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The legal status of the Holy See, the ecclesiastical jurisdiction of the Catholic Church in Rome, both in state practice and according to the writing of modern legal scholars, is that of a full subject of public international law, with rights and duties analogous to those of states.
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Vatican City: capitol of the Catholic Church, home to the pope, owner of impressive collections of art and history all contained within the borders of the world's smallest country: conveniently circumnavigateable on foot in only 40 minutes. Just how did the world end up with this tiny nation? The short answer is: because Mussolini and the long answer is fiendishly complicated so here's a simplified medium version: The popes used to rule a country called the Papal States that covered much of modern day Italy. It was during this 1,000+ year reign that the Popes constructed St. Peter's Basilica the largest church in the world -- and also built a wall around the base of a hill known as Vatican upon which St. Peter's Stood. But the Kingdom of Italy next door thought Rome would be an awesome capital for their country and so conquered the Papal States. His nation destroyed the Pope hid behind the walls of Vatican and conflictingly refused to acknowledge that the Kingdom of Italy existed, while simultaneously complaining about being a prisoner of the Kingdom of Italy -- which according to him didn't exist. Rather than risk religious civil war by getting rid of the pope the Kingdom of Italy decided to wait him out assuming he'd eventually give up -- but religion is nothing if not obstinate -- and 1, 2, 3, 4, 5 popes and sixty years later nothing had changed. Which brings us to Benito Mussolini the then prime minister of Italy who was tired of listing to the Pope complain to Italian Catholics about his self-imposed imprisonment so Mussolini thought he could score some political points by striking a deal which looked like this: 1) Italy gave the land of Vatican to the Pope. and… 2) Italy gave the Pope a bunch of apology money In return 1) The Pope acknowledged that Italy existed and and… 2) The Pope promised to remain neutral in politics and wars. On the off chance that, you know, Mussolini thought this might be a thing. The deal was signed and a new country, Vatican City was born. And today the tiny nation on a hill has all the things you'd expect of a country: its own government that makes its own laws that are enforced by its own police, who put people who break them in its own jail. It also has its own bank and prints its own stamps and issues its own license plates, though only its citizens can drive within its borders presumably because of terrible, terrible parking -- and as the true mark of any self-respecting nation: it has its own top-level domain: .VA But, despite all these national trappings Vatican City is not really like any other country. Hold on to your fancy hat, because it's about to get weird: To understand the Vatican: there are two people and two things that you need to know about: the famous pope, the incredibly confusing Holy See, The Country of Vatican City and along with that the almost completely unknown King of Vatican City. But first the Pope: who gets a throne to sit upon and from which he acts as the Bishop for all the Catholics in Rome. Actually all Bishops in the Catholic Church get their own thrones but because the Bishop of Rome is also the Pope his thrown is special and has it's own special name: The Holy See. Every time a Pope dies or retires there is a sort of game of thrones to see which of the bishops will next get to occupy the Holy See. So while Popes come and go the throne is eternal. As such the name The Holy See not only refers to the throne but also all the rules that make the Catholic Church the Catholic Church. When Mussolini crafted that aforementioned deal, technically he gave the land of Vatican City to The Holy See -- which, believe it or not, is a legal corporate person in international law. Basically every time you hear the words The Holy See think Catholic Church, Inc of which the Pope is the CEO. Now back to the King. The King of Vatican City has absolute, unchecked power within the country's borders and his presence makes Vatican City one of only six remanning absolute monarchies in the world, including Brunei, Oman, Qatar, Saudi Arabia, and Swaziland. The King's absolute power is why Vatican City can't join the European Union because only democracies are allowed. Through Vatican City does, strictly speaking, have a legislative brach of government -- staffed by cardinals, appointed by the pope -- the King of Vatican City can overrule their decisions and at any time for any reason. So why do you never hear about the King of Vatican City? Because though King and Pope are two different roles, they just happen to be occupied by the same person at the same time -- which has the funny consequence that, because the Pope is elected and the King is all-powerful but they're the same guy it makes Vatican City the world's only elected, non-hereditary absolute monarchy. It's this dual-role that makes untangling Vatican City so difficult because the Pope, depending on the situation either acts as The King of the country of Vatican City or the Pope of the Holy See. Got it? No? OK, here's an analogy: Imagine if a powerful international company, say Grey Industries, had a CEO who convinced the United States to give one of its islands to the Company which then made the island into a new country -- Greytropolis -- with an absolute monarchy as its government and the law that the King of Greytropolis is, by definition, the CEO of Grey Industries. It's pretty obvious at that point that the CEO should move his corporate headquarters to the new nation -- so that the laws of the country can benefit the company and the company's global reach can benefit the country. As for the man in the middle sometimes it's good to the the CEO and sometimes it's good to be the king. That is essentially Vatican City. But if you're still confused, don't worry even other countries can't keep it straight. For example the United Nations has The Holy See the corporation as a member but not Vatican City the actual country. And The Holy See gives passports to Vatican City citizens that other countries accept even though those passports come from a company, not a country. And speaking of Vatican City citizens, they are perhaps the strangest consequence of the Pope's dual role as religious leader and monarch. While other countries mint new citizens with the ever popular process of human reproduction Vatican City does not. No one in Vatican City is born a citizen -- and that's not just because, within a rounding error, there are no female Vaticans. The only way to become a citizen is for the King of Vatican City to appoint you as one. And the King only appoints you a citizen if you work for the Pope -- who is also the King. And because the King is all-powerful your citizenship is at his whim. If you quit your job for the Pope, the King -- who is also the pope -- will revoke your citizenship. These rules mean that Vatican City doesn't have a real permanent population to speak of: there are only about 500 full citizens -- which is fewer people that live in single skyscrapers in many countries -- and all these citizens work for The Holy See as either Cardinals or Diplomats or the Pope's bodyguards or other Catholic-related jobs. So it's best to think of Vatican City as a kind of Sovereign Corporate Headquarters that grants temporary citizenship to its managers rather than a real city-state like Singapore: which has a self-reproducing population of citizens engaged in a variety of economic activities both of which Vatican City lacks. But in the end, the reason the world cares about Vatican City is not because of the citizens within its walls but because of the billion members of its church outside those walls.
A sui generis entity possessing international personality
Although the Holy See, as distinct from the Vatican City State, does not fulfill the long-established criteria in international law of statehood; i.e. having a permanent population, a defined territory, a stable government and the capacity to enter into relations with other states;[1] its possession of full legal personality in international law is evidenced by its diplomatic relations with 180 states, that it is a member-state in various intergovernmental international organizations, and that it is: "respected by the international community of sovereign States and treated as a subject of international law having the capacity to engage in diplomatic relations and to enter into binding agreements with one, several, or many states under international law that are largely geared to establish and preserving peace in the world."[2] As Graham notes:
The fact that the Holy See is a non-territorial institution is no longer regarded as a reason for denying it international personality. The papacy can act in its own name in the international community. It can enter into legally binding conventions known as concordats. In the world of diplomacy the Pope enjoys the rights of active and passive legation. (...) Furthermore, this personality of the Holy See is distinct from the personality of the State of Vatican City. One is a non-territorial institution and the other a state. The papacy as a religious organ is a subject of international law and capable of international rights and duties.[3]
This peculiar character of the Holy See in international law, as a non-territorial entity with a legal personality akin to that of states, has led Prof. Ian Brownlie to define it as a "sui generis entity".[4] Prof. Maurice Mendelson (then lecturer) argued that "[i]n two respects it may be doubted whether the territorial entity, the Vatican City, meets the traditional criteria of statehood" and that "[t]he special status of the Vatican City is probably best regarded as a means of ensuring that the Pope can freely exercise his spiritual functions, and in this respect is loosely analogous to that of the headquarters of international organisations."[5][clarification needed]
Self-perception of the Holy See
Moreover, the Holy See itself, while claiming international legal personality, does not claim to be a State. Cardinal Jean-Louis Tauran, former Secretary for Relations with States of the Secretariat of State of the Holy See, has underlined the need to avoid assimilating the Holy See and its international action with that of a State, with their thirst for power. According to Tauran, the Holy See is unquestionably a sovereign subject of international law but of a predominantly religious nature.[6]
The legal basis of the Holy See's international personality
For some experts, the current legal personality of the Holy See is a remnant of its preeminent role in medieval politics. Thus Arangio-Ruiz noted that the Holy See has been an actor in the evolution of international law since before the creation of strong nation states, and that it has maintained international personality since.[7]
For others, the international personality of the Holy See arises solely from its recognition by other states. In this sense, Brownlie argues that the personality of the Holy See “as a religious organ apart from its territorial base in the Vatican City” arises from the "principle of effectiveness", that is, from the fact that other states voluntarily recognize the Holy See, acquiesce having bilateral relations with it, and in fact do so, in a situation where no rule of ius cogens is breached. For him, though, the international personality thus conferred is effective only towards those states prepared to enter into diplomatic relations with it.[8] Crawford similarly believes that the recognition of a number of states is important evidence to acknowledge the legal personality of the Holy See, so that, today, it cannot be denied.[9]
For a third group of authors, the international legal personality of the Holy See is based mostly, but not only, on its unique spiritual role. Araujo notes, for instance, that "it is generally understood that the Holy See’s international personality emerges from its religious, moral and spiritual authority and mission in the world as opposed to a claim over purely temporal matters. This is an incomplete understanding, however, of the grounds on which its claim as a subject of international law can be justified", since, in his view, the Holy See's claim to international personality can also be justified by the fact that it is recognized by other states as a full subject of international law.[10] The Lateran Treaty itself seems to support this view. In article 2, Italy recognized "the sovereignty of the Holy See in the international domain as an attribute inherent in its nature, in accordance with its tradition and with the requirements of its mission in the world."
For a further group, the legal personality of the Holy See in international law arises from the Lateran Treaty, which, in their view, conferred international standing to the central government of the Catholic Church. In this sense, Oppenheim argued that "the previously controversial international position of the Holy See was clarified as the result of the Treaty of 11 February 1929, between the Holy See and Italy - the so called Lateran Treaty. (...) The Lateran Treaty marks the resumption of the formal membership, interrupted in 1871, of the Holy See in the society of states."[11]
Oppenheim goes further and denies a separate legal personality for the Vatican City State. For him, the composite of the Holy See plus the Vatican City constitutes just one international person; see p. 328:
The strict view ought probably to be that the Lateran Treaty created a new international state of the Vatican City, with the incumbent of the Holy See as its Head; but the practice of states does not always sharply distinguishes between the two elements in that way. Nevertheless it is accepted that in one form or the other there exists a state possessing the formal requirements of statehood and constituting an international person recognized as such by other states.
Kunz sharply criticized this view. For him:
The Lateran Treaty had the object of liquidating once for all the 'Roman Question' and bringing about a reconciliation between the Holy See and Italy, but in no way created or changed the international position of the Holy See. (It is therefore not correct, as Oppenheim (...) states that "the hitherto controversial international position of the Holy See was clarified as a result of the Treaty.") The treaty concluded between the Holy See and Italy pre-supposes the international personality of the Holy See.[12]
Status between 1870 and 1929
A separate question is whether the Holy See was a subject of international law between 1870, when the Kingdom of Italy annexed the Papal States, and 1929, when the Lateran Treaties were signed. The United States, for instance, suspended diplomatic relations with the Holy See when it lost the Papal States.[13] Similarly, Oppenheim believed that the legal personality of the Papal States became extinct in 1870. For him, between 1870 and 1929, the "Holy See was not an international person," although "it had by custom and tacit consent of most states acquired a quasi-international position".[14] The United Nations International Law Commission noted, nonetheless, that:
It has always been a principle of international law that entities other than States might possess international personality and treaty-making capacity. An example is afforded by the Papacy particularly in the period immediately preceding the Lateran Treaty of 1929, when the Papacy exercised no territorial sovereignty. The Holy See was nevertheless regarded as possessing international treaty-making capacity. Even now, although there is a Vatican State (...) treaties are entered into not by reason of territorial sovereignty over the Vatican State, but on behalf of the Holy See, which exists separately from that State.[15]
Similarly, Kunz argued that:
Prior to 1870, there were two subjects of international law: the Papal State and the Holy See. (...) Of these two persons in international law the one, the Papal State, undoubtedly came to an end, under the rules of general international law, by the Italian conquest and subjugation in 1870. But the Holy See remained, as always, a subject of general international law also in the period between 1870 and 1929. That this is so, is fully proved by the practice of states. The Holy See continued to conclude concordats and continued, with the consent of a majority of states, to exercise the active and passive right of legation. The legal position of its diplomatic agents (...) remained based on general international law, not on the Italian Law of Guarantee, a municipal law.[16]
Opposition to the Holy See's participation in multilateral forums
Since 1995, the non-governmental organization Catholics for Choice has advocated against the participation of the Holy See in multilateral forums.[17] It argues that the Holy See is a religious organization and not a state, and that, therefore, it should have neither a special status in international law nor the right to participate, in a position analogous to that of states, in the international conferences on social, cultural and economic matters.[18] No State has supported this initiative. On the contrary, the United Nations General Assembly confirmed and raised further the status of the Holy See as an observer within the UN, through its Resolution 58/314 of 16 July 2004.[19]
See also
- Holy See and the United Nations
- Foreign relations of the Holy See
- Multilateral foreign policy of the Holy See
- Index of Vatican City-related articles
Bibliography
- Abdullah, Yasmin, “Note, The Holy See at United Nations Conferences: State or Church?” 96 Columbia Law Review 1835 (1996)
- Acquaviva, Guido, “Subjects of International Law: A Power-Based Analysis,” 38 Vanderbilt Journal of Transnational Law (2005)
- Arangio-Ruiz, Gaetano, “On the Nature of the International Personality of the Holy See,” 29 Revue Belge de Droit International (1996)
- Araujo, Robert and Lucal, John, Papal Diplomacy and the Quest for Peace, the Vatican and International Organizations from the early years to the League of Nations, Sapienza Press (2004)
- Araujo, Robert John, “The International Personality and Sovereignty of the Holy See,” 50 Catholic University Law Review 291 (2001)
- Bathon, Matthew N., Note, “The Atypical Status of the Holy See” 34 Vanderbilt Journal of Transnational Law 597 (2001)
- Ciprotti, Pio, “The Holy See: Its Function, Form, and Status in International Law,” 8 Concilium 63 (1970)
- Crawford, James, The Creation of States in International Law, Oxford, (1979)
- Cumbo, Horace F., “The Holy See and International Law,” 2 International Law Quarterly 603 (1949)
- Dias, Noel, “Roman Catholic Church and International Law,” 13 Sri Lanka Law Journal 107 (2001)
- Graham, Robert, Vatican Diplomacy: A Study of Church and State on the International Plane (1959)
- Ireland, Gordon, “The State of the City of the Vatican,” 27 American Journal of International Law 271 (1933).
- Kunz, Josef L., “The Status of the Holy See in International Law,” 46 American Journal of International Law 308 (1952)
- Martens, Kurt, “The Position of the Holy See and Vatican City State in International Relations,” 83 University of Detroit Mercy Law Review 729 (2006)
- Morss, John R. (2015). "The International Legal Status of the Vatican/Holy See Complex". European Journal of International Law. 26 (4): 927. doi:10.1093/ejil/chv062. hdl:10536/DRO/DU:30081648.
- Shine, Cormac (2018). "Papal Diplomacy by Proxy? Catholic Internationalism at the League of Nations' International Committee on Intellectual Cooperation". The Journal of Ecclesiastical History. 69 (4): 785–805. doi:10.1017/S0022046917002731.
- Wright, Herbert, “The Status of the Vatican City,” 38 American Journal of International Law 452 (1944)
References
- ^ The criteria for statehood were first authoritatively enunciated at the Montevideo Convention on Rights and Duties of States, signed on 26 December 1933.
- ^ Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International Organizations from the early years to the League of Nations, Sapienza Press (2004), ISBN 1-932589-01-5, p. 16. See also James Crawford, The Creation of States in International Law, (1979) p. 154.
- ^ Robert Graham, Vatican Diplomacy, A Study of Church and State on the International Plane (1959) pp. 186, 201
- ^ Ian Brownlie, Principles of Public International Law, 4th ed. ISBN 0-19-825639-6 (1990) p. 65.
- ^ Mendelson, M. H. (1972). "Diminutive States in the United Nations". The International and Comparative Law Quarterly, 21(4), pp.609–630.
- ^ Jean Louis Tauran, "Etica e ordine mondiale: l’apporto specific della Santa Sede", in Giulio Cipollone, La Chiesa e l’ordine internationale, Roma: Gangemi Editore (2004) p. 184. (Italian)
- ^ Gaetano Arangio-Ruiz, Revue Belge de Droit International, 29 (1996) 354.
- ^ Ian Brownlie, Principles of Public International Law, 4th ed. ISBN 0-19-825639-6 (1990) p. 65
- ^ See James Crawford, pp. 158-9.
- ^ Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International Organizations from the early years to the League of Nations, Sapienza Press (2004), ISBN 1-932589-01-5, pp. 4-5.
- ^ Robert Yewdall Jennings and Arthur Watts, Oppenheim's International Law, v.1 Peace, 9th ed., (1992) ISBN 978-0-582-50108-9, pp. 324-325.
- ^ Kunz, "The Status of the Holy See in International Law" 46 American Journal of International Law (1952) pp. 309-313
- ^ Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International Organizations from the early years to the League of Nations, Sapienza Press (2004), ISBN 1-932589-01-5, p. 7.
- ^ Robert Jennings and Arthur Watts, Oppenheim's International Law, v.1 Peace, 9th ed., (1992) ISBN 978-0-582-50108-9, p. 326.
- ^ United Nations International Law Commission, Commentary to Article 2 of the Vienna Convention on Treaties, 2 ILC Yearbook, p. 96, quoted in: Robert Araujo and John Lucal, Papal Diplomacy and the Quest for Peace, the Vatican and International Organizations from the early years to the League of Nations, Sapienza Press (2004), ISBN 1-932589-01-5, p. 7.
- ^ Kunz, "The Status of the Holy See in International Law" 46 American Journal of International Law (1952) pp. 309-313. Crawford, p. 157, noted that: "Though some writers denied that the Holy See had any international standing at all after 1870, the true position is that it retained after the annexation of the Papal States what it always had, a degree of international personality, measured by the extent of its existing legal rights and duties, together with its capacity to conclude treaties and to receive and accredit envoys."
- ^ See Change, Why is this campaign important?
- ^ Seechange, The Catholic Church at the United Nations, Church or State? Archived 2008-11-27 at the Wayback Machine
- ^ Sandro Magister (2007-08-21). "Mission Impossible: Eject the Holy See from the United Nations". www.chiesa:News, analysis, and documents on the Catholic Church. Retrieved 2007-10-03.
External links
- Melanie Black, The Unusual Sovereign State: The Foreign Sovereign Immunities Act and Litigation Against the Holy See for Its Role in the Global Priest Sexual Abuse Scandal, Wisconsin International Law Journal, Volume 27
- O'Bryan v. Holy See (6th Cir., Sept. 17, 2007)
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This page was last edited on 20 November 2023, at 08:04