Neutrality explained: Breaking down the Constitution in bite-size pieces

Neutrality may mean different things to different people but a careful reading of the Constitution shows that it is not as isolationist or limiting as many believe.

Indeed, some of the wording used has become historically obsolete – the concept of non-alignment with ‘the two superpowers’ as defined in the Cold War era.

The Constitution is clear that no foreign military base could be set up but it does not bar the use of Maltese military facilities by foreign forces at the invitation of the government in defined instances.

But contrary to popular belief, the Constitution makes no specific reference to the Armed Forces of Malta’s participation in military or peacekeeping missions. The only inference is the opening section, which defines Malta as a neutral state “actively pursuing peace, security and social progress”.

The Constitution also ignores the post-2004 reality of Malta being part of the EU.

The neutrality clause (Subsection 3 of Article 1) was added to the Constitution in January 1987 as part of a quid pro quo arrangement to introduce amendments to ensure that the party with the absolute majority of votes is ensured victory in an election. Since then, it has never been amended.

The following is a sentence-by-sentence explainer of the neutrality clause to try and understand the limitations, the opportunities and the problematic aspects.

The Constitution (Subsection 3 of Article 1)

GENERAL PRINCIPLES

What the Constitution says:

(3) Malta is a neutral state actively pursuing peace, security and social progress among all nations by adhering to a policy of non-alignment and refusing to participate in any military alliance. Such a status will, in particular, imply that:

Explainer:

This part defines the general principles upon which neutrality is based. The key words are: “actively”, “non-alignment” and “military alliance”. 

Malta has an active obligation to pursue peace but also security among all nations. Malta has no obligation to remain aloof in front of world events that lead to aggressive action or threats against other states. The Constitution does not stop Malta from taking an active stand against Russian and Israeli aggression in Ukraine and Gaza, respectively.

In its widest interpretation this allows the Armed Forces of Malta to be part of international military missions if these are intended to pursue “peace, security and social progress”.

Nonetheless, the principle of active neutrality is qualified by non-alignment and a ban on participation in military alliances.

At this stage, non-alignment is not defined but later on this is defined within the historical context that characterised the period when this clause was inserted in the Constitution. The reference is non-alignment with the world’s two superpowers at the time – the US and the Soviet Union. The reference to “any military” alliance is a clearer concept, which means that Malta can never join an alliance like NATO, which is a military organisation.

This immediately raises the question mark as to whether Malta’s participation in NATO’s Partnership for Peace programme is in breach of the Constitution. Legal advice the Maltese government had obtained in 2008 stated that PfP could not be considered a military alliance. As a PfP member, Malta chooses what training programmes it wants to be involved in.

More significantly, it raises the question as to whether Malta is barred from participating in EU defence and security programmes and arrangements. In 2017, the Muscat administration had decided to opt out of PESCO, an EU arrangement allowing member states to jointly plan, develop and invest in defence integration, out of concerns it could go counter to the Constitution. Malta had adopted a wait and see approach to see how this new set-up was going to develop. Today, Malta remains the only EU member state not to form part of PESCO. The legal reasoning adopted back in 2008 to justify Malta joining NATO’s PfP could possibly also justify Malta’s participation in PESCO.

FOREIGN MILITARY BASE

What the Constitution says:

(a) no foreign military base will be permitted on Maltese territory;

Explainer:

This is the most straightforward proviso in the neutrality clause that builds on the historic context of Freedom Day when the last of the British forces left Malta in 1979. The use of the word ‘base’ implies a permanent and long-term presence and this clause ensures no foreign military base will ever be permitted.

MALTESE MILITARY FACILITIES

What the Constitution says:

(b) no military facilities in Malta will be allowed to be used by any foreign forces except at the request of the Government of Malta, and only in the following cases:

Explainer:

This section speaks of Maltese military facilities and how these cannot be used by foreign forces unless requested to do so by the Maltese government. However, any such request is also limited by the conditions laid down in the Constitution (see below).

DEFENCE AND UN MISSIONS

What the Constitution says:

(i) in the exercise of the inherent right of self-defence in the event of any armed violation of the area over which the Republic of Malta has sovereignty, or in pursuance of measures or actions decided by the Security Council of the United Nations; or

Explainer:

Malta may allow its military facilities to be used by foreign forces if it needs to defend itself from armed aggression but also in the event of UN-sanctioned actions.

This section recognises Malta’s international obligations as a UN member state. Foreign forces operating on a UN mandate may be allowed the use of Maltese military facilities.

However, no distinction is made between UN-led missions (the blue helmets) and missions led by some country or countries in the UN’s name. Neither is a distinction made between UN-mandated peacekeeping missions like that in Lebanon, and peace-making missions that have an offensive nature such as the 1991 Gulf War.

This means that during the first Gulf War in 1991 when the UN Security Council authorised the US and its allies to liberate Kuwait from Iraqi occupation, Malta could have allowed its military facilities to be used by foreign forces.

However, the second Gulf War in 2003 initiated by the US and Britain against Iraq did not have a UN mandate and thus Malta could have never allowed the use of its military facilities by foreign forces.

But in 2011, Malta would not have fallen foul of the Constitution had it allowed its military facilities to be used by foreign forces deployed to enforce an UN-sanctioned no-fly zone over Libya during the uprising against Muammar Gaddafi.

This section has not been updated to reflect Malta’s membership of the EU, which technically means that military facilities cannot be used by foreign forces participating in an EU-sanctioned mission that has no UN mandate.

THREAT TO SOVEREIGNTY

What the Constitution says:

(ii) whenever there exists a threat to the sovereignty, independence, neutrality, unity or territorial integrity of the Republic of Malta;

Explainer:

Malta may allow foreign forces to use its military facilities even if it perceives a threat to its sovereignty and neutrality. This means the government does not have to wait for an aggression to materialise before it can allow foreign forces to use military facilities on the islands. The interpretation of what constitutes a threat is left open.

MILITARY SHIP VISITS

What the Constitution says:

(c) except as aforesaid, no other facilities in Malta will be allowed to be used in such manner or extent as will amount to the presence in Malta of a concentration of foreign forces;

Explainer:

This section makes it clear that it is not just military facilities that cannot be used by foreign forces bar exceptional cases outlined above, but also civilian facilities. However, this prohibition is qualified with the words “concentration of foreign forces”. This means that military ship visits in Maltese ports or refuelling stops at the airport by military aircraft are permissible as long as they do not constitute a “concentration”.

The Constitution does not specify the period over which a concentration is to be calculated, creating ambiguity. However, in 1988, in the case opened by Żgħażagħ għall-Ambjent against the government over the visit of the British aircraft carrier Ark Royal and two supporting military vessels, the Constitutional Court was not of the belief that “the presence of ships invited by the government, for a short period of time determined beforehand, could be considered as a concentration of military forces in breach of the Constitution”.

FOREIGN SOLDIERS

What the Constitution says:

(d) except as aforesaid, no foreign military personnel will be allowed on Maltese territory,  other than military personnel performing, or assisting in the performance of,  civil works or activities, and other than a reasonable number of military technical personnel assisting in the defence of the Republic of Malta;

Explainer:

To be more specific the Constitution also speaks of “foreign military personnel”. While these are not allowed on Maltese territory, two important exemptions are included. In the first instance, foreign soldiers can set foot in Malta if they are performing civil duties. This means that military personnel on visiting warships can come aground for entertainment purposes and to perform voluntary work.

But this section also allows in “reasonable number” the presence of foreign military personnel assisting in the defence of Malta. This exception was used to justify the presence of a handful of Italian military advisors in Malta as part of a long-standing arrangement between the two countries. Eventually, the Italian Military Mission was dissolved when Malta joined the EU.

SHIPYARDS

What the Constitution says:

(e) the shipyards of the Republic of Malta will be used for civil commercial purposes, but  may also be used, within reasonable limits of time and quantity, for the repair of military vessels which have been put in a state of non-combat or for the construction of vessels; and in accordance with the principles of non-alignment the said shipyards will be denied to the military vessels of the two superpowers.

Explainer:

This section does not stop the repair or the construction of military ships in Malta’s shipyards – as long as they are in a state of non-combat – but qualifies this by saying this must be done “within reasonable limits of time and quantity”. Once again, the proviso imposing limitations is left up to interpretation.

However, where this section gets somewhat complicated is in the second half where it disallows the use of the shipyards to the military vessels of “the two superpowers”. This partly is obsolete because it has been superseded by historic events.

That reference was crafted in the Cold War era that saw the US and the now-defunct Soviet Union as the world’s two dominant military forces. In a multi-polar world that now counts the US, Russia and China as superpowers, and with others aspiring to reach that status, this section of the Constitution can cause problems of interpretation.

In 2001, the Attorney General had advised in favour of allowing the shipyards to be used for maintenance works on the USS La Salle, an American military vessel, in the context of the Cold War coming to an end in 1989, after the fall of the Berlin Wall. At the time, the controversial case was brought before the Constitutional Court by Alternattiva Demokratika, which had asked the court to interpret the Constitution. The AG had agreed with AD’s stance but lawyers Toni Abela and Charmaine Zammit had independently requested to join proceedings, since they argued that the Constitution was going to be changed through court decree and not a two-thirds majority vote in parliament.

Eventually, the court never got to pronounce itself on the issue of “two superpowers”. Maintenance works on the La Salle were carried out and it also visited again in 2003 for extensive refit works. In 2012, the USS Mount Whitney became the second US military vessel to undergo repairs at the Palumbo Shipyard. Meanwhile, no attempt has ever been made to reword this section of the Constitution.

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