Replies

You are entitled to your opinions. I am trying to be patient and restrained because I have the advantages of a law degree, a judicial clerkship, and years of legal practice. Wake me up from a year in coma and I can explain what a contract is as easily as a second grader can recite the alphabet.

I am sure you studied under Arthur Linton Corbin. It appears impossible to wake you from your coma. If you succumb to your coma, we will have to bury you twelve feet deep because, deep down, lawyers are good people. And you think an MOU is a bindinng agreement at international law.

I'll start. A contract consists of an offer, acceptance, consideration, and a lawful purpose.

An agreement between sovereigns may, or may not, be a binding contract.

U.S. Const, Article 2: "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur...." The Constitution is the supreme law of the land.

Absent the consent of the Senate, the President cannot enter into a binding treaty.

A binding treaty is a contract between nations. Absent senate consent, the President can enter into an Executive Agreement which is not a treaty, and which does not carry the authority of a treaty. It is entered into by two or more heads of state, not nations.

The authority of an Executive Agreement ceases to exist when the Executive leaves office. Agreements between nations continue indefinitely or as set forth in the treaty.

The famous Texaco v. Pennzoil case is an example of a memorandum of agreement being held to be a binding contract even when a more detailed formal contract was intended but was not negotiated and signed.

I am not familiar with the sovereign states of Texaco or Pennzoil, nor have I ever heard of either one entering into a treaty.

Binding treaties between sovereign nations are separate and apart from contracts between corporations.

With the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum), you are experiencing embarrassment trying to state what it bound the United States to do. I may as well add the UK and Ukraine. Only Russia do you find to have been somehow bound to do something.

As a practical matter, when parties in a negotiation sign and announce a deal and start pouring champagne, the courts are likely to rule that they have a deal and will enforce it.

As a general matter, such courts are not ordering sovereign nations with an army. Just how does your local court enforce an agreement with a foreign and sovereign nation?

As for enforcement, if nothing else, even without a formal enforcement mechanism, countries aggrieved by a breach of a memorandum of agreement can legally impose punishments and take counter-measures. That is why the US and NATO are fully justified by international law in aiding Ukraine after Russia violated her promises not to menace or attack her. Russia and Putin broke their word and are being made to pay hard for doing so.

As for enforcement at the United Nations, before an agreement can even be considered, it must be registered at the United Nations. The "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum) was not registered until twenty years after the fact, in 2014, after it was well and truly dead.

The US and NATO are not fully justified in aiding one side of a conflict with arms of war. You have a mighty strange sense of the law of neutrality. They can get away with it while the aggrieved side does not want to declare war over the transgression. Before the United States was a party to WW2, Roosevelt got away with it until the Japanese felt sufficiently aggrieved and there was Pearl Harbor.

NATO was in no way a party to the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum).

As for Angela Merkle's comments, they came years after Ukraine's denuclearization via the 1994 Budapest Memorandum and were in regard to Russia's violation of the much later Minsk Accords.

Merkel's comments about the Minsk Accords, a ceasefire agreement, tell the tale of why Russia will not again enter into such an agreement that the brokering parties have no intent to implement, but intent to use only to gain time for Ukraine under false pretenses to rearm and reinforce Ukraine.

Appeasement though bought Britain time to catch up so that she could win the Battle of Britain.

The biggest factors in the Battle of Britain were the English Channel, radar, and cracking the Enigma code. Germany was unable to iniate any ground war. The rest of western Europe lasted a few months against the German army. Then, like Napoloean, the Germans made the mistake of attacking Russia.

In any event, the aid provided Ukraine by the US and NATO has cost Russia severely. This is giving the US and NATO crucial time to rearm and rebuild their strength. Strategically, Russia is losing against the US and NATO even as she ravages Ukraine. Within a year or two that will become clear, with Russia too weak to attack NATO -- and perhaps so weakened that the Russian Federation eventually collapses as a political entity.

The "aid" provided by the US and other NATO members has cost Ukraine most severely. It is being destroyed as a nation. A generation of its men are being senselessly slaughtered at the neocon altar. Russia is crushing Ukraine, leveling cities and towns, putting Ukraine in the dark, and destroying their military capability. When Ukraine is left as a failed state, with it neighbors divvying up sectors of what used to be their historic land, you and your ilk can celebrate what you have wrought.

Within a year or two that will become clear, with Russia too weak to attack NATO -- and perhaps so weakened that the Russian Federation eventually collapses as a political entity.

Within a year or two, with the help of the neocon zeepers, Ukraine will be a failed state. It will exist in history books. It will be another chapter on poking the bear, adding to Napolean and Hitler.

I feel I am repeating myself, but as you do everything but respond to my actual content, here goes.

If the Budapest Memorandum is a binding agreement, what did it bind the United States to do?

Memoranda are non-binding political agreements, the legal equivalent of a pinky swear.

As you went to the trouble of quoting without link or title from United States Department of State, Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 2020, I must conclude you looked for, but did not find, the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum) anywhere in the 570 page list.

For more fun go to 1994 Treaties and Agreements, Texts of International Agreements to Which the U.S. is a Party (TIAS), and see what was listed as in force with Ukraine.

https://www.state.gov/1994-TIAS/

Try 1995:

https://www.state.gov/1995-TIAS/

Try 1996 to at least find something listed for Ukraine:

https://www.state.gov/1996-TIAS/

Ukraine (96-1116) – Treaty Concerning the Encouragement and Reciprocal Protection of Investment, November 16, 1996

Your self-proclaimed binding agreement, "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum) did not appear in your cited 2020 edition of Treaties in Force. Neither did it appear in the 1994, 1995, or 1996 editions of Treaties and Agreements, Texts of International Agreements to Which the U.S. is a Party (TIAS). There are editions of these things every year. Isn't it quite an anomaly that what you describe as a binding agreement, that evidently only binds Russia in some unknown fashion, has never made an appearance in the lists of treaties and agreements?

https://en.wikipedia.org/wiki/Russian%E2%80%93Ukrainian_Friendship_Treaty

Russian–Ukrainian Friendship Treaty
Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation
Signed: May 31, 1997; 27 years ago
Location: Kyiv, Ukraine
Entry into force: 1 April 1999, in accordance with article 39
Authentic texts: Russian and Ukrainian
Registration with the Secretariat of the United Nations: Ukraine, 2 October 2014
The Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation was an agreement between Ukraine and Russia, signed in 1997, which fixed the principle of strategic partnership, the recognition of the inviolability of existing borders, and respect for territorial integrity and mutual commitment not to use its territory to harm the security of each other. The treaty prevents Ukraine and Russia from invading one another's country respectively, and declaring war. Due to the beginning of the Russo-Ukrainian War in 2014, Ukraine announced its intention not to renew the treaty in September 2018. The treaty consequently expired on 31 March 2019. The treaty was also known as the "Big Treaty".
[...]

With its public commitment to join NATO, Ukraine violated the "mutual commitment not to use its territory to harm the security of each other."

This binding agreement surely superseded the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum).

Black's Law Dictionary, 11th Ed.

executive agreement. (1942) An international agreement entered into by the President, without approval by the Senate, and usu. involving routine diplomatic or military matters. Cf. Treaty (1).

- - - - -

treaty. 1 An agreement, formally signed, ratified, or adhered to between two countries or sovereigns, an international agreement concluded between two or more states in written form and governed by internationjal law. — Also termed accord; convention; cvenant; declaration; pact. Cf. Executive Agreement.
"Contracts between sovereign states are called by various names, none of which has a fixed meaning. Treaty is the generic term for an agreement formally signed, ratified, or adhered to by two or mlore sovereign states {Treaty of Warsaw}. An accord is any type of amicable arrangement between people or nations {Geneva Accord} . Concord is a more formal, slightly archaic equivalent of accord. A protocol is a treaty amending or supplementing an earlier treaty {Kyoto Protocol}. A declaration is ordinarily an agreement that makes or declares law {Declaration of Paris} An act generally results from a formal conference involving high officials. A compact is an earnest exchange of promises between sovereigns {United Nations Global Compact}. Pact, a less formal equivalent, appears in certain set phrases such as suicide pact. A paction is a compact between two nations to be completed by the performance of a single act; the term is rare today. An entente, a shortened form of the French entente cordiale, is an amicable agreement between nations referring to some policy or course of action, especially nvolving foreign affairs {Anglo-Russian Entente}. A convention is less formal or more specific type of multi-lateral treaty {Vienna Convention}. A cartel is a written agreement between opposing nations (belligerents) during wartime to regulate whatever dealings will take place between them {cartel for the exchange of prisoners of war}. A concordat is an agreement between a secular government and a church, especially the Vatican, for regulating church-state affairs {Concordat of 1801}.... in the U.S. an executive agreement is an agreement between the U.S. and another nation. Unlike a treaty, which must have the advice and consent of the Senate, an executive agreement is made by thje President but not ratified by the Senate. Some writers loosely refer to executive agreements as treaties. Bryan A. Garner, Garner's Dictionary of Legal Usage902, (3d ed. 2011).
"International law relating to treaties has largely been codified in the Vienna Convention on the Law of Treaties (1969)('VCLT'). For the purposes of the VCLT, a 'treaty' is defined 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' ... An agreement between a State and a non-State entity does not constitute an international treaty, although such an agreement may be governed by international lawissues...." Malgosia Fitzmaurice, "Treaties," in 9 The Max Planck Encyclopedia of Public International Law 1060, 1061 (Rudiger Wolfrum ed., 2012) (citation omitted)
memorandum. (15c) 1 A written note or record outlining the terms of a transaction or contract {the memorandum indicated the developer's intent to biy the property at its appraised value}.

https://treaties.un.org/doc/source/publications/practice/registration_and_publication.pdf

REGISTRATION AND PUBLICATION OF TREATIES AND INTERNATIONAL AGREEMENTS:
REGULATIONS TO GIVE EFFECT TO ARTICLE 102 OF THE CHARTER OF THE UNITED NATIONS
Adopted by the General Assembly on 14 December 1946 [Resolution 97 (1)], as modified by resolutions 364 B (IV), 482 (V) and 33/141 A, adopted by the General Assembly on 1 December 1949, 12 December 1950 and 18 December 1978, respectively.
The General Assembly,
Considering it desirable to establish rules for the application of Article 102 of the Charter of the United Nations which provides as follows:
1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.
Recognizing, in making provision therefore, the importance of orderly registration and publication of such treaties and international agreements and the maintenance of precise records;
Adopts accordingly, having given consideration to the proposals of the Secretary-General submitted pursuant to the resolution of the General Assembly of 10 February 1946, the following regulations:
PART ONE
REGISTRATION
Article 1
1. Every treaty or international agreement, whatever its form and descriptive name, entered into by one or more Members of the United Nations after 24 October 1945, the date of the coming into force of the Charter, shall as soon as possible be registered with the Secretariat in accordance with these regulations.
2. Registration shall not take place until the treaty or international agreement has come into force between two or more of the parties thereto.
3. Such registration may be effected by any party or in accordance with article 4 of these regulations.
4. The Secretariat shall record the treaties and international agreements so registered in a register established for that purpose.
[...]

No party to the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994" (Budapest Memorandum) tried to register said Memorandum with the United Nations until 2014.

The United Nations has never authorized any enforcement action regarding the Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons. Budapest, 5 December 1994 (Budapest Memorandum).

https://www.dfat.gov.au/international-relations/treaties/australias-practice-concluding-less-than-treaty-status-instruments

Australia’s practice for concluding less-than-treaty status instruments
This Guidance Note provides general guidance on Australia’s practice for concluding less-than-treaty status instruments with foreign governments. Any Commonwealth Government agency intending to enter into such an instrument should do so in consultation with the Department of Foreign Affairs and Trade’s International Law: Advising and Treaties Section (Treaties Section) and the relevant DFAT policy desk.
What is an instrument of less-than-treaty status?
An instrument of less-than-treaty status is intended to embody a political commitment without creating (of its own force) legal rights or obligations. As it is not binding under international law, an instrument of less-than-treaty status is not subject to Australia’s treaty-making process.
The most common form for an instrument of less-than-treaty status is a Memorandum of Understanding (MOU). Other forms include arrangements, exchanges of notes, letters recording understandings, records of discussion and joint communiqués.
Drafting and negotiating the text
Commonwealth Government agencies wishing to enter into an instrument of less-than-treaty status with a foreign government are responsible for drafting and negotiating the text, in consultation with DFAT’s Treaties Section and the relevant DFAT policy desk. Agencies should follow the guidance on language and key provisions below.
Language
To avoid any misunderstandings over the status of an instrument, it is important that the intention of the participants is clear. Whilst the intention of the participants is paramount in determining the legal status of an instrument, Australia’s practice is to use non-mandatory language in less-than-treaty status instruments. For example, under Australian practice, terms such as ‘agreement’, ‘agree’ and ‘agreed’ denote a treaty, while other terms, such as ‘arrangement’, ‘decide’ and ‘jointly determine’ denote an instrument of less-than-treaty status.
The table at Annex 1 contains further guidance on language suitable for use in instruments of less-than-treaty status.
Key provisions
Formal preambles should be avoided in instruments of less-than-treaty status, although informally phrased opening recitals may be appropriate.
Any provision for the settlement of disputes should be in terms of amicable resolution, rather than formal arbitration or any other form of binding dispute settlement.
Subdivisions of the instrument should be referred to as paragraphs rather than articles.
The instrument should be expressed to ‘come into effect’ rather than to ‘enter into force’.
The attestation clause should read ‘SIGNED at ..... on .....’, rather than ‘DONE at ..... on .....’.
A Model MOU including sample paragraphs for use in a less-than-treaty status instrument is at Annex 2.
Clearance
All instruments of less-than-treaty status must be sent to DFAT’s Treaties Section for clearance prior to signature. This clearance consists principally of ensuring there is no treaty language in the text of the proposed instrument and that it does not contain anything that would imply that the instrument is binding at international law.
Retention of original texts
Following signature of an instrument of less-than-treaty status, the relevant lead agency should retain the original signed version. DFAT’s Treaties Section does not maintain a collection of instruments of less-than-treaty status.
Contact us
International Law: Advising and Treaties Section
International Law Branch | Legal Division
Department of Foreign Affairs and Trade
Email: treaties@dfat.gov.au
- - - - - - - - - -
Annex 1: Language for use in instruments of less-than-treaty status
[excerpts]
Language for instruments binding under international law (i.e. treaties)
Agreement
[legal] obligations
duties
Language for non-binding instruments (e.g. MOUs)
commitments
undertakings