Neutrality: are we being realistic?

DrJeanPieGauciMaistre Advocate B.A.,MICS,MSc(WMU),LL.D. TheUSSMountWhitneysailedintotheGrandHarbour,MaltalastSundayforroutinerepairsatthe PalumboShipyard.ThecommandshipofthesixthfleetiscurrentlyberthedalongsideDockSix.The lastUSwarship,theUSSLaSalle,visitednineyearsago(2003)tocarryoutanextensiverefit.Two yearsearlierthesamewarshipvisitedMaltaatthethenStateownedMaltaDrydocksandwasmet bygreatoppositionfromtheGeneralWorkersUnion,duetoMaltasconstitutionalneutrality.Itis forthisreasonthatthatMaltadoesnothaveaStatusofForcesAgreement(SOFA)withtheUSA,the main stumbling block for American warships drydocking in Malta, according to Antonio Palumbo, ownerofthePalumboShipyard. The Constitution of Malta clearly states that Malta is a neutral state actively pursuing peace, securityandsocialprogressamongallnationsbyadheringtoapolicyofnonalignmentandrefusing to participate in any military alliance. Article 1 goes on to state that this will imply that the shipyardsoftheRepublicofMaltawillbeusedforcivilcommercialpurposes,butmayalsobeused, withinreasonablelimitsoftimeandquantity,fortherepairofmilitaryvesselswhichhavebeenput inastateofnoncombatorfortheconstructionofvessels;andinaccordancewiththeprinciplesof nonalignmentthesaidshipyardswillbedeniedtothemilitaryvesselsofthetwosuperpowers. Applying the letter of the law would mean that such visits should not occur in the first place and thosewhoraiseobjectionsaredoingsoonasoundlegalbasis.However,onecanalsoarguethat times have changed and also that military servicemen, particularly American and English, have generated muchcommercewitheveryvisit. Surely,using theservicesoftheshipyardsonlyhelps theMalteseeconomy. Thewording thattakesonasignificantroleinthisrespectisinaccordancewiththeprinciplesof nonalignmentthesaidshipyardswillbedeniedtothemilitaryvesselsofthetwosuperpowers.I doubt many would argue that the two superpowers in 1987 were in fact the United States of America and the Soviet Union. The former continues to be considered a superpower whilst the latterhascollapsed.Thenextquestionwouldthereforebe,arewetoassumethatanothercountry hasbeenelevatedtothestatusofsuperpoweranddenytheirwarships,aswellasthoseoftheUS,

from entering Maltese dockyards? Is there in fact only one superpower, the USA, rendering the effort to keep Malta equidistant from the two superpowers superfluous? No doubt this can be debatedatlengthandIamthefirsttosaythatforgeopoliticalreasons,Maltasneutralityremains extremelyimportant.HoweveritwouldnothurttoclarifyMaltaspositionandpossiblyintroduce certainamendments. In parallel we must also consider whether SOFAs with certain countries need to be concluded. SOFAsareagreementsbetweenahostcountryandaforeignnationstationingforcesinthatcountry andareintendedtoclarifythetermsunderwhichtheforeignmilitaryisallowedtooperate.Such agreements are primarily concerned with legal issues associated with military property and individualsandwoulddealwithissuessuchasentryandexitintothecountry,taxliabilities,postal services or employments terms for hostcountry nationals. Needless to say, civil and criminal jurisdictional issuesremainthemostsensitiveissuesthatare dealtwith.Forexampletheywould determinehowcivildamagescausedbytheforceswillbedeterminedandpaidandinwhichcourt criminalproceedingswouldbetried.TypicallyaSOFAwiththeUSwouldstatethatUScourtswill have jurisdiction over crimes committed either by a service member against another service member or by a service member as part of his or her military duty, but the host nation retains jurisdiction over other crimes. The USA obviously gives preferences to countries with which they haveSOFAsinplacewhenawardingrepaircontracts,particularlywheredrydockingisconcerned. The fact that Malta does not have a SOFA with the USA has created problems with respect to US warships making use of Maltas drydocking services. Mr Palumbo says that they were able to overcome the problem this time around due to the fact that the warship did not need to be dry dockedbutwouldremainatDockSixthroughout. 7thMarch2012. ThisarticlehasbeenpublishedontheMaltaBusinessBlog.