Palestine: a shift in Malta’s foreign policy?

A spotlight on Malta’s stance on the 'State of Palestine'.

When, a few days ago, Norway, Ireland, and Spain recognised the State of Palestine, many questioned what Malta would be doing. There was the assumption that Malta would be part of the joint initiative, given that in March the Prime Minister of Malta had declared that, together with the other three countries and Slovenia, Malta was willing to recognise the State of Palestine. In that Statement, the four Governments said that they would recognise the State of Palestine “when it can make a positive contribution and the circumstances are right”.

The Palestinian flag flies outside Leinster House, the Irish Parliament, in Dublin following the decision by the Government to formally recognise the Palestinian state. (Niall Carson, PA via AP)

However, what has not yet been well-explored enough is whether Malta has already, implicitly, recognised the State of Palestine?

The Embassy of the State of Palestine in Malta

Malta hosts an ‘Embassy of the State of Palestine’. When presenting their credentials, representatives of the Palestine in Malta are styled as Ambassador of the State of Palestine. In Malta’s Order of Precedence, the representative of the Palestine is also styled as Ambassador.

H.E. Fadi Hanania presenting his letters of credence to the President of Malta in 2019. The official Press release issued by the Office of the President was titled ‘Ambassador of the State of Palestine presents his credentials to the President’.

Under the Vienna Convention on Diplomatic Relations, it is only sovereign States that can open embassies. An exception is the Sovereign Military Order of Malta (SMOM), which is not a state in the usual sense but its special status as a sovereign entity with a long history of humanitarian work allows it to have embassies that support its diplomatic activities and critical humanitarian missions. Otherwise, non-states cannot have full-fledged embassies but they may have alternative arrangements depending on their specific situation and the willingness of host countries. Thus, when, in 1979, the United States terminated its recognition of the Taipei government and recognised the government in Beijing as the sole legal government of China, the Republic of China’s Embassy had to be closed down, to be replaced by the Taipei Economic and Cultural Representative Office. In that instance, the US felt the need to even omit the name ‘Taiwan’ from the Representation’s name, so as to avoid any misinterpretation that might lead to the belief that the US was recognising Taiwan’s independence.

UN votes

On several occasions, Malta has voted in favour of UN Resolutions that either implicitly or explicitly recognise the State of Palestine.

Resolution 67/19 (2012): Status of Palestine in the UN/non-member observer State status – General Assembly resolution

On 28th November 2012, a vote was taken at the UN General Assembly on Resolution 27/19. This Resolution recognised Palestine as a non-member observer State. The scope of this Resolution was confirmed by Pre-Trial Chamber I of the International Criminal Court which, in its conclusion of the preliminary examination of the Situation in Palestine, announced on 20th December 2019, stated that the General Assembly of the United Nations in Resolution 67/19 “[reaffirmed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967”.

It was the General Assembly’s vote, including Malta’s, which permitted Palestine, now recognised as a State, to lodge a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2nd January 2015, the State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on 1st April 2015.

According to the Preamble of UN Resolution 67/19, “132 States Members of the United Nations have accorded recognition to the State of Palestine” (UNGA Resolution 67/19, 2012). Hence, Malta’s vote in favour of this Resolution can be interpreted as an endorsement of this wording, including the reference to its own recognition of the State of Palestine. This, apart from the fact that the Resolution itself was considered to be yet another recognition of the State of Palestine. The resolution accorded Palestine the status of a non-member observer State in the United Nations, akin to that of the Holy See, based on the Palestinian people’s right for self-determination and a large number of relevant General Assembly and Security Council resolutions. It further reaffirmed the United Nations’ commitment to a two-state solution to the Israeli-Palestinian conflict based on pre-1967 lines.

Professor Emeritus of Law John Quigley, writing in Opinio Juris, contended that, “Resolution 67/19 showed the broad international consensus on Palestine’s status as a state. Such consensus is what determines statehood. The Resolution indicated that the existing mission, a mission of long standing, was that of a state. The General Assembly was saying that the statehood of Palestine pre-dates the adoption of Resolution 67/19, though the General Assembly did not indicate a point in time for Palestine becoming a state”.

Palestinian President Mahmoud Abbas and his delegation in the UN General Assembly Hall in New York following the Assembly’s decision.

SC/15670 (2024): A proposal, submitted by Algeria, for Palestine to become a full member of the United Nations.

During its 9609th meeting, the UN Security Council, convened on the 18th of April, voted on whether the State of Palestine should be given full UN membership. Malta, like the majority of UN members, voted in favour. This Resolution was vetoed by the US.  

One of the bones of contention in this vote was whether the State of Palestine qualified as a state. The UK’s representative stated that the process towards a two-state solution cannot start with the recognition of a Palestinian State, while Mozambique’s representative stated that there is quasi-universal recognition that Palestine fulfils the requirements of statehood. The US representative stated, inter alia, that Palestine was not ready for statehood. Furthermore, in its explanation of vote, the US representative linked UN Membership to statehood, stating how UN membership can only be subsequent to statehood. Most of the other members, including Malta, made reference to a solution founded on two States. The Representative of Israel itself stated that the majority vote for Palestine’s full UN membership meant that “most of you decided to reward Palestinian terror with [a] Palestinian State”.

Statehood is a prerequisite of UN membership. According to Article 4(1) of the UN Charter, “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organisation, are able and willing to carry out these obligations”.

The United States has used its position as a permanent member of the United Nations Security Council to veto a Palestinian request for full membership into the UN.

Resolution 43/177 (1988): Acknowledgement of proclamation of State of Palestine/Designation “Palestine” to be used instead of “PLO” – General Assembly resolution

There are a number of other instances when Malta took positions that can be interpreted as an implicit recognition of the State of Palestine.  Malta’s vote in favour of Resolution 43/177 can be interpreted as a recognition of Palestine as a state, even if recently there have been other interpretations of this vote. However, Palestine has embassies – the hallmark of both the sending and receiving states’ statehood – in countries that voted in favour of that resolution, and does not have embassies, but representations, under other styles and titles, in countries that voted against.

According to Human rights lawyer and international law expert Francis Boyle, “The General Assembly, whether as the successor of the League of Nations with respect to the mandate system or by virtue of the authority to recognise the new state, and in its Resolution 43/177 has ‘essentially’ done so, such recognition ‘being constitutive, definitive, and universally determinative’ (Boyle had, however, already stated that the Palestine National Council’s Declaration of Independence was “definitive, determinative and irreversible”).”

Australian academic and practitioner in the field of public international law James Crawford, who contested Boyle’s analysis of the implications of 43/177, and who argues that Palestine cannot be considered as a state in the classical meaning of the term, concedes that, “At present Palestine has been recognised as a state by over 100 states, but it does not yet command anything like the level of quasi-unanimous support as such which would be required to establish a particular rule of international law to the effect that Palestine is a state”.

The Embassy of the State of Palestine in Malta was established following this vote. The Embassy replaced the PLO’s Representantive Office in Malta, which had been operating since 1974.

Witnessing a shift?

Could we be witnessing first hand a shift in Malta’s foreign policy, from one entrenched in the Non-Aligned Movement to that of an EU Member State that, albeit neutral, is now influenced by the foreign policy of the Union’s major powers and the US? Is it possible that Malta’s current interpretation of its vote in 1988 is one of the results of this shift?

While the Government of Malta has stated that the time is not ripe yet for the recognition of the State of Palestine, Malta has taken a number of decisions that arguably give an implicit, or tacit, recognition of the same State. According to M.J. Peterson, Professor of Political Science at the University of Massachusetts Amherst, “Tacit recognition occurs when a government performs an act regarding, or establishes a contact with, a new regime that is inconsistent with non-recognition. All legal scholars’ treatments of tacit recognition began with a statement that recognition is to be inferred when a government’s actions show that it intends to deal with the new regime as a government. Yet scholars have often failed to agree on what acts provide reliable indications of such intention. The basic list has remained the same since 1815: establishment of formal diplomatic relations, establishment of formal consular relations, and conclusion of a bilateral treaty”.

If we are to follow the above list, we can conclude that Malta’s relations with Palestine fulfil the first and second criteria. As regards the third criterion, while Malta does not have any Treaties per se with the State of Palestine, it does have a number of Agreements. There also exists a ‘Conjoint Intergovernamental Committee‘ between Malta and Palestine. Additionally, Malta’s Foreign Affairs Ministry has referred to the Palestinian Authority as a ‘Government‘.

Based on the above, there is a very strong argument that Malta, even if not expressly or explicitly doing so, has already recognised the State of Palestine.

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