Emory International Law Review Volume 34 Issue 0 The North Atlantic Treaty Organization's Seventieth Anniversary 2019 The North Atlantic Treaty at 70--Article 10 Nick Minogue Follow this and additional works at: https://scholarlycommons.law.emory.edu/eilr Recommended Citation Nick Minogue, The North Atlantic Treaty at 70--Article 10, 34 Emory Int'l L. Rev. 165 (2019). Available at: https://scholarlycommons.law.emory.edu/eilr/vol34/iss0/11 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory International Law Review by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. MINOGUEPROOFS2_10.24.19 10/28/2019 2:30 PM THE NORTH ATLANTIC TREATY AT 70—ARTICLE 10† Nick Minogue* Article 10 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.1 When Montenegro deposited the instrument of accession to the North Atlantic Treaty (“Treaty”) with the U.S. Department of State on June 5, 2017, it became the twenty-ninth Party to the Treaty, and the seventieth to accede under its Article 10.2 At the time of writing, and following the agreement between Athens and Skopje on the resolution of the name issue, Allies are in the process of signing the accession protocol for the future Republic of North Macedonia with a view to it, under its new name, becoming the thirtieth.3 Citing Euro-Atlantic integration’s role in anchoring democracy and the rule of law and strengthening peace, cooperation and stability in Europe, nations have consistently lauded the Alliance’s Open Door policy under Article 10 of the Treaty as one of its great successes.4 Accordingly, the Allies view Article 10 as one of the core tools by which the treaty achieves the purpose of the Alliance, even as this purpose has evolved from the Cold War context in which it was founded, and the corresponding focus on self-defense, to the modern, more multifaceted approach to safeguarding security presented by the 2010 Strategic Concept.5 In this regard Article 10 operates hand in glove with Article 3 of the † This Article contains views provided in the author’s personal capacity and may not reflect agreed upon policy or views of the NATO International Staff or the North Atlantic Treaty Organization. * Assistant Legal Adviser, NATO International Staff Office of Legal Affairs. 1 North Atlantic Treaty, art. 10, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. 2 Montenegro Joins NATO as 29th Ally, NORTH ATLANTIC TREATY ORG. (Jun. 5, 2017), https://www. nato.int/cps/en/natohq/news_144647.htm?selectedLocale=en. 3 Relations with the Republic of North Macedonia, NORTH ATLANTIC TREATY ORG. (FEB. 15, 2019), https://www.nato.int/cps/en/natohq/topics_48830.htm?selectedLocale=en. 4 See North Atlantic Treaty, supra note 1, art. 10; For example, in the 2015 NAC statement to mark the anniversary of the then three latest rounds of accession in 2014, and most recently in the 2018 Brussels Summit Declaration. 5 See Active Engagement, Modern Defence: Strategic Concept for the Defence and Security of the MINOGUEPROOFS2_10.24.19 10/28/2019 2:30 PM 166 EMORY INTERNATIONAL LAW REVIEW [Vol. 34 Treaty, providing a means of extending the inherent stability represented by the increasing integration and cohesiveness of the Allies’ security structures. Whilst Article 10 is not without questions of legal interpretation, its relatively brief content belies the detailed procedures developed by the Alliance since the Treaty’s entry into force to provide a pathway to accession. Similarly, accession to the Treaty is only one element of the legal obligations and political commitments that a State must undertake before it is able to operate as an effective member of NATO. This Article will, therefore, in addition to examining Article 10 itself, focus on the policies and practices that have evolved to govern accession to the Alliance over the seven rounds of enlargement since the Treaty entered into force, as well as the content of the so-called Treaty legal acquis, and the mechanisms by which it binds States newly acceded to the Treaty. A. Drafting History of Article 10 of the North Atlantic Treaty According to a contemporaneous U.S. record of the Treaty negotiations, the seven participating governments saw the need for an accession provision from the outset, believing that, “a North Atlantic security system, to be fully effective, should provide not only for their own security but for that of other countries in the general North Atlantic area whose security was intrinsically and strategically interdependent with their own.”6 At the same time, the participating governments recognized that not all such States would be able to become part of the Alliance from the beginning, either because the governments of such States might not initially be prepared to assume the necessary responsibilities of the Alliance, or due to lack of agreement amongst the seven Governments themselves.7 An accession provision was thus seen as necessary to avoid closing the door to future membership of the Alliance for those states, although the precise content of what became Article 10 was developed only later in the negotiations.8 Members of the North Atlantic Treaty Organization, NATO SUMMIT (Nov. 19–20, 2010), https://www.nato.int/ strategic-concept/pdf/Strat_Concept_web_en.pdf. 6 John F. Hickman, North Atlantic Pact: The Drafting of the Treaty, PACT D-6/1, at 28 (Mar. 29, 1949). 7 Id. 8 Id. MINOGUEPROOFS2_10.24.19 10/28/2019 2:30 PM 2019] ARTICLE 10 167 The final text of Article 10 comprises essentially four elements: 1. Procedure for Accession Article 10 confirms that accession is only at the invitation of the Parties to the Treaty, and that once invited, a State may become party by depositing its instrument of accession with the Government of the United States of America— the registry for the Treaty—who would inform each of the Parties of the deposit of each such instrument.9 These procedural elements were all present in the first draft of the Article considered in negotiations, with the exception of the identity of the depository State, later confirmed as the United States.10 Section C below sets out how these elements have been built upon over successive accession rounds into the considerably more detailed practice followed today. 2. Voting Rule Article 10 specifies that unanimous agreement of the Parties is required to extend an invitation to accede to the Treaty.11 This represents the only reference to a voting rule in the Treaty and was reportedly chosen by the drafters due to the impact of new membership on the obligations of the existing Parties.12 The Alliance’s practice has been to enshrine the decision to invite in an accession protocol to the Treaty itself, thus requiring the agreement of all. As such, the question in principle of whether unanimity could be reached in the face of an abstention will never arise in practice.13 3. Limitation to European States Article 10 limits a potential invitation to any other “European State,” and provides no definition of “European” to clarify its intended scope.14 The first draft of the accession article limited invitations to any other country in the “North Atlantic or Western European regions,” but this was reportedly 9 North Atlantic Treaty, supra note 1 at art. 10. 10 Hickman, supra note 6; North Atlantic Treaty, supra note 1, art. 10. 11 North Atlantic Treaty, supra note 1 at art. 10. 12 See North Atlantic Treaty, supra note 1; Hickman supra note 6 at ¶ 29. 13 As would be the case, for example, within the Council of the European Union. 14 See North Atlantic Treaty, supra note 1, art. 10. MINOGUEPROOFS2_10.24.19 10/28/2019 2:30 PM 168 EMORY INTERNATIONAL LAW REVIEW [Vol. 34 considered by the negotiators as too limited, as was the subsequent draft’s reference to “any other neighbouring State.”15 The reference to “North Atlantic” was also dropped because Canada and the United States would be initial signatories and other American countries were actual or potential Parties to the Rio Treaty.16 By February 22, 1949, the drafters had settled on the reference to “any other European State,” as included in the final text.17 There is some evidence that the Allies interpret the reference to “European State” relatively broadly, and independently of the definition of “Europe” in Article 6. Whilst the accession protocol for the Republic of Turkey supplements Article 6’s reference to the territory of any of the Parties in Europe with an express reference to the territory of Turkey, the protocol makes no similar amendment to Article 10.18 Thus, whilst the then Allies evidently felt that at least some clarification was needed to avoid any uncertainty over whether Article 5 applied to all parts of Turkish territory, they implicitly understood the Republic of Turkey to fulfil the definition of a “European State” for the purposes of Article 10.19 Similarly, Georgia’s geographical position to the east of Turkey has not prevented Allies from envisaging its accession.20 At the same time, a different approach to Article 6 and Article 10 can be readily explained at a practical level, leaving aside questions of interpretation.