Legal status of the Holy See
Encyclopedia
The legal status of the Holy See
, 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
.
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; its possession of full legal personality in international law
is proved by the fact that it maintains diplomatic relations with 177 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." As Graham notes:
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 professor Ian Brownlie
to define it as a "sui generis entity".
of the Secretariat of State of the Holy See, has underlined that we must avoid the temptation of assimilating the Holy See and its international action with that of a State, with their thirst for power. For him, the Holy See is unquestionably a sovereign subject of international law but of a predominantly religious nature.
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. 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.
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. 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." Kunz sharply critizised this view. For him:
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. 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" The United Nations International Law Commission
noted, nonetheless, that:
Similarly Kunz argued that:
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.
Holy See
The Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and...
, 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
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
.
A sui generis entity possessing international personality
Although the Holy See, as distinct from the Vatican CityVatican City
Vatican City , or Vatican City State, in Italian officially Stato della Città del Vaticano , which translates literally as State of the City of the Vatican, is a landlocked sovereign city-state whose territory consists of a walled enclave within the city of Rome, Italy. It has an area of...
State, does not fulfill the long-established criteria in international law of statehood
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
; i.e. having a permanent population, a defined territory, a stable government and the capacity to enter into relations with other states; its possession of full legal personality in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
is proved by the fact that it maintains diplomatic relations with 177 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." As Graham notes:
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 professor Ian Brownlie
Ian Brownlie
Sir Ian Brownlie, CBE, QC, FBA was a British practising barrister, specialising in international law. After an education at Hertford College, Oxford, he was called to the Bar by Gray's Inn in 1958 and was a tenant at Blackstone Chambers from 1983 until his death on 3 January 2010.During his...
to define it as a "sui generis entity".
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 StatesSecretary for Relations with States
The Secretary for Relations with States is the foreign minister of the Holy See, an official serving within the Secretariat of State and presiding over its "Section for Relations with States." This ex officio archbishop deals with relations between the Holy See and other governments and...
of the Secretariat of State of the Holy See, has underlined that we must avoid the temptation of assimilating the Holy See and its international action with that of a State, with their thirst for power. For him, the Holy See is unquestionably a sovereign subject of international law but of a predominantly religious nature.
The legal basis of the Holy See's international personality
For some authors, the current legal personality of the Holy See is a remnant of its preeminent role in the 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.For others, the international personality of the Holy See arises solely from its recognition by other states. In this sense, Brownlie
Ian Brownlie
Sir Ian Brownlie, CBE, QC, FBA was a British practising barrister, specialising in international law. After an education at Hertford College, Oxford, he was called to the Bar by Gray's Inn in 1958 and was a tenant at Blackstone Chambers from 1983 until his death on 3 January 2010.During his...
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. Crawford
James Crawford (jurist)
James Crawford, SC, FBA, LLD is an academic and practitioner in the field of public international law. He is Whewell Professor of International Law at the University of Cambridge and Fellow in Law, Jesus College, Cambridge...
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.
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
Robert Araujo (Jurist)
The reverend Robert Araujo, SJ, is the John Courtney Murray Professor at Loyola University Chicago School of Law. Formerly, he was the Robert Bellarmine University Professor in American and Public International Law at Gonzaga University and an Ordinary Professor at the Pontifical Gregorian...
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. 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." Kunz sharply critizised this view. For him:
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 ItalyItaly
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
annexed the Papal States
Papal States
The Papal State, State of the Church, or Pontifical States were among the major historical states of Italy from roughly the 6th century until the Italian peninsula was unified in 1861 by the Kingdom of Piedmont-Sardinia .The Papal States comprised territories under...
, 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. 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" The United Nations International Law Commission
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....
noted, nonetheless, that:
Similarly Kunz argued that:
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. 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.. No State has supported this initiative. On the contrary, the United Nations General AssemblyUnited Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
confirmed and raised further the status of the Holy See as an observer
Observer status
Observer status is a privilege granted by some organizations to non-members to give them an ability to participate in the organization's activities. Observer status is often granted by intergovernmental organizations to non-member states and international nongovernmental organizations that have...
within the UN, through its Resolution 58/314 of 16 July 2004.
See also
- Activities of the Holy See within the United Nations systemActivities of the Holy See within the United Nations systemThe activities of the Holy See within the United Nations system officially began on April 6, 1964, when the Holy See was granted the status of permanent observer state...
- Foreign relations of the Holy SeeForeign relations of the Holy SeeThe Holy See—which must be clearly distinguished from the city-state of Vatican City—has long been recognised as a subject of international law and as an active participant in international relations...
- Multilateral foreign policy of the Holy SeeMultilateral foreign policy of the Holy SeeThe multilateral foreign policy of the Holy See is particularly active on some issues, such as human rights, disarmament, and economic and social development, which are dealt with in international fora.-Right to life:...