Repealing the 2003 EU-Malta accession treaty

On Friday, the Prime Minister, acting only for and on behalf of the Government of Malta but constitutionally ultra vires, i.e. beyond his constitutional powers, is scheduled to sign the treaty establishing a Constitution for Europe in Rome, together with the other 24 EU member states.

Among many other things, old and new, this new treaty proposes to repeal the previous treaty establishing the European Community as well as the treaty on European Union. Of more local relevance however, following the contested referendum result on Malta's EU accession, this new Treaty also proposes to repeal last year's treaty on Malta's accession to the EU (Part IV Article IV-437 paras 1-2 numbered according to the latest - August 6 - version).

Nevertheless, the provisions of Malta's accession treaty "which are set out or referred to in the protocol" to the Constitution of Europe, shall remain in force and their legal effects shall be preserved in accordance with that protocol. The protocol referred to here is Protocol No. 9 annexed to the Constitution of Europe.

By virtue of the Treaty on the Constitution of Europe (Part IV Article IV-442) "The Protocols and Annexes to this Treaty shall form an integral part thereof". Protocol 9's explicit references to Malta consist of two articles, namely 61 and 62, which register certain provisions (a) on non-discriminatory rules to regulate the acquisition of secondary residences in Malta and (b) to protect Malta's national legislation regarding abortion.

Moreover, Protocol 9 in Article 73 of Part Three of the Constitution stipulates that "Annex I and Annexes III to XVII to the Act of Accession of 16 April 2003, their appendices, and the Annexes to Protocols 2, 3 and 8 to the Act of Accession of 16 April 2003, form an integral part of this Protocol". This means that Annex XI, which refers to Malta's particular conditions, derogations or transitory clauses is saved from all the effects of this repeal. But that is all that is saved.

Nowhere is there any mention of Malta's neutrality. There is no reference to the Declaration on Neutrality previously annexed to Malta's Treaty on Accession in Part K as Declaration No. 35. This was manifestly a weak declaration in substance. It was even weaker because it was merely a unilateral declaration by the Government of Malta, an explanation. There was no corresponding declaration on the part of the other member states. It could hardly be said to have constituted an agreement at international law, let alone a binding one. It did not create international rights and international obligations between the parties to the Act of Accession. Let us see.

Declaration 35 is entitled "Declaration by the Republic of Malta on Neutrality". It is a short Declaration: "Malta affirms its commitment to the common foreign and security policy of the European Union as set out in the (now repealed) Treaty on European Union. Malta confirms that its participation in the European Union's common foreign and security policy does not prejudice its neutrality. The Treaty on European Union (now repealed) specifies that any decision by the Union to move to a common defence would have to be taken by unanimous decision of the European Council adopted by the Member States in accordance with their respective constitutional requirements."

Ironically for those who doubted ever so loudly that neutrality had had its day, this repeal of neutrality comes at a time when the new European Constitution is itself recognising and elevating neutrality to the high level of a 'principle', at least insofar as humanitarian aid is concerned. Article III-321 of the new Constitution stipulates that humanitarian aid operations must be conducted according to the principles of international law and the principle of non neutrality, among others.

In the hierarchy of importance and binding effect of annexes to a treaty, protocols declared to be an integral part thereof have an equal effect as the other parts of the treaty. Declarations by their very name are weaker and of less importance especially when they are not included in the list of protocols and annexes to be considered as integral part of the treaty.

In the treaty on accession, unilateral declarations were furthermore distinguished from joint declarations of member states and listed separately, to be considered as even weaker than them. The fact that the Government of Malta had settled for this weakest form of a unilateral declaration, just touching the accession treaty not an integral part of it, to safeguard (!) our neutrality shows the lack of respect it had for our Constitution. No wonder it is to be washed aside implicitly by this repeal.

More explicitly against our constitutionally entrenched neutrality is the new Article I-41.7 of the new Treaty on the Constitution entitled "Specific provisions relating to the common security and defence policy". There was nothing like this in the treaty on accession of April 16, 2003. It states: "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, in accordance with Article 51 of the United Nations Charter."

By treaty this introduces international rights and obligations of mutual defence among all member states. A mutual defence alliance is established. Mutual defence directly contradicts neutrality. One cannot both be neutral between parties to a conflict at the same time as one is a member of a military alliance with an obligation of military support for one side against the other.

In any case and apart from the greater inherent value of neutrality to the cause of peace and the peaceful settlement of disputes, the point is preliminarily one of competence or competences, Kompetenz, Kompetenz. Article I-11.2 holds that "Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the member states. Competences not conferred upon the Union in the Constitution remain with the Member States".

It is clear that the Prime Minister does not have the competences required nor the authority to confer these rights and to sign up to these new mutual defence obligations in the Treaty on the Constitution. On the contrary the neutrality provisions entrenched in our Constitution in Article 1.3 explicitly contradict any 'presumed' grant of competences. To that extent his signature is ultra vires our Constitution.

It is equally clear that the Prime Minister does not have the competences required nor the authority to confer primacy to the EU Constitution and its laws. Article I-6 holds that the EU "Constitution and law adopted by the Union's institutions in exercising competences conferred on it shall have primacy over the law of the Member States". On the contrary the supremacy of our Constitution as entrenched by Article 6 explicitly contradicts any 'presumed' grant of competences. To that extent his signature is ultra vires our Constitution.

Moreover it is clear that the Prime Minister does not have the competences required to confer executive, legislative and judicial authority explicitly entrenched in our Constitution to the new EU Constitution. To that extent his signature is ultra vires our Constitution.

Competences not conferred remain with the member states.

Alex Sceberras Trigona, LL.D., MA (Oxon.), was Foreign Minister in the Labour administration of 1981-87