The Legal Status of the Holy See

CENTER FOR REPRODUCTIVE LAW & POLICY

▪
INTERNATIONAL PROGRAM
 
Church or State?
  The Holy See at the United Nations
The Roman Catholic Church is uniquely positioned to influence
international deliberation on a wide range of issues, including population,
family planning, and women's rights. Since the inception of the United
Nations, the Roman Catholic Church has been an active participant in
numerous international conferences organized by this powerful
organization. Recently the Church has been involved in the 1992 United
Nations Conference on Environment and Development, the 1993 Vienna
Conference on Human Rights, and the preparatory process of the 1994
International Conference on Population and Development. In some of
these conferences, the Church has taken high profile positions that have
sparked worldwide attention and raised questions regarding its status at the
United Nations. This publication provides information about the position
and role of the Roman Catholic Church at the United Nations.
 
The Holy See and the Vatican City
Because the Roman Catholic Church has elected to participate in the
United Nations as the “Holy See,” it is important to understand the
historical origins of this entity and its current relationship to the Vatican
City.
 
The “Holy See” is “the supreme organ of government of the [Catholic]
Church,”1 with the Pope designated as its head in the Code of Canon
Law.2 The Holy See consists of the Pope, the College of Cardinals, and
the central departments that govern the Church.3 It is, by definition, a 
non-- territorial religious entity Prior to 1870, the Holy See was associated
with the government of the Papal States, which had been created by Pepin-
le-Bref and his son Charlemagne in the Ninth Century4 In 1870, Italian
troops annexed the Papal States and granted freedom to the Apostolic
Palaces in Rome. The Lateran Agreement of 1929, signed by Italy and the
Holy See, finally settled that Rome was under the jurisdiction of Italy
while the State of the Vatican City remained under the “sovereignty of the
Supreme Pontiff.”5
The Vatican City is widely regarded as a “vassal” territory of the Holy
See.6 Unlike any other modern nation, the Vatican City does not exist to
support its citizens. Rather, its purpose is to provide a base for the central
administration of the Roman Catholic Church. Only 0.44 square
kilometers in size,7 the Vatican City is the smallest area in the world
claiming to be a state.8 Its population is nominally 800 residents and 400
citizens, primarily constituted of Church officials who are there on a non-
permanent basis.9 Italy carries out a number of official functions for the
Vatican City by supplying the police force to patrol it,10 providing for the
punishment of crimes committed within the city,11 and maintaining the
water and railway systems for the area. The Vatican City is also dependent
upon Italy for freedom of communications and transportation. 12
 
Status at the United Nations
In 1944, the Roman Catholic Church made tentative inquiries regarding
the eligibility of the Vatican City to become a member state of the United
Nations.13 Although the United Nations does not provide the international
community with a definition of the term “state,”14 it does have requisite
conditions for admission as a member.15 An applicant to the United
Nations must: (1) be a State; (2) be peace-loving; (3) accept the obligations
of the United Nations Charter; (4) be able to carry out these obligations;
and (5) be willing to do so.16 Although the historical record is scant, there
is some indication that member states viewed the Vatican City as being
ineligible for United Nations membership. For example, United States
Secretary of State Cordell Hull, in his reply to Vatican inquiries regarding
possible membership, concluded that the Vatican City did not meet the
requirements for admission.17 Article 24 of the Lateran Agreement binds
the Holy See and the Vatican City to neutrality, and this policy of
neutrality is regarded as incompatible with membership. In fact, the
Vatican City has never made a formal membership application.
The Roman Catholic Church first officially participated at the United
Nations when the Vatican City was invited to United Nations conferences
through its membership in the Universal Postal Union and the International
Telecommunication Union.18 In 1957, through an exchange of letters, the
Holy See and the Secretary--General of the United Nations agreed to refer
to the Papal delegation at the United Nations as the “Holy See.”19 Finally,
on March 21, 1964, Pope Paul VI established the first Holy See
“permanent observer” mission at the United Nations. As a result, the Holy
See is regarded as a “non--member state” permanent observer.20
Switzerland is the only other entity that currently maintains non--member
state permanent observer status.
The status of a permanent observer places restrictions upon an entity’s role
at the United Nations, and these limitations generally vary according to the
type of permanent observer status.21 There are no provisions in either the
United Nations Charter or the Rules of Procedure of the Economic and
Social Council (“ECOSOC”) that specifically refer to the participation of
non--United Nations members in ECOSOC meetings. However, non-
member state observers have been invited to participate in meetings
discussing matters of concern to those states.22 Since the Holy See is a
permanent observer, it cannot cast a vote in the General Assembly of the
United Nations. But permanent observers have sometimes participated, on
an ad hoc basis, in General Assembly discussions and decisions.23 The
Holy See has participated in the General Assembly on several occasions.
Pope Paul VI addressed that body on October 4, 1965,24 and Pope John
Paul II did so on October 2, 1979. In 1978, the Permanent Observer for the
Holy See addressed the Tenth Special Session of the General Assembly
Devoted to Disarmament.
The Holy See has also participated actively in several United Nations
conferences. Its position as a non-member state permanent observer has
provided it with many advantages. Rules regarding access to and
procedure for United Nations conferences are most often determined by
the specific United Nations agency charged with organizing the
meeting;25 the organizing body can thus determine whether it will permit
a permanent observer to attend. Moreover, access to conferences convened
by the General Assembly or ECOSOC is also established by the
parameters set out by these United Nations agencies. Because the current
United Nations trend is to provide widespread access to international
conferences, participation in these meetings has been liberally granted.26
Recent General Assembly resolutions convening world conferences have
invited “all States” to participate. States invited to participate in a
conference in this manner are able to participate “in full, with full voting
rights,” unlike the restricted manner in which other types of permanent
observers participate.27 Because the United Nations treats the Holy See as
a state, the Roman Catholic Church is able to participate fully and to vote
in most conferences.
In granting the Holy See a non-member state permanent observer position,
the Secretary-General of the United Nations was required to consult
established criteria for a non--member state observer delegation. These
criteria were whether the state had membership in at least one specialized
agency of the United Nations and whether the state was generally
recognized by members of the United Nations.28 At the time the Holy See
was admitted as a non--member state permanent observer, it maintained
delegates at specialized agencies such as the International Atomic Energy
Agency and the Council for Cultural Co-operation of the Council of
Europe.29 However, if “general recognition” is defined to mean
recognition by a majority of United Nations members, the Holy See may
have been incorrectly allowed to obtain non--member state permanent
observer status. As of January 1, 1985, the Holy See maintained
diplomatic relations with only fifty-three countries.30 Therefore, it is
unlikely that the Holy See maintained relations with a majority of the
existing 112 member states of the United Nations at the time its mission
was established.
 
Status under International Law
The international legal status of the Holy See has been subject to scrutiny
ever since it lost control over a specific territory3' After the annexation of
the Papal States by Italy in 1870, the Pope continued to conclude
agreements with some nations and to accredit and receive envoys.32 In
1929, with the creation of the Vatican City, the Holy See once again
became associated with the government of a territory. But this territory can
be regarded as an artificial construct that provided the Holy See with some
claim to territorial integrity. While most international legal scholars would
grant that the Holy See may possess “a degree of international
personality,”33 there is considerable debate as to whether such personality
amounts to statehood.
Even without an exhaustive review of international legal definitions of
statehood, there are indications that the Holy See does not meet these
criteria. According to the Montevideo Convention on the Rights and
Duties of States: “The state as a person of international law should possess
the following qualifications: a) a permanent population; b) a defined
territory; c) government; and d) capacity to enter into relations with the
other states.”34 These four factual criteria for determining statehood are
founded upon principles that have been accepted by a host of international
law scholars and are consistent with the foreign laws of some nations.35
The Holy See does not satisfy this definition. Almost by definition, it does
not possess a defined territory Because the Holy See is the supreme organ
of government for Catholics worldwide, it cannot be said to have a
“permanent population.” Finally, the Holy See is itself the government of
both the Roman Catholic Church and the Vatican City It cannot therefore
be regarded as an entity that possesses a government. The only
characteristic of a modern state that is attributable to the Holy See is its
capacity to enter into relations with other states. The Holy See is party to
international treaties and it, rather than the Vatican City, receives foreign
envoys.36
It is equally uncertain whether the Vatican City satisfies the modern
definition of a nation. Although it has a permanent population, a defined
territory, and a government, the Vatican City’s capacity to enter into
relations with other states is difficult to assess. The Vatican City has no
foreign service of its own and no foreign ministry distinct from that of the
Holy See.37 Article 3 of the Constituent Laws of the Vatican City reserves
“to the Sovereign Pontiff, by means of the State Secretariat, . . . the right
of representation of the Vatican State, with foreign powers, for the
conclusion of treaties and for diplomatic relations.” 38 A state wishing to
enter into official relations only with the Vatican City would have to deal
first with the Holy See.39 There also appears to be no diplomatic mission
accredited to the Pope solely in his capacity as a temporal sovereign of the
Vatican City40 Yet, at the same time, the Vatican City is a party to some
international and bilateral agreements.
 
Conclusion
Because it is uncertain whether the Holy See or the Vatican City can be
regarded as a state under international law, the status of the Holy See as a
non-member state permanent observer in the United Nations is
questionable. Moreover, there are doubts about whether, in 1964, the Holy
See met the established criteria for attaining this position. If the United
Nations treats the Holy See as a state with permanent observer privileges
because of the Roman Catholic Church’s religious authority, the United
Nations is creating a precedent for similar claims by other religions. To
ensure that the United Nations does not promote one particular religious
view, religious entities such as the Roman Catholic Church should not be
permitted to participate in that body as nonmember states.
 
Endnotes
1. Hyginus Eugene Cardinale, The Holy See And The International Order
85 (1976).
2. Codex luris Canonici (1917) Code c. 331: “The bishop of the Church of
Rome, in whom resides the office given in a special way by the Lord to
Peter, first of the Apostles and to be transmitted to his successors, is head
of the college of bishops, the Vicar of Christ and Pastor of the universal
Church on earth; therefore, in virtue of his office, he enjoys supreme, full,
immediate and universal ordinary power in the Church, which he can
always freely exercise.”
3. Robert A. Graham, Vatican Diplomacy 157-183 (1959).
4. James Crawford, The Creation of States in International Law 152
(1979).
5. Lateran Agreement, Feb. 11, 1929, Italy-Holy See, Art. XXVI, 0 VTS.
161, Europ.TS. No. 590019
6. Crawford, supra note 4, at 159; Josef Kunz, The Status of the Holy See
in International Law, 46 Am. J. of Int. Law 313 (1952). Note also that the
preamble to the Lateran Agreement states: A[I]t is deemed necessary to
constitute Vatican City with special dispositions, . . . with exclusive and
absolute power and sovereign jurisdiction over it to the Holy See.”
7. Edmund Jan Osmanczyk, Encyclopedia of the UN and International
Agreements 862 (1985).
8.  Crawford, supra note 4, at 154.
9 Louis Henkin, Richard Pugh, Oscar Schachter, & Hans Smit,
International Law Cases and Materials 247 (3rd ed. 1993) (hereinafter
“Henkin”).
10.  Lateran Agreement, supra note 5, at Art. III.
11.  Id. at Art. XXII.
12.  Id. at Art. VI.
13.  Crawford, supra note 4, at 156.
14.  Hans Kelsen, Law of the United Nations 68 (1964).
15.  UN. CHARTER Art. 4, para. 1.
16.  Kelsen, supra note 14, at 67.
17.  Crawford, supra note 4, at 156.
18.  Cardinale, supra note 1, at 265.
19. Letters exchanged between the Holy See and the Secretary-General of
the United Nations (Oct. 16, 1957, Oct. 29, 1957) (Discussing relations
between the UN. and the Holy See).
20.  There are five types of permanent observers: (1) Non-Member States;
(2) Specialized Agencies of the UN. system; (3) Intergovernmental
organizations not part of the UN. system; (4) National liberation
movements recognized by the General Assembly; and (5) Non-
governmental organizations. See R. G. Sybesma-Knol, Status of Observers
in the UN. (1981).
21.  Id. at 24.
22.  Sybesma-Knol, supra note 20, at 33.
23.  Id. at 30.
24.  Pope Paul VI’s famous speech to the General Assembly includes the
following statement: “Respect for life, even with regard to the great
problem of birth, should find here in Your Assembly its highest
affirmation and its most reasoned defence. Your must strive to multiply
bread so that it suffices for the tables of mankind, and not favour an
artificial control of birth, which would be irrational, in order to diminish
the number of guests at the banquet of life.” Mark Shaw, Messenger Of
Peace 59 (1965).
25.  Id. at 27.
26.  Id. at 34.
27.  Id. at 35.
28.  Selected Legal Opinions of the Secretariat of the United Nations and
Related Inter- Governmental Organizations at 236, UN. Doc. ST/LEG/8
(1962).
29.  Cardinale, supra note 1, at 260-265.
30.  Osmanczyk, supra note 8, at 863.
31.  Kunz, supra note 6, at 309 (the Holy See “remained, as always, a
subject of general international law”); Crawford, supra note 4, at 153 (“[i]t
was accordingly stated by various writers that the Holy See had no
international status after 1870”); Cardinale, supra note 1, at 88 (the Holy
See never lost its international juristic personality because “[between]
1870 and 1929 concordats and other agreements were signed with
numerous countries, some. . . non-Catholic”); Sybesma-Knol, supra note
20, at 325 (“[it] is only logical that. . . there is some uncertainty about the
legal status of these entities [such as the Holy See in international law]”);
Graham, supra note 3, at 184 (“[e]ven without a state of his own, the Pope
remained an international figure with an undefined standing”); Okeke,
Controversial Subjects of International Law 65 (1973) (the Holy See is
able to make international agreements, “one of the most effective and
important evidences of personality in international law”); Henkin, supra
note 9, at 299 (“[s]ome territorial entities have an international legal status
though they do not easily fit into any of the established categories”).
32.  Kunz, supra note 6, at 311.
33.  Crawford, supra note 4, at 157.
34.  Article I of the Montevideo Convention on the Rights and Duties of
States, Dec. 26, 1933, 49 Stat. 3097, TS. 881, 165 L.N.TS. 19, 3 Bevans
145. This Convention was ratified by: Brazil, Chile, Colombia, Costa Rica,
Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti,
Honduras, Mexico, Nicaragua, Panama, United States and Venezuela.
35.  For example, 201 of the Restatement of the Foreign Relations Law of
the United States provides that a state is an “entity that has a defined
territory and a permanent population, under the control of its own
government, and that engages in, or has the capacity to engage in, formal
relations with other such entities.” Restatement (Third) of the Foreign
Relations Law of the United States (1986).
36.  Henkin, supra note 9, at 300; Graham, supra note 3, at 344-346;
Crawford, supra note 4, at 152-60.
37.  Graham, supra note 3, at 345.
38.  Special supplement of the Aeta Apostolicae Sedis, 7 June 1929
39 Graham, supra note 3, at 345.
40.  Id.; Cardinale, supra note 1, at 179-205.