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    Holy See

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    © All Rights Reserved
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    17 views31 pages

    RYNGAERT, Cedric. The Legal Status of The Holy See

    Uploaded by

    David Yompian
    Holy See

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    © All Rights Reserved
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    ‘octigsn Joa of neato Law’ 32011) 3,820.859 The Legal Status of the Holy See Cedric Ryngaert" Table of Contents A. Introduction 830 B. The Vatican v.the Holy See S32 The Holy See in Invemational Relations 839 D. —Concordats Baa International Dispute Settlement #49 F. Immonity. 851 G. Concluding Observations 858 Amoi rote of Inman Law, Uect Usiversy, Leven Univer. The ‘tor woul tke tank Goer Robrak fo valuable tema nsece, oi 1032498658. 158-3-rymgnet 80 Gal. 3201) 3,29459 Abstract, ‘The Holy See enjoys rights under intemaional law that few, i any, nox State ators (excluding inergoveramental organizations) enjoy it ha joined various inergovernmental ganizations, isa party to a substantial number of bilateral and muliateral treaties, it sends and receives. diplomatic representatives, i sad to enjoy immunity from jurisdiction, and has been granted permanent observer status atthe United Nations, However, unlike the Vatican City State, the Holy See is not to be characterized as a Site, sven that i hs global spiritual remit and that t ean act internationally ‘without a tertoril base. Instead, it isa sui generis non-State international legal person which borrows its personality from is “spiritual sovereignty as the center of the Cathoi Church, A. Introduction ‘The Holy or Apostolic See (Sancta Sade) is the seat ofthe bishops of Rome, and the governmental center of the Catholie Church. The Holy Se is bheaded by the Supreme Pontiff or the Pope, who, in bis administration ofthe Church, i assisted by the Roman Curia Since mediaeval times, the Holy See has been considered as enjoying Internationa legal personaly. At the time, however, the Supreme Pontiff as also the temporal sovereign ofthe Pontifical (or Papal) States in Taly, 50 that the question of the leyal staus of the Holy See as 4 non-State International religious ganization rarely arose. Only after the Holy See lost its tertorial base in 1870 was this question bought into starke rele would its intemational scivites, such as sending and receiving legations, be explained by the enjoyment of a certain measure of intemational Tegal Personality? The answer to this question was complicated by the Holy See ‘egaining a tiny temtorial bassin Rome, an enclave of 110 aeres called the “Vatican City’, pursuant to the 1929 Lateran Treaties with Italy (which ‘eventually solved the “Roman Question’) In the first section of this contribution, an attempt is made at isentangling the relationship between the Holy See and the Vatican. Being headed by the same (absolute) monarch, these entities have seeminaly centered info an almost personal union with each other. Stil, forintemational legal purposes, they canbe said to remain two separate international lal Persons, withthe Vatican qualifying as a (sini-Stare and the Holy See as 4 ‘The Legal S softhe Holy See $31 su generis non-State actor which nevertheless enjoys a panoply of rights that possibly no other non-State actor enjoys ‘The precise rights enjoyed by the Holy See in the intemational legal ‘order are the subject ofthe second section ofthis contribution. This sscton examines in particular the Holy See's participation in (and influence on) {ntergovernmental organizations, multilateral treaties and conferences, and its rit of legaion ‘The Holy Sees bilateral teaty-making power will be discussed inthe {hind section, which studies in particular the “eoncondats” concluded between the Holy See and various (Catholic) States. Concordat are treaties {hat regulate the position ofthe Catholic Churh inthe temporal onder ofthe State, This section will specifically address the exact relationship between, ‘on the one hand, the eoncordats and the eanosical legal order to which they refer, and, onthe other, the consitutonsl and human rights protections that ate applicable inthe temporal order ofthe State an that may clash with the Provisions of the concordat, A fourth section adresse the Holy See's role in intemational dispute settlement. This section will not so much tackle the question of whether the Holy See has been, or can be, a party to an intemational dispute and whether it can bring a ease before & dispute-setiement mechanism. Aer all; the Lateran Conciliation Treaty obliges the Holy See to distance ise from temporal rivalries. Rather, it willbe ascertained whether the Holy See has Served as a dispute-setlement mechanism in its ovin right In particular, ts role as an intemational mediator will be explored, role that may suit the Holy See rather well in its capacity as a supposedly eutal religious ‘organization that stands above temporal rivalries, A fifth section examines alas indication of an entity's iterational legal personality: i immunity from legal provess. On the basis of an analysis of a number of domestic court decisions it will be shown that « determination of the immunity of the Holy See hinges either on the ‘qualification of the Holy See aa State or atleast a Statelike entity, or, in the specific ease of lay (the Holy See being headquartered” in Reve) on ‘he interpretation of the Lateran Conciliation Treaty” Alo, as the Holy See ultimately remains a non-Stae ator, is likely that the constitutionally and Imernationally guaranteed individ right to a remedy may play greater (ur apo lb les, See foe a more poem aprech:Foizione La ‘Gregieana &F. Iota es), The Cte Cuch amd he Deaton Pog oe oly Set Ege eahlgn pique nent Sao Sige 2 Gal 201,889 role in restricting any immunities to which it might be entitled under international lw Section G concludes by emphasizing how the Holy See has suocessflly carved out aTepal position for itself, a a non-State acter, in an intemational legal order dominated by States, B. The Vatican v. the Holy See ‘There is a considerable amount of confusion as t0 the exact legal characterization of the Holy See and the Vatican. Although most scholars ‘would agree thatthe Holy See and the Vatican are different legal persons, legal opinion on their, in the words of Crawford, “unique and complex interelationship, differs widely ‘At one end of the spectrum are those who equate the Vatican and the Holy See. As will be set out inthe section on immunity, US. courts in Particular have broadly tated the Vatican and the Holy See as one legal person, and have even considered both of them as “States” for purposes of the U.S. Foreign Sovereign Immunities Aet (FSIA) There is however a substantial amount of agreement on the lesser international satus ofthe Vatican Cty vva-vis the Holy See. Duursma and Martinez observed thatthe Vatican City is subordinated t0 the Holy See, hile Arangio-Ruiz even went as far a8 to state thatthe Vatican “qualifies de fact, for international legal purposes, no as a separate person”, and that from the “viewpoint of intemational lw, the status ofthe Vatican City dacs not differ from the status ofa province oF any other subdivision of «State™ 4. Duursna, Frogettion and the intratioal relation of mrt (1986, 37; LC. Marines, "Soverelgnimpomiy Docs te Foreign Sonecan Imma, ‘At Dar Laws Against he Holy See Cleves Seal Abuse Cases? Tote {ierytion! Lv Jounal (008) 1348138 Gunter, The Creal of Stier Iteration Lae (2006, 23 (aso haracterizing this insti asthe sic players eso ‘he Vatican Cay" The Holy See and the Vatican themselves hve ined thi enfin with & ‘ew toaving te Holy Se al within the cope of spiton of the FSIA (8. Arnge-uiz "On the Nate of he IntrtanalPesonaliy ofthe Holy See 29 Rome Belge de 0 craton (196) 38438 ‘The Legal Stas ofthe Holy See 833, The Vatican City was indeed only ereated by the Lateran Treaty in 1929" to provide a tettorial basis for the Holy See ~ which predates the Vatican City by many centuries ~ that could guarantee its independence * ‘This independence was compromised due to the Roman Question: ater having exercised temporal powers in the Pontifical States since the $" century” the Holy See lost its territory to the Italian State in 1870. Only in 1929 did the ttalian State, by virtue of the Lateran Treaties, return a potion ofthis territory to the Holy See, at which time the Holy See also reeived financial compensation as reparation forthe “immense damage sustained by the Apostolic See through the loss ofthe pasimony of Peter constituted by the ancient Pontifical States, and of the Ecclesiastical property". ris noted, in passing, that this financial setlement could be seen as_am indication ofthe Holy See's international legal personality in we ways: the ‘weaty-making capacity of the Holy Soe as well asthe right to bring claim sgainst another inremational legal person ‘The Vatican City State as created in 1929 could duly be characterized 4s a State, a6 it satisles the three Montevideo evteria for statehood: territory, population, goverment. Possibly, as Haris observed it is the “only state that is generally recognised by the inerational community that Lateran Conciinion Trea 10 Febrary 1929, An. 3, 130 BSP 79, Carzets Uti, Stpl Oras Jane 1929, No 138 reprinted in 8 Berg &6. Cancel {ed Cie el vino seleticn,id (193) 211 enn Coseaton Trea spa noe 2 Are The sovereignty and excise sition ove th Vatican City which tly rons aperaiing oo Holy Ses, ban inrveton hein th fr halon Gover iy ‘thy ote hn tat he ly Se abl be hr showed Fama “a af the Vatican Cy Sate, 26 November 200, preamble "ie Se, wheats 1 a appre guranse ofthe fotos ofthe Apt Sac and ean af ‘suring the eal and wsbl independence ofthe Renan Pom nthe etre ois isin he won TF. Noble The Republic of Se Per The Bith of dhe Papo! Sie 680.828 si ai 3 Financial Convention amered to he Lateran Pty (929), preamble Ae 1 of "he Comer pulsed tat “Tayo he exchange of aliens of ie Trew, stall py to the Holy See the sof tin le 95000000 Accntng othe amb, the Poe "taking it consideration the preset final onion a he ‘Ste andthe ectnomc condition of he lan pels especial he wt at endl oes th xn orator ec onevideo,Comenton nigh and Dae of Sens 26 Decor 1933, 168 ENTS. 10, See MLN Bathon The Arps eration Ste te Hay See 34 Vanier our of Tomana La 201) 99,8 84 GaML3@010)3, 204899 is not a member ofthe United Nations". The Vatigan has fixed tervitory (however small it may be) with fixed boundaries” a small population of clerics! (hat may however not have the capacity for selé perpetuation), anda poverament ‘The government of the Vatican City is regulated by the Fundamental Law of Vatican Ciy State, promulgated by Pope John Paul. Il on 26 Novemiber 2000, which entered into force on 22 February 200, and replaced the Fundamental Law of Vatican City of 7 June’ 1929. This Fundamental Law can be considered as a constitution that was in the words of fits preamble, adopted “to give a systematic and organie form to the changes introduced in suecessve phases inthe juridical structure of Vatican City State” and “io make it correspond alvays better to the institutional Purposes ofthe State”, It vests all power exercised inthe Vatican City State in the Pontif* and reais or establishes a number of governmental instirtions, such as the College of Cardinals, the Sesretarat of State, the "D2 Hanis Case and Metra on ternational La (28,99 ‘This teary comity ofthe Vsan iy (Arce 3 ar? af he Contin Treaty: The buna fhe adCast ote map elle Ane loft eset Tey, of whic i ams nigral par") and mabe exer stesions,icudng the Castel Gada (Arles (14 afte Concaton Tray) {ten Conciton Trey. supra ne, Art 9 para ttm secon wi [povson of imation Lal persons having parental whith Yatan City sal be sj the foveriny afte ly See Such een shall sot be fra by reason OF the mete fact of temporary reese cheat, ‘uesorpaned bythe Tos of habit in the Mil Cty br te seams [roving tht sch eine has een abandoned” Soe aks Haly Se Pew Oe, ‘Natcan Ciizenship™ (1 December 2008) svalbl a h:iwwen ssc a sews evi rsdcnettrone dainty cvinfrmaron getcact {agian etn as vised 3 Janay 2013). "As of Decent 1" 208 there were $57 perce having the Vatican staan of whch 38 Canal 299 of ‘he Cley having sans as member of te Ponca! Represents, 6 eter members he Clay Temes f the Poin Ss Gnd ad hy ‘penons The persons aural Yo rede i te Vatan Cay humaine ee ia iizenhip wee 24, of he afremstioned nombar The poss ein bodings ouside of the Vaican City im blag eter fom expat sod taxation were 3100 onthe above meine at Bathom pro aoe 1,11 Ar. paa I Fundamenal Law ofthe Vatican City St: “The Supreme Poni Sovercign of Vatican iy State ha the Fl of line, excel an ‘This ston has the same powers ste Poof during an ier. CE. Art pr, ofthe Funda! ‘The Legal Stas ofthe Holy See 838 Pontifical Commission" and its President" the Secretary General the Council of Dirctrs,® the Councilor General and the Councilors of the State a numberof judicial institutions and a Labor Office. The Fundamental Law ofthe Vatican City State also provides forthe "epresentation of the Vatican City tae in relations with foreign nations and other subjects of intemational law, for the purpose of diplomatic relations and the conclusion of treaties. Pursuant to Article 2, tis representation reserved (0 the Supreme Pontiff himself, who exercises this rigit by means fof the Secretariat of State. On the basis of this article, the Vatican Participates in intemational relations, but toa leser extent, or at feast in a siferet fashion, than the Holy See ‘The Vatican ats intemationaly in the field of more technical matters that are closely tied to the practical needs of the Vatican City State. In ‘contrast, the intemational competence in spiritual and value-laden mater, 8. human rights and peace and security, belongs rather to the Holy See This explains why the Vatican State rather than the Holy See is a member of ‘he International Telecommunications Union (ITU), the Universal Postal Union (UPU), the Intemational Telecomsmunications Satellite Organization (INTELSAT), FUTELSAT, UNIDROIT, the World Intllecal Property Organization (WIPO) and the Ineermationsl Grain Council, whereas the Holy See rather shan the Vatican is a member ofthe Organization for Security al Co-operation in Europe (OSCE), the United Nations Conlerence on Trade land Development (UNCTAD), the Intemational Atomic Energy Agency AEA), the Comprebensive Nuclear Test Ban Treaty Organization, the Preparatory Commission for the Comprehensive Test Ban Treaty, the Organization for the Prohibition of Chemical Weapons and ~ also” the "Which cn be onsite the Pom ign minty parsuans vo An. 2 ofthe Funda Law Whit vere eysative power pst oA 3 ofthe Faden Lae: Who eters eteate power pura 10 Art afte Fone Law, and eergeey lpi pom puso AT Who exercise nominative power stant oA. 9 ‘Whi lem te prpraton andthe say af acco ote ais of 3 eer ode onceming the perce and avy ft Vatican, pra oA n Who hive the responsibilty 1 offer hi asstinc nthe ing of Las ad er mars of pra mportane, pra fo A 13. ‘An 15 Fund ao the Vat Cy Se ‘Which hears onrovesiscunceing abo lions been the employees ofthe Ste andthe Adiisration pursuant oA 18 836 Goll. 32011) 3,829.59 WIPO." As the example of WIPO membership illustrates, the distinction between technical and non-technical matters isnot watertight, however and in any event, the Holy See consitues is spritual mandate rather broadly, by inching the non-prolieration of weapons of mass destraction therein The Holy See plays the more important role in iterational alfairs This was already reflected inthe 1929 Conciliation Treaty, which stipulated in Amite 12 that “italy recognizes the right of the Holy See to passive and active Legation, acconling tothe general rues of International Lan The lipiomati activity of the Holy See predates the diplomatic activity of the Vatican by many centuries. In fact, the Ponts legations were among the fis diplomatic missions inthe world” The autonomous character of the Holy See's intemational activites i further reflected by the fact that inthe Period of the teritoria interregnum (1870-1928), the Holy See didnot stop sending diplomatic representatives to a number of States (active legation) and States continued to be represented at the Holy See (passive legation).”” AAS of this writing, the diplomatic representatives ofthe Holy See represent both the Vatican City State and the Holy See,” but they formally maintain Aiplomatic relations in the name ofthe Holy See and not inthe name of the Vatican State,” thereby illustrating the pre-eminent role of the Holy See in international relations, as compared to the role ofthe Vatican ‘The international an transnational role of the Holy See, which serves the adherens of the Roman Catholic faith spread over the entire world, ‘complicates the quest fora precise legal characterization of the Holy See What is clear is that the Holy See is not simply the govemment of the territorial delimited Vatican Cty, but the governance center ofthe Roman Catholic Church, or asthe U.S. Court of Appeals forthe Second Cireuit ™ G, Wesiihenber, “Hay See Mar Planck Enscloped of Pe feet Low Qhne 2006) avaiable bape mpepicomaubeibr asec yer ‘idslepientistav-97809821 1. 1DS2Rrceo- ar Weauchentege oO 20Gerd ast ised 3 ant 202) pas 1017 Emphasis added Malu, “The Holy See andthe Concept of international Legal Personality: Some Refsions, 19 Conporaive and Incr Law dour of Souher fea (1986) 15; Catan 20 IK. Mans “De poste van de Helge Shs in het vlkonseh. 58 Ary gut (26) 2,108. Comers, fosgn dipamat se ated Wilh oy Sa ad Set The Legal Sttus ofthe Holy See $37 stated in 2009 the “Holy See is the ecclesiastical, governmental, and administrative capital ofthe Roman Catholic Church. Befendant Holy See is the composite ofthe authority, jurisdiction, and sovereignty vested inthe Pope and his delegated advison to direct the world-wide Roman Catholis Chueh” While the Holy See has been characterized as a State, although perhaps an unusual of anomalous one (ein an immunities contend)" the better view is that it is a sud generis entity that enjoys far-reaching fnterational legal personality, but that falls short of statchood. It would indeed be a stretch to consider the Holy See as having a territory. I one were to affirm thatthe Vatican City State isthe Holy See's terior then a contrario the disappearance of this tenitory woud imply the loss of statehood and thus a transformation ofits international legal personality Hovsever, as became clear after the Poni’ loss ofthe Papal States, during the territorial interregnum between 1870 and 1929, the Holy See continued {exercise the powers it had, but without a feritoral base. This suggest the existence of an intemational legal_personality that is independent of temitory. Obviously, the existence of a toitorial base may safeguard the independence of the Holy Seo vied existing States — which was precisely the goal ofthe Lateran Treaties in 1929 — but tis not constitutive of the Holy See's international legal personality, Secondly, while it can be ‘argued that the inhabitants of the Vatican” City” State constitute the Population of the Holy See, and that dual nationality (ofboth the Vatican State and the Holy See) is not prohibited under international law, t appears rather odd that the citizenship of two States would be wholly ident In ‘dition, the “population” served by the Holy See may be said to extend well beyond the tiny numberof 500 cleries locate atthe Vatican. After al, Cathoties make up a population of almost 1.2 billion souls ial criteria for Statehood were met, this would make the, Holy See the second most populous nation in the world ater China)". Thitdly, and related 0 the sriterion of population, the governmental institutions of the Holy See, such ‘ex Holy See, CV-42-00430 MIWM, Unit Stes Cou of Apps othe Ninth io 3 Macs 2009, 3581 .g-M. Bic, “The Lins! Sovereign Site The FusinSovercign Imus Ast an Ligation Against the Holy See fr ls Rae in she Oba Pet Sonal Abs Scandal’ 27 WisconIiratonl Law Jona (2091 299,299 "Te Haly See ie wor’ [of smaescnaton ae Acordng to the Vaucan Sisisial Yeubaok 2008, thee were 1.166 lon Catia the wl 838 Gost 2010/3, 820859, 4 the Congregations and Tribunals (including the Roman Rota), do not ‘administer the territorial delimited entity of the Vatican but instead the religious affairs of the workdwide Catholic Chuseh’s members, who are residents and nationals of foreign nations ‘Thus, the Holy See's governance, jurisdiction o authority isnot hased ‘on territorial sovereignty but rather on spiritual sovereign.” The dominant conception of statehood does not accommodate sich a manifestation of sovereignty, although inthe literature the older sftchood theory of “dynastic succession’ has been invoked so as tp burtess the Holy See's authority and sovereign status in intemational law.” The intematonal legal personality of the Holy See can however best be conceived at ‘unique’, su! generis, and based on a spiritual mandate tat knows no borders, The Holy See shares this unique status with perhaps only one other entity widely recognized as «enjoying international Iepal personaly the Sovereign Military Onder of St. John of erusalem, of Rhodes, and of Malta (the Order of Malta), which, like the Holy See, also as the vight of legaton and has observer status at the UN General Assembly (although, unlike the Holy See, it lacks teritoral basis)" ‘Seco AD. Hea, ‘The Cathie Chrch an Ctl in Chabal Poin 1 aye (et), Roe Handbook of Rein and Polis (2009) 8 (nating he Holy Se's “spit sovereign)” an mgorust power ase that ahol at he undressed Compare the ‘Great ‘Commsion, Mathew 26 a0 Nes Intmaonl Vrs "Thon the eleven dis wet Galette mats ‘were esha od them ogo, When thy sa im, hey worshiped him a some Shubin came tem and sa aterty heen eo eh fa om gent me Therfre goa make dcp of al maton, tan ts tenn te Patera ofthe Sm ad of te Huy Sp a acing ce oe bey everyting I hve commanded you. And sly Iam ih wu alway they ‘dof te se” lerpbsa dd) Marines, supra note 2, 149, ging ht ih ofthe Holy See the pon ofthe orld Catlie Chr is epndent onthe splay af th apo ete, ' aunty which Cabot dotine an con lam ass psd oth eck in of suseuon of te popes F Gzzon "Mata, Oreo, Ma Planck Emelopci f Pac leat La Sana 2008) vale at ip: ppl om acre tr secait= puenteslo 97609823 1ec9Stkevo- Leno Garant ase ‘rnseco ast vised 3 Tanotry 2012). ior 158, the Oner i bse in Rome ‘tom. The Legal Sts ofthe Holy See 839 C. The Holy See in International Relations Inthe previous section to ilustate the distinct personality ofthe Holy See and the Vatican City Stite, it has been argued that, compared with the Vatican City State, the Holy See has the upper hand in conducting imernational relations. It was noted thatthe Holy See is a member of ‘number of intemational organizations and that it sends and. receves legations. Importantly, the Holy See also has treaty-making capacity, as is epitomized by its practice of concluding ‘concordas” with various States (see the next section, by its conclusion of the Lateran Treaties with lly in 1929, and by its accession to a number of multilateral conventions, such a5 the Geneva Conventions on the Law of War (1949), the Convention relating to the Status of Refugees (1951),” the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on Consular Relations (1963), the International Convention on the Elimination of All Forms of Racial Discrimination (1966), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984): the Convention fn the Rights of the Child (1989) and its Optional Protocols, and the Convention on Cluster Munitions." One of those multilateral conventions, the Vienna Convention on Diplomatic Relations (VCDR), makes to special references to the Holy is pte, however, tha the Holy See ht dl wth espe! this Consaton "atthe application ofthe Convention mux be spl in race with he spel rate af he Vatican City Ste" Cr. Convaton Attn the Ss efor 2 July 195, eerion by te Holy See, 189 UNS 137 Ti may soos where the Holy Soe Becomes ptt ty, th Vatican wil alg ebay a ‘ay evn nap chal sae el penn, ‘Als with spect to ths Convent has the Holy Se made slat: “he Holy Se, in tecoming a pry tothe Convention on bah f the Vatican Cy Se dere apy fifa as scampi pace, waa the peculaaare ‘of that Sato Ch. Comenton agent Totre tnd Oe Crh uaa Dearing Treaomen or Puen 1 Devenir T984, Les UNS. 85 Decraton by the aly Se. may sst ht delat pits the sims olay othe ear declrton wih vexpc othe Conmenton ring tothe Stor of Retugcs,imasmuch es the Holy Sex mid spe Yo be te crating party, butte Vatican issued ob Bound a well Tanks oe oie or {eating my tention hth dst. ‘As tes ote conetions it ae heen overeat te Hay See “endorse ‘Stes cata coe psp bate Ca dso he ‘pec ats of the Holy Sc sn itranal iw ht hess conse ot low or reseatins. Se Wesdkenbarg pant 0 pra 12 840 GollL 3 2011)3,52959 See's legato practice in Articles 14 and 16. Atcle 14(1) VCDR equates apostolic nuncios (the Holy See's diplomatic representatives) with ambassadors, i. the frst class of heads of mission. Amite 16, which deals With the precedence of diplomatic repescatatves, provides in paragraph 3 {hat it “is without prejudice to any practice accepted by the receiving State ding the precedence ofthe repesenative of the Holy See" Thereby, it affirms the continued application of existing customary (aw) practices bberween the Holy See and the receiving State The Holy Sce has accrediation as a permanent observer atthe United Nations, t many of its specialized agencies, and at « number of regional intergovemmental organizations.” I is, as noted above, a member of other faternational organizations, but it has never pressed its ease ta join the UN sa il-fedged member (neither has the Vatican for that matter, although i isa State." However, the Holy See has nat excluded that inthe future ‘may request UN membership instead of permanent observe status. According we Aisle 16 VCDR, "I. Heads f missin stl ake precedence i ir "sective class inthe or of te dt and ine of aking pcs co seconde with arte 13.2. Alert ioe cede fs head cee nt invelins ny change ols tal alt his rece ‘See Foran oneview aoutly th oer prema paspanh of UN Doe AS83914 {46 Sly 2004) onthe Faricpaton othe Holy Se inthe work of fhe Und Nag (ising the Food an Apis Organization ofthe United Nats Ino) {abou Ozman te Word Heath Orzaniztia, th Unted Nation Easel, Scintif and Calta Onanzaien, the Usted Naiuas Inga! Deriaeesy Gremiatin, the Inertial Fund fr Agar) Desepment ad est Tow Organization, aswell asthe Word Trade Organon, te Come ot uop the Onpnizatan of Aman Sit nthe Afra Un), ‘See on Joning tbe Uetgue of Nao: Dosa spr note? 399. On the Holy SeeVatcan joining te UN, the fling samt of Core Hal (1040) ning: “It would seem usa that te quesn of the meter af Vatican Sate be asd now. Ava diminutive state Vacs woud mb cab of fuiting alte esponstiiis of merken an ermzeton hone Sonos pos themainsntncs of inratinal pee nl sea} Menderhip ie ‘anzaton would not se be consonant wih he poisons of Arle Bote Latex Ten, pticolry sree spi sats an partion psc ffs, Nonsmenbesip would act pele pata of the Wens Se ‘oc andiunastaran avis of te erganzatn aor inp aioe romain of ese by i sl inlsnc” uted in vrs ipsa Ise ‘Sse notably tbe sees of Arcishop Nagle, he Hly Sees UN rpaseatine, tm the eition ofthe ep of UN Du AS8I4 0 uly SOD EER ‘solo eaioming th Hay Ses ponent cere saat ie UN We ee ova besaae thi i or chlce Bu hs reson is 2 Rane Pope oes not lose ny ph rte ftw. The Holy Ssh he equremens died ty ‘The Legal Status ofthe Holy See 841 The Holy See was granted permanent observer status at the UN in 1964." The rights that flow from that status were strengthened by UN General Assembly Resolution 58314 (2008) This resolution provides that “the Holy See, in its capacity as an Observer State, shall he accorded the ‘ights and privileges of participation in the sessions and work ofthe General ‘Assembly and the international conferences convened under the auspices of the Assembly oF other organs of the United Nations, as well asin United Nations conferences asset out in an annex". It is conspicuous thatthe UN General Assembly does not characterize the Holy See a8 a non-State actor, but as an observer Stare” In practice, the Holy See has the eight to participate in the general debate ofthe UN General Assembly (GA), the right of insertion on the ist ‘of speakers under agenda times at any plenary mesting ofthe GA. the right fo make interventions, the eight of reply, the right to have its ‘communications circulated as oficial documents eating othe sessions and work of the GA or international conferences issued and circulated dectly 88 official documents of the GA or those conferences, the ight 10 raise Points of order relating fo any proceedings involving the Holy See, andthe Fight t co-sponsor draft resolutions and decision tat make reference to the Holy See." However, not being a member State, i¢ doesnot have the right vote orto put forward candidates in the GA." The Holy See also enjoys rights of participation at other principal UN ‘organs, At the United Nations Economic and Social Council (ECOSOC), i thas the right to atend all meetings and to make proposals and policy the UN ste tobe member ste and. im he Te it wished to Be 5, this ‘esolton wouldnt inpee i fiom requesting ace in "Vaa’s Roe at UN Unanimously Ender by Genera Assenbl"7 Calc Fam and umn ih Irie 9 Pay 208), See for the aetvis of the Holy See's mission at the Unit Nation: psa tyscemssonn st at Senay 3012), LUN Doe AS81416 aly 30 pr. ‘This chaateration may be conifmed by the Holy See's ae of ses Fr is Finan contain wo the gene! adminisitien of the UN. this hee of ‘ssesment ora nonenber State GA Ren 38 (Mate 200) That ie sak "he tht the UN st the Holy esa onion ua w a a so eer Sate need! ess mean th the UN ely eed othe Holy Seto 2 onember Sut; analogous the egal pluie. And even i the UN Siler he Holy Se oe a ste hn ny cy elt the UN's aim ‘Megs da! wth ela cts he Hay ee Gatos $12 16 July 208 prs spa 1. $42 ah 3 20113, 9.499 statements regarding al ses that are of ts concer. can also attend the sessions of ECOSOC" regional commissions on an equal footing with those Stale Members of the, United Nations which are not members of those regional commissions" To coordinate its activities at ECOSOC, the Holy See has established a permanent mision in Geneva At the UN Security Council, the Holy See has occasionally made a statement, eg, on the situation between Iraq and Kuwait” on the regulation and reduction of armaments, "and on the protection of evans in armed conics “The Holy Se’s rights of participation atthe UN go well beyond the sights that are granted to NGOs as UN observers. An NGO, Catholics for Choice, denounced this state of affairs, and, between 1999 and 2003, lobbied in favor of downgrading the Holy See's status a the UN to regular [NGO status, a status enjoyed by other religous organizations and bodies, such as the World Council of Churches.” This tbbying effort filed, however, In 2004, the Holy See's participation rights atthe UN’ were even upgraded (see above forthe deal) The Holy See typically uses its participation rights to press « moral agenda at the UN. For instance, the Holy See was instrumental in the adoptign of the UN Declaration banning all forms of Human Cloning in 2005," and inthe prevention ofthe adoption ofa proposed resolution on Sexual orientation and gender identity. In 82010 speech tothe Diplomatic Comps, the Pontiff emphasized the protection ofthe environment as one of the Holy See's major global poins of interest So far, three Popes have amrese the General Assembly." ECOSOC dein 244X197. This misan fas a uptodate eats: eps hobeaminongenss og (st ‘ited Tana 2013) LUN Doe SiPV709 (eumpton 1), 19 Feary 205, 33:36 LUN Doe SPV 017 (Reunion 1, 19 Novem 2, 12-13, Stement of 13 Janany 300, UN Dae Sib i (Resnyon 1), 14 Jaman 2002, Cates for Cos, Soe Chang’ the Cathole Chu at the Unis Nain, 201 See for similar mgunentY. Abialluh, “The Holy’ Set Used Naboas Contereoces tt or Cac” 9 Cambs eve (1986) 7.1435, 1875 9 GalRes 280,25 March 205, Ses UN Dor A1C 59/911 15 Jay 2008, Me u Ste UN Dac A/.PV.7), 18 Desember 2008, 2 fo he stamens ofthe Holy Soe ‘kepaon athe td Sesion of he Gena Assnly ofthe Unie Nation 0 he Declan on ieman igh, Sent! Oren and ender em ‘Adress of is Holiness Pope Benolct XVI. "To the Member af the Diplomatic (Corps fr the Trader Exchange of now Year Grosting” (U1 Janay 2010) ‘The Legal Status ofthe Holy See 843 ‘The Holy See has also actively used its participation rights at interational conferences. At the Rome Conference forthe establishment of ‘a Intemational Criminal Court (1998), where the Holy See was accredited, it successfully lobbied, amongst other chings, for the inclusion of sexual rims in the Statute At the Rame Conference, the contribution ofthe Holy See may have been labeled as rather ‘psiive’* but the contebution of the Holy See to other conferences vas decidedly more critically received, eg. its contribution to the 1994 United Nations Intemational Conference on Population and Development held in Caieo, or t0 the 1995 Fourth World Conference on Women held in Bejing At the bilateral level, the Holy Sc entertains diplomatic relations with {an impressive 176 States, the European Union, and the Sovereign Military Order of Malt. It has ‘relations of & special nature with the Russian Federation and the PLO." ‘sible at pew saicanatay heres. nieces jana! documents ete spe 20100111 lmao Stal ah Senay 201, ‘Asef Pal VI othe UN General Assent, UN Doe AIPV.1347, 4 Oxaber, 195,25; Ads often Pal the UN Gentil Asemby, UN Doc A34°P0 17 2 Oster 1978 389-358 (as der, A'S fall pone ern). Aso So Pa so te UN General Asser UN Due AVSOPU.0,$ Orbe 1995 2 ‘Ades of Benet XVI Yo the General Assy, UN Dow A2IPV8S 18 Ap 28,6 ‘See Ivan dr Vver,"Conrtuions of the Hay Sst the efinement ofthe Roe ‘Satie of he Inna! Crna Coun Cann estan: gH Ola Chai 2004 (008,46 ten the aon of Arle (3 te Rome Sat he definon of por as proved some eric in incest ee, however, See V. Ooserel "The Defiation of "Gen" in the Rome St of te Intron Crimial Court Step Forvan! or Back fr Inmate ie" 18 amar Haman Rp oral (203), 35,68, Se bel ae 62 oh he Aula, spr one $6 87S, Se fo he Holy Se’ view: Report of he Fourth Wold Confrence on Women, Being. #18 Sele (995d, Arex UN. Doc: ACONE.ATIBORGI, UN, Salen Ne 919 (1096, 16 (ay Sos voting the tem "end “hs grounded in Wolo sxe en, mae oF Fel” an th exis “dis interpreton aon worl vis Meh ct ‘ha sul Ment an be ape nein tat pew an differen pues See for am ovenew poled by the ly See Pro Oe: bp tian ines. seicespresdbcuoarione ocuentcrpo Siplomasic inet a! hse Samay 3012), 4 GallL 3201 3, 00859 D. Concordats ‘The tweaty-making power of the Holy See isnot only exemplified by its accession to major mutilate treaties, but also by its practice of ‘concluding “concordats’ with vatious States. A concordat is’ specific bilateral treaty entered into between the Holy See and a State, which regulates the religious affsts and activities of the Catholic Church in that State" Typically it governs individuals’ right to exercise the Catholic religion, financial and property matters, confessional teaching, the civil celfects of marriages under canonical law, State subsidies to the Church, and ‘the Ponti’ ight to appoint bishops. Inthe past, there was a lively doctinal discussion as to the exact legal characterization of concordats. Some authors claimed that canconat Was & Unilateral act done by the State, which thereby granted certain ights and Privileges tothe Catholic Church, while others claimed that a concordat had no legal value at all! As we write, however, a consensus has crystallized ‘that concordats are binding intemutional agreements ~ teaics — that are concluded between equal paris.” While some treaties may be concluded by the Holy See on behalf of the Vatican, the “technical” treaties in particular, this does not hol true for ‘concordat. If coneordats were concluded on behalf of the Vatican, the lisappearance of the latter as the territorial base of the Holy See would result in the concordat no longer being in force between the Holy See and ‘States, a result which eanot be considered as acceptable, Accordingly, the provisions ofthe Vienna Convention on the Law of Treaties (VCLT} cannot as such be applied. While the Holy See has ratified the VCLTT, it ean only have done so on behalf of the Vatican State, not for itself as it lacks statchood, That say the provisions of the VCLT can be applied 10 ‘concordat tothe extent that they reflect customary iteration aw” See also H, Kh, Dic lero Sting der Hes Sti (1975), 316-318 es mtd a the Hey Sea ented ata soncont witht oe) non ‘eto thePalesine Lita Organ (PLO) tthe scan Union ‘8 Fer, ‘Concnia, Ma Planch Eneclopacdaof Pub inernatona ae ly 2006) salable apse mpep costae yeskid- pi nies aw-978019925 160.1 een Bahr Fenar™s20°.20SNo va NEE 2012), pat © R Haul, Der Helge Shots Verect (2008196. ‘The Legal Sus ofthe Holy See 848 ‘The Holy See has not concluded concordats with all States with which it maintains diplomatic relations" Also, while all eoncordsts adatess the ‘ume subjec- mater (the position ofthe Church in the contacting State), the CChureh’s rights and privileges that ae stipulated in the various eoncordats differ. The exact scope ofthese rights and privileges isin the final analysis ‘dependent on the actual bargaining power of the Holy See visvis the contracting State. The relativity of the Holy See's bargaining power also explains why, for politcal reasons, conconats may bear other names, such 1s “agreement” The tem ‘eoncordat” may indeed be objected to by States with a strong secular tradition. Also, in some quarters it may have received negative connotation afte he onclsion of eoneordats with Nazi Germany ‘Reichskonkorda of 20 July 1933)" and Franco's Spain (27 August 1953). In the absence of a concordat, the als of the Catholic Church are regulated by domestic law. This is the casein most States, ‘But even concordat have become subject o the writ of domestic law, ‘€ to international law as it plays out in the domestic legal order. “Technically, this issue may be foreign tothe issue of the standing of the Holy See, but a brie? discussion of it appears jusitied in that it nicely ilstrates the interplay between the concordat, as treaties witha particular relevance to domestic afr, with domestic la. Tn patticular, the application of concordat has been challenged on constitutional or human rights grounds i various States, e.g. in Spain,” See focan overview: ww concadataish (ast vied 3 Janay 2012), Se fora

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