Lost in translation: do foreign partners give guarantees to protect Ukraine in the future?

What kind of agreement did Ukraine sign?

On January 12, British Prime Minister Rishi Sunak came to Kyiv to sign an "unprecedented" agreement on security cooperation. London became the first to sign a bilateral document with Kyiv after the G7 and dozens of other countries promised to do so.

There are three main components to Britain's commitment:

• providing Ukraine with comprehensive assistance to protect itself, return lands, rebuild its economy, etc;
• preventing, actively deterring, and countering any military escalation and/or new aggression by Russia;
• support for Ukraine's future integration into NATO.

This document formalizes a number of measures that the United Kingdom has already provided: intelligence sharing, cybersecurity, medical and military training, and defense-industrial cooperation. Britain is committed to helping Ukraine strengthen its interoperability with NATO, and the agreement includes a £2.5 billion ($3.2 billion) aid package through 2024.

The key thing for Kyiv in this agreement is that in the event of any new Russian invasion or attack on Ukraine, London undertakes to consult with Kyiv within 24 hours to determine the measures necessary to counter or deter aggression.

In such circumstances, Britain undertakes to provide Ukraine with emergency assistance, modern military equipment in all necessary fields, impose sanctions on Russia, etc.

The agreement is valid for 10 years with the possibility of extension. Every year during this time, Ukraine will receive significant support, both military and non-military.

This is not (yet) NATO

Although this agreement is being called "unprecedented," both sides understand that it will not replace Ukraine's accession to NATO and the collective security system. Instead, this document should be seen as the basis on which Ukraine will rely in its integration into the North Atlantic Alliance. President Volodymyr Zelenskyy has stressed that Ukraine's key security goal remains unchanged – namely joining the Alliance.

Guarantees without guarantees

There are no "security guarantees" in this document, which the Ukrainian government has publicly called for. Instead, there are commitments, i.e., the UK's "obligation" or "readiness" to fulfill its promises. This is not surprising. It's a matter of how much weight the Ukrainian and British sides attach to certain terms," explains international lawyer and MP Oleksandr Merezhko.

In his "peace formula," Zelenskyy notes that Ukraine needs "commitments and security guarantees" from its partners. But in English, these terms are duplicated in the document as “commitments and arrangements”.

As Merezhko explains, in English and Anglo-Saxon legal culture, the term "guarantees" is "very powerful," immediately indicating legal binding. However, its literal translation – guarantees – is hardly ever used. Instead, documents use security assurances, which Ukrainians understand as guarantees.

This can be seen, for example, in the Budapest Memorandum: the Ukrainian version of the documents uses the term "guarantees", while the English version uses the term "assurances".

"We use the term 'guarantees' because in Ukrainian the word 'assurances' has a weak connotation. I think we can continue to use the term 'guarantees'," Merezhko said.

So what were Ukrainians actually promised?

As Merezhko explains, international law distinguishes between an international treaty and a Memorandum of Understanding (MOU).

In short: an international treaty is legally binding, while a memorandum – in other words, an international political agreement – is not formally so. It has political commitments and has moral and political rather than legal force.

Judging by the terminology in the agreement with the UK, this is exactly the kind of MOU we have, says Merezhko. In practice, it can be difficult to draw a clear distinction between an agreement and a memorandum. In theory, it all depends on whether the parties intend to make the document legally binding. But this intention of the parties can be difficult to identify. "This is a debatable issue," adds Merezhko.

Advantages and disadvantages of the agreement

Is it good or bad that Ukraine has entered into an MOU? An international treaty is more difficult to conclude – it requires ratification in parliament. Countries use MOUs because it is more convenient, explains Merezhko. However, with an MOU, you cannot go to court if the other party violates the agreement. Therefore, the parties rely on the reputation of the one who makes such promises.

Oleksandr Merezhko notes that the form of the agreement with the UK is of secondary importance, the main thing is the will of the parties and their common intention to achieve results.

"This is more a matter of legal wording. But the essence does not change: The UK is a very reliable partner. If they promise something, they always fulfill it, which is the most important thing," he said.

In the agreement with the UK, Kyiv already has a specific mechanism – consultations within 24 hours. According to Merezhko, this is a good precedent in terms of content. Ukraine has bilateral (or even multilateral) agreements with other partners ahead. The fact that the first agreement was with London, which is a good partner of Ukraine, can play into Ukraine’s hands. After all, the bar has already been set, and other countries will try to do "no worse."