The Vatican as a State

As readers will doubtless know, there’s a good deal of unrest in some quarters about the impending visit of the Pope to the United Kingdom. (He lands in Edinburgh on Thursday.) As the scandals about child rape by priests have multiplied over the last few years, calls for justice in the courts have grown. Of particular interest is the suggestion that the Pope should be arrested upon his arrival in Britain, and, in the words of English barrister and author, Geoffrey Robertson, prosecuted:

“under international law, for having assisted in the protection of sex offenders in a mass atrocity . . . under the doctrine of command responsibility.”

Robertson, who was engaged by Christopher Hitchins and Richard Dawkins to propose a case for charging the Pope over his failure to stop and punish sexual abuse within the church, has just published a book with Penguin, The Case of the Pope – Vatican Accountability for Human Rights Abuse.

The late Augusto Pinochet was arrested in Britain 1998 as the result of his having been charged by a Spanish magistrate with human rights violations. The Chilean dictator was a former head of state at the time. The Pope, however, has the status of head of the Vatican state, and as a head of state is immune from arrest under international law.

This immunity has led his pursuers to examine and challenge the basis on which the Vatican claims statehood. This turns out to be the Lateran Treaty of 1929, a document signed by Mussolini and the representative of Pius XI, the then Pope. Robertson argues that this is a unilateral document, not a treaty to which the U.K. or any other government was a party; and, he says, if this sort of creation ex nihilo is possible, Britain could declare Canterbury to be a state — or, as he might have said, Saudi Arabia could make Mecca a state.

With the caveat that I am no international lawyer at all, it seems to me that the crux of the thing is recognition by other states. (Those wishing to pursue the matter might start with the book “Fragmentation and the International Relations of Micro-states”, Chapter 2: Criteria for Statehood, conveniently available online via Google Books.) As a moment’s thought will reveal, the recognition of an area’s statehood is a vexed, practical matter. Think Taiwan, Palestine, Kosovo, Moldova . . . . Often, reference is made to the Montevideo Convention on Rights and Duties of States of 26 December 1933, Article 1 of which reads:

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.

On this basis, the Vatican might have difficulty with the “permanent population” and perhaps with items (c) and (d) given the limitations imposed on it by the Lateran Treaty.

The fact remains, however, that the U.K. recognizes the Vatican as a state, which in turn makes any move to charge or arrest the Pope during his visit highly unlikely.

Comments

  1. I, likewise, am not an expert in international law; however, I think the point with respect to the UK recognizing the Vatican city state is that the UK maintains diplomatic relations, not with the Vatican, but with the Holy See. While the Vatican city state does indeed date to 1929, the Holy See as a creature of international law is centuries old. So, the notion that the Lateran Pact is a rather recent and rather flawed basis for a claim to sovereignty is, at best, simplistic. In fact, the UK re-established diplomatic relations with the Holy See not long after the First World War, and before the Lateran Treaty of 1929.

  2. Interesting post, Simon. I do not presume to opine on what the position in English law would be, but it may be worth noting that the question under Canadian law – at least in the one reported case that has considered the question – does not appear to rely on recognition at all.

    To my knowledge the meaning of “foreign state” under customary international law, for purposes of the application of the Canadian State Immunity Act, has rarely arisen. I presume this is because any dispute in that regard would ordinarily be obviated by obtaining a certificate from the Minister of Foreign Affairs under s. 14, which provides irrebutable evidence that the entity in question is a “state” for purposes of the Act.

    The only reported example of which I am aware involved Taiwan, in Parent c. Singapore Airlines Ltd., where the Minister – possibly because of the obvious diplomatic sensitivities involved – had refused to deliver a certificate under s. 14.

    The court in that case held that “state”, for purposes of the Act, does not depend on diplomatic recognition, nor on any action by the executive. Instead, the court relied on the same four criteria you cited above, from the Montevideo Convention, which in its view Taiwan easily met. The court also endorsed the “declarative theory”, which holds that recognition of states by other states is merely recognition of a state of affairs which exists in practice. Non-recognition by other states does not deny statehood.

    I don’t know whether the same issue has arisen in U.K. caselaw, though I note that the U.K. State Immunity Act has a provision (s. 21) quite similar to s. 14 of the Canadian Act.

  3. I can only claim to dabble in international law, with extensive interest. In my opinion the recognition issue is of limited consequence.

    The proper state in question here is not with Vatican City but the Holy See, as Michael points out above, despite failing the criteria of Montevideo. The latter has permanent observer status at the United Nations, and is treated as a state under customary international law with the complete ability to negotiate multilateral treaties as a state.

    The U.K. was for many years one of the few states maintaining a formal declared recognition policy in accordance constitutive theories of recognition, but have also moved to the declarative theory since the early 1980’s.

    From the Canadian perspective the formal recognition issue is even less important. We typically adopt the Estrada doctrine as an alternative, what Alex terms as the “declarative theory,” although we have not done so consistently – as in Afghanistan under the Taliban. See the November 9, 1988 Department of External Affairs memo on this for more in Canadian Practice in International Law.

    The Canadian State Immunity Act (SIA) does provide an exemption from sovereign immunity for personal injury under s. 6,

    Death and property damage
    6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to
    (a) any death or personal or bodily injury, or
    (b) any damage to or loss of property
    that occurs in Canada.

    This section was litigated by the SCC in Schreiber v. Canada, where the court cautioned,

    49 …Although I agree… that mental injury may be compensable in some form at international law, neither the intervener nor any other party has established that a peremptory norm of international law has now come into existence which would completely oust the doctrine of state immunity and allow domestic courts to entertain claims in the circumstances of this case.

    The Court held that s. 6 of the SIA could only apply to cases of physical injury, which arguably could better apply in cases flowing from the Holy See as described above.

    The SIA was also litigated in Bouzari v. Iran (Islamic Republic) (Ont. C.A.); (leave to appeal to SCC refused),

    [3] …The balance struck today between these two principles [human rights and sovereign immunity] by both Canada’s domestic legislation and public international law prohibits a civil claim (though not a criminal prosecution)…

    It might be more of a stretch, but there would be some irony if this was pursued via a criminal action, say, The Rome Statute.

  4. I am being informed by the comments to my post and I thank the commenters. It seems that, perhaps because the situation is unique, things are less than perfectly clear, except as to the conclusion that the Pope will almost certainly not be charged and arrested.

    A couple of recent posts to the blog for the European Journal of International Law have also helped me complexify my understanding of the situation: Can the Pope Be Arrested in Connection with the Sexual Abuse Scandal? & Questioning the Statehood of the Vatican.

    It seems that, yes, there is a difference between the Holy See and the Vatican, but the Vatican is the geographical place that either is or is not a “state.” So to the extent that one must be a “head of [a] state”, it is indeed Vatican City that will determine that.

    In addition, though—and here’s where a uniqueness arises–the Holy See, as government of the Vatican, has an international personality that has long been recognized and with which states have diplomatic relations quite apart from the matter of statehood. The author of the articles cited above refers to this as ” a sovereign status akin to Statehood” (like the Knights of Malta, he says). And he argues that this sovereign status would offer protection to the Pope, whether or not the Vatican is a state, if only as a matter of customary international law.

  5. Since I’m likely the sole Slaw author in Italy at this moment, let me direct you to the words of Pius XI at the time that the Treaty was signed.

    I loved this bit of understatement:

    La piccolezza del territorio Ci premunisce contro ogni incomodo e pericolo di questo genere. Sono sessant’anni ormai che il Vaticano si governa senza particolari complicazioni.

    And the candour of this statement:

    La forma di governo è la monarchia assoluta.

    Since Slaw readers are interested in such stuff, here are the texts of the legislative instruments.

    The Vatican has signed on to a number of International Instruments:

    International Convention on the Elimination of All Forms of Racial Discrimination

    International Convention on the Rights of the Child

    Single Convention on Narcotic Drugs Protocol amending

    Convention on Psychotropic Substances

    Treaty on the Non-Proliferation of Nuclear Weapons

    Convention peaceful exploration and use of air space

    Protocol on the prohibition of toxic gases and bacteriological methods

    Geneva Conventions (to improve, in time of war, the condition of the wounded and sick on the protection of civilians, the treatment of prisoners, the status of refugees) and additional protocols

    International Convention for Protection of Cultural Property in the Event of Armed Conflict

    Convention of ‘UNESCO for the Protection of World Cultural and Natural

    Vienna Convention on Diplomatic Relations

    European Cultural Convention

    Conventions on maritime law

    Conventions on Road Traffic

    And if anyone is visiting, here is a map from 1929: I doubt it has changed much.