Legal status of the Holy See
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The legal status of the Holy See, the
A sui generis entity possessing international personality
Although the Holy See, as distinct from the
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
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,
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.
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
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, Robertand 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 Review291 (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 Review729 (2006)
- Morss, John R. (2015). "The International Legal Status of the Vatican/Holy See Complex". .
- Shine, Cormac (2018). "Papal Diplomacy by Proxy? Catholic Internationalism at the League of Nations' International Committee on Intellectual Cooperation". .
- 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.
- 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
- 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.
- ISBN 0-19-825639-6(1990) p. 65
- ^ See James Crawford, pp. 158-9.
- ISBN 1-932589-01-5, pp. 4-5.
- 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
- ISBN 1-932589-01-5, p. 7.
- ISBN 978-0-582-50108-9, p. 326.
- 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.