The prime minister recently argued for the need to revisit Malta’s interpretation of its constitutional neutrality. He suggested that Malta has historically interpreted its neutrality too rigidly. This stance apparently contrasts with his position in 2024 when he consistently emphasised Malta’s commitment to neutrality, particularly regarding European Union defence initiatives.
During a European Council summit in March 2024, Abela supported increased EU defence spending after securing explicit assurances that Malta’s constitutional stance on neutrality would be respected. Similarly, during the 2024 European Parliament election campaign, the PN also advocated reconsidering Malta’s neutrality in light of contemporary realities.
Neutrality in international law has a specific meaning: a neutral country does not take sides in a war and must adhere to certain rules to remain impartial. The Hague Conventions of 1907 outline these rules, such as prohibiting warring states from using neutral territory for military operations and preventing neutral states from assisting belligerents.
These treaty rules were established when the use of force was not illegal under international law. Armed conflict was then considered a legitimate policy tool for states. As Carl von Clausewitz famously wrote in the early 19th century: “War is merely the continuation of politics by other means.”
However, the legal landscape changed dramatically with the adoption of the UN Charter in 1945, particularly article 2(4), which prohibits the use of force against another state. This rule is a jus cogens norm, meaning it is binding on all states under all circumstances. There are only two exceptions: (i) self-defence in response to an armed attack, and (ii) Security Council authorisation for the use of force to maintain or restore international peace and security.
Furthermore, international law has long recognised that certain obligations are owed not just between states but to the international community as a whole. These obligations erga omnes include the duty to prevent acts of aggression and genocide. The articles on state responsibility stipulate that third states (neutral or otherwise) must cooperate to end serious breaches of such obligations.
Neutrality cannot be an excuse for inaction in the face of severe violations of international law- Omar Grech
From a legal perspective, neutrality does not absolve states of their responsibilities under international law. Firstly, neutral states must prevent their territory from being used in an illegal war – for example, by refusing aggressors access to ports or airspace. Secondly, they must not provide any form of assistance to aggressors, such as supplying weapons or financial support.
Additionally, under UN Security Council resolutions, all states must enforce sanctions or participate in collective security actions, as demonstrated by the sanctions against Iraq following its 1990 invasion of Kuwait and those against Libya after the Lockerbie bombings.
Although neutrality is based on impartiality and non-participation in armed conflicts, it is increasingly shaped by obligations erga omnes and jus cogens norms. States are universally bound to uphold prohibitions on aggression, genocide and violations of self-determination, even within the framework of neutrality.
A notable example of this evolving legal principle is the 2024 International Court of Justice (ICJ) Advisory Opinion concerning the occupation of Palestinian territories. The ICJ declared:
“... in view of the character and importance of the rights and obligations involved, all states are under an obligation not to recognise as legal the situation arising from the unlawful presence of Israel in the Occupied Palestinian Territory. They are also under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory. It is for all states... to ensure that any impediment... to the exercise of the Palestinian people’s right to self-determination is brought to an end. In addition, all the states parties to the Fourth Geneva Convention have the obligation... to ensure compliance by Israel with international humanitarian law as embodied in that Convention.”
This opinion reinforces that neutrality cannot be an excuse for inaction in the face of severe violations of international law.
Acts of aggression, the denial of self-determination, and genocidal acts necessitate a recalibration of neutrality within a communitarian framework, emphasising the primacy of fundamental legal norms in modern international relations.
One hopes that Malta’s political leaders are fully aware of these obligations as they debate the future interpretation of the country’s constitutional neutrality.
Omar GrechOmar Grech is Associate Professor of International Law at the University of Malta.