The North Atlantic Treaty (NATO-fördraget) – how to become a Member of NATO.

The North Atlantic Treaty (NATO-fördraget) – how to become a Member of NATO.

Karta över Natoländer - detaljerad illustratordesign

In 2022 NATO has 30 member states. NATO har 2022 30 medlemsstater, in accordance with the year of accession:

Karta över NATO:s medlemsstater (Mörkblått): Ursprungliga 12 länder (founding 12 members) 1949: Belgien, Danmark, Frankrike, Island, Italien, Canada, Luxemburg, Nederländerna, Norge, Portugal, Storbritannien, USA.

Medlemmar (Members) mellan 1949-1989 (Berlinmurens fall): Grekland (1952), Turkiet (1952), Västtyskland (1955 från återföreningen 1990 Tyskland), Spanien 1982.

Medlemmar (Members) efter 1989: Tjeckien (1999), Ungern (1999), Polen (1999), Bulgarien (2004), Estland (2004), Lettland (2004), Litauen (2004), Rumänien (2004), Slovakien (2004), Slovenien (2004), Albanien (2009), Kroatien (2009), Montenegro (2017), Nordmakedonien (2020).

Ljusblått: MAP: Membership Action Plan (kandidatländer för medlemskap: Bosnien & Herzegovina, Georgien). Gult: IPAP: Individual Partnership Action Plans (individuellt anpassade medlemsplaner): Ukraina, Moldavien m fl). Orange: PfP: Partnership for Peace/Partnerskap för fred (lanserat 1994): Sverige (1994 + Värdlandsavtal), Finland (1994), Ryssland (1994), Vitryssland (1995), Österrike (1995), Schweiz (1996) m fl. Kartbildens källa: Internet.

I do not treat the category of MAP-countries since Sweden and Finland do not belong to this category of states. Both Sweden and Finland have for decades entertained close relations with NATO and must therefore be categorized as “near member” of NATO. Especially Sweden with its secret Agreements with the United States/NATO from the 1950-60’ies, which were in force at least until 1986, probably still are. See my Dagbok från UD (Diaries from the Foreign Ministry) volume 2, chapter 22, volume 3 chapter 55, volume 4 chapter 62, volume 5 pp 398, 406, 864. Expressen artikel 14/2 2022 “Hemliga papperet I Palmes kassaskåp: USA var redo”.

The Washington Treaty of 4 April 1949 (the NATO-treaty)

The North Atlantic Treaty or the Washington Treaty was signed in Washington on 4 April 1949 by twelve founding members, Belgium (Belgien), Canada (Kanada), Denmark (Danmark), France (Frankrike), Iceland (Island), Italy (Italien), Luxembourg (Luxemburg), The Netherlands (Nederländerna), Norway (Norge), Portugal, United Kingdom (Storbritannien), United States (Förenta staterna). Further eighteen (18) states have acceded to the treaty as full members (see above).

Here below follows the text of the NATO-Treaty, which is geographically limited to EUROPE and NORTH AMERICA. The treaty is closely linked to the Charter of the United Nations of 1945 as well as to the Lissabon (EU)-treaty of 2007 (chapter 2).

The Parties to the Washington Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.
They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law. They seek to promote stability and well-being in the North Atlantic area.
They are resolved to unite their efforts for collective defence and for the preservation of peace and security. They therefore agree to this North Atlantic Treaty :

Article 1

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

Article 2

The Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions, by bringing about a better understanding of the principles upon which these institutions are founded, and by promoting conditions of stability and well-being. They will seek to eliminate conflict in their international economic policies and will encourage economic collaboration between any or all of them.

Article 3

In order more effectively to achieve the objectives of this Treaty, the Parties, separately and jointly, by means of continuous and effective self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.

Article 4

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

Article 5. (The NATO-Collective Solidarity Clause)

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

Article 6 ¹

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France ², on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;
on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

Article 7

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.

Article 8

Each Party declares that none of the international engagements now in force between it and any other of the Parties or any third State is in conflict with the provisions of this Treaty, and undertakes not to enter into any international engagement in conflict with this Treaty.

Article 9

The Parties hereby establish a Council, on which each of them shall be represented, to consider matters concerning the implementation of this Treaty. The Council shall be so organised as to be able to meet promptly at any time. The Council shall set up such subsidiary bodies as may be necessary; in particular it shall establish immediately a defence committee which shall recommend measures for the implementation of Articles 3 and 5.

Article 10 (Unanimous Invitation to become a Member and the Acceptance thereof: to deposit its Instrument of Accession).

The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty. Any State so invited may become a Party to the Treaty by depositing its instrument of accession with the Government of the United States of America. The Government of the United States of America will inform each of the Parties of the deposit of each such instrument of accession.

Article 11 (Ratification of the Instrument of Accession of the Invited State – the Entry into Force of the Treaty obligations)

This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes. The instruments of ratification shall be deposited as soon as possible with the Government of the United States of America, which will notify all the other signatories of each deposit. The Treaty shall enter into force between the States which have ratified it as soon as the ratifications of the majority of the signatories, including the ratifications of Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the United States, have been deposited and shall come into effect with respect to other States on the date of the deposit of their ratifications (comment: this provision was applicable only to the original Washington Treaty of 1949).

Article 12

After the Treaty has been in force for ten years, or at any time thereafter, the Parties shall, if any of them so requests, consult together for the purpose of reviewing the Treaty, having regard for the factors then affecting peace and security in the North Atlantic area, including the development of universal as well as regional arrangements under the Charter of the United Nations for the maintenance of international peace and security.

Article 13

After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation.

Article 14

This Treaty, of which the English and French texts are equally authentic, shall be deposited in the archives of the Government of the United States of America. Duly certified copies will be transmitted by that Government to the Governments of other signatories.

The definition of the territories to which Article 5 applies was revised by Article 2 of the Protocol to the North Atlantic Treaty on the accession of Greece and Turkey signed on 22 October 1951.
On January 16, 1963, the North Atlantic Council noted that insofar as the former Algerian Departments of France were concerned, the relevant clauses of this Treaty had become inapplicable as from July 3, 1962.
The Treaty came into force on 24 August 1949, after the deposition of the ratifications of all signatory states.

HERE BELOW FOLLOWS THE TEXT OF PROTOCOLS OF NATO:S INVITATION TO THE 18 COUNTRIES THAT WERE INVITED TO ACCEDE LATER AS WELL AS THE ENTRY INTO FORCE OF THEIR MEMBERSHIP OF THE TREATY

Example of a Protocol of Invitation and the date when the invited State becomes a Party to the Treaty: Protocol to the North Atlantic Treaty on the Accession of the Republic of Estonia (“communicate to the Government of the Republic of Estonia an invitation to accede to the North Atlantic Treaty. In accordance with Article 10 of the Treaty, the Republic of Estonia shall become a Party on the date when it deposits its instrument of accession with the Government of the United States of America).

The Protocol of Invitation:

26 Mar. 2003

The Parties to the North Atlantic Treaty, signed at Washington on April 4, 1949,

Being satisfied that the security of the North Atlantic area will be enhanced by the accession of the Republic of Estonia to that Treaty,

Agree as follows:

Article I

Upon the entry into force of this Protocol, the Secretary General of the North Atlantic Treaty Organisation shall, on behalf of all the Parties, communicate to the Government of the Republic of Estonia an invitation to accede to the North Atlantic Treaty. In accordance with Article 10 of the Treaty, the Republic of Estonia shall become a Party on the date when it deposits its instrument of accession with the Government of the United States of America.

Article II

The present Protocol shall enter into force when each of the Parties to the North Atlantic Treaty has notified the Government of the United States of America of its acceptance thereof. The Government of the United States of America shall inform all the Parties to the North Atlantic Treaty of the date of receipt of each such notification and of the date of the entry into force of the present Protocol.

Article III

The present Protocol, of which the English and French texts are equally authentic, shall be deposited in the Archives of the Government of the United States of America. Duly certified copies thereof shall be transmitted by that Government to the Governments of all the Parties to the North Atlantic Treaty.

COMMENTS TO THE WASHINGTON TREATY

Article 5: (The NATO-Collective Solidarity Clause)

Comments Article 5:

Subordinated the UN Security Council:

Article 5 is limited to armed attacks in Europe and North America. It contains the NATO-collective solidarity clause, based on the right of individual or collective self-defence in accordance with article 51 of the UN Charter and subordinated the role of the UN Security Council to which body all operations under the NATO-treaty must be reported as well as terminated when the Security Council “has taken the measures necessary to restore and maintain international peace and security”.

In case of a dead-locked or paralyzed UN Security Council – the role of the UN General Assembly (“Uniting for Peace”)

However, in case of a paralyzed or dead-locked Security Council – as is the case when a veto-power like Russia is involved in a conflict – the Security Council will not be in the position to decide in the matter in accordance with Chapters VI and VII of the U N Charter. In case of a paralyzed Security Council the U N General Assembly is authorized to step in and take decisions in accordance with the UN Charter, however such decisions lacking the compulsory legal force as to the carrying out of effective measures to intervene in the conflict. Unless for the procedure named the “Uniting-for-peace”- procedure, which may be adopted as a last resort to save World Peace. Possibly with Russia excluded from the United Nations because of heavy War Crimes during the War in Ukraine.

Unanimously, or nearly unanimously adopted UN General Assembly Resolutions always carry a heavy political weight

Nevertheless unanimously, or nearly unanimously adopted UN General Assembly Resolutions always carry a heavy political weight , even a semi-legal weight, it could be argued.

The Right of Self-Defence – the Right of Self-Preservation (if the U N does not exist any more)

In the situation of a dead-locked Security Council NATO-countries maintain their right to individual or collective Self-Defence as long as the Security Council remains paralyzed – a situation that, however, may result in full War and the subsequent death of the U N Organization. In accordance with Customary Law all nations have the right to Self-preservation and to take actions – in accordance with the Laws of War – to preserve their survival and existence.

The nature or kind of contribution from one member state to another – the Criteria of Necessity

With regard to the nature or kind of contribution a member state of the NATO-treaty is compelled to assist the attacked state(s) with – in accordance with the provision “will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force” – it is the wording “such actions as it deems necessary, including the use of armed force” that decides the kind as well as the extent of the contribution that the helping state deems necessary to give to the attacked state(s).

Not necessarily the use of armed force, but limited to some other kind of assistance – great flexibility

In other words, it is the state that gives the assistance that exclusively deems what is the necessary kind of assistance, not necessarily the use of armed force, but limited to some other kind of assistance, e g sending weapons, ammunition, medical equipment or assistance or electronic devices for combatting electronic warfare or offering suchlike knowledge or guidance. The assistance is always a matter for talks and negotiations between the helping state and the state(s) to be helped, of course within the scope of the Treaty. No Member state can, therefore, be forced, involuntarily, to assist another member state with military means or military assistance. Nor be forced to send military personnel or troops to another Member state, Nota Bene never outside Europe or North America.

Article 10 (Unanimous Invitation to become a Member and the Acceptance thereof: to deposit its Instrument of Accession).

Comments Article 10: Invitation to a State to become a Party to the Treaty

There seems to be a misunderstanding that a State can or shall APPLY for membership in NATO. The procedure is that an interested European State is, in accordance with article 10, INVITED to become a Party to the Treaty. Above are shown the Protocols of meetings of the Members of the Treaty at which they unanimously decide to invite a Party to accede to the Treaty and that the Secretary General is authorized – after the Protocol has acquired legal force – to communicate such an invitation to the State in question.

Article 11 (Ratification of the Instrument of Accession of the Invited State – the Entry into Force of the Treaty obligations)

This Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes. The instruments of ratification shall be deposited as soon as possible with the Government of the United States of America, which will notify all the other signatories of each deposit. The Treaty shall enter into force between the States which have ratified it as soon as the ratifications of the majority of the signatories, including the ratifications of Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the United States, have been deposited and shall come into effect with respect to other States on the date of the deposit of their ratifications.

Comments Article 11 (Ratification process)

The Ratification Instrument is a legal document issued by the Government of the New member state verifying that the NATO-Treaty has been adopted in accordance with the Constitutional provisions of the new Member State, whether or not any Parliamentarian involvement is required. The second part of Article 11: “The Treaty shall enter into force between the States which have ratified it as soon as the ratifications of the majority of the signatories, including the ratifications of Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom and the United States, have been deposited and shall come into effect with respect to other States on the date of the deposit of their ratifications” is only related to the ratification of the original Washington Treaty of 1949. It is not applicable to the accession of new members of the Treaty. For all new members of the Treaty it is compulsory that all members of the Treaty accept the new member and ratify the member´s accession to the Treaty.

STEPS TO BE FOLLOWED BY A CANDIDATE STATE:

Once the Allies have decided to invite a country to become a member of NATO, they officially invite the country to begin accession talks with the Alliance (see above Protocols of Invitation). This is the first step in the accession process on the way to formal membership. The major steps in the process are:

1. Accession talks with a NATO team

These talks take place at NATO Headquarters in Brussels and bring together teams of NATO experts and representatives of the individual invitees. Their aim is to obtain formal confirmation from the invitees of their willingness and ability to meet the political, legal and military obligations and commitments of NATO membership, as laid out in the Washington Treaty and in the Study on NATO Enlargement.

The talks take place in two sessions with each invitee. In the first session, political and defence or military issues are discussed, essentially providing the opportunity to establish that the preconditions for membership have been met. The second session is more technical and includes discussion of resources, security, and legal issues as well as the contribution of each new member country to NATO’s common budget. This is determined on a proportional basis, according to the size of their economies in relation to those of other Alliance member countries.

Invitees are also required to implement measures to ensure the protection of NATO classified information, and prepare their security and intelligence services to work with the NATO Office of Security. The end product of these discussions is a timetable to be submitted by each invitee for the completion of necessary reforms, which may continue even after these countries have become NATO members.

2. Invitees send letters of intent to NATO, along with timetables for completion of reforms

In the second step of the accession process, each invitee country provides confirmation of its acceptance of the obligations and commitments of membership in the form of a letter of intent from each foreign minister addressed to the NATO Secretary General. Together with this letter they also formally submit their individual reform timetables. (Both Sweden and Finland are regarded as being at this level in the Accession process).

3. Accession protocols are signed by NATO countries

NATO then prepares Accession Protocols to the Washington Treaty for each invitee (see above Article 10). These protocols are in effect amendments or additions to the Treaty, which once signed and ratified by Allies (see above article 11), become an integral part of the Treaty itself and permit the invited countries to become parties to the Treaty (see above Protocols of Invitation)

4. Accession protocols are ratified by NATO countries

The governments of NATO member states ratify the protocols, according to their national requirements and procedures (see above article 11). The ratification procedure varies from country to country. For example, the United States requires a two-thirds majority to pass the required legislation in the Senate. Elsewhere, for example in the United Kingdom, no formal parliamentary vote is required.

5. The Secretary General invites the potential new members to accede to the North Atlantic Treaty

Once all NATO member countries notify the Government of the United States of America, the depository of the Washington Treaty, of their acceptance of the protocols to the North Atlantic Treaty on the accession of the potential new members, the Secretary General invites the new countries to accede to the Treaty (see above article 10).

6. Invitees accede to the North Atlantic Treaty in accordance with their national procedures (see above Protocols of Invitation)

7. Upon depositing their instruments of accession with the US State Department, invitees formally become NATO members (see above Protocols of Invitatio and article 11)

General comment:

If now, for instance, Sweden would be the Invited state to the NATO-treaty, Sweden´s accession to the Treaty, which takes place at Sweden’s deposition of the Instrument of Accession to the U S Department of State, must, as soon as possible, be ratified by a all thirty Member states, which are Belgium, Canada, France, Luxembourg, the Netherlands, the United Kingdom, the United States, Denmark, Norway, Iceland, Italy, Portugal, Greece, Turkey, Germany, Spain, the Czech Republic, Hungary, Poland, Bulgary, Estonia, Latvia, Lithuania, Romania, the Slovak Republic, Slovenia, Albania, Croatia, Montenegro and North Macedonia.

Sweden ought to send Special Emissaries to these countries pleading for their support to allow Sweden as a new NATO-member. It is a unanimous decision of all Member states that is a sine qua non for Sweden – as possibly also for Finland – to quickly be allowed as new Members of the NATO-Treaty.

It reminds me about my role as the Emissary of the Kingdom of Sweden who in 1988 was dispatched to all 20 Members States of the Antarctic Treaty – in a Round the World trip – to plead to all members of the Treaty to allow Sweden as a new Member of the Antarctic Club – i.e. to become a Consultative member (steering) member of the Antarctic Treaty. I succeeded and made the notification at State Department in Washington on 17 March 1988, which happens to be same place as the Instruments of Accession and Ratification should be made to become a member of the “NATO-Club”, which however is a far more important and dangerous matter than the accession to the Antarctic Treaty, especially in times of war.

Stockholm 12 March 2022

Bo Theutenberg

Jur.dr. Professor (em) International law

Ambassador (ret)

Former Legal Adviser to the Swedish Ministry

for Foreign Affairs.

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