Aurelien published a very important post last week, So They Want Negotiations, Now.. It included a deep dive on the background and key provisions of NATO and the Minsk Agreements. It’s worth highlighting his discussion of these two pacts because both are far flimsier (especially Minsk) than most would imagine. Aurelien exposed a critical conundrum that was somewhat obscured by his focus on the history of some key negotiations, focusing on multi-party agreements where participants have overlapping and presumably sufficiently aligned interests to come up with what looks like an agreement. His observations:
For their part, it’s clear that the Russians don’t consider the Ukrainians to be independent actors, and so would demand that the negotiations be between themselves and NATO, with Ukraine being just an item on the agenda….
Negotiations are classically between sovereign entities that have the legal ability to enter into treaties. The European Union does (for example in the Withdrawal Treaty with the UK) but NATO does not….
So in practice, a future “negotiation” would be between however many paid-up members NATO then has, negotiating independently but trying to keep to a common position, Russia, Ukraine in one configuration or several, and perhaps others. Would Australia want a seat? What about Switzerland? Who decides? And what status would, say, Australia have, as an equipment supplier? What obligations would Canberra sign up to? An almost superhuman degree of consensus would be needed even to agree on the content of the negotiations and the rules of procedure.
I’ll serve up some additional extracts from Aurelien’s post. But at the danger of grossly oversimplifying (particularly since my frame of reference is corporate, not international, governance), European states wanted a security guarantee from the US at a time when strong formal support was politically unpopular and apparently didn’t have many stealthy backers in the Beltway either.
However, NATO became more solid due to the later setting up of a large-scale military operation, due in large measure to the US being willing to set up bases and put troops all over Europe (one wonders how much the profit potential of this operation was what Eisenhower had in mind when he warned of the growing power of the military industrial complex). It also has rituals and routines, like joint exercises, periodic high level meetings, and terrific media amplification, that give NATO the appearance of being more akin to the EU in terms of its cohesiveness.
However, Scott Ritter, who recall was a military brat in Germany and then was a NATO weapons inspector, has pointed out deficiencies in NATO’s ability to act in a well-synched manner. And this is not just Article 5, which merely tasks NATO members to consider coming to each other’s aid in the event one is attacked, as opposed to obligating them to do so.
On top of that, Ritter has also described multiple times in his interviews how when Ukraine troops are sent in at most the thousands (over time) to train in various NATO member states, the process impedes them operating as a cohesive force. One obvious lapse (also described by Brian Berletic) is that even after soldiers learn how to operate as a basic capacity in a specific role, say an infantryman or tank gunner, they then have to learn how to work together in increasingly bigger formations. That takes years.
The way the various NATO members train impedes creating bigger-unit cohesion. Even putting aside language differences, Ritter has stressed that every NATO member’s basic training differs somewhat. I have not heard him give an example, but he seems to regard those differences as big enough to matter.
Another example of lack of a desirable level of integration from a military perspective is the way many NATO members have their own weapons systems, such as in Ukraine, the US Abrams tank, the UK Challenger, the German Leopards. Any effort to provide a single fighting force with with disparate weapons creates a logistical and training nightmare. If NATO had had more central authority, one would imagine weapons development would have been on Airbus lines: a consortium so as to create a coherent, more streamlined “product line” with the manufacturing doled out among NATO members. But US arms-makers would likely not have tolerated being components suppliers and designers as part of a big US-EU combine.
Before you disagree with Aurelien conclusion that NATO can’t enter into treaties and why that is fatal to any effort to settle the conflict with Russia (even before getting to the wee problem that it is inconceivable that the West, or more accurately the US, will retreat from its position that no outside party can block NATO’s “open door” policy, when it is essential to Russia that any surviving independent Ukraine not join NATO), consider the nation-level duct tape and bandaid process for admitting new members. Again from Aurelien:
Thus, Finland’s accession to NATO was registered in the form of a Protocol to the Washington Treaty, recording that “The Parties to the North Atlantic Treaty” had agreed that Finland would depose an instrument of accession with the US (as the depositary state) and that each NATO member would then notify its acceptance of the instrument. The reason for this clumsy system is that “NATO” cannot agree anything, nor would its member states allow it to do so. In any future theoretical treaty, “NATO” would not be a signatory, nor would it be represented at the negotiating table, not would it have obligations and rights under the treaty. All this is down to individual states. Something like this happened before, with the above-mentioned Conventional Armed Forces in Europe Treaty in 1990. There, some very clever footwork was needed to reconcile the fact that the negotiations were bloc-to-bloc, between NATO and the Warsaw Pact, with the fact that the treaty had to be signed and implemented by individual nations. Likewise, endless, laborious and often acrimonious internal negotiations were needed within NATO itself to try to establish a common position.
So this goes a long way towards explaining why the so-called Collective West gets so wrapped around the axle of having to negotiate with itself. If “NATO” has to act in some manner to settle the conflict in Ukraine, every member of NATO (an as Aurelien argues, potentially even interested parties like Switzerland) would have to come to an agreed position, since each country would have to sign off individually on any pact for it to amount to a NATO-equivalent treaty.
And look at what has happened of late with the supposedly agreed ascension of Sweden to NATO. Erdogan was browbeating into saying Turkiye was on board despite not having gotten what it wanted with Sweden’s handling of Kurdish separatists, which Turkiye deems to be terrorists. But Erdogan likely knew full well what would happen next. Turkiye’s parliament has to ratify Sweden’s membership. Sweden’s refusal to crack down on Koran burning, which they see as permitted free speech, means Sweden’s membership is in limbo. Of course, that it not preventing NATO from treating Sweden as a member in most respects, but this is not a very good fudge.
Some have suggested a Minsk III as another device for resolving the Ukraine conflict. After reading how tissue-thin Minsk I and Minsk II were, one wonders how lawyer Putin was able to talk himself into them, even before getting to the duplicity of Ukraine, Germany, and France.1 Aurelien has an excellent discussion which I am hoisting perhaps over-liberally:
Since the [Minsk] Agreements are often referred to but seldom actually quoted, let’s have a look at the texts. They aren’t easy to find….The first of the Agreements, dated 5 September 2014 (“Minsk 1”) was eventually transmitted by the Ukrainian delegation to the UN on 24 February 2015…First, the document itself consists both of a “Protocol”, described as an “Understanding,” and an accompanying “Memorandum” covering parts of its implementation. That is to say, there are no individual undertakings by any country in the documents, and no individual legal, or even political obligations. The documents simply record what the participants say they have agreed. There is provision for monitoring, but not enforcement.
The second is the participants and signatories. The text is signed by representatives of the Trilateral Contact Group (Ukraine, Russia, and the breakaway Oblasts as well as by the OSCE, which was responsible for monitoring.) The leaders of France and Germany facilitated the talks but did not sign any of the documents. On the other hand, the Ukrainians (who did not recognise the breakaway regions) insisted that their then leaders signed only as individuals, not as representing any political entity….
The third is the content. Both documents are very short, as might be expected from documents concerned mainly to establish principles. That said, the Memorandum is extremely detailed in one part, and obviously drafted by military specialists, since it also contains very precise lists of equipment (mainly artillery) together with distances that they should be drawn back from the line of contact…
Finally, the language. This is always difficult where translations are involved, but what we can say is that both documents contain largely statements of good intentions, without targets or associated dates. Someone (presumably the Ukrainian government) will “implement decentralisation of power,” several somebodies will “enact a law” to punish atrocities, someone will “adopt a programme” for the economic revival of the Donbas. The texts carefully avoid saying who is responsible for what, and how the what is to be accomplished and when, yet alone evaluated. The document ostentatiously avoids anything resembling treaty language (eg “reached an understanding” rather than “agreed.”). But this is not really a criticism: it was just what could be extracted from the parties at the time….
As a result of the lack of trust and commitment, fighting began again and, following more pressure from France and Germany and a very long and difficult meeting, a “Package of Measures” was finally agreed on 12 February 2015, to implement the original Minsk Agreements (this became known as “Minsk 2.”) Note again that this is not a treaty, or an enforceable document of any kind…In certain cases (eg Constitutional reform) it is clear that the Ukrainian government has promised to do something, in others, who should do what is unclear….It’s also worth pointing out that some of the provisions go outside the normal bounds of a treaty, because they commit non-signatories to do things: for example, the Ukrainian Parliament is supposed to adopt a resolution on the areas to which a special political regime will apply. This kind of thing never appears in treaties, for the simple reason that no government can commit its parliament. In essence, therefore, this is a collection of Clever Ideas, which, if they could be implemented, were intended to help with the implementation of the Minsk Agreement…
For all that, the Agreements fell apart very quickly…The reality is that, had there been a willingness on both sides to make the agreements work, then somehow they would have worked.
So again, to perhaps oversimplify, Minsk was a set of aspirations, at best a toothless roadmap with only the military pullback well specified. Russian in late 2021 provided the US with draft treaty language as an opener to negotiating the new European security arrangement that Putin has been calling for since at least the 2007 Munich Security Conference. The US did not deign to respond.
In other words, this is yet another proof of what many paying close attention have already surmised: not only are the bargaining positions of Russia and Ukraine plus its Western allies too far apart for any deal to be possible, but the huge process issues with Russia needing a commitment from NATO creates yet another very large impediment.
Of course, Russia has already told itself there can be no deal. It has correctly called the US “not agreement capable”. You can’t sensibly sign a pact with an untrustworthy counterparty. Russia keeps formulaically saying it is willing to negotiate. But once you consider the history and the parties, these Russian statements are simply playing to the non-hostile parts of its global audience. Russian Foreign Minister Sergei Lavrov just said the quiet part a bit louder: “If you insist on the battlefield, OK, let’s decide it on the battlefield.”
1 Yours truly has seen and even signed agreements that were clearly defective. A reason this sort of thing happens is one side putting too much trust into the other side, per the classic saying that an agreement is only as good as the parties to it. So a party agreeing to suboptimal terms may think the other side has incentives to perform beyond their weak obligations. In my case, my defective deal actually wound up working out to my advantage when breached by the other side….not that I could have expected that.