Legal Evaluation of the Treaty between the United States and Ukraine

Legal Evaluation of the Treaty between the United States and Ukraine

Introduction

This memorandum evaluates the legal validity of the recently signed security pact between the United States (US) and Ukraine. US President Joe Biden and Ukrainian President Volodymyr Zelensky signed the agreement, aiming to elevate bilateral ties to the level of a "true alliance." This memorandum argues that the agreement lacks legal validity as a treaty under international law due to non-compliance with essential legal requirements, including the necessity for more than two parties and other conditions stipulated by international treaty law.

Applicable Legal Framework

Vienna Convention on the Law of Treaties (VCLT) 1969

Article 2(1)(a): Defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Article 6: States that every State possesses the capacity to conclude treaties.

Article 7: Concerns the authority of representatives to adopt or authenticate the text of a treaty.

Article 11: Specifies that a treaty can be concluded by signature, exchange of instruments, ratification, acceptance, approval, or accession, or by any other means if so agreed.

Customary International Law

Bilateral vs. Multilateral Treaties: Customary international law recognizes both bilateral (between two parties) and multilateral (involving multiple parties) treaties. There is no strict requirement that a treaty must involve more than two parties, as bilateral treaties are a well-established practice in international relations.

US Domestic Law

US Constitution, Article II, Section 2: Provides the President with the power to make treaties, provided two-thirds of the Senators present concur.

Case Law: Various decisions by US courts have addressed the President's treaty-making powers and the role of Congress in approving treaties.

Arguments Against the Legal Validity of the Treaty

Misinterpretation of Treaty Requirements

The assertion that a treaty requires three or more parties is a misinterpretation of international law. The VCLT and customary international law recognize the validity of bilateral treaties, and there is no legal basis to claim that the US-Ukraine agreement is invalid solely because it involves only two parties.

Non-Compliance with US Constitutional Requirements

Under US domestic law, for an international agreement to be considered a treaty, it must be ratified by a two-thirds majority in the Senate as stipulated by Article II, Section 2 of the US Constitution. If the security pact signed by President Biden and President Zelensky has not been ratified by the Senate, it may lack the necessary legal status as a treaty under US law. Instead, it could be classified as an executive agreement, which has different legal implications and may not be as binding as a treaty.

Lack of Binding Commitment Under International Law

Even if recognized as an executive agreement, the pact’s binding nature under international law could be questioned. Executive agreements, unlike treaties, do not require Senate ratification and may be subject to change or termination by subsequent administrations. This can undermine the long-term legal commitment intended by the agreement, potentially reducing its enforceability under international law.

Specificity and Clarity in Obligations

For a treaty to be effective, it must clearly delineate the obligations of the parties involved. The language of the security pact, while outlining broad commitments such as military aid, intelligence sharing, and economic assistance, may lack the specificity required for enforceability under international law. Vague or overly broad terms can lead to interpretational disputes and challenges in implementation.

International Recognition and Acceptance

The legal standing of a treaty can also be influenced by its recognition and acceptance by the international community. If key international actors or bodies do not acknowledge the US-Ukraine security pact as a legally binding treaty, its status could be compromised. This recognition is crucial for the treaty to hold substantial weight in international relations and law.

Potential Legal Implications and Consequences

For the United States

Failure to obtain Senate ratification for the security pact could limit its enforceability as a treaty, reducing its ability to bind future administrations. This could affect the US’s long-term strategic commitments and reliability in international agreements.

If challenged domestically, the pact could face legal scrutiny, potentially leading to a judicial review of its validity and the scope of the President's authority to enter into such agreements without Senate approval.

For Ukraine

Ukraine’s reliance on the security pact for defense and deterrence against future aggression could be compromised if the agreement’s legal standing is questioned. This could affect Ukraine’s strategic planning and security posture.

The perceived instability of the agreement may impact Ukraine’s international relations and negotiations with other countries or international bodies.

For International Law and Relations

The situation highlights the importance of adhering to established legal frameworks and processes in international treaty-making. Deviations can lead to disputes and undermine the credibility and stability of international agreements.

It underscores the need for clarity and precision in drafting international agreements to ensure they meet legal standards and are recognized by the international community.

Based on the analysis above, the security pact between the US and Ukraine lacks the necessary legal validity as a treaty under both international and US domestic law. The requirement for a treaty to involve three or more parties is a misinterpretation; however, the agreement's failure to meet the specific constitutional requirements for treaty ratification in the US undermines its status as a legally binding treaty. Furthermore, the broad and vague terms of the agreement, coupled with potential issues of international recognition, further diminish its enforceability under international law.

Recommendations

Senate Ratification

To enhance the legal standing of the agreement, it is recommended that the US administration seek Senate ratification. This would elevate the agreement to the status of a treaty under US law and provide a stronger legal foundation for its commitments.

Clarification of Terms

The agreement should be revised to include more specific and clearly defined obligations to ensure clarity and reduce the potential for interpretational disputes. This will enhance its enforceability and the mutual understanding of the commitments involved.

International Recognition

Efforts should be made to secure broader international recognition and acceptance of the agreement. Engaging with international bodies and other countries to acknowledge the pact can strengthen its legal standing and political support.

Monitoring and Review Mechanisms

Establishing robust monitoring and review mechanisms within the agreement can help ensure compliance and address any issues that arise during its implementation. This can build confidence in the agreement’s effectiveness and durability.

By addressing these recommendations, the parties involved can strengthen the legal validity and enforceability of the security pact, ensuring that it effectively serves its intended purpose in enhancing bilateral ties and supporting Ukraine’s defense capabilities.

References

Vienna Convention on the Law of Treaties, 1969.

US Constitution, Article II, Section 2.

Relevant case law and legal precedents on treaty-making powers and executive agreements.

Ricardo Baretzky PhD in Law

Disclaimer: This memorandum provides a general analysis based on the given information and applicable legal principles. It is not exhaustive legal advice. Specific legal queries should be directed to a qualified legal professional.