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Joining NATO is governed by Article 10 of the North Atlantic Treaty, which states:

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.

Now, it is clear from the text of Article 10, that an invitation to join NATO requires unanimous agreement. The text of Article 10 is silent on how that unanimous agreement is expressed, however. In practice, ever since the accession of Greece and Turkey in 1951, that unanimous agreement has been expressed through a formal protocol to the treaty, requiring ratification by each member state (through their respective national procedures, which usually means a vote of their national legislature, but each country gets to decide the details of that procedure). How and why did NATO decide that unanimous agreement had to be expressed in this way–as opposed to merely a unanimous decision of the North Atlantic Council (the NATO governing body established by Article 9, on which each member state has a seat)? The wording of the article requires unanimity, but it never says that unanimity must be expressed through a treaty-level protocol.

Although NATO and the EU are very different organisations, there are certain similarities between their enlargement processes – both require unanimous agreement for any enlargement, and both require enlargement to be done through a formal Protocol to their founding treaties. However, unlike Article 10 of the North Atlantic Treaty, the equivalent article of the Treaty on European Union, Article 49, says:

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

So the EU's founding treaty makes explicit the requirement for both unanimity and a treaty protocol; NATO's founding treaty appears to only explicitly demand unanimity, yet somehow it still requires a treaty protocol in practice. Why?

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The 1997 Congressional Research Service report NATO Enlargement: The Process and Allied Views states:

The Senate Foreign Relations Committee, in considering the North Atlantic Treaty in 1949, commented in its report that the admission of new members "might radically alter our obligations under the pact." The Committee therefore sought, and received, a commitment from President Truman that a president would consider any admission of a new member to constitute a new treaty, requiring the advice and consent of the Senate. This practice has been followed in admitting each new state.

From which I infer: the original intention behind the text of Article 10 was not to require a Protocol for each new member. However, in order to get the Treaty through the US Senate, President Truman had to promise that it would. Effectively, Article 10 was de facto unilaterally amended by the United States, after its signature, without ever explicitly changing its text. The US could do this of course (as could any other member) - given the text of Article 10 requires unanimous consent, any member state can effectively unilaterally add any additional requirement to Article 10 it wishes, simply by refusing to consent to adding any new members if the additional requirement is not met. And, obviously by now, this is a well-established practice, going back over 70 years (to Greece and Turkey's accession in 1951)–and that well-established practice is of greater legal importance than the literal wording of the Treaty's text.

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    I wonder if Truman was concerned about situations where some people in a country would favor an action while others opposed it, and there was thus disagreement about whether the country as a whole "agreed" with an action.
    – supercat
    Apr 4, 2023 at 17:28
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    It also means that it possible to change the formal process of how accession works in the future without changing the treaty. If all 31 members agree to a different way to express consent, they could just use that.
    – Polygnome
    Apr 5, 2023 at 10:55

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