De-valuation of classic neutrality: Finland and Sweden in the NATO

by | Mar 12, 2024

Sweden – and Finland – had started to express interest in joining the NATO in 2022, due to the Russian invasion of Ukraine, and while the vast majority of NATO members welcomed the intention, Turkey and Hungary were reluctant to formally approve their accession for a long time – while consented to their formal invitation by all NATO member states, which is a necessary requirement.

The accession protocols between Finland, Sweden and the NATO member states – separate international treaties about their accession – have been quickly signed and sent for ratification to the member states. In Hungary that has meant two separate laws (on the accession of the two states) have been submitted to the Hungarian Parliament in July 2022. The Finnish accession was ratified by the Parliament at the end of March 2023 with an overwhelming majority (182 yes, 6 no votes and no abstentions), but the Swedish accession has got stuck for a long time. Just as in Turkey.

A long story of accession of Sweden

Turkey has made its intentions – demands – clear from the beginning: it wanted access to new F-16 jets from the US and the Swedish government to step up against Kurdish political actors enjoying some support from Stockholm. When these demands have met, the Turkish Parliament has also consented to the Swedish accession.

At the same time, the Hungarian government has been silent on actual conditions of support, what’s more, it has constantly been communicating its support of the process, pointing the finger at the Hungarian Parliament, stating that it is reluctant to support the process. But its messages have been puzzled, at best. First of all, nobody has taken the arguments about the “independence” of the Hungarian Parliament seriously, considering the fact that the elected body with a two-third majority of Viktor Orbán’s party has been completely silent and collaborative on every single issue during the past 14 years, including governmental steps to completely empty its powers with the introduction of various “states of emergency”, related to the migration crisis, to the COVID pandemic, or to the war in Ukraine. Add this to the overall doubts about the state of rule of law in Hungary, these governmental arguments have not been considered credible by anybody.

Second, the government itself has produced some hectic communication on the matter, citing for example that Sweden “does not show enough respect”, being politically critical towards the government of Hungary, mentioning e.g. television shows on Swedish public channels being critical towards Hungary, and some vague complaints about the lack of respect and trust, which would be essential in an allied relationship like NATO membership (ignoring the fact that for example the Hungarian Air Force is nearly exclusively depending on the Swedish JAS-39 Gripen jets, which had been acquired by an earlier government of Viktor Orbán), always arguing, that all of this has caused tensions among the ranks of the members of Parliament in the faction of the governing party. Which later turned to be totally false, as the problem has seemingly gone away in a second, when there was a political solution…

The actual reason of reluctancy of the Hungarian government must be found probably somewhere else. Sweden has held the rotating presidency of the Council of the European Union in the second half of 2023, being responsible for the setting of the agenda of the Council. The Article 7 procedure against Hungary has been going on since 2018, and seemingly got into a deadlock quite quickly, as the Council could never produce the needed 4/5 majority to advance the procedure to the next level. Knowing this, the Hungarian government has been pushing for quite a long time for the “conclusion” of the procedure (even demanding it publicly), practically meaning a vote – which it was planning to win, as anything other than the decision of advancing the procedure is a political victory for Viktor Orbán. Knowing this, the presidencies have never pushed the subject, considering it being better to stall and wait than giving a political victory to Orbán – until the Swedish presidency came, against which the Hungarian government could find a blackmailing position. Probably this was it.

Compared to the Turkish position, the main problem was that Erdogan has made his requirements clear, while Viktor Orbán has failed to do so – making the situation very hard to solve in a way that is politically workable. It is somewhat understandable. Using the institution of the rotating presidency for a state’s own political interests is something that nobody makes public.

After Turkey finally formally consented to the accession of Sweden at the end of January, the whole dynamic of the situation has changed, and the Hungarian government also quickly made the needed steps: the Hungarian Parliament voted about it at the end of February. Still, this step was preceded by a formal visit of the Swedish prime minister to Budapest, which was characterised by the Hungarian government as “trust building”, but this has widely been seen as a face-saving operation only, including the communicated “results” of the visit, being the purchase of 4 (four!) new Gripen jets to the Hungarian Air Force.

Could there have been another way?

As the process has become longer and no signs of quick solution seemed to appear, other possibilities had to be examined. The most probable was simply to circumvent the positions of the opposing states, which was possible under the founding treaty of NATO, the so-called North Atlantic Treaty (or Washington Treaty), though with a potentially heavy political price, which is usually not taken happily by anybody. Additionally, nobody wanted to do it in relation with Turkey, being one of the most robust member states. But as soon as Turkey had its demands met and Hungary found itself alone and the last opponent, this has become a daunting reality – and as we can see, Hungary very soon changed its position on the matter.

For many, the statement that Sweden’s NATO accession could have taken place without an explicit Hungarian approval (parliamentary ratification of the accession protocol) may be surprising and novel. But an attentive reading of the North Atlantic Treaty, specifically its article 10 gives us the solution (emphasis added):

“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.”

The text clearly describes what the process is. If there is an invitation, the state in question with a unilateral act, so-called accession, becomes a party to the treaty, and this does not need any kind of confirmation from the states already party to it.

All the fuss with the confirmation has been going on not with the North Atlantic Treaty itself, but with the so-called accession protocol (all these can also be found on the page linked above, including the ones related to other states’ earlier accessions). A member state can toy with the ratification of this (this has actually been happening), but according to the Treaty, this is not an obstacle to become a member. Moreover, if someone takes the trouble to look at any of the earlier accession protocols (see e.g. the text of the Hungarian accession protocol, its article I also very clearly states that “In accordance with article 10 of the Treaty, the Republic of Hungary shall become a Party on the date when it deposits its instrument of accession with the Government of the United States of America.”, meaning that after the invitation, the new member state joins with a unilateral act. And what happens if there is no such accession protocol? Nothing, as it is not required by the Treaty.

The real question is: has there been such an invitation? Yes. This formal invitation took place in June 2022, at the NATO summit in Madrid, where both Turkey and Hungary consented to it, or at least not expressed any resistance there. You can find the official website of the summit, under the title “Finland and Sweden membership” it clearly says “official invitation”, and also point 18 of the official closing statement says (see point 18) “Today, we have decided to invite Finland and Sweden to become members of NATO, and agreed to sign the Accession Protocols”. This is clear, the invitation has been made, so according to article 10 of the Washington Treaty, the way was opened for a unilateral accession for both Finland and Sweden.

If this is possible, why the different practice? Why not doing this immediately? The answer to this question is complex in its nature. The existing practice has been formed for a long-time, but it is not required by the Treaty. As article 10 does not require this, this practice can be deviated from at any time, completely legally. You can compare this to the situation when the door of the apartment building’s garbage room says, “please close it” and the apartment building’s house rules say “the garbage room’s door must be kept closed”, but everyone locks it with a key. It will not be mandatory to lock it just because everyone does it out of habit.

This habit of the NATO is not binding: You can try to prove that this contra legem (meaning, contrary to the, or inconsistent with, or not prescribed by the text of the international treaty) practice has become binding, but it will not be successful. If all NATO member states decide to apply or even just accept another method with the goal to bypass the resistance after the invitation had already been made, they will still act within the limits set by the treaty, completely lawfully.

The fact that, in the operation of an international organization, a practice that does not comply with its founding treaty provisions develops in accordance with the imperative or perceived interests of the members is neither new nor unique. A good example of this is the UN Security Council, where votes are still held differently from the provisions of the UN Charter, precisely the interpretation of abstention: based on the text of the Charter, abstention should be considered being a veto, but it is not.

The bottom line is that there is no practice that cannot be changed if all parties want to, and especially if that practice does not meet the organization’s rules anyway. Add the fact, that the Hungarian government has already been bypassed in the NATO (with its resistance against Ukraine’s participation in various NATO bodies or meetings), and it could not and did not do anything, so its veto threats have already been ignored. The opportunity to legally bypass the Hungarian government was a possibility – the decision to use it or not has become a question of political nature.

After Turkey withdrew from its position, getting what it wanted, the Hungarian government has found itself in a delicate position, risking the possibility of suddenly receiving an official notification from Washington at any time saying, “FYI Sweden is a NATO member from now on, because the papers related to its accession have been submitted yesterday”. It was clear that the Americans would probably not be happy to send such a notification to Ankara, to the state with the second strongest military force in NATO, with an unavoidable geopolitical situation – something which is not true about Budapest. This was made very clear by the statement of the Secretary General of NATO on 24 January, practically giving the Hungarian government the last warning and time for ratification so that it can recover from this diplomatic defeat without losing face.

The government has understood the message, so this very unpleasant attempt could be avoided. It would have sent a very disturbing message from the NATO and probably would have raised some tensions if this option had to be used in the end.

The situation after the accessions – a safer Europe?

The lengthy and somewhat painful process of the accession has shown an image of a bit disorganised Europe, no wonder that the Hungarian behaviour has drawn intense criticism. Still, NATO has grown in strength and by the two new members it has grown a bit more “European”, as they represent formidable military capacities and experience as EU member states in the NATO.

Their joining of the NATO blows a strategic defeat to Russia. One of the strategic goals of Russia with the aggression against Ukraine was to keep NATO far from the borders of Russia – now hundreds of kilometres of new direct NATO-borders have been created, and the Baltic Sea has practically become a NATO-lake. It has also become clear that Russia does not have the tools to completely disrupt the operation of the organisation, even if it tries to get influence in some member states.

At the same time, Finland and Sweden’s accession indicates the end of the era of classic neutrality. Arguably, the two states could defend themselves against a Russian aggression, even if it is quite improbable that something like that would ever happen. Still, the threat has made the strategic thinking in two, traditionally neutral states to make a hard turn from their traditional view on the question, with yet unknown, who to follow them.

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