The ratification of the EU treaty

The term "ratification" of the EU treaty is a misnomer. In effect the ratification, which will take place in parliament after its inauguration on May 24, will not be between Malta and the EU but between Malta and the individual member states. (Page one of the treaty states clearly it is between the member states of the European Union and, inter alia, Malta concerning accession of, inter alia, Malta to the European Union.)

The treaty also says that the instruments of ratification shall be deposited with the government of the Italian Republic by April 30, 2004, at the latest. Why Italy of all the member states? Of course because Italy is the birthplace of the European Union, thanks to the Treaty of Rome in 1960.

Now back to the ratification process. The reason why the treaty had to be between states is simple: treaties, according to the Vienna Convention on the Law of Treaties on which our law is based, can only be concluded between states. In fact, Section 2 of our Ratification of Treaties Act (Chapter 304) lays down that a treaty means "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

On the other hand, there is no discussion that the European Union does not fulfill the legal criteria of statehood as recognised under international law and it certainly does not qualify as a state under international law. This is why the treaty, although known as the EU treaty, does not have the EU as a party to it.

Consequently and so long as it affects or only concerns the relationship with any multinational organisation, agency, association or similar body; or the security of Malta, its sovereignty, independence, unity or territorial integrity; or the status of Malta under international law or the maintenance or support of such status, then our law says that such treaty has to be ratified by an act of parliament. In other words by a simple majority.

But the ratification of the EU treaty is much more than that. It does not only affect the relationships above-mentioned but it also affects or concerns the relationship with the Constitution of Malta. The treaty provides for the supremacy of EU law over our Constitution, for the supremacy of the European Court of Justice, and does not anywhere mention or give recognition to our status of neutrality and non-alignment as enshrined in our Constitution. The Ratification of Treaties Act does not mention the Constitution in the procedure for ratification by a simple majority. If the law wanted it, it would have included it.

This means that, so long as the treaty which Malta signed with the member states of the European Union continues to be in conflict with the Constitution of Malta, and so long as the Ratification of Treaties Act continues to exclude the ratification of a treaty which concerns the Constitution from the list of instances where such ratification can take place by a simple majority, then its ratification cannot be by a simple majority. Even the treaty itself confirms in Article 2 that it shall be ratified by the high contracting parties in accordance with their respective constitutional requirements.

This is a treaty which affects the Constitution of Malta. This is a treaty which does not fall within the parameters of the procedure for ratification by a simple majority. This is a treaty which is more important than the parameters mentioned in the provisions of the Ratification of Treaties Act.

Ratification by a simple majority will not be according to the "constitutional requirements" mentioned in Article 2 of the EU treaty - ubi lex voluit dixit!