not move eastward.” (Document 4)

And, according to a declassified State Department memorandum of the conversation, on still the same day, Baker told Gorbachev and Shevardnadze, not in the form of a question at all, that, “If we maintain a presence in a Germany that is a part of NATO, there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” (Document 5)

Though these are Secretary of State Baker’s most important assurances, they are not his only assurances. On May 18, 1990, Baker told Gorbachev in a meeting in Moscow, “I wanted to emphasize that our policies are not aimed at separating Eastern Europe from the Soviet Union.” (Document 18) And, yet again, on February 12, 1990, the promise is made. According to notes taken for Shevardnadze at the Open Skies Conference in Ottawa, Baker told Gorbachev that “if U[united] G[ermany] stays in NATO, we should take care about non-expansion of its jurisdiction to the East.” (Document 10)

Baker’s assurances to Gorbachev and Shevardnadze were confirmed and shared by the State Department who, on February 13, 1990, informed U.S. embassies that “[t]he Secretary made clear that…we supported a unified Germany within NATO, but that we were prepared to ensure that NATO’s military presence would not extend further eastward.”

Baker was not the only official making those promises to Russia. As we have seen, assurances came from the highest level of NATO and from Robert Gates, who, unlike Baker and NATO, never deceived about his promises. In July 2000, Gates criticized “pressing ahead with expansion of NATO eastward [in the 1990s], when Gorbachev and others were led to believe that wouldn’t happen.”

And the same promises were made by the leaders of several other nations. On July 15, 1996, now foreign minister Yevgeny Primakov, who had “been looking at the material in our archives from 1990 and 1991,” declared, according to Sarotte, that “It was clear…that Baker, Kohl and the British and French leaders John Major and François Mitterrand had all ‘told Gorbachev that not one country leaving the Warsaw Pact would enter NATO—that NATO wouldn’t move one inch closer to Russia.”

Importantly, those same promises were made by German officials. West German chancellor Helmut Kohl met with Gorbachev the day after Baker on February 10. He assured Gorbachev that “naturally, NATO could not expand its territory to the current territory of the GDR [East Germany].” Clearer still, he told Gorbachev, “We believe that NATO should not expand its scope.” (Document 9) Simultaneously, West German Foreign Minister Hans-Dietrich Genscher was pointedly telling Shevardnadze, “For us, it is clear: NATO will not extend itself to the East.”

Genscher was one of the clearest and most prolific fonts of the promise. In an important speech in Tutzing on January 31, 1990, Genscher declared that “whatever happens to the Warsaw Pact, an expansion of NATO territory to the East, in other words, closer to the borders of the Soviet Union, will not happen.”

Again making it clear that the promise applied to Eastern Europe and not just to East Germany, Genscher told British and Italian leaders that, “It is particularly important for us to make it clear that NATO does not intend to extend its territory toward the east. Such a declaration must not relate just to the GDR but must be of a general nature.”

Genscher used that same clarifying “in general” formulation in a February 10 meeting when he explained to Shevardnadze, “For us, it’s a firm principle: NATO will not be extended toward the East…Furthermore, with regard to the non-extension of NATO, that applies in general.”

Speaking at a February 2 press conference with Baker, Genscher pointedly clarified that he and Baker “were in full agreement that there is no intention to extend the NATO area of defense and the security toward the East. This holds true not only for GDR…but that holds true for all the other Eastern countries…[W]e can make it quite clear that whatever happens within the Warsaw Pact, on our side there is no intention to extend our area—NATO’s area—of defense towards the East.” He then added, again employing the “in general” formulation, “We agreed that the intention does not exist to extend the NATO defense area toward the East. That applies, moreover, not just to the territory of the GDR…but rather applies in general.”

What is so important about this public declaration is not just the clarity that it applies “in general” to Eastern Europe and not just specifically to East Germany, but that, as Mark Trachtenberg, Professor of Political Science at UCLA has pointed out, “Genscher had made it clear that he was speaking both for himself and Baker.” A point that is “underscored by the fact that Baker was standing at his side as he uttered the words.”

And, when Genscher spoke, he spoke not only for the United States but also for Britain too. Genscher told British Foreign Minister Douglas Hurd in a February 6, 1990 meeting that “when he talked about not wanting to extend NATO that applied to other states beside the GDR. The Russians must have some assurances that it, for example, the Polish Government left the Warsaw Pact one day, they would not join NATO the next.” (Document 2) Sarotte reports that “Hurd expressed agreement and said the topic should be discussed as soon as possible within the alliance itself.”

Britain proffered similar promises. On March 5, 1991, British Ambassador to Russia Rodric Braithwaite recorded in his diary that when Russian Minister of Defense Dmitry Yazov had expressed that he was “worried that the Czechs, Poles and Hungarians will join NATO,” British Prime Minister John “Major assure[d] him that nothing of the sort will happen.” (Document 28) When Yazov specifically asked Major about “NATO’s plans in the region,” the British Prime Minister told him that he “did not himself foresee circumstances now or in the future where East European countries would become members of NATO.” (Document 28) On March 26, 1991, British Foreign Secretary Douglas Hurd informed Soviet Foreign Minister Aleksandr Bessmertnykh that “there are no plans in NATO to include the countries of Eastern and Central Europe in NATO in one form or another.” (Document 28) In a July 2016 article, Braithwaite wrote that “U.S. Secretary of State James Baker stated on 9 February 1990: ‘We consider that the consultations and discussions in the framework of the 2+4 mechanism should give a guarantee that the reunification of Germany will not lead to the enlargement of NATO’s military organization to the East.'”

This overwhelming case that a promise was made has been undermined by the claim that it was only a verbal, and not a written, promise, and, since verbal promises are not binding, the promise was not binding.

A 1996 State Department investigation by John Herbst and John Kornblum not only became official U.S. policy but, according to Sarotte “because of the official imprimatur and the broad distribution…helped shape American attitudes toward the controversy of what, exactly had been said…” Herbst and Kornblum concluded that the assurances that were given had no legal force. They were able to make this judgment by separating the verbal promises from the written documents that make “no mention of NATO deployments beyond the boundaries of Germany.”

The investigation did not deny that spoken assurances had been made. And no Russian official has ever claimed that they were written in the documents; in fact, they have regretted that they were not. When Putin presented the United States and NATO with security proposals, including the demand that NATO not be allowed to expand into Ukraine, in the days before the war, he specified that, this time, they must be in the form of “legally binding guarantees” and not “verbal assurances, words and promises.”

The distinction that Herbst and Kornblum rely on is an act of legal sophistry. Commentators are often very quick to end the argument by simply entering into evidence that there was no written promise. There was no written promise. But that is not as case closing as the West likes to quickly claim.

In Deal or No Deal? The End of the Cold War and the U.S. Offer to Limit NATO Expansion, Joshua R. Itzkowitz Shifrinson argues that verbal agreements can be legally binding and that “analysts have long understood that states do not need formal agreements on which to base their future expectations.” In his essay, “The United States and the NATO Non-extension Assurances of 1990: New Light on an Old Problem?” Trachtenberg adds that “legal scholars, as a general rule, do not take the view that only written, signed agreements are binding under international law. As [Professor of Political Science at the University of Chicago] Charles Lipson pointed out in 1991, ‘virtually all international commitments, whether oral or written,’ are treated in the international law literature as ‘binding international commitments.’ And indeed legal scholars have often argued that unilateral statements made at the foreign ministerial level can be legally binding.”

Trachtenberg cites World Court and International Court of Justice decisions that affirmed that verbal agreements can be binding under international law.

Verbal agreements are the foundation of diplomacy. Shifrinson argues that informal deals are important to politics and diplomacy. Trachtenberg agrees, saying that high officials “are not free to just walk away from the verbal assurances they give by claiming that they are not legally binding because no agreement had been signed. For otherwise purely verbal exchanges could not play anything like the role they do in international political life.”

Shifrinson argues that, historically and relevantly, verbal agreements were particularly important to diplomacy between the United States and Russia during the Cold War. As examples, he cites the resolution of the Cuban Missile Crisis through informal verbal agreements and the “Cold War order [that] emerged from tacit U.S. and Soviet initiatives in the 1950s and 1960s that helped the two sides to find ways to coexist.” Trachtenberg points out that the important assurance of Western access to Berlin through the Soviet zone was never more than a verbal agreement. Verbal agreements between the U.S. and Russia “abounded during the Cold War,” Shifrinson says. Trusting spoken promises made in the early 1990’s was neither new nor naïve.

It is even possible that what was offered to Russia in 1990 and 1991 was more than a promise. It may have been a deal. Shifrinson, who seems to think the assurances achieved the threshold of a deal, asserts that verbal agreements “can constitute a binding agreement provided one party gives up something of value in consideration” of what the other party promised in return. Trachtenberg, who thinks the assurances fell a little short of the threshold for a deal, states similarly that “assurances that are given as part of a deal—even a tacit bargain—are more binding than those issued unilaterally.”

Deals have the structure of what symbolic logic calls modus ponens. Any argument that takes the form of modus ponens is a valid argument. Such arguments state that if it is the case that if P is true then Q must be true, then, if P is, in fact, true, then Q must be true. In the case of the Western assurances, P was “You allow a united Germany to remain in NATO,” and Q was “NATO will not expand to the east.”

It could be argued that the threshold of a deal was reached and that Gorbachev allowed a united Germany to remain in NATO on condition that the West then honoured its promise that NATO would not expand east. If we allow a united Germany to remain in NATO, then you will not expand NATO east; we allowed a united Germany to remain in NATO; therefore, you will not expand NATO east.

Gorbachev certainly understood Baker’s promises in this way, as he says he only agreed to allow a unified Germany to be absorbed by NATO in return for the “ironclad” guarantee that NATO would expand no further east. It was only after these talks with Baker that Gorbachev agreed to German reunification and ascension to NATO. The “not one inch” promise was the condition for Gorbachev agreeing to a united Germany in NATO. In his memoir, Gorbachev called his February 9 conversation with Baker the moment that “cleared the way for a compromise.” Gorbachev understood the promise to have attained the threshold of a deal.

And that is the way Baker phrased it to him in the famous February 9 question in which he proposed “a united Germany keeping its connections with NATO, but with the guarantee that NATO’s jurisdiction or troops will not spread east of the present boundary.”

That is also the way Baker explained the promise to the public in a February 9 press conference. He told reporters, “What I’m saying is that we will have under the circumstances continued German membership in NATO…Now, that’s clearly, at least in the eyes of—in the position of the United States—not likely to happen without there being some sort of security guarantees with respect to NATO’s forces moving eastward or the jurisdiction of NATO moving eastward.”

If it is true that if one party gives up something conditionally on the other giving up something in return the threshold of a deal has been reached, and that “assurances that are given as part of a deal…are more binding than those issued unilaterally,” then Baker seems to have formulated the promise as, and Gorbachev seems to have understood the promise as, a deal. If that is the case, then what the West offered Russia, even if verbally and never in writing, may have been more than a promise. It may have been a binding deal.

That it is the West, and not Russia, who’s engaged in historical revisionism does not excuse Russia’s invasion of Ukraine. But the clarification that the documentary record provides can help not only to understand the start of the war in Ukraine, but also to understand part of what may contribute to a diplomatic solution to the end of the war in Ukraine.