The EU at war: Possible scenarios for Malta

Undoubtedly, not a single EU citizen would be eager to turn into a warmonger, but after Russia launched its full-scale invasion of Ukraine, many are those who think it is not enough to wave the olive branch. This is especially more so when diplomatic efforts to end the wars raging in different parts of the globe have hardly produced any tangible results.

The EU is realising that it may have to adjust the way it mobilises for war, adjust the way it produces military equipment and the manner by which it recruits and trains personnel. As a consequence, it is grappling with the question of how to mobilise millions of people to be thrown into a meatgrinder of a potential war. Unfortunately, this is where Russia has put the EU.

And this is where conscription and neutrality come in.

The debate over compulsory military service has resurfaced across Europe, with many countries reconsidering whether conscription could bolster their national security. As defence budgets shrink, the readiness and ability of European militaries to respond even to traditional threats is now being called into question.

For many years, European armed forces have operated on the assumption that any future conflicts would depend significantly on advanced technology. However, the Russian threat of territorial invasion towards the European mainland has certainly made more countries consider new paths to strengthening military capability, which can include some form of conscription or national service.

Yet, how lawful is military conscription?

Under international law, conscription is viewed as an exercise of a state’s sovereignty, and no provisions of international law prohibit it. On the face of it, therefore, should the Maltese government introduce compulsory military service, this would be lawful.

However, conscription remains controversial for a range of reasons, including conscientious objection to military engagements on religious or philosophical grounds, or political objection, for example, because of an unpopular war.

In the EU, conscripts should enjoy the same rights and fundamental freedoms, in particular those conferred by the European Convention on Human Rights, and enjoy the same legal protection as ordinary citizens. This does not preclude the possibility of states providing for restrictions on the exercise of these freedoms if these are justified according to the specific circumstances or for maintaining military discipline, but they must be in strict respect of the Convention.

Among those who have reinstated mandatory service in recent years are Latvia, Lithuania and Sweden. Cyprus, Greece, Turkey, Austria, Switzerland, Denmark, Estonia, Finland and Norway never suspended conscription.

Even if conscription would help address issues with military recruitment, in many countries it could be socially and politically controversial to the point that it reinforces polarisation, leads to backlash or social/political unrest, and undermines the wider security benefits that could be gained from it.

And then there is the neutrality or non-alignment issue to complicate matters further.

EU member states that are neutral or militarily non-aligned, or that have an opt-out from common defence, are often overlooked in discussions about European defence. The existence of these special status states not only creates uncertainty about the EU’s ambitions to become a fully-fledged defence union but also calls into question the functionality of the mutual defence clause, Article 42.7 of the Lisbon Treaty of 2009, in the long run.

Article 42.7 reads thus: “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, by Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those states that are members of it, remains the foundation of their collective defence and the forum for its implementation.”

Reading Article 42.7, one could conclude that the EU already is, in fact, a defence alliance. At a minimum, it raises questions about how the neutral states square the circle of being a member of a union that has a mutual defence clause while upholding their non-aligned status.

The Nationalist Party and the Labour Party have reached a consensus on the need to rewrite the neutrality provisions in the Constitution, but neither has tabled a proposal for how to do so.

The apparent contradiction between neutrality and EU mutual defence characterised Malta’s parliamentary debates both on the draft Treaty Establishing a Constitution for Europe and the Lisbon Treaty.

That notwithstanding, the Maltese government had been advised by the EU Advocate General that the fact that an EU member state requests help based on provisions in the Lisbon Treaty does not entail or does not necessarily lead to actions that infringe the neutrality clauses as protected by the Maltese Constitution.

Furthermore, there are indications that Malta is committed to active neutrality: it remains in the European Defence Agency and participates in military and civilian missions. Also, the creation of deployable military capabilities is one of the objectives listed in the Armed Forces of Malta Strategy Paper 2016-2026.

Currently, Malta does not consider itself to have joined a military alliance or a defence union. Still, it would be prepared to ask for assistance from other member states in similar circumstances as those contemplated under Article 42.7.

But no Maltese government has ever publicly discussed the scenarios in which it could make such a request.