Getting away with it

This article by former Foreign Minister Dr Alex Sceberras Trigona was carried in the July-August issue of the prestigious French international relations magazine Diplomatie. The article, replying to questions by the magazine, was included in a special dossier on the "Mediterranean stake" featuring contributions by former ministers, diplomats and academics from around the region.

Most experience of foreign relations - direct and rich as that might be - is not wholly transportable from one era to another. This is so especially difficult under different "world orders". Nevertheless, this experience might be useful subsidiarily, by way of analogy, or merely by way of reference. However, there are certain fundamental geopolitical lessons to be learnt from these experiences that tend to prevail.

Having said that, I shall obviously be relying on my experience as international secretary of the Malta Labour Party in the Seventies, as Malta's Foreign Minister in the Eighties, as Shadow Minister for Foreign Affairs in the Nineties, and as lecturer in Diplomacy at the Mediterranean Academy for Diplomatic Studies and in Private International Law at the Faculty of Law at the University of Malta to respond to your questions.

Let us establish first that the present international order is only, arguably, a unipolar world, for it is also, in a contentiously optimistic sense, an evolving multipolar world.

Traditional territorial boundaries have become overlain by other domains of human operations extending beyond them. Trans-boundary economic and cultural relations bloom and flourish beyond political governmental outreach. This outreach is far more limited for some small states - though not for other larger ones. It provides a different measure of State sovereignty.

Nevertheless, the State remains the central unit of legal reference of international relations, albeit a residual, hardly sovereign, State for most. Conversely, new hegemonic relations are developing where only one or a few states can and do exert much more sovereign powers than others, and at their expense.

Thus, for example, the borders of the European Union are not only its member states' territorial borders but reach out to the Caribbean fruit producers in a most sovereign fashion, competing on their mini-territories with the perceived sovereign economic and security interests of the United States.

Similarly, in the Mediterranean, the competition between the EU and its own member states for all sorts of influence in this region is rivalled and rivals in turn the many interests of the US here. This stretches the traditional sense of sovereign interests beyond territorial boundaries most dynamically.

This is not a totally new situation, it is only that the multiplicity of diplomatic, economic, and other actors, fora and leverage available and employed are different. Cold War hegemonic competition in the Mediterranean is not unknown nor forgotten among the region's constituents; neither is that with or between the outside "guest" players.

Frankly speaking, one could just conclude that the EU's boundaries end absolutely, if only too formally, with the southernmost tip of Europe. But then how does one justify the EU's active interest in the Med, in almost alone, consistently and heavily financing Palestinian economic and social development towards statehood even though rebuffed and frustrated over and over again; in responding so diplomatically to Morocco's appeal to join the EU and to Israel's overtures.

But see also the trust placed by both the Israeli and Palestinian negotiators in the EU's Special Representative Moratinos, between Camp David II and Taba when the US was between administrations and no US Representative was present

Similarly, the essential permeability of borders to human movements, displacements and influence defies Schengen, which is still a primitive attempt to regulate this trans-border aspect of human relations Perhaps a closer look at the US/Mexican or US/Canadian territorial border management system could be instructive.

Is the need for a US Rapid Deployment Force vis-à-vis these northern and southern neighbours of the US justified? If not, is there a need for the EU's Rapid Deployment Force to be authorised to operate not only in the Med but also beyond the EU's "new" Eastern borders?

We've come a long way from the high diplomatic point at the Helsinki CSCE 1975 meeting, where Malta's use of its veto power by Prime Minister Mintoff managed to convince the rest of the participants of the importance of Mediterranean security for Europe's security through the introduction of a Mediterranean chapter in the Final Act, though it generated murderous intent in high places.

Russian Ambassador Yuri Fokine has confided in the Foreign & Commonwealth Office Historians Occassional Paper No.15 that "Henry Kissinger, in Geneva at end of May 1975, when both the Russian and the American delegation sitting at the same table were frustrated by some obstinacy originating in Malta, turning almost his back to Gromyko, said, 'OK, what shall we do about this Mintoff thing, assassination maybe'?"

Helsinki also crystallised the post-World War II European boundaries as a Pact in its Final Act, sacred and untouchable. The Nineties saw an unravelling of both the Mediterranean Chapter of the Helsinki Final Act as well as of the territorial boundaries of such CSCE High Contracting Parties as the Soviet Union, Czechoslovakia and Yugoslavia.

If this is the new way of 'managing' borders - viz., manipulation - then no wonder that a number of North African states are seriously concerned about their very survival in their present form, what with the apparently irrepressible rise of the White House's ruling team "Project for a New American Century" (PNAC) with its global Pax Americana and its media popular, but shallow, justifications of "regime change" or of pre-emptive security or of pre-emptive first strikes enunciated in the new US Security Strategy last September. Could the US Democrats provide their country's own countervailing effect now and/or at the next elections, even against the massive security momentum imparted by the colossal military budget of the US?

For the first time, a single country's security doctrine has considerably displaced the much more universal and sober preventive diplomacy school of thought, especially after this year's US/UK occupation of Iraq, such that even international law's defences now look thoroughly permeable!

Reinforcing international law is not merely a matter of law but of realpolitik. Other countervailing factors and pressures do exist albeit in disorganised heterogeneous shapes and sizes. The Non-Aligned Movement (NAM) has recently been encouraged by a number of rallying calls by President Putin - as it used to be by China since its founding in 1955 in Bandung.

However, the movement's raison d'être was the bipolar system: the NAM cannot be expected to replace that dumped equation by itself today. It remains ancillary to the principal - to the Grand Game of a resurfacing multipolarity of power to control not only one's territorial boundaries, but also primary resources wherever they are through whichever means. However, there is hardly any noticeable move forward by the NAM to assert its goals, interests and rights in between the tight unipolar/multipolar differential: it is much more passive now. It was not always so.

Even in the Mediterranean, we had developed an interesting forum of Mediterranean Non-Aligned States' Foreign Ministers throughout the Eighties and early Nineties which, with the Delhi Non-Aligned Summit's mandate, I negotiated, had not only convened in Valletta, then in Brioni, Yugoslavia and then in Algiers, but had started initiatives for EEC/US/MED co-operation in a number of fields including security, which were later abandoned because of the frontal attacks on the territorial integrity of Yugoslavia and on the stability of Algeria.

EuroMed 1995 was the main successor diplomatic initiative, though without the new Adriatic states of the Med, and with its security dimension deliberately removed from its mandate fatally weakening its potential up to this very day.

Indeed the remarkable overlap between EuroMed and most of the Axis of Evil countries, whether one refers to President Bush's shortlist or Assistant Undersecretary for Defence Bolton's longer list, provides a clear delineation of EU/US tensions in this region.

These tensions are compounded by the US drive for free trade agreements with various Med states as initiated by former Undersecretary for Trade Eisenstadt appearing as a direct challenge to EuroMed's goal of a Med Free Trade Zone by 2010.

On a softer diplomatic level of activity in the region, functional co-operation abounds in the sustainable development domain as with the Mediterranean Action Plan with its various protocols, e.g. on prevention of pollution caused by dumping from ships and aircraft; on protection from pollution from land-based resources and activities such as industry, agriculture and tourism; on prevention of pollution by trans-boundary movements of hazardous wastes and their disposal; on pollution from exploration and exploitation of the continental shelf, the seabed and its subsoil; on specially protected areas for the protection of biological diversity in the Mediterranean; the Emergency Response protocol on co-operation in combating pollution by oil and other harmful substances as the most important oil traffic lane connects the Suez Canal to Gibraltar passing between Sicily and Malta then following the coast of North Africa; and with the various attempts to enlarge the gas pipeline network from Algeria via Tunisia to Italy; Algeria via Morocco to Spain; from Libya via Malta to Italy and the rest of Europe; and as with the attempts to develop an integrated electricity network in the Middle east.

The basic question which remains unanswered is: can all this functional co-operation develop at all, let alone prosper at an optimum rate, if security and stability are absent from the region and worse still if insecurity and instability are actively fostered here?

This helps to explain why we had negotiated a status of neutrality for Malta which had to come into effect on the closure of the almost two centuries-old British, later NATO, military bases here in 1979. This also helps to explain why in this turbulent region our neutrality is still as relevant as ever.

Prime Minister Mintoff's historical determination to change Malta's "unnatural role of a fortress into a centre of peace and a bridge of friendship between the peoples of Europe and of North Africa" is recorded in the agreement together with the awareness of "the support which neighbouring European and Arab Mediterranean States will give to Malta's new role and to such a status of neutrality" as a mutually agreed Italo/Maltese change of status and relations.

I recall starting our negotiations on the political/juridical concept of neutrality to be adopted first at the Farnesina in Rome, continuing at the Quai d'Orsay, in Paris, and then working together to produce an agreed Italo/French/Maltese diplomatic/juridical text defining our proposed neutrality status.

With the late Aldo Moro's support and guidance, the talks were properly launched by the end of 1977 but he was not to see them fulfilled as he was soon murdered by the Red Brigades in the terrible "anni di piombo" years of terrorism that shook Italy and Europe, soon contained.

The fact that Italy was persuaded to add a handsome financial protocol (now running into its fifth edition) in support of the neutrality agreement distinguished it from the drier French Note of Welcome, respect and support for our neutrality.

The form of the Italo/Maltese neutrality agreement chosen, namely that of an exchange of Notes verbales, was also accepted both in registering this international agreement at the United Nations under Article 102 of the Charter and later when ratified according to local constitutional requirements. The texts of the two Notes verbales correspond to each other, the Italian Note verbale incorporating the Maltese Government's declaration of neutrality, welcoming it as an expression of sovereignty, solemnly declaring that it will respect it, undertaking in particular:

a) not to take any action whatsoever which could in any way, directly or indirectly, endanger the sovereignty, independence, neutrality, unity or territorial integrity of the Republic of Malta;

b) not to take any action whatsoever which could in any way, directly or indirectly, endanger peace and security in the Republic of Malta;

c) not to take any part in any act of such nature;

d) not to induce the Republic of Malta to enter into a military alliance, or to sign an agreement of this kind, or to accept the protection of a military alliance.

Italy also invited all other states to recognise and respect the sovereignty, independence, neutrality, unity and territorial integrity of the Republic of Malta, to act in conformity therewith in all respects, and to refrain from taking any action which is incompatible with those principles;

The Italo-Maltese neutrality agreement also has an interesting guarantee in clause 5 of the Italian declaration, namely that "at the request of the Republic of Malta... should the need arise for the exercise of the right of self-defence in the circumstances set out in Article 51 of the Charter of the United Nations (Italy will) adopt any other measure, not excluding military assistance, it will consider necessary to meet the situation." Similar international agreements, without the guarantee clause, were also concluded with the Soviet Union, now succeeded by the Russian Federation, and in the Treaty of Friendship with Libya.

Although Malta is scheduled to become an EU member in May 2004 it has accepted accreditation of a defence attaché here from the US and from China. It is still neutral and non-aligned, indeed our status of active neutrality which is entrenched in our Constitution and can only be removed by a two-thirds majority in Parliament.

The Constitutional definition of neutrality, a very articulate one, follows precisely the political/diplomatic/juridical definitions attained in our negotiations with the Italian and French representatives and experts in their respective Foreign Ministries and recognised in the above-mentioned exchange of Notes and other international agreements.

However, the EU avis of 1993, on Malta's application to join, had anticipated difficulties for the proper management of the EU's Common Foreign and Security Policy because of this unique status of neutrality. This problem has not been solved with Malta's accession to the EU Treaties. Indeed this is only the start, as correctly anticipated in the avis.

Moreover, certain constitutional problems on the transfer of executive, legislative and judicial powers from Malta to the EU have not been solved either. Whereas all the other candidate countries have changed their constitutions to allow for the "European Article" (e.g. Poland Article 90) to be inserted therein authorising a transfer or a delegation of powers to the EU, Malta did not, for the very simple reason that the Government did not control a two-thirds majority in Parliament. In other words there is no national consensus on this in Malta as there is both in the candidate countries as well as in the 15 member countries which have also amended their Constitutions accordingly following the Amsterdam Treaty.

France has now constitutionally recognised (Article 88) the "common" exercise of these powers with the EU; Italy has now constitutionally recognised (Article 117) the EU's legislative powers together with its Parliament and Regions; Germany's Constitution contemplates the express transfer of sovereignty rights and powers in its Articles 23, 24 as have the Netherlands in authorising the transfer of legislative judicial and executive authority to the EU in Article 92 of their constitution.

Furthermore the principle of the supremacy of European Law to member states' law, asserted as judge-made law by the European Court of Justice and now to become treaty law if the European Convention's recommendations for an EU Constitution are approved by the EU Summit in Greece is in direct conflict with our own Constitution which maintains that our Constitution is supreme and any other law which is inconsistent with it will be null and void to the extent of that inconsistency (Article 6). This Article only too clearly requires a two thirds majority to be amended to allow European Law to be supreme here, whatever "direct effect" is claimed for European Law in the rest of Europe.

The constitutional deficit of Malta's EU membership is further compounded by constitutional breaches of neutrality created by the multiplication of US/NATO warships increasingly based and repaired here. For solutions one could surrealistically resort to the Albright model. When the then UK Foreign Secretary Robin Cook had confided to State Secretary Albright that he had a problem with his lawyers' doubts that intervening militarily in Yugoslavia without UN authorisation would certainly be in breach of international law, she immediately retorted "Change your lawyers!" Whether this anecdote is completely true or not, it does throw some light on today's realpolitik or "how to get away with it".

How many times can one get away with it remains, however, the crucial question.