The Elements of an Intergovernmental Agreement
Boris Yeltsin, Bill Clinton, Leonid Kuchma, and John Major sign the Budapest Memorandum, 5 December 1994
Anyone who endeavors to assess, design, negotiate, or implement agreements between two or more governments must have an understanding of the fundamental elements that go into them. Failure to understand those elements can lead to poorly constructed documents that may fail to articulate the actual terms of the agreement or will invariably create problems in implementation.
To comprehend the elements, one must strip intergovernmental agreements to their core, isolating each element based on its function and characteristics. Doing so reveals that there are seven fundamental elements, as described below.
First is the title of an agreement. The title is important not just for reference purposes, but because it defines the type of agreement, be it a treaty, a memorandum, a declaration, etc. This is important in terms of level of formality and its status under international law. The title may also signal the purpose of the agreement; for example, an "armistice" is meant to cease hostilities but is not a settlement of the political issues. Finally, it may bound an agreement to a specific issue area, such as the 1993 boundary line agreement between India and China entitled, “Agreement on the Maintenance of Peace and Tranquility along the Line of Actual Control in the India-China Border Areas.”
The second element is the signatories to the agreement. Who signs an agreement tends to be an indicator of the level of authority the document carries, while also pointing to the relevant functional area within the governments. For example, if the signatories are Ministers for Foreign Affairs, one can immediately divine that the agreement is diplomatic in nature and carries notable weight within the respective governments. If the agreement is between a military base commander and a host nation mayor, it may hold significance at the local level, but it will not obligate higher level government authorities. To note, the highest level signatory for an intergovernmental agreement is the head of government (who may also serve as the head of state, depending on the system of governance).
Third is the definition of actors responsible for implementation of the agreement. This is not necessarily isolated to the signatories to that agreement. The agreement may specifically name third party actors who can mediate deliberations, inspect and report, and/or administer aspects of implementation. For example, the Korean Armistice Agreement designated Czechoslovakia, Poland, Sweden, and Switzerland to compose the Neutral Nations Supervisory Commission that oversees implementation of the terms of Armistice.
The fourth element is declarations. This is where the parties articulate policy positions, interests (whether unilateral, mutual, or negotiated), or intent. Declarations are simple and straightforward in nature, neither presenting obligations nor prescribing rules or actions.
The fifth is pledges. Unlike a simple declaration, a pledge is a promise of action or non-action related to another party to the agreement. For example, a common pledge in a peace agreement is a “non-aggression clause" which promises that the parties will not attack each other. Meanwhile, the fundamental pledge in an alliance treaty is a defense clause which states that one party will the other.
Sixth is prescribed action. This is different from a pledge in that it includes a specific call to action for the parties. Prescriptions include timetables for implementation, frequency of meetings to discuss the terms of the agreement, and thresholds or triggers for certain follow-on actions. This is especially important for framework agreements, where prescribed action is necessary to move the parties closer to a final, comprehensive agreement.
The final element is rule-setting. These are specific provisions that define the terms of agreement between the parties while articulating rights, duties, and obligations. Often, rules-setting serves to clarify pledges and prescribed action. For example, peace agreements that are predicated on pledges of non-aggression may establish boundaries, specify a code-of-conduct for military forces, and mandate specific mechanisms for managing the implementation of terms of peace.
One contractual element that tends to be absent from intergovernmental agreements is that of penalties. While standard business contracts may detail the sorts of penalties that come from reneging on the terms, the absence of an enforcement authority eliminates the power of explicit consequences for violation. The exception to this comes when the parties to an agreement submit themselves to higher level arbitration authorities, such as members of the European Union.
Breaking down the 5 December 1994 Budapest Memorandum
To illustrate the points above, this article examines the 1994 Budapest Memorandum. This was an intergovernmental agreement that has gained attention owing to Russia's invasion of Ukraine–the very scenario it was intended to prevent.
Fundamentally, there was only one core tradeoff in the Budapest Memorandum: Ukraine gives up its right to nuclear weapons in exchange for security guarantees. At the time, the fall of the Soviet Union left Ukraine with the world’s third largest arsenal of nuclear weapons; thus, the parties to the agreement sought measures to prevent the creation of another de facto nuclear weapons state. The agreement specifically noted Ukraine’s accession to the Nuclear Nonproliferation Treaty (relinquishing Ukraine's right to build or maintain nuclear weapons) and pledged security guarantees from the United States, United Kingdom, and Russian Federation (three of five permanent members on the UN Security Council).
The paragraphs below break down the agreement based on the seven elements described earlier.
The formal title of the Budapest Memorandum is the "Memorandum on security assurances in connection with Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons." The title itself clearly codified the trade-off of security guarantees for Ukraine's accession to the Nonproliferation Treaty. Meanwhile, the use of the term "Memorandum" indicated a lower level of formality under international law.
There were four signatories to the Budapest Memorandum: the heads of government from Ukraine (Leonid Kuchma), United States (Bill Clinton), United Kingdom (John Major), and Russia (Boris Yeltsin). Having the heads of government sign the agreement signaled more authority as a counter-balance to the lower level of legal formality that comes with a "memorandum" rather than a treaty or other form of intergovernmental agreement.
Definition of Actors
There were five actors identified in the agreement: the four signatories and the UN Security Council.
The memorandum contained only two declarations. First, the parties to the agreement welcomed Ukraine’s accession to the Nuclear Nonproliferation Treaty. Second, the parties noted that the security environment had changed following the Cold War and “brought about conditions for deep reductions in nuclear forces.”
There were five notable pledges made in the memorandum:
Ukraine commits to eliminating all nuclear weapons from its territory.
The United States, United Kingdom, and Russia pledge to respect the “independence and sovereignty and the existing borders of Ukraine.”
The United States, United Kingdom, and Russia pledge not use force against Ukraine.
The United States, United Kingdom, and Russia pledge to refrain from economic coercion against Ukraine.
The United States, United Kingdom, and Russia pledge not to use nuclear weapons against any "non-nuclear-weapon State" that is party to the Nuclear Nonproliferation Treaty--specifically, Ukraine.
The Budapest Memorandum only prescribed two actions:
The United States, United Kingdom, and Russia will seek immediate United Nations Security Council action to provide assistance to Ukraine if certain conditions are met.
The United States, United Kingdom, and Russia will consult if certain conditions are met.
Fundamentally, there were only four rules that clarified pledges and prescribed action in the Budapest Memorandum.
Although not articulated within the memorandum, the agreement calls for Ukraine to eliminate all nuclear weapons from its territory “within a specified period of time.”
It presents an exception to restrictions on the U.S., UK, and Russian use of force in cases of self-defense or "otherwise in accordance with the Charter of the United Nations."
It clarifies that the parties will go to the UN Security Council if Ukraine should become a "victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used."
The agreement clarifies that the United States, United Kingdom, and Russia will not use nuclear weapons against Ukraine except in the case of an attack on "themselves, their territories or dependent territories, their armed forces, or their allies, by such a state in association or alliance with a nuclear weapon state."
The memorandum clarifies that the parties will consult in the event a situation arises which raises a question concerning these commitments.
Given Russia's adventurism in Crimea in 2014 and its current war of aggression against the entirety of Ukraine, it is clear that the Budapest Memorandum was insufficient for meeting its lofty aims. Unfortunately, it lacked the specificity, formality, international commitments, and rulesets necessary to make it a more durable agreement. Nevertheless, there is still utility in the Budapest Memorandum today, as it offers important lessons for intergovernmental negotiators.
Breaking down the Budapest Memorandum by its core elements