The North Atlantic Treaty: A View from Finland
Finland and Sweden are on course to join the North Atlantic Treaty Organization (NATO). As of early October 2022, of all NATO member states, only Turkey and Hungary have not yet ratified the accession of the two Nordic countries. In this context, the North Atlantic Treaty (NAT) becomes relevant for Finland and Sweden, too. This text is meant to provide the readers with a first overview of the two documents. The key elements of the NAT and the SOFA will be presented with the aim of explaining both documents to a wider readership. While the North Atlantic is equally binding in English and French (Article 14 sentence 1 NAT), reference in this text will be made to the official English version of the NAT.
In recent years, a number of states have sought to join NATO and have been admitted into the alliance. In 1997 and 2003, the alliance accepted membership requests by a number of European states that had shed the yoke of communist rule and, in the cases of Estonia, Latvia and Lithuania, had regained their independence after decades of occupation, first by Germany, then by the Soviet Union. In 2009, Croatia (which had already been a latecomer to the Council of Europe and the European Union) and Albania became members of NATO. In particular, Albania’s accession paved the way for the accession of two neighbouring states: Montenegro and North Macedonia joined NATO in 2016 and 2019 respectively, the latter only after changing its name to “North” Macedonia in order to assuage neighbouring Greece which includes a province with the name of Macedonia and which had until then seen the use of the term Macedonia by its northern neighbour as a potential signal for further territorial claims. The often tense and at times even hostile relationship between Turkey and Greece has long been an example of the fact that not all NATO partners see eye to eye on all issues. In the case of Turkey, the impression can be won that Ankara is holding Sweden and Finland hostage over its own policies towards the Kurdish people, effectively supporting its partners in Moscow more than two NATO candidate states.
That this is possible at all is a consequence of NATO’s consensus approach to the invitation of new members that is enshrined in Article 10 NAT. The North Atlantic Treaty also does not include the option to exclude a member. Instead, Article 13 NAT envisages a right of a member to leave the alliance, but only after the treaty had been in force for twenty years. That Article 13 NAT envisages that the treaty would be in force for a minimum of twenty years (with a review option after ten years (Article 12 NAT)) can be understood as a mix of optimism and realism that prevailed when the treaty was created in the early days of the Cold War. This attitude is also reflected in the preamble to the North Atlantic Treaty, in which the member states “reaffirm[ed] 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” and expressed their “determin[ation] to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law”. In addition to working together “for collective defence and for the preservation of peace and security”, the NATO member states’ goals also reflect the societal and social situation, especially in Europe, in the years immediately after World War II, as the preamble includes among the aims of the NATO member states “to promote stability and well-being in the North Atlantic area”.
The connection between the Charter of the United Nations (UN Charter) and the North Atlantic Treaty is emphasized also in Article 1 NAT. Article 1 NAT might at first appear declaratory in that the member states agree to uphold the idea of the peaceful settlement of disputes as defined in the UN Charter “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”. Suppose one looks at the membership of the United Nations and the membership of NATO in the early days of the Cold War. In that case, it becomes clear that when the NT was created, this commitment to the restrictive use of force, to the peaceful settlement of disputes and to international peace and security, was not yet to be taken for granted. West-Germany, for example, joined NATO in 1955 but only became a member of the United Nations in 1973 (at the same time as East Germany). The United Nations emerged from the alliance of states that defeated the Axis powers in World War II and the inclusion of West-Germany signalled the alliance’s clear function as defending Europe against the Soviet Union. Today, as this threat has been realized in the armed attacks by the Russian Federation against Georgia (2008) and Ukraine (2014-today) and in the continued presence of Russian occupation forces in part of Moldova, the membership bids by Finland, Sweden, and Ukraine have to be seen as direct reactions to Russia’s all-out invasion of Ukraine since 24 February 2022. Russia’s war against Ukraine began in 2014 after the people of Ukraine chose closer ties to the European Union (EU) over closer ties to the Russian Federation. It is this free choice of the Ukrainian people that is opposed by Moscow and supported by Western partners. The ideas of freedom and international cooperation are deeply engrained in the spirit of the North Atlantic alliance and are reflected in Article 2 NAT which also includes a vision of economic cooperation between NATO member states.
Cooperation between NATO member states becomes particularly visible in the field of defence. Article 3 NAT states that “[i]n 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.” This is one of the most important aspects of the North Atlantic Treaty. With NATO membership will come increased forms of technical cooperation. It is likely that NATO membership will also be economically profitable for the defence industries in both Finland and Sweden. In addition, NATO partners train together and exchange information and know-how. One way in which this can be done is through centres of excellence that have been established in different NATO member states. Different member states share expertise in fields that are particularly relevant to them. For example, does Norway operate a centre of excellence on Cold Weather Operations in Bodø, Estonia a centre of excellence on Cooperative Cyber Defence in Tallin, and Germany a centre of excellence for Operations in Confined and Shallow Waters in the Baltic Sea port city of Kiel. These and other forms of cooperation and mutual learning are important for enhancing capabilities but also for the forging of close ties between the forces of the different member states. The origins of this cooperation can be found in Article 3 of the North Atlantic Treaty.
When the security situation deteriorates, NATO moves from cooperation to defence. At the heart of the North Atlantic Treaty is Article 5, which reads as follows: “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 the 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.”
The heart of NATO is the clear statement, legally codified in Article 5 NAT, that “an armed attack against one [is] an attack against [...] all”. All NATO member states are required to take action in the defence of a fellow NATO member state. How this action will look will depend on the specific circumstances and will be the result of further cooperation between the different member states. In the wake of the 9/11 terrorist attacks, for example, other member states not only deployed forces to Afghanistan as part of Operation Enduring Freedom, but they also provided Patriot air defence capabilities to Turkey, deployed naval vessels to the Mediterranean and the Indian Ocean, and had their crew members operate on board airborne early warning and control (AWACS) aircraft. Similar activities could be expected from new NATO members, depending on the circumstances of a future contingency and the different capabilities that the new member states have to offer. Likewise, the new member states would benefit from such support from the other NATO members, if they were to be attacked.
While Article 5 of the North Atlantic Treaty has gained a lot of attention, the norm has to be seen in context, in this case, this means in particular Articles 4 and 6 NAT. Under Article 4 of the North Atlantic Treaty, NATO member states can request consultations: “
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.” Such consultations do not immediately lead to a military response but serve to inform the other member states and can also be a potent signal to potential attackers that NATO is taking a situation seriously.
What actually constitutes an armed attack within the meaning of Article 5 NAT is defined in Article 6 NAT. The latter norm defines the geographical scope of the North Atlantic Treaty as including the territories of the member states in Europe and North America, including all of Turkey’s territory, including the part that is not located in the European continent, as well as islands that are “under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer” (Article 6 NAT). While the original text of the North Atlantic Treaty still referred to Algeria, which back then was part of France, today overseas territories of NATO member states that are not located in the North Atlantic north of the Tropic of Cancer are not included. Therefore, while, for example, Greenland is protected under Article 5 NAT, French Guiana is not. Article 5 of the North Atlantic Treaty also covers attacks “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”. This means that an attack on a naval vessel of a NATO member state in the North Atlantic, the kind of attack that might be deemed by the attacker to be a limited action, can lead to an Article 5 response from NATO.
Until now, Article 5 of the North Atlantic Treaty has been invoked only once in the history of the alliance, in response to the 9/11 terrorist attacks. In 2022, Albania considered invoking Article 5 NAT after the country had fallen victim to a cyberattack by Iran. Eventually, the Albanian government refrained from doing so, arguably also because there had been no loss of life or major physical damage as a result of the attack. Other cyberattacks in the past have been more severe. For example, a criminal cyberattack against a hospital in Germany two years ago led to the death of a patient and the Stuxnet attack famously destroyed centrifuges used in Iran’s nuclear programme. It is therefore not inconceivable that a significant cyberattack will one day have an impact equivalent to an attack with bombs. As technology develops, weapons are developed, too. What is a tool today, can be a weapon tomorrow. This is true of a knife, an axe or a sickle as much as it can be true of software. It is unclear under which conditions NATO will consider a cyberattack to amount to an armed attack within the meaning of Article 5 of the North Atlantic Treaty - but this uncertainty can actually contribute to the security of all NATO members because it seems clear that NATO would not shy away from finding a case of Article 5 NAT in case of a major cyberattack. While Iran’s 2022 attack against Albania might not have been sufficient for Albania to invoke Article 5 NAT, it has to be kept in mind that NATO member states are not required to invoke Article 5 NAT. In the wake of the 2015 terror attack in Paris, France invoked the corresponding rules under EU law, rather than Article 5 NAT. That no NATO member state opposed the invocation of Article 5 NAT by the United States after the 9/11 attacks by Al Qaida, a non-state actor that was factually given safe haven by the Taliban government in Afghanistan, already indicates the willingness of NATO to deliver a response to non-traditional attacks. Hybrid warfare methods like those employed by the Russian Federation therefore might also trigger a solid response from NATO. Any potential attacker therefore cannot rely on a cyberattack only meeting a cyber response.
In practice, it will be the NATO Council that will handle the practical implementation of the North Atlantic Treaty, in particular the implementation of Articles 3 and 5 NAT, also on short notice, if needed (Article 9 sentence 2 NAT).
As the example of the 2015 attacks in Paris has shown, similar obligations to provide mutual aid also exist among member states in the European Union. The North Atlantic Treaty is entirely compatible with such systems. Under Article 8 of the North Atlantic Treaty, all member states must ensure that their other obligations do not conflict with their obligations under the North Atlantic Treaty. In the hierarchy of norms that exists in international law, the North Atlantic Treaty (unlike the UN Charter) does not demand automatic precedence. Instead, it is up to the member states of NATO to ensure that their other obligations do not conflict with their obligations under the North Atlantic Treaty (Article 8 NAT). In particular, with regard to Finland, where traditionally particular care is taken to ensure that the domestic legal situation ensures complete compliance with international legal obligations, this appears to be unproblematic, and there are no indicators to the effect that this would pose any problems for Sweden, either. In fact, the membership of both countries in the European Union is not only compatible with NATO membership but certainly has paved the way towards increasing compatibility between the two Nordic countries and the North Atlantic Treaty Organization.
Article 7 NAT emphasizes in particular that the North Atlantic Treaty is compatible with the UN Charter and states that the NAT “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”. The Charter of the United Nations, therefore, provides the larger international legal framework in which NATO operates.
Like many other international treaties, the North Atlantic Treaty also contains norms of a more technical nature. Of importance to Finland and Sweden is Article 10 NAT, which allows NATO to “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” (Article 10 sentence 1 NAT). Finland and Sweden have been invited and await only the ratification (under Article 11 NAT) of the accession by two states that might be described as NATO members in name only, Turkey and Hungary. While the other NATO member states are not yet obliged to Finland and Sweden under Article 5 NAT, there is by now a valid expectation that both countries would receive significant support from those NATO states that have already approved their membership (Hungary would be obliged to support Finland and Sweden within the framework of the European Union, of course). The delay caused by the Orban and Erdogan governments is unnecessary and has the potential to sour relations between the four countries. As it appeared at times that especially Turkey’s delays were directed more at Sweden than at Finland, it has been made clear repeatedly by Finland that both countries are indivisible on the matter of NATO membership. While Finns and Swedes might joke about each other and be rivals at ice hockey, any third country would be seriously mistaken if it were to doubt the mutual loyalty between both countries, especially in times of crisis. Any attack on either Finland or Sweden would be a de facto declaration of war against the other country. Attempting to divide both countries is a strategy that can seriously backfire. It is not entirely clear if this has been understood in Ankara.
Although the governments in Budapest and Ankara, both of which have appeared rather close to Moscow, compared to other NATO members, appear to use the current situation to negatively impact the accession process, it is likely that Finland and Sweden are going to join NATO, most likely in 2023. This event will mark not only major development in the context of the protection of national security but also has legal consequences. These legal consequences include not only the well-known provisions of the North Atlantic Treaty but also include rules that facilitate the cooperation between NATO members. This can include the presence of Finnish forces on the territory of other NATO member states or the presence of foreign forces from NATO partners in Finland. If the example of Norway is any guide, it is very unlikely that large-scale foreign military installations, such as they exist in Germany, Italy, and Turkey will be hosted by Finland anytime soon. It is much more likely, that Finland will play a role in the training for NATO forces and that Finland will share know-how in its particular areas of expertise, such as cold climate combat or cybersecurity. NATO law often only receives wider public attention when the security situation is dire, but, as was the intention behind this text, it goes beyond this. Finland’s future membership in NATO is not only a political or military issue but a legal topic as well. While a niche topic, it will nevertheless remain relevant for the foreseeable future.