11 Mar Why 2+4 Does Not Always Add Up: In Search of NATO’s Non-Enlargement Promises
[Julia Emtseva is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and Paul Emtsev is an independent public communication expert.]
For Russia, the current war in Ukraine rests on the assumption that NATO’s Eastern enlargement is a threat to the country. For several months, Russian President Vladimir Putin has warned the West that deploying weapons or soldiers to Ukraine would cross a “red line”. The general Russian criticism of NATO’s enlargement is much older. For many years already, Russia claims that NATO’s enlargement towards the East contradicts Western assurances from the early 1990s that this would never happen. Western officials in return repeatedly stated that such concessions were never made. Now, a newly found declassified document from the British National Archives suggests that during the so-called 2+4 negotiations that resulted in the Treaty on the Final Settlement with Respect to Germany (otherwise known as the 2+4 Agreement) some statements by Western diplomats indeed implied that the West would not extend the Alliance towards the East. Today, more than 30 years later, what are the political and legal implications of potentially broken promises for the relationship between Russia and NATO?
A point that all parties can agree on is that NATO did move its Eastern borders quite dramatically: Poland, the Czech Republic, and Hungary joined the Alliance in 1999; five years later, Bulgaria, Estonia, Latvia, Lithuania, Rumania, Slovakia, and Slovenia followed. In 2009, Albania and Croatia became NATO members, Montenegro in 2017, and North Macedonia in 2020. But apart from that, there is not much more for Russia and NATO to agree on, especially when it comes to the question of how exactly the future of NATO was viewed at the time of the 2+4 negotiations.
The argument historically begins with the 2+4 negotiations that were aimed at the reunification of Germany and involved West and East Germany (2), the United States, the Soviet Union, Great Britain, and France (4). With the possibility of East Germany joining the West, the Soviet Union faced a scenario where NATO’s territory could indeed move further eastwards to its border with Poland. However, during that time both the Warsaw Pact and the Soviet Union still existed, and none of the parties perceived NATO membership for countries of the Eastern bloc (such as Poland or Ukraine) as a main point of discussion. However, that is where today’s disagreement between Russia and NATO starts.
For the current Russian government, it is clear that NATO’s enlargement after the end of the Cold War was a betrayal of a negotiated agreement not to move the Alliance’s borders further eastwards. Soviet leader Mikhail Gorbachev stated that the Soviet Union wanted to make sure “ NATO’s military structures would not advance and that additional armed forces from the alliance would not be deployed on the territory of the then-GDR after German reunification.” U.S. Secretary of State James Baker himself told Gorbachev that “there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” Even though this statement was never included in the Treaty of Final Settlement with Respect to Germany, Gorbachev later said that NATO’s eastern enlargement was “definitely a violation of the spirit of the statements and assurances made to us in 1990.” Russian President Vladimir Putin also referred to Baker’s statement recently when he said: “They cheated [on] us. Vehemently. Blatantly.”
Many Western politicians, however, remember things differently. Baker himself quickly walked back his words about the “one inch to the east” statement, saying that “I may have been a little bit forward on my skis on that, but they changed it and he [Gorbachev] knew that they changed it.” According to Baker, Gorbachev “never once again in all the months that followed ever raised the question of NATO expanding its jurisdiction eastward. He then signed documents in which NATO did expand its jurisdiction.” Gorbachev himself also admitted that “the topic of NATO expansion was not discussed at all.” According to the West (but also Gorbachev), the main issue in the 2+4 negotiations was not the general question of accepting new members from Eastern Europe, but the deployment of NATO’s military structure to Eastern Germany. For the Soviet Union, as it was at the time, scenarios such as the membership application of Eastern European states would have been hard to anticipate, some Western experts say. For the West, the final 2+4 Treaty speaks for itself, as it clearly does not include a formal guarantee that NATO would not enlarge towards the East.
A New Twist
Russian politicians are well aware of what is and what is not included in the 2+4 Treaty. That is why Russia does not claim that NATO’s enlargement is a violation of the 2+4 Treaty, but that it contradicts verbal agreements made during those negotiations. The main question that divides Russian and NATO representatives now is whether any promises not to expand the Alliance eastwards were actually made. According to NATO’s Secretary-General Jens Stoltenberg, such promises were never made. However, a recently published historical document suggests that the non-expansion of NATO was indeed discussed during negotiations.
On February 18, 2022, the German newspaper Der Spiegel published declassified notes of a meeting between the political directors of the foreign ministries of the United States, Great Britain, France, and Germany that took place in Bonn on March 6, 1991. Those notes were found by US professor of political science Joshua Shifrinson in the British National Archives. At the time those notes were written, German unification had already taken place, and an end to the Warsaw Pact was way more predictable than during the 2+4 negotiations. The document shows how all four Western countries agreed that NATO membership for Eastern European countries would have been “unacceptable.” In the meeting, Germany’s representative Jürgen Chrobog stated: “We made it clear during the 2+4 negotiations that we would not extend NATO beyond the Elbe. We could not, therefore, offer membership of NATO to Poland and the others.” US representative Raymond Seitz confirmed during the same meeting that the West made it clear to the Soviet Union: NATO should neither formally nor informally expand towards the East.
That document adds a new twist to the historical debate – as it shows that Russia’s memories of the 2+4 negotiations are not entirely wrong. However, according to the notes, Western “promises” made to the Soviet Union were only verbal and were not included in any written agreement. Politically and diplomatically, a breach of one’s word always has implications. From an international law perspective, however, the most interesting question is whether the verbal statements by Western officials can be considered legally binding.
Promises in International Law: Moral or Legal Obligations?
It is clear that the notes found by Shifrinson do not qualify as an international treaty. However, those notes prove the existence of verbal promises that can be viewed as unilateral acts of states. As the Special Rapporteur of the International Law Commission (ILC) Víctor Rodríguez Cedeño stated, promises can be categorized as unilateral acts when they create obligations for the author state, “without prejudice to recognizing the existence of other categories of unilateral acts such as protest, waiver, and recognition.” Additionally, the International Court of Justice (ICJ) confirmed in its Congo case decision that a state is free to commit itself to undertake certain international obligations through unilateral acts such as promises. It is, therefore, necessary to look at the legal implications of such unilateral acts, and in particular, of the verbal “promises” made to the Soviet Union. The ILC further stated that unilateral acts can indeed produce legal effects when three conditions apply: such unilateral acts 1) take the form of a formal declaration (written or oral), 2) are directed towards an addressee, and 3) are made “with the intent to produce obligations under international law.”
The first two conditions are relatively easy to assess in the given situation. The ICJ confirmed that unilateral acts can be made in various forms, and oral promises can fall under this category. The meeting notes also show that certain promises were made during the 2+4 negotiations, it was made clear that NATO would not expand beyond the Elbe. Moreover, the notes reveal that this information was made clear “to the Soviet Union”, and therefore was directed to and reached an addressee.
The ILC’s third condition, intent, is trickier. The key question in the debate about NATO’s non-enlargement promises remains whether the West really had the intention to produce legal consequences. The ILC highlighted that in order to detect intent, one needs to look at the content of state declarations, factual circumstances, and the reaction by addressees.
First, when the substance of these verbal declarations is reviewed problems arise. No full transcript of the verbal 2+4 negotiations has been published so far, and the limited information given in the declassified notes does not show the full picture. Yet, relying on the notes, one can see that the choice of words is relatively ambiguous. Chrobog said that they would not offer membership to Eastern European countries and Seitz stated that the West has no intentions to “benefit from the withdrawal of Soviet troops from Eastern Europe.” Seitz, however, added that “NATO should not expand to the East.” The language used by the Western officials is open to interpretation. Yet, one might argue that instead of using a harder language like guarantee or will not, the wording used in the unclassified notes seems to be rather soft (would not move, – except should not expand, which can be viewed as hard), which raises the question — were these declarations intended to be legally binding? Additionally, the declassified notes only include statements made by foreign ministry officials, but not by foreign ministers or heads of states themselves. It is therefore unclear whether their words should be interpreted as a direct confirmation of what was discussed during the 2+4 negotiations, or should they rather be viewed as the subjective or personal view of these political actors?
As mentioned, the ILC encourages looking at the circumstances under which a promise was made in order to determine whether it is binding. Given the urgent desire to resolve the situation regarding the reunification of Germany as well as the unpredictable scenario of the USSR’s collapse, it can be assumed that promises of non-enlargement towards the East were not of the highest priority. Few states might have anticipated that Poland and other Eastern European countries would shortly become truly independent sovereign subjects. Furthermore, the ICJ said that fulfillment of additional formalities (e.g. a unilateral declaration registered with the UN) can be relied on when assessing the impact of a declaration in question. While a more extensive analysis of the political moves made after the 2+4 negotiations is needed to properly examine whether any additional formalities were completed, some facts speak to the lack of such formalities. For instance, as mentioned earlier, Baker claimed that the question of NATO membership was even not raised by the Soviets and that Gorbachev signed an agreement that allowed for extensive NATO jurisdiction.
The Pacta Tertiis Rule
Looking at the West’s line of argument against Russian military action in Ukraine, the legality of verbal promises is not the question. Instead, the Western narrative is built around the sovereign right of Ukraine to decide which international organizations they want to join. Stoltenberg insists that promising non-enlargement of NATO would be a violation of the sovereign right of qualifying states to “choose their own path”. Therefore, even in the event that oral statements made by Western officials 30 years ago could be interpreted as a legally binding obligation, such obligation would directly affect other sovereign subjects of international law and thus be in a violation of the pacta tertiis rule (treaties do not create rights and obligations for third states without their consent).
However, as an international organization, NATO could have indeed introduced limits to its membership and closed the gates for certain countries – which would not be in violation of the sovereignty of other states. However, such a provision could undermine the spirit behind the creation of the Alliance. In any case, as the North Atlantic Treaty stands now, and according to the Treaty of Final Settlement with Respect to Germany which states that parties agreed on the “respect for […] all states’ […] inherent right to choose the means to ensure their own security”, Russia can hardly argue that certain states are not legally capable of joining the organization. Therefore, in conjunction with Article 10 of the North Atlantic Treaty, the Treaty of Final Settlement gives every qualifying state the right to join NATO. Yet, as argued here, NATO’s practice actually shows that the organization does not consider Article 10 as a source of a third state’s right to join the Alliance. Therefore, an invitation by NATO is key for new membership and the organization could potentially refuse to invite members including those they promised not to invite during the 2+4 negotiations. Nevertheless, as the above analysis shows, promises made during the 2+4 negotiations still have no binding force and thus, NATO is not obliged, on that basis, to reject any expressed interests by prospective members.
Law v. Politics
From a legal point of view, Western verbal promises made to the Soviet Union cannot be seen as binding by international law. Neither their language asserts their binding force, nor the circumstances under which they were made.
From a political perspective, however, the newly found confirmations of the Western statements made during the 2+4 negotiations are a more delicate matter for two reasons: first, they suggest that Russia’s claims about informal agreements with NATO are sound. Even though Putin’s citation of Baker’s famous statement might be the wrong reference (as Baker did not intend to speak about membership enlargement), the meeting notes referring to the 2+4 negotiations clearly show that there was no intention by Western states to allow new Eastern European states to join the Alliance. Second, the notes put those Western politicians who publicly denied that any promises were made to the Soviet Union, in a tricky position. This especially includes Stoltenberg. Arguing that such promises were not legally binding does not excuse that NATO’s Secretary-General wrongly stated that such promises did not exist.
In the end, the verbal promises made to the Soviet Union are more of a communication problem for NATO than a legal issue. Still, the political and diplomatic consequences of such erroneous political communication by the West remain to be seen. In the current Ukraine crisis, a “dishonest” West might fit perfectly into Russia’s narrative.