Geoffrey Robertson Responds on the Statehood of the Vatican

Yesterday Geoffrey Robertson QC responded to two earlier posts of mine (see here and here) in which I discussed the statehood of the Vatican and the question whether the Pope was immune from arrest (as a head of State) during his recent visit to the UK. His response was posted as a comment to my post but given its significance I have decided to post his comment in full.

I am surprised that Dapo should critique my views on Vatican statehood without reading them. Had he done so – they are set out in my book “The Case of the Pope – Vatican Accountability for Human Rights Abuse” – he would have recognised that much more common ground exists between us than he thinks, especially over the difficulty under the chapeau of Article 7 of the Rome Statute as a result of those meddlesome “Elements of Crime”.

Dapo’s statement that “it is not apparent if the Vatican were simply an NGO it would be less influential in treaty drafting than the Vatican state” is demonstrable incorrect. It is apparent, indeed flagrant, to anyone familiar with the UN and its NGO system, and the evidence is set out in Chapter 6 of my book. NGOs would kill, so to speak, to have the influence vouchsafed to the Vatican as a non-member state.

I was unimpressed by Dapo’s snigger over my statement that “some international lawyers had pointed out that it [the Vatican] lacks people, territory and other qualifications necessary to be judged objectively as a state in international law”. Ironically, his implication that this was incorrect and that “leading international lawyers” believe that the Vatican fulfils the criteria was refuted by letter to the Times on the very day of his posting, by Anthony Aust. Although not an academic (is this Dapo’s criteria for becoming a “leading international lawyer”?) Aust spent 35 years as a legal advisor at the Foreign and Commonwealth Office and is author of Modern Treaty Law and Practice (2000) and Handbook of International Law (CUP, 2005), second edition forthcoming. Aust wrote:

“Is the Vatican a State?

Sir, It is wrong for the United Kingdom to continue to recognise the Vatican as a state, have an ambassador to the Vatican, and accord the Pope a visit as a Head of State. This is irrespective of whether it is good or bad. The Vatican is a tiny area (110 acres) with a resident population of some 800 whose main purpose is to support the Holy See. The Vatican is not a member of the United Nations. It may be seen best for what it really is: a small part of Italy devoted to proselytising Roman Catholicism, which is an important religion but no more than that.”

As for academics, I’m afraid that Dapo has not done his homework. My New Statesman comment is amply supported by the list I give in para 132 of my book:

“The starting point – The Creation of States in International Law – began in 1976 as a doctoral thesis by James Crawford: his second edition remarks (understatedly) that “the legal status of the Vatican City has been the subject of much study and some controversy”. He still inclines to his earlier view that the Vatican City is a state but admits that some experts have denied this and that “the position of the Vatican City is peculiar and the criterion for statehood in its case only marginally (if at all) complied with”.(16) Professor Gillian Triggs, correctly in my view, concludes “The Vatican City does not meet the criteria for statehood” (17) – it has no accredited diplomats, for a start, and serves as a territorial prop for the Holy See which ratifies most of its treaties. Crawford considers that the relationship between the City and the See is “a matter for some perplexity” and cites “the best modern study” of the issue which concludes (correctly in my view) that “the Holy See is not a state in international law, but has an international legal personality of its own which permits it to take international actions such as the conclusion of treaties and the maintenance of diplomatic relations”.(18) Another leading textbook, International Law, sets out reasons to question “the reality of Vatican statehood”,(19) whilst the late Professor Ian Brownlie’s standard student textbook opines that the Vatican City claim is doubtful and the personality of the Holy See, as a politico-religious hybrid, is “even more difficult to solve” and can only be characterised by the way in which individual states relate to it. (20)”

Fn 16: Crawford, Creation of States in International Law, 221-5.
Fn 17: Triggs, International Law, 188.
Fn 18: Crawford, citing Jorri Duursma, Fragmentation and the International Relations of Micro-states: Self-determination and Statehood, 386-7.
Fn 19: O’Donnell, International Law, 290.
Fn 20: Brownlie, Principles of Public International Law, 64.

What “leading international lawyer” could be confident of Vatican statehood when the head of the Holy See’s permanent division at the UN admits:

“it struggles to be counted as a “real” state. Since 1870, it has had almost no real territory to defend. It has no economic or industrial interest in the usual sense of the term. It has almost no population….It has the Swiss Guards but no strategic defence to speak of…”

(Msgnr Leo Cushley, “A Light to the Nations: Vatican Diplomacy and Global Politics”, 2007 Harbigen Lecture)

Incidentally, I have never “called for the Pope’s arrest”, nor campaigned against his visit, other than by arguing that it would be better to have invited him as the head of a major church rather than as the head of a state.

I am grateful to Geoffrey Robertson for his response. I haven’t read his book (which was published after my first post and just a week before my second post) but I did read and cite his articles in the  Guardian and the New Statesman in the spring and summer of this year.

I do not have any particular desire to trade quotes with Mr Robertson since it is clear that there are writers who take opposing views on the Statehood of the Vatican. I cannot pretend the view I take is unanimously supported or that there is no support for Mr Robertson’s view. However, I do want to point out that the most of the authors he cites above do not actually support his point. He admits that Crawford is of the view that the Vatican is a State. But Crawford doesn’t just “incline” to this view. He considers the matter in detail, admits that the position of the Vatican is peculiar but says “peculiarity is not of itself a ground for denying statehood where other pfactors point to the opposite conclusion” (p. 223, The Creation of States in International Law). After examining the relevant factors and opposing views, Crawford concludes that ” it is clear that the Vatican is a State in international law, despite its size and special circumstance.” (p. 225) Duursma, cited by Crawford and Robertson, does say that the Holy See is not a State. However, as explained in a previous post and as is clear from Duursma and Crawford’s works, the Holy See is not precisely the same as the Vatican. Indeed Duursma is of the view that the Vatican is a State and consistently refers to it as such (see the pages cited by Robertson). Brownlie does say that the special functions of the Vatican make it doubtful that it is a State. But he says it “is proximate to a state” and “it is widely recognized as a legal person with treaty-making capacity. Its personality seems to rest partly on its approixamation to a state in function, in spite of its peculiarities . . . and partly on acquiescence and recognition by existing legal persons.” (64) Again he notes the distinction between the Vatican and the Holy See and says the personality of the latteris more difficult to solve.