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CRC Concluding Observations on the Holy See

Published on February 5, 2014        Author: 

The UN Committee on the Rights of the Child released today its concluding observations on the second periodic report of the Holy See. The report is making waves in the media because of the Committee’s very strong condemnation of the inadequacy of the Catholic Church’s response to the sexual abuse of children by its clergy all over the world. The full report is available here, and has many points of interest. The first, and indeed the most crucial from the standpoint of public international law, is how the Committee defines the scope of the Holy See’s obligations under the Convention, in para. 8:

The Committee is aware of the dual nature of the Holy See’s ratification of the Convention as the Government of the Vatican City State, and also as a sovereign subject of international law having an original, non-derived legal personality independent of any territorial authority or jurisdiction. While being fully conscious that bishops and major superiors of religious institutes do not act as representatives or delegates of the Roman Pontiff, the Committee nevertheless notes that subordinates in Catholic religious orders are bound by obedience to the Pope in accordance with Canons 331 and 590. The Committee therefore reminds the Holy See that by ratifying the Convention, it has committed itself to implementing the Convention not only on the territory of the Vatican City State but also as the supreme power of the Catholic Church through individuals and institutions placed under its authority.

This paragraph is the necessary starting point for practically all of the analysis that follows, and indeed the representatives of the Holy See have already put it into question (see the second para.). The Committee is essentially saying that the Holy See doesn’t merely have obligations under the Conventions towards children within the Vatican City limits – if there even are any – but also towards the millions of children whose lives are affected by individuals or institutions under Church authority, be it local priests or Church-run schools. This is, in other words, a massive claim on the Convention’s extraterritorial application, and if I’m not mistaken this is the first time it has been made so explicitly by a treaty body with respect to the Holy See. Note in this regard that the Committee does not employ the language of the jurisdiction clause in Article 2(1) CRC, nor makes it clear under what theory exactly the Convention applies extraterritorially on such a scale.

The bottom line of the Committee’s approach is that if, for instance, there are reports of sexual abuse of children by Catholic clergy in Ireland, both Ireland and the Holy See have a positive obligation to protect and ensure the human rights of these children (see paras. 37-38, 43-44). In that sense the Committee’s report complements rather well the European Court’s judgment of last week in O’Keeffe v. Ireland (application no. 35810/09), in which the Court found that Ireland failed to protect a schoolgirl from sexual abuse by a lay teaching in a Catholic school. On the whole, the Committee’s findings with respect to the sexual abuse of children are quite damning – see, e.g., para. 29: ‘The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry.’

Outside the question of sexual abuse, the report’s many findings and recommendations frequently demonstrate a clash of worldviews between the obviously very progressive, human-rightsy Committee and some of the socially conservative beliefs of the Catholic Church. The Committee thus recommends the Holy See to review its position on abortion, contraception, sexual orientation, family diversity, etc. (Good luck with that.) In that regard, the bit I found positively entertaining (and oh-so-very-Jesuit) is the Committee’s recommendation to the Holy See to (paras. 22 & 24):

strengthen its efforts to make all the provisions of the Convention widely known, particularly to children and their families, through, inter alia, developing and implementing specific long-term awareness-raising programmes, and including the provisions of the Convention into school curricula at all levels of the Catholic education system using appropriate material created specifically for children. … The Committee urges the Holy See to provide systematic training on the provisions of the Convention to all members of the clergy as well as Catholic orders and institutions working with and/or for children, and to include mandatory modules on children’s rights in the teachers’ training programmes as well as in seminaries.

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25 Responses

  1. Jakob Cornides Jakob Cornides

    Thank you, Marko, for this analysis.
    As a Catholic, I probably have much more reason than non-Catholics to find the sexual abuse of children by Catholic clergy heinous and unacceptable. This he is for two reasons: first, because Catholic children obviously are at a greater risk of being abused by Catholic clergy than are other children, and second, because those abuse scandals turn the Catholic Church into a target for cheap and mean-spirited criticism.

    The UN Committee’s report is a perfect example. Many of the failures and abuses it mentions are undeniable – but it is equally undeniable that its real purpose is to attack the Catholic Church in general, and its teaching on matters related to sexual morality in particular. Well, one knows the ideologies that hold sway inside the UN bureaucracies, and fortunately one is not obliged to share them.

    I for my part am grateful for the fact that the Catholic Church is the one and only worldwide to defend the rights of children in a practical and comprehensive manner – including the right to life that the CRC paradoxically seeks to undermine. There may be cases of child abuse committed by priests – but as an institution the Church continues to possess an immensely greater moral stature than this pompous UN Committee.

  2. Max

    Thanks for the post and the comment. The more elementary point, though, is not the “obviously very progressive, human-rightsy” (Marko, forgivably) or “cheap and mean-spirited … pompous” (Jakob, not) Committee, but rather the simple terms of the Convention to which the Holy See has bound itself.

    One can understand – if not, again, particularly tolerate – a doctrinally or even perhaps divinely inspired reluctance to review canon law for compliance with the Convention but, on the basis that that law is transjurisdictional and within the control of the leadership of the Holy See, such reluctance is incompatible with adherence to the Convention.

    This may reflect, as Marko puts it, a clash of worldviews – but not of ideology. Rather the clash arises at the more fundamental (and legal) level that regardless of whether the See (and, without wishing to be unfair, Jakob) might see its law as beyond external scrutiny or criticism, the Committee – not only on its own terms but for reasons as simple as art 27 VCLT – must disagree. Such straightforward matters as whether the See continues to uphold gender stereotyping may, to the cynical ear, suggest a wider objection to the subordination of women within the Catholic Church: but it is also required by art 2(1) of the Convention. Perhaps Professor Detter was not about to point that out when the Holy See ratified?

    As for Jakob’s other point, there is no polite response to the comment that “there may be cases of child abuse committed by priests” but that the Church continues to possess “an immensely greater moral stature”.

    Thanks again to Marko for noting the jurisdictional point – though I believe that this and other treaty bodies have pointed to transjurisdictional application of national law, for example the application of national laws governing civil status to nationals in other jurisdictions.

  3. Thank you very much for the insightful post, Marko! As to the jurisdictional point: If one accepts the premise of the Committee that the Holy See did not only ratify the Convention in its function as the government of the Vatican City State (as a state under international law) but also in its capacity as an independent legal personality under international law, then the holding of the Committee does not seem to be a general claim as to the extraterritorial applicability of the Convention. After all, the Holy See – again: not as the government of the Vatican City State but as an independent legal subject – is construed as a non-territorial subject, so any jurisdiction exercised by the Holy See in this capacity is necessarily non-territorial. The Holy See as such simply does not have any territorially defined jurisdiction. By contrast, the (few) children and other people living in Vatican City are subject to the territorially defined jurisdiction of the Vatican City State, as a state under international law.

    One may debate the scope of the non-territorial jurisdiction of the Holy See. But it seems to me that the fact that the Holy See does exercise non-territorial jurisdiction and in doing so is bound by the treaty obligations it entered into can hardly be debated. After all: What would be the point of having the Holy See sign and ratify human rights treaties (in its capacity as a non-territorially defined international legal subject) when the substantive provisions of those treaties only apply with regard to territorially defined jurisdiction that the Holy See does not exercise? The extraterritorial application of the Convention by the Committee therefore seems to be due to the special characteristics of the Holy See as a non-territorially defined, traditionally recognized international legal subject.

  4. Marko Milanovic Marko Milanovic

    Thanks a lot for the comment Mehrdad – your point is well taken, but of course it depends on whether one accepts the basic premise, i.e. that the Holy See ratified the Convention BOTH as the territorial government of Vatican City AND as a non-territorial, sui generis international entity, AND that the terms of the Convention itself can apply to such an entity (note e.g. the Convention’s many references to states parties, its provisions on being open to signature and accession to states, etc). I’m not saying that this premise is incorrect, but it’s certainly non-obvious and the Committee’s one paragraph doesn’t do it justice.

  5. Nevena Vuckovic Sahovic

    Dear Marko, thanks for the post. I will write in English, so that other commentators can understand. I was very happy and appreciated the Concluding Observations to the Holy see on both the CRC and OPSC. The COBs on the OPAC are short and simple and not significant for this discussion. To my shock, Serbian national television aired the news on the COBs yesterday in prime time, as though “unwrapping” Vatican. Ironically, no TV in Serbia ever commented on any sets of a TB recommendations to Serbia, let along the CRC Committee’s.
    Wrongly, our TV (but also other media, such as Guardian) presented the COBs as “UN report”, which reflects the absence of basic knowledge (and probably lack of interest) in human rights mechanisms.
    The COBs to the Holy See are very brave, in particular on the family issues. Actually, the CRC Committee has never (to my knowledge) issued a recommendation on “social stigmatization of and violence against lesbian, gay, bisexual, and transgender adolescents..”. The other observations and recommendations that other commentators mention are also very important.
    This set of recommendations will be a very important source for addressing similar issues overlooked by other religious and ideological groups.
    On jurisdiction: ever since the entry into force of the OPSC, the Committee developed a kind of support to the idea of extraterritorial jurisdiction, in particular when it comes to the crimes such as the sale of children, child prostitution and child pornography. The CRC Committee believes that universal ratification of the CRC justifies such a “holistic” approach to implementation.

  6. Jakob Cornides jakob.cornides

    Max, I indeed think there is no argument to rebut the remark I have made. It may displease you, but the Catholic Church does charitable work that concretely saves and improves the lives of many millions of children across the world. On the other hand you have a UN Committee that uses regrettable misbehaviour of individual clergy and employees as an occasion to erect itself as a supreme moral instance on whether the Church should be allowed to maintain its doctrine on issues such as abortion, contraception, homosexuality, and what not. This is just ridiculous.

    The report is based on a fundamental misunderstanding not only of the CRC’s own competences, but also on what the Holy See is, and what role it plays within the Church. A child abuse case (or any similar circumstance) that takes place in a given country falls within the competence of that country: it needs to adopt measures to prevent abuse, and enforce them. If a priest in Ireland molests children, then the first responsibility for that is with the priest – and, on the level of international law, with the Irish Republic, which apparently has not adopted or enforced the legislation that was necessary. The Holy See, by contrast, has little possibility to intervene. It is not the employer of that priest, who, in fact, is (usually) an employee of the local diocese, i.e. a body established and operating under the law of the country concerned.

    So, how does the Holy See enter here (if it is not, as Marko has pointed out, about child abuse cases that take place on the territory of the Vatican itself)? It could be said that the Holy See holds spiritual authority over all priests, and indeed over all faithful. If you embrace that kind of theory, then of course the UN Committee could hold the Holy See for every tax fraud, bank robbery, or car accident, as long as the perpetrator happens to be Catholic. But it would still have to demonstrate that the Holy See is instructing Catholics to commit child abuse, tax fraud, bank robbery, etc. – which is of course an absurdity.

    What links priests to the Holy See is the commitment to a common spirituality. In that sense, the situation is similar to the membership of a political party or cultural association. But the president of such a party or association usually is not held responsible for all and everything that is done by its members.

    The problem is not that child abusing clergy etc. have followed the moral teaching of the Church, but that they regrettably have failed to do so. Indeed, while the Church has always publicly defended the virtue of chastity, or the respect for human life as from the moment of conception, the CRC’s report shows clearly that the UN works to undermine both. That is why I say that the Church has an immense moral standing, which the UN has not.

    Let me just illustrate the CRC’s hypocrisy with one other example. In §§ 58 ff of its report, the CRC addresses instances in which “babies have been forcibly withdrawn from their mothers by members of Catholic congregations in a number of countries and subsequently placed in orphanages or given to adoptive parents abroad, as was the case notably in Spain and in the Magdalene laundries in Ireland”.
    This raises some questions. First and foremost, those allegations seem to relate to cases that took place long before the Convention on the Rights of the Child was negotiated or entered into force, and thus seems to be far outside the scope of the Committees’ competences ratione tempore (in the case of Spain, those abductions must have ended in the 1970s at the latest!). Second, it was not the Church that has “forcibly withdrawn” those babies from their mothers (it would hardly have had the power to do so!), but it was the public authorities of the countries concerned. The right addressees for the Committee’s criticism would therefore be the Spanish or Irish Governments. However, one is not aware of the CRC having recently criticized Spain and Ireland, or Germany and Russia (given that the USSR or the GDR had similar, albeit much more brutal, ways of dealing with the children of dissidents…) with regard to any such case. No, it is the Catholic Church, and it alone, which is pilloried.

    Third, and perhaps most important: if the CRC was really concerned about the right of children to know, and be raised by, their natural parents, then it would have to say something about the practice of using donated sperm or ovular cells for purposes of medically assisted procreation, including for single and lesbian women. This practice today occurs in many “civilized” countries, but it involves a deliberate planning that implies that the children concerned are from the very outset deprived of their right of knowing, and being raised by, both natural parents. The Catholic Church is the only major social institution to criticize this practice, which is a clear violation of children’s rights. But what does the CRC have to say in this regard? Has it ever criticized any of the countries that allow or tolerate this practice? No, it hasn’t. Instead, it criticizes the Holy See for “not recognizing the existence of diverse forms of families”, which may be interpreted as a reference (inter alia) precisely to those artificial “families” with two moms and no father. In other words, the CRC is itself fighting against the principles it pretends to pretend.

    Indeed, there is a “clash of worldviews”. But by too openly adhering to one particular worldview, the CRC undermines its own standing as a supposedly impartial treaty monitoring body.

  7. Thanks for this Marko. I was confused by the reporting when this story came out – is this really the first time the issue of the CRC’s wider application to the activities of Catholic clergy outside the Holy See has come up?

    They do seem to be trying to play both ends against the middle – they explicitly ratify certain treaties in order to promote their moral authority and encourage other state parties to ratify them too. And equally resist other treaties, eg the CRPD when they are inconsistent with Church teaching and actively intervene (as they have in the US) to dissuade other states from ratifying the measure. They do seem to have some difficulties with the idea of universal…

    And they appear to have exercised deliberate caution with the CAT by registering an Interpretative Declaration specifying it only applied to the Vatican and nowhere else – presumably if a priest does any torturing anywhere else that is a matter for the state he is in but not the Holy See. That seems to imply that at some point between 1990 when they ratified the CRC and 2002 when they ratified the CAT they at least anticipated the issue.

  8. Austin Ruse

    I will leave aside the question of whether the Vatican City State is responsible for things that Catholics do in other countries (if the Vatican is responsible for what happens in other countries, then shouldn’t the Vatican get a say in other aspects of that country’s public policy?)and focus instead of how the committee went well beyond the scope of the treaty in a number of other ways.

    First, the treaty is utterly silent on abortion, even silent on abortion’s stalking horse, reproductive health. Yet the committee told the Church to change her teaching — the committee referred to it as the Church’s “position” as if it is a public policy question — on abortion.

    Second, the treaty is silent on anything related to homosexuality. Yet the committee upbraided the Church for causing violence against homosexuals.

    Third, the treaty is silent on contraception, and silent on reproductive health. Yet the committee tells the Catholic Church to change its teaching on contraception.

    Put aside the outrageous notion that a UN committee with no real authority has directed a religion to change her teachings, and focus on how far beyond the treaty the committee has wandered. This has a profoundly bad effect on respect for genuine human rights.

    No matter how anyone may feel about the teachings of the Catholic Church or how the Church has responded to the sexual abuse crisis, all those who care about a proper understanding of international law and human rights, must reject this report and this committee.

    Yours,

    Austin Ruse
    President
    C-FAM
    New York/Washington DC

  9. Marko Milanovic Marko Milanovic

    Nevena and Nell, thanks for both of your comments. I agree that the Holy See must have been aware of the scope of human rights treaties issue, and probably had very good legal advice. As I said, the scope question is uncertain and could be argued both ways.

    Jacob,

    While we welcome many different views here on EJIL: Talk, could I (very gently) ask you to be in less of a rant-mode when posting comments? In particular, some of your conclusory statements are more assertions than arguments (e.g. that assisted procreation for lesbian couples is supposedly a ‘clear’(!) violation of child rights), while others are patently false. The relationship between the Holy See and the Roman Curia to the priesthood across the globe is most definitely not one of mere ‘spiritual authority.’ The Church is a highly centralized, hierarchical institution that has existed as such for many centuries. And it is a matter of objective and frankly non-debatable factual record that as an institution it had for decades turned a blind eye to systematic sexual abuse of children within its ranks.

    The problem, in other words, is not that an X number of priests sexually molested children, but that the Church as institution did not do enough to prevent such practices and facilitate their punishment. The moral responsibility of the Church leadership seems equally uncontestable. What is is in doubt is whether the Holy See is responsible in international law for some of these failures, and this is partly what I tried to raise in this post with regard to the CRC.

    It is also patently false that the Church is somehow the victim of persecution by hypocritical, vigilante human rights activists. When it comes to the Magdalene laundries issue in particular, this was not the subject of the CRC’s previous observations on Ireland because the main inquiries within Ireland on this were not yet complete at the time. The 2006 concluding observations certainly did mention the issue of child abuse (para. 36-37). In the Holy See observations, the CRC also refers to the CAT observations from 2011 which did explicitly refer to the Magdalene laundries situation (para. 21) and other instances of child abuse. The idea that human rights treaties bodies criticise the Church but not states is factually wrong, and I’m sure the CRC will deal with Magdalene laundries in its next report on Ireland. Note also the recent decision of the European Court against Ireland cited in my post.

    Austin,

    Just two points. First, you are right that some of the Committee’s recommendations go beyond what the treaty itself requires. (Although for example Art 2(1) CRC prohibits discrimination on the basis of ‘any other status’, which would include sexual orientation under the unanimous view of all human rights institutions). But in exercising their monitoring and reporting function UN treaty bodies are NOT limited in recommending only those things that the treaties strictly require, and they’ve never confined themselves so. Rather, they provide non-binding views on best practices to achieve the broader goals of the treaty, which states have to take into account but don’t have to follow. You may disagree with the Committee’s views, but it would be very hard indeed to argue that it acted ultra vires in any way.

    Second, re your point on a UN committee ‘directing a religion to change its teachings’, please note the non-binding nature of a recommendation, as well as the fact that the Holy See is not just any religion, but the government of a (mini-)state that of its own free will ratified an international treaty which gave the Committee its authority, as well as a sui generis international legal entity because of its historical position in the European public order. No other religious community has a similar international standing, and this is something that the Church itself wants and claims – but that position also comes with certain responsibilites.

  10. Nevena Vuckovic Sahovic

    Thanks Marko,

    in addition to what you just wrote on the issue of strict adherence to the wording of the treaties: Of course no treaty is comprehensive and it should not be! Where would the European Court of Human Rights’s jurisprudence be if it only confined to the wording of the European Convention. the CRC does not mention child marriages: does it mean that the CRC Committee should not address the issue? Or, for example HIV/AIDS? Or information technologies and violence? Or violence in sports? No one ever complained when the CRC Committee raised such issues. Until now.

    The States parties to international treaties are supposed to respect treaties they are members to, so it is the rule that applies to all. Normally, no State is happy with any recommendations of any HR monitoring mechanism. Exercise of human rights and implementation of ratified treaties often involve conflict of interests, but such conflicts always have to be resolved in the framework of law and in the best interests of individuals (including every child). The CRC Committee based its recommendations to the Holy See on the State report and subsequent information, as well as on other, independent sources’ reports, after a year long process and a day long dialogue with the delegation from the Holy See. So, that’s reality – different stakeholders see things differently, including legally binding issues. Maybe it is not the best mechanism, maybe some factual mistakes are possible, but i is very good that we have it since it has contributed so much to the advancement of human rights around the globe.

  11. Austin Ruse

    Marko,

    First, a question: What “human rights institutions” have determined that “any other status” refers to sexual orientation? It sure isn’t the states parties to the Convention on the Rights of the Child, or the Human Rights Committee, or the General Assembly…or any other authoritative body of the UN. So, who has made this decision? I note you say there is “unanimous” agreement of all human rights institutions. Well, since the Human Rights Committee in Geneva has never said such a thing, even though this topic has been brought before them many many times, and it has always been rejected, it seems you may want to adjust your statement. But do provide for us a list of “human rights institutions” that have determined “any other status” refers to sexual orientation.

    You further suggest that this treaty body is “NOT” limited to the four walls of the treaty. In fact, under the terms of the treaty that established the committee, they are. You may agree with the conclusions of the committee, but it would be hard to argue that they have acted in any other way than ultra vires.

    The San Jose Articles are helpful in this regard: http://www.sanjosearticles.com

    Lastly, it appears you are unhappy with a sovereign personality that has been sending diplomatic legations since the 4th century is a member of the United Nations, and you don’t like its size. You are not alone, but then again no member state agrees with you, only rather smelly NGOs of the sexual left.

    The Holy See stands by its obligations under all its treaties, but this committee has no right to establish new obligations. The fact that they try is the reason the treaty monitoring system is under serious review by member states.

  12. Austin Ruse

    The lady above says, “No one ever complained when the CRC Committee raised such issues. Until now.”

    She has simply not been paying attention if this is what she asserts.

    I do believe you would be singing a different tune if the committee determined that gay adoption, for instance, was a violation of the treaty. I would bet that all your fine theories would then be out the window.

  13. Marko Milanovic Marko Milanovic

    Austin,

    May I please ask you to keep the tone of your comments civil. If you again use a phrase like ‘smelly NGOs of the sexual left’ you will be immediately and permanently banned from commenting on this blog.

    In response to the substance of your comments, some human rights bodies have read ‘other status’ to include sexual orientation, others have treated discrimination on the basis of sexual orientation as a form of discrimination on the basis of sex. This has been the position of the Human Rights Committee since the famous Toonen v Australia case. And in Young v. Australia, para. 10.1, the Committee remarked that:

    “The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. (20) It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. (21) It transpires from the contested sections of the VEA that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a “marriage-like” relationship) fulfill the definition of “member of a couple” and therefore of a “dependant”, for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.”

    So there. The CESC, CEDAW, CRC, have all affirmed the prohibition of the discrimination on the basis of sexual orientation, and the European Court treaties sexual orientation as a suspect classification which requires particularly weighty reasons to justify a distinction (e.g. Karner v. Austria). Please Google away for the exact references.

    As for the rest of your comments, you seem to misunderstand what I have been saying. Treaty bodies frequently recommend to states to ratify other human rights treaties. Obviously such ratification is not REQUIRED by the treaty applied at the time. But the treaty body is still free to make that recommendation, and the state is free to reject it. It is only when examining individual communications that treaty bodies are bound by the four corners of a treaty, because their task then is precisely to determine whether the state has violated the treaty. And a decision that gay adoption violates a treaty would in my view be substantively wrong, but it wouldn’t be ultra vires.

    And I most certainly have nothing against the Holy See, or its claim to statehood, or its membership in any treaty or in any international organization. What I said is that your argument that treaty bodies can’t say to a religion what it’s supposed to do is a red herring, since this particular religion is an international legal person which voluntarily accepted certain obligations under international law, unlike all other religious communities on Earth. Please read what other people write more carefully.

    Finally, in that regard, the ‘lady above’ is a well-respected former member of the CRC, and I think she is pretty well-informed. Again, please try to be more respectful if you wish to continue commenting on this blog, which is forum for serious, sober scholarly discussion, not for the advancement of alternative agendas.

  14. Jakob Cornides Jakob Cornides

    Dear Marko, in all humility, I do not think I’m in a “rant-mode” if I criticize the CRC for its report. In particular, it is difficult to see how you can say that my conclusion re. assisted procreation for lesbian couples is not argumented. Read my contribution again, and you will see that the argument is developed over two full paragraphs, and actually builds upon what the CRC has said. But I can of course repeat it (not in a “rant”, but for you to follow):

    The CRC says (and in this instance, correctly) that it is a violation of childrens’ right to “forcibly separate babies from their mothers”.

    (I leave now aside the question why the CRC refers to facts that occurred more than 40 years ago, and why it has never raised similar concerns with the Governments of the countries that were actually responsible. You certainly have given us a very convincing answer on that, haven’t you. Idem, I agree, as I believe I’ve made clear, that if a priest or bishop was actively involved in this, he bears personal responsibility. But that is not the question here.)

    Now, if it is wrong to “forcibly separate babies from their mothers”, then it is equally wrong to forcibly separate them from their fathers. But that is exactly what assisted procreation for lesbian couples involves: it involves a deliberate plan to create prevent the child that is created in vitro from having contact to, or being raised by, its father.

    You may not like this argument, but you should not say that it isn’t there.

    Furthermore, how and when have I debated the fact that the Church has (not as a central organization, but in its local branches) “turned a blind eye to child abuse”??? I have not denied this at all.

    Again, I must ask you (politely, but nevertheless) to read more carefully. I do not debate the fact that child abuse has taken place, or that more might have been done to prevent it. But what do you mean by “moral responsibility” of Church leadership? The Church’s practice in sending abusers from one parish to another may appear regrettable in hindsight, but is not different from what, alas, many other institutions did. At the time, it appears, one was less aware of the lasting damages caused by child abuse – and one believed that child abusers, if admonished, would be able to make an effort to control themselves.

    Put it into a context: these were the Seventies and Eighties, when there was a general climate of “sexual liberalization”. Remember that the hypothesis of a de-penalization of paedophile relationships was openly discussed in the media, and promoted by politicians and social trend-setters such as Daniel Cohn-Bendit. And just one month ago, the European Parliament only narrowly rejected an initiative report which – indirectly, but nevertheless – promoted masturbation of children aged 0-4 as part of a commendable curriculum for “sexual education”.

    The Church was certainly not sufficiently resilient against this trend – but in fact it was, and continues to be, among all social institutions the one that showed the greatest resilience.

    Regarding the Magdalene laundries, it seems that the responsibility is in the first place with the Irish State, in the second place with the Irish Church hierarchy at the time – but I really fail to see the involvement of the Holy See as an institution. And I think that is precisely the problem here: a genuine lack of understanding what the Holy See actually is. If the Holy See is responsible for those laundries, then it can be held responsible for the (Catholic) Mafioso in Sicily, the (Catholic) war criminal in Hercegovina, or a (Catholic) spy in the USA. But do we seriously apply the same standards to other parties of the CRC? Where does it start, and where does it end?

    So, I’m afraid, my criticism is not “patently false”. I see it fully justified.

  15. Jakob Cornides Jakob Cornides

    Addendum:

    Marko, upon reading your last comment, I do not think you can say that this (or any other) religion “is an international legal person”. The Holy See is a legal person under international law. The Vatican State is one. But the Roman Catholic religion is not. It is a religion.

    And I think that this is precisely the problem. The CRC attacks a religion it dislikes (because of its “outdated”, hence unwelcome, views on various issues), which is clearly outside the scope of its mandate, however wide that mandate is understood.

  16. Jakob Cornides Jakob Cornides

    And yet another point: Nevena Vuckovic Sahovic, highly respected as she may be, is also one of the authors of the so-called “Yogyakarta Principles”, a document that subjects the entire corpus of human rights to a radical re-interpretation. With all due respect for her expertise, don’t tell me she hasn’t got an agenda.

  17. Austin Ruse

    Good golly, you threaten the “immediate and permanent” death penalty as if I have vexed you for ages. If might have been more civil on your side to offer a kind warning before going to the mattresses (Godfather reference).

    So the unanimous decision of “all human rights institutions” are in fact only treaty bodies? bodies that do not have the authority to go beyond the four corners of the treaties they monitor, as stated in the treaties that gave them life? Sorry, I along with probably the entire General Assembly disagree with you.

    I would further point out that the Human Rights Commission has never agreed to such a thing. Perhaps they are not a human rights institution to you. And let’s not even start with the fact that this definition has not been and never will be agreed to by the Human Rights Commission of the OIC, a body that represents 57 countries. So, like I said before, you may want to qualify your rather robust statement and understand your notion that “other status” includes sexual orientation is not accepted and not even close by most of the General Assembly.

    I have only read the report once and skimmed it a second time, but I do not think the committee recommended ratification of any other treaty, could be wrong, but I don’t think so. What the committee did was to direct the Catholic Church to change its ancient teachings on fornication, contraception, abortion and homosexuality. And I insist that none of these things are in the treaty and further the committee has no right under the treaty that established it, to do so.

    I read what you wrote pretty carefully and I simply reject your notion that the ancient and global Catholic Church is bound in any way by the ruminations of 18 so-called experts. In fact, it is profoundly insulting that they think they can opine in such a way. You should know the Church has been here a little bit longer than these “human rights institutions” and will be around quite a bit longer. We have buried many an empire, and we will bury this one, too.

    Lastly, on a less combative note; you care deeply about these things. You should consider the great harm that these bodies do to human rights. They turn them into a thing that can easily be ignored, into a joke. If abortion is a human right, then nothing is a human right. If unmarried adolescent sex is a human right, then nothing is. You and the gentle lady above should consider that you are profoundly harming your own cause and playing into the hands of those who violate genuine human rights.

  18. Austin Ruse

    I see Cornides is engaging on the question of IVF for lesbians. I would point out on that score that this current report criticizes the Church for allowing baby drop-boxes, where mothers who do not want their babies may place them for others who are there to help them. The basis for this criticism? That babies have a “right to know their parents”. If the committee really believes this, then they would also have to be against IVF in any form and not just for lesbians. But, of course the committee is just making things up as they go along. At least it appears that way to some of us who watch them closely.

  19. Nick Rog.

    Dear Marko,

    thank you for this insightful post. Coming back to the jurisdictional issue, how do you interpret the reservation made by the Holy See upon ratification:

    “c) [The Holy See declares] that the application of the Convention be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law (art. 1, Law of 7 June 1929, n. 11) and, in consideration of its limited extent, with its legislation in the matters of citizenship, access and residence.”

    It is not as obvious as the reservation to the CAT, where the Holy See specifically said that it is becoming a party to CAT on behalf of the Vatican City State, but could we not infer form the quoted language that the Holy See understands the CRC to apply only to the territory of Vatican City?

    Yours,
    Nick

  20. Marko Milanovic Marko Milanovic

    Nick,

    I agree that would be a reasonable inference. But one could also argue a contrario, that the reservation says that the Convention needs to apply flexibly to take into account the special nature of the Vatican City State, but that it says nothing about its application to the Holy See as a separate legal person.

  21. Nevena Vuckovic Sahovic

    Thanks everyone and in particular Marko for this lovely blog. It is my first time here and I am delighted to have had the opportunity to discuss the issue with people of such different standpoints. Now, it’s time for bed in this part of the world. I wish all the bloggers all the best. Marko, can I get in touch with you? I lost your contact details.

  22. Marko Milanovic Marko Milanovic

    Austin,

    I must say I find it positively fascinating that you seem to presume to speak for the Catholic Church, with your whole little pontiffical ‘we shall bury the empire of human rights’ spiel. Well, good luck to you too. Obviously you have every (human) right to believe whatever you want. And again, the CRC’s concluding observations are not legally binding, nobody says they are, and it is the Holy See itself that gave the authority to the Committee to ‘opine’ on its compliance and implementation of the Convention. Nor has the Holy See, though people who actually do have the authority to represent it, expressed doubts as to the expertise and good faith of the Committee’s members, as you seem to do.

    And may I just remind you that the Church has over the past couple of millenia had many ‘ancient teachings’ that it has thankfully dropped, from endorsing slavery, racism, and torture to enforcing its own dogmatic views on the nature of the Earth and the solar system. It is precisely its capacity to evolve that has allowed it to remain relevant. So while you may well advise human rights lawyers not to dilute and compromise the concept of human rights, you may also wish to contemplate whether you would have sat with Galileo’s accusers and judges or with his defenders.

    But again, this is a scholarly forum for discussing public international law, not the fate of the ancient and global Catholic Church. So while (without any apparent self-irony) you seem content to rely on the fact that the Organization of Islamic States hasn’t endorsed a prohibition of discrimination on the basis of sexual orientation, I still must inform you that the UN Human Rights Council, the successor to the late Human Rights Commission, had indeed done so – see resolution 17/19 (2001), with the Council “Expressing grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity.”

    With that said, I do not dispute that many states in the world continue to discriminate against gay people, want to do so, and do not accept the views of UN human rights bodies. That is a fact. Whether that fact is to be legally given any normative value is a different matter.

    Please do feel free to have the last word.

  23. Jakob Cornides Jakob Cornides

    Marko, please be CIVIL when writing on the blog you’re moderating ;-))

    Second, if you think the purpose of this blog is not to discuss the teachings of the Church, then don’t discuss them. And if you feel a pressing need to discuss them, inform yourself. This apparently is really not your field of expertise.

    But in a sense you are right. We should stick to the legal issues. And so should the CRC.

  24. Austin Ruse

    Agreed that the concluding observations are not binding. Alas they are not without effect. At least three High Courts and some Parliaments have cited their reckless comments as justification for changing laws on abortion. I believe the Spanish parliament used them to institute gay marriage. So, you see, they are important. But since you say they create new treaty obligations, voila, then you must have known that already!

    Tis true tis true the Holy See placed itself before this committee, but like many governments, finds it offensive when this and other committees go far beyond the mandate given to them by the States Parties when the treaty was created. It is irrelevant whether the Holy See or any of state has expressed doubt about committee members. Pssst…they actually have but perhaps you don’t know this since you seem to be an academic rather than a practitioner. Delegations have expressed grave doubts about committee actions, which is why the reform process has been taken away from the human rights apparatchiks by the Member States.

    The Church has never “endorsed slavery, or racism” and by the way “endorsement” — whatever that means — is certainly not the same thing as dogma. The Church did seem to approve torture and even practice it, but that has never been a dogmatic teaching of the Church. Customs and practices can and do change. Married priests, for instance. You probably think that is a dogma. it’s not. It’s a practice. They can change: we now have married priests. Dognmatic teachings don’t change. I suspect you are either not Catholic or fallen-away since you are trotting out little more than talking points about the Church without any real understanding. Trotting out Galileo? Please. You can do better than that. I suspect you really know much about that anyway, not much beyond considering it a handy stick to beat Catholics with.

    The reason I bring up the Human Rights Commission of the OIC is to demonstrate to you, as I did with the Human Rights Commission of the UN, that neither has ever defined “other status” as meaning homosexuality, and therefore your claim that there is “unanimous” agreement among — how did you put it, oh yes, “ALL HUMAN RIGHTS INSTITUTIONS” — talk about pontificating — is simply false. Yet I sense you still persist in such an obviously false claim. Do scholars always dig in their heals even when shown the obvious falsity of their assertions? Maybe so. I hire scholars but I am not one myself, so such things foreign to me.

    Dear Marko, your quote of the old Human Rights Council “Expressing grave concern at acts of violence and discrimination, in all regions of the world, committed against individuals because of their sexual orientation and gender identity” is not the same, not even close to your rather forceful claim that “other status” is unanimously defined as including homosexuals. Where is the phrase “other status” in that sentence anyway? Oh well, it does not matter……to you.

    See this is the reason so many are so suspicious of “human rights” lawyers, particularly those with agendas. There is this tendency to take language and twist it to fit the ideology.

    If this is the last word then then I must thank you for this kindness of the last word to a guest, and further thank you over all for treating a stranger so well! Jesus would be proud.