Neutrality, its obligation and limitations | Brendan Zerafa

The debate concerning the neutrality clause found in the constitution of Malta has been ongoing for years, decades even. Every time that the state has taken stances vis-à-vis international political issues, individuals who are in disagreement with such stances have often invoked constitutional neutrality to strengthen their arguments.

However, when neutrality is invoked in relation to political issues and political stances of the state, it is done so erroneously.

This is because Malta’s neutrality, as found in Article 1 (3) of the Constitution, only deals with military neutrality and not political neutrality. While it is true that as things stand, Malta is prohibited from joining a military alliance such as NATO, the country was not prohibited from joining the European Union, which is a political and economic union.

Obviously, we are talking as things stand today in this regard, for if the European Union develops into a federation with its own military, then that might run counter to Maltese neutrality.

With that being said, as things stand today, the EU has no army, and accordingly, membership in the Union is fully compatible with military neutrality.

When it comes to making statements or taking stances in relation to issues such as Russian aggression in Ukraine, I would argue that Malta not only has a right but also has a duty to speak out. The international order is based upon a set of rules that are accepted by all states, and once those set of rules start being broken left, right, and centre, then anarchy takes over. Such a world of anarchy would be of considerable detriment to Malta in the long run. This is especially the case since in a world where might is right, the interests of small states would end up being jeopardised in the interests of other larger powers.

The way the neutrality clause is written, it is clear that it seeks to promote the international legal order. This is especially the case because of Article 1 (3) (b), which provides a number of exceptions when it comes to military facilities in Malta being used by foreign powers.

One of these exceptions concerns the pursuance of measures or actions decided upon by the Security Council of the United Nations, which Malta currently presides. This is significant because according to the Charter of the United Nations, resolutions of the Security Council are binding on all states, and therefore they have the highest force of international law.

Needless to say, although the Security Council has considerable power on paper, it is often rendered toothless owing to the veto provided to the five permanent members (the United States, the United Kingdom, France, China, and Russia). However, that is a debate for another day.

When it comes to neutrality, one thing is clear: Malta’s constitution obliges the state to actively pursue peace, and the pursuit of such peace requires all nations to follow international law.

For this reason, the state is not only morally right to condemn transgressions but is also arguably legally obliged to do so.

Obviously, there are those who might disagree with neutrality as it stands today. Some might prefer it if Malta were to join NATO, for example. I, myself, am not one of these people.

In fact, I believe that Malta’s interests are best suited by being neutral, militarily, as we are today.

This is especially because Malta’s neutrality clause does not prohibit the country from asking for assistance “whenever there exists a threat to the sovereignty, independence,  neutrality,  unity or territorial integrity of the Republic of Malta”.

Accordingly, in the case of such events taking place, Malta can turn towards the European Union, even more so because the Mutual Defence Clause in the Treaty of the European Union obliges member states to help each other by all means in their power in case of armed aggression.

Lastly, as stated in the Constitution of Malta, Malta is a country that is actively pursuing peace. And that’s why we are neutral militarily.

However, military neutrality also needs to be complemented by strong political responses in relation to transgressions of international law in order for the international legal order which guarantees our neutrality to survive in the first place.

And for this reason, I’m afraid I have to disagree with those who say that Malta should shy away from condemning aggressors.