The atypical international status of the Holy See.

• Author: Bathon, Matthew N.

ABSTRACT

The Holy See, as personified by the Pope of the Roman Catholic Church, has acquired significant international status over the centuries. In modern times it has not always been clear whether this status arises from the Holy See's status as head of the Church or as ruler of the tiny State of Vatican City. Some view the Holy See's unique international status as an exception to the general rule that only states participate in international affairs. The Holy See has acquired such recognition and authority primarily because of its long-standing involvement in world affairs over the last thousand years. Others disagree, however, and particularly object to the Holy See's status as Permanent Observer at the United Nations. They argue that the Holy See acts solely as a religious authority in the United Nations, a body where membership is supposed to be limited to independent states.

This Note discusses the possibility that another religion could form a new, independent, international state following the model of the Holy See and the Vatican City, thereby seeking to establish equivalent rights and authority in world affairs. The centuries-old influence of the Holy See in world affairs is an essential aspect of its unique status and continued authority. This Note first explores the historical background and current status of the Holy See, the State of Vatican City, and the Roman Catholic Church. The Montevideo Convention's definition of a "state" in international affairs is examined and applied to the Vatican City. Next, the considerations recently used by the international community when recognizing a new state are explored. The Note concludes that while the Vatican City is certainly an exception to the traditional requirements for statehood, no other religion could attempt to use the Holy See as a model for successfully gaining acceptance in international affairs.

1. INTRODUCTION

   The international status of the Holy See(1) has been continually defended and attacked for centuries. The Holy See, as personified by the Pope of the Roman Catholic Church, is thought by many to have international authority either as the head of the Church or as ruler of the State of Vatican City. Numerous authors have argued that the Holy See's special status in international relations is either appropriate or improper.(2) While theoretical disputes continue as to the requirements for international personality and the definition of a "state" in international law, it is generally accepted that the Holy See does have, if atypical, a status in international relations.(3) Thus, it is clear that the Holy See will continue to play a role in international relations.

   Currently, the Holy See is considered to be the head of an independent state, the Vatican City, and as such enjoys Permanent Observer Status at the United Nations.(4) This Note considers the possibility that another religion could form a new independent, international state, and thus seek to establish equivalent rights and authority in world affairs by following the paradigm established by the Holy See and Vatican City. The centuries-old influence of the Holy See in world affairs is an essential characteristic of its continued authority and unique status. No other religion possesses this characteristic, and any attempt by another religion to establish a similar state would not find the international acceptance and authority enjoyed by the Holy See.

   Part II of this Note explores the historical background and current international status of the Holy See, the Vatican City, and the Roman Catholic Church. Part III looks at the Montevideo Convention's definition of a "state" in international relations and applies it to the Vatican City. Part IV discusses the requirements that the international community has recently considered essential for recognizing an entity as a state. This Note concludes that while the Vatican City is certainly an exception to the traditional requirements for statehood, no other religion could attempt to use the Vatican City as a model for gaining acceptance in international affairs.

2. THE INTERNATIONAL STATUS OF THE HOLY SEE

   Before discussing the international status of the Holy See, it is essential to examine the historical background and development of the Holy See as a person under international law. The Holy See, Vatican City, and Roman Catholic Church are so interrelated that they must, at least in part, be defined in terms of each other. The Pope is simultaneously the head of the Holy See and the absolute leader of the Church.(5) The Pope is also the temporal(6) ruler of the State of the Vatican City.(7) When the Lateran Treaty established the State of Vatican City in 1929, it was intended to be clearly distinct from both the Holy See and the Roman Catholic Church.(8) The Holy See acts as the supreme organ of government of the Church;(9) the Holy See is to the Church what the government is to a state.(10) As such, the Catholic Church and the Holy See are actually two entities that must not be confused.(11) In both the Church and the Vatican City State, the Pope is the absolute leader in religious, administrative, diplomatic, and political matters.(12) The Pope is the last absolute monarch, for he exercises unlimited power in all matters pertaining to both the Church and the Vatican City.(13)

   1. The Authority of the Holy See Prior to 1929

      The territorial aspects of the Holy See's power developed gradually over the last two millennia.(14) Beginning with bequests of land, the recognition of the Church as a corporate body by the Roman Emperor Constantine in 395 AD served to increase the wealth of the Holy See.(15) After crowning Charlemagne the Holy Roman Emperor, the Papal lands gained powerful protection.(16) During the tenth and eleventh centuries, the Ottonians held practical control over the Pope's territory, even though he remained theoretically supreme.(17) After this period the Pope was periodically threatened with attack, but it was not until 1807 that Napoleon I of France invaded the Papal States.(18) By this time the Papal States included a large part of central Italy, including the city of Rome.(19) Napoleon annexed the entire Papal States in 1809.(20) A period of international uncertainty with regard to the Pope and his status as a temporal sovereign followed, until the Pope was returned to Rome in 1850, this time under the protection of Napoleon III of France.(21) The French troops were withdrawn in 1870, however, and the territorial sovereignty of the Pope was once again threatened.(22)

      From the Eighth Century until 1870 the Pope had almost constant rights of temporal sovereignty(23) as a head of state.(24) In addition to the Pope's spiritual authority as the head of the Roman Catholic Church,(25) the Pope was also the monarch of the substantial territory of the Papal States.(26) On September 20, 1870, an Italian army occupied Rome, and Italy annexed the Papal States.(27) Since the Pope could no longer be considered a territorial sovereign, the status of the Pope became known as the "Roman question."(28)

      Italy, itself a predominantly Roman Catholic nation, was forced to create a position whereby the Pope could retain his importance as head of the Church.(29) The Law of Papal Guarantees, enacted by the Italian parliament on May 13, 1871, provided that the Pope could retain free use of the Vatican and the Lateran palaces.(30) The person of the Pope was sacred and inviolable, and any offense against the Pope would be treated in the same manner as an attack on the King of Italy.(31) The Holy See retained aspects of sovereignty, as the Pope's consent was required to enter the otherwise inviolable territory of the Vatican.(32) In addition, the Pope retained freedom of communication and full authority to send and receive diplomatic missions in the name of the Holy See.(33) Pope Pius IX and subsequent Popes, however, were never satisfied with the Law of Guarantees. They protested by objecting to any Catholic sovereign who visited the King of Italy and remaining within the Vatican territory at all times, never stepping foot onto other Italian soil.(34) The Pope retained his spiritual authority as head of the Church, but his temporal sovereignty had been terminated.(35)

      The tension between the Holy See and Italy grew to be intolerable and was not resolved until the Lateran Treaty in 1929. The Holy See, however, held a special position in the international community long before the Lateran Treaty was signed.(36) Since the early Middle Ages, the Pope had taken part in the international community based upon his spiritual sovereignty as head of the Church, not necessarily tied to any notion of temporal sovereignty with respect to a specific territory.(37) The Holy See demonstrated this status by its existence and operation in international law as the personification of the Church, where it negotiated agreements and treaties with other international subjects.(38) The Holy See also continually exercised the right of legation, commissioning persons to exercise diplomatic functions with the governments of other states on behalf of the Holy See.(39)

      The 1815 Protocol of Vienna recognized papal diplomats as having the same rank as ambassadors from other states under general international law.(40) While the Papal State, as a party under general international law, came to an end when Italy annexed the territory, the Holy See retained its status under international law after 1870.(41) Following the Italian annexation, the Holy See continued to conclude concordats and other diplomatic agreements, and a majority of states respected the Holy See's authority to send and receive ambassadors.(42) State representatives to the Holy See included not only the Catholic states, such as France and Spain, but also Protestant states such as Germany, Great Britain, and Switzerland, and Greek Orthodox states including Russia, Greece, and Yugoslavia.(43)

      The function of...