The rule of law, at home and abroad

Few phrases now appear more often in Maltese public life than “the rule of law”. We hear it in parliament, in court, in reports, in party debate and in public calls for reform. This is good. A state that does not take the rule of law seriously soon learns that power without law harms the public first.

Yet, in Malta, we tend to speak of the rule of law as if it were only a matter of domestic law. We ask whether ministers obey Acts of Parliament, whether public bodies act within their powers, whether courts can review state action and whether citizens can enforce their rights. All these questions matter. But they do not exhaust the idea. There is another part of the rule of law which we should bring into our public debate: respect for the rules of international law that bind Malta.

Those rules come in two main forms. Some come from treaties which Malta has signed and ratified. Others come from customary international law, which binds states because it reflects settled state practice accepted as law. Malta cannot treat these rules as optional when they become hard to follow. A state governed by law should not obey law only inside its own borders. This matters for every state but it matters more for a small state.

Large states often try to bend rules through force, wealth, or pressure. Small states depend on rules. Malta’s safety, trade, sea rights, air links, human rights standing and voice in world affairs all rest on a legal order in which states must keep their word. When small states weaken that order, they weaken one of the few shields they have.

Malta also asks others to respect international law. We do so when we speak about the law of the sea, neutrality, peace and the use of force. A state speaks with more force when it applies at home the rules it invokes abroad. Good faith is not only a moral stance. It is a tool of statecraft. Our constitution already points in this direction.

Do we check our laws and public acts for compliance with Malta’s international legal duties?

Article 65 gives parliament power to make laws for Malta but says that this power must be exercised with full respect for human rights, generally accepted principles of international law and Malta’s international and regional obligations. It tells us that parliament does not legislate in a closed room. It legislates within a wider legal order.

This does not mean that every treaty rule can be enforced in Maltese courts without an Act of Parliament. Malta is a dualist state. Treaties usually need incorporation into domestic law before courts can apply them as Maltese law. EU law is the special case. It has its own status because Malta accepted the EU legal order. But this should not obscure the wider point. Even where a rule of international law does not give a person a direct claim in court, it can still bind the state. Ministers, officials and parliament should not treat that bond as a matter of taste.

If Malta is bound, Malta must act in good faith.

This raises a practical question. Do we check our laws and public acts for compliance with Malta’s international legal duties? We often check policy for political cost, budget cost and EU law risk. But do we give the same care to treaties Malta has ratified and to rules of customary international law? The scrutiny should begin before a bill reaches parliament. The government should prepare a clear note on whether each bill fits Malta’s international legal duties. Parliament should be able to test that claim. When doubt exists, the doubt should be faced, not hidden.

As a start, ministers should also have a clear duty in their code of conduct. The United Kingdom’s Ministerial Code now states that ministers have a duty to comply with the law, including international law and treaty obligations. Malta should adopt a similar rule. It would not turn every international law issue into a court case. It would set a standard for public office: ministers must not ask the state to breach the law that binds it.

Some will say this gives too much weight to international law. The answer is simple. Malta chose to bind itself to many of these rules. In other cases, custom binds all states because the world cannot work if each state picks its own law. Respect for international law is not a loss of sovereignty. It is one way a small state uses sovereignty with care.

The rule of law cannot stop at the water’s edge. For Malta, it should mean that public power acts lawfully at home and with respect for the law abroad. That is not a new burden. It is a clearer account of a duty we already owe.

Omar Grech is associate professor of international law at the University of Malta.