Church or State? The Holy See at the United Nations.

Church or State? The Holy See at the United Nations. This special report by Center For Reproductive Law & Policy concludes that: " . . 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. . . 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. . . "

CENTER FOR REPRODUCTIVE LAW & POLICY
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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.

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