The Istanbul Convention: EU Accession and the Questions Malta Deserves to Ask

By Ashley Galea

The Istanbul Convention raises questions that deserve a clear public explanation: what did Malta undertake when it ratified the Convention, how were those obligations implemented in national law, and what changed when the European Union subsequently became a party?

Answering these questions requires distinguishing between decisions taken by Malta and those taken by European institutions. It also requires separating the legality of those decisions from the question of whether their meaning and practical consequences were adequately explained to the public.

Malta’s ratification

Malta signed the Convention on 21 May 2012, ratified it on 29 July 2014 and became bound by it on 1 November 2014. The Gender-Based Violence and Domestic Violence Act, Act XIII of 2018, expressly aimed to integrate and implement its provisions into Maltese law.

The EU signed the Convention in June 2017, but its accession was completed only in 2023.

Malta’s obligations therefore predated EU accession by several years. Any assessment must distinguish what Malta agreed to in 2014, how it implemented those obligations in 2018 and what additional legal consequences followed from the EU’s accession.

When agreement became an obstacle

The Convention was developed by the Council of Europe, a separate international organisation from the European Union. Although the EU had signed it, accession remained incomplete amid disagreements concerning the Convention and questions about the EU’s legal basis and powers.

In 2019, the European Parliament asked the Court of Justice of the European Union to clarify several legal questions surrounding accession, including whether the EU could conclude the Convention without waiting for a common accord among all member states.

In its opinion of 6 October 2021, the Court distinguished between a political decision to wait for such an accord and a legal requirement to obtain it. The Council could wait, subject to the requirements of the EU treaties, but it could not make a common accord a mandatory additional condition for concluding the Convention.

The opinion interpreted the existing treaties. It did not amend them, make the EU a party to the Convention, require individual member states to ratify it or give the EU general authority over every subject it addressed. It clarified the conditions under which the EU could exercise powers already conferred on it.

The political consequence was nevertheless significant. The absence of a common accord among all member states was not, in itself, a legal barrier to EU accession. The Council still had to follow the applicable treaty procedures, including obtaining the European Parliament’s consent and securing the required majority.

Critics may question the political implications of proceeding while some member states remained opposed. Defenders may respond that the EU was exercising powers through procedures already authorised by its treaties. That debate should begin with an accurate account of what the Court decided.

Treaty, EU competence, accession and national law

On 1 June 2023, following the European Parliament’s consent, the Council approved the EU’s conclusion of the Convention. The Convention entered into force for the EU on 1 October 2023.

The EU’s accession covered matters within its exclusive competence concerning its institutions and public administration, and matters relating to judicial cooperation in criminal matters, asylum and non-refoulement—the principle governing protection against return to a place where a person faces specified serious risks.

Accession did not give the EU unlimited authority over every matter covered by the Convention.

These distinctions matter. National ratification makes a state a party to an international treaty in its own right. EU accession makes the Union a party within the scope of its competences. A Court opinion interpreting the EU treaties determines what those treaties permit or require; it is not itself an act of accession.

Malta did not need to ratify the Convention again because the EU acceded. Nor did EU accession retrospectively create Malta’s original obligations or automatically displace its 2018 implementing legislation.

International agreements concluded by the EU bind its institutions and member states within the relevant scope of EU law. However, this does not mean that every provision can automatically be invoked by an individual before a national court.

Whether a particular provision has direct effect depends on its wording, the nature and structure of the agreement and the relevant legal framework. Provisions requiring policy choices, administrative arrangements or legislative measures may still require implementation.

For public discussion, the practical questions are therefore specific: which obligation applies, through which legal framework, to which institution, and with what consequences for individuals?

Democratic accountability and public understanding

A treaty can be lawfully ratified without every citizen knowing its detailed provisions. Nevertheless, elected representatives remain responsible for explaining significant international commitments and the choices made when implementing them.

Malta’s ratification was publicly announced, and implementing legislation was subsequently debated and enacted. It would therefore be misleading to describe the Convention as having been secretly introduced. Yet formal publication and parliamentary enactment do not, on their own, establish that the public understood its requirements or implications.

How clearly was the distinction between Malta’s ratification and the EU’s later accession explained? Which parliamentary debates and public statements addressed the obligations Malta was accepting? Did those explanations distinguish requirements imposed by the Convention from policy choices made by the Maltese authorities?

The same scrutiny should apply to EU accession. Were its scope and limits explained? Did public discussion identify the areas in which EU law would have practical consequences, while making clear which responsibilities remained national?

These questions should be answered through parliamentary records, official statements, legislation and evidence of implementation. They should not depend on assumptions about either public ignorance or institutional wrongdoing.

The questions Malta deserves to ask

The most useful scrutiny concerns what these commitments mean in practice.

First, the government should provide a clear account of which obligations arise from Malta’s own ratification and which operate through EU law following the Union’s accession. Where these overlap, the relationship should be explained in language accessible to the public.

Second, the authorities should distinguish between measures required by the Convention and measures reflecting national legislative or administrative choices. An international obligation does not remove responsibility for the way governments choose to fulfil it.

Third, the practical operation of the system deserves examination. How have the Convention’s requirements been translated into administrative procedures, risk assessments, victim protection and the administration of justice? What evidence is used to assess whether those measures work?

Fourth, safeguards and scrutiny must be visible. What mechanisms ensure that decisions remain proportionate, that procedures are fair and that errors can be challenged and corrected? How are the effectiveness of victim protection and the rights of those affected by state intervention assessed?

Finally, parliamentary oversight should continue beyond ratification and the passage of implementing legislation. Ministers and public institutions should be able to explain how obligations are being applied, what difficulties have arisen and whether changes are needed.

These are not arguments against protecting victims of violence. They are questions about the exercise of public power. Effective protection and fair procedures are compatible objectives, and both depend on public confidence in the institutions responsible.

Accountability cannot end at accession

The legal history consists of distinct decisions: Malta’s ratification, national implementing legislation, the Court’s interpretation of the EU treaties and the EU’s subsequent accession. Each had a different function, and each deserves scrutiny on its own terms.

The fact that EU accession proceeded without every member state having individually ratified the Convention does not, by itself, establish a legal or democratic defect. The central question of accountability is whether the scope and practical consequences of these national and European commitments were adequately explained, debated and scrutinised at each stage.

For Malta, that means examining both the obligations accepted internationally and the decisions taken domestically to implement them. It means asking what EU accession added within the Union’s competences and how those consequences interact with Malta’s existing responsibilities.

The public deserves more than an assurance that the process was lawful. It deserves a clear account of what was agreed, which institutions made the decisions, where their powers begin and end, and how implementation is being evaluated.

Ratification and accession create continuing responsibilities. Democratic accountability must continue with them.