NATO membership applications highlight tension between consensus system and rule of law

Sara ChessaWednesday 7 June 2023

All decisions made by NATO are resolved by consensus, without voting: discussion and consultation continue until a conclusion acceptable to every member state is reached. Crucially – given that since Russia invaded Ukraine in early 2022, the alliance has received requests to join from Finland, Sweden and Ukraine itself – there’s no exception when deciding over the admission of new members, who can face the veto of countries that are already part of the alliance. However, when a state applies to join, it must meet specific requirements, many of which have a bearing on the rule of law. In particular, the applicant must uphold democracy, including by tolerating diversity.

The rule of law is a composite concept containing the division of legislative, executive and judicial powers, as well as legal certainty, proportionality, the legality of administration and respect for fundamental human rights. The rigorous process states undergo to become NATO members includes the assessment of these and other specific facets of the rule of law.

In the case of Sweden, which applied to join the alliance in May 2022, there’s a paradox. Turkey has so far vetoed Sweden’s admission, claiming the Scandinavian country doesn’t take Ankara’s security concerns seriously. According to Turkey, Stockholm shelters individuals from terrorist groups, therefore, Turkey has demanded their extradition as a pre-condition for ratifying Swedish membership.

The paradox is precisely here: Sweden would have to trample on its commitment to comply with the rule of law in order for Turkey to green-light its membership. When a decision needs to be made on an extradition request, a legal analysis is carried out within a court – in Sweden’s case, the Swedish Supreme Court. Then, after the Court decides there are no legal barriers to extradition, the government can make the final decision. According to Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute, the Swedish Supreme Court has already denied a number of extradition requests from Turkey, and permitted others unrelated to ‘political activism’ or freedom of speech. ‘We do, however, have legislation regarding foreigners that stay in Sweden', she explains. ‘They can have received asylum, stayed here for many years, and established a family. If the secret police believe the person in question is a security risk to the country, they can be forced to leave the country.’

In institutions that are consensus-based [...] any member can constantly abuse their rights

Irina Paliashvili
International Rule of Law Officer, IBA Rule of Law Forum

Ramberg adds that this legislation is the subject of considerable debate, and that such matters lack the safeguards of criminal cases. ‘The person or their lawyers do not get all of the information and cannot defend themselves properly’, she explains. ‘It is the government that decides after a migration court has given its opinion. This opinion is limited to the question if there are obstacles put into effect.’ Ramberg agrees that the issue in the Swedish NATO application process represents a paradox. ‘I hope Sweden will uphold the rule of law. So far, we have’, she says.

This paradox – where it appears a choice must be made between the rule of law and the demands of the NATO consensus system – is clearly visible, says Irina Paliashvili, International Rule of Law Officer on the IBA Rule of Law Forum and co-founder of the RULG-Ukrainian Legal Group. ‘The system is certainly outdated. It’s not working anymore as it should, and this is because there’s a consensus system,’ she says. Paliashvili believes that a lesson must be learnt from the behaviour of states such as Turkey within NATO.

Such states ‘have to stop the abuse of rights’, Paliashvili says. Here, she draws a parallel with the legal order within a state. ‘In the single system,’ she says, ‘we have the concept of abuse of rights; if you have your rights and you’re systematically abusing them, then the civil law system will prevent it and punish you for that. In institutions that are consensus-based, there is no such thing. The same is true with the UN Security Council. Any member can constantly abuse their rights.’ In Paliashvili’s view, not only must NATO candidates make any necessary changes to comply with the rule of law as per the alliance’s membership requirements, but there’s also a need for NATO, the EU, the UN and other international organisations to undergo reform to overcome the issues created by the consensus system.

In mid-May the President of the Ukrainian Supreme Court, Vsevolod Kniaziev, was arrested by Ukrainian authorities in connection to allegations that he received bribes in return for favourable rulings, with Ukraine’s National Anti-Corruption Bureau claiming it has exposed a large-scale corruption scheme within the Supreme Court. Kniaziev denies the allegations. These developments have come as a shock to the country as it seeks to strengthen its adherence to the rule of law since formally submitting its bid for NATO membership in September 2022.

Tetiana Shevchuk, International Relations Manager at the Ukrainian Anti-Corruption Action Centre, says that the independence of the judiciary has been a highly complex issue for Ukraine as it seeks to adopt the standards of the Council of Europe on judicial independence. ‘Some elements within the system were protecting bad actors from prosecution and persecuting whistleblowers, particularly the good judges who are against any corruption in the system’, she says.

A fair judicial system is a fundamental part of the rule of law, and Paliashvili says that Ukraine has proven that its judiciary can function despite the war. ‘In the Ukrainian Constitution, and also in practice, we have complete separation of power, and the institutions and branches of power are functioning according to the Constitution, and they’re separate. So there is no problem here’, she adds. She highlights that, despite representing a shock to the system, the recent investigations into allegations of bribery show that Ukraine wants to fight corruption at the root. ‘It will result in even less tolerance towards corruption and probably more reforms’, she says.

Paliashvili says that the path Ukraine walked after the end of the Soviet Union was different to that of other former Soviet bloc countries who became EU candidate countries. ‘Other Central European countries found a powerful motivation to reform as fast as possible in the [hope] of becoming EU members’, she explains, adding that Ukraine didn’t have the same incentive.

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