Questioning the Statehood of the Vatican

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The Pope will begin a State visit to the UK on Thursday Sept 16. In anticipation of this event, some are using the occasion to highlight the tragedy concerning the sexual abuse of children by catholic priests around the world and the failure of the catholic church to deal with this scandal appropriately. As was discussed on this blog earlier this year there were calls for the Pope to be arrested on his visit to Britain and to be tried at the International Criminal Court for crimes against humanity. As Marko and I pointed out the time, there are two significant obstacles to such a prosecution: (i) the Pope is a serving head of State with immunity from arrest and prosecution in other States (see my earlier post) ; and (ii) it would be difficult to argue that the crimes in question were committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’, under the chapeau of Art. 7 of the Rome Statute (see Marko’s post).

Those leading the charge in the calls for the prosecution of the Pope and in the more general campaign against the Papal visit include Geoffrey Robertson QC, a leading English barrister who was a Judge at the Special Court for Sierra Leone and Oxford Professor Richard Dawkins. A central part of that campaign is now a call for non-recognition of the Statehood of the Vatican. It seems that this non-recognition is regarded by the campaigners as important at two levels.

First of all, if the Vatican is not regarded as a State then both the Vatican and the Pope will be open to proceedings in national courts around the world. This is becaue both the Pope and the Vatican will lose the immunity international law accords to States and their serving heads of State. Geoffrey Roberston is the champion of this strategy. He has a recent article in the New Statesman in which he continues to argue against the Statehood of the Vatican. While reognising the widespread international recognition of the Vatican he says:

“that the Holy See is capable of having diplomatic relations with other states does not necessarily prove that it is a state itself, andsome international lawyers have pointed out that it lacks people, territory and other qualifications necessary to be judged objectively as a state in international law. If they are right, the Pope would not be “head” of a state and could be sued for the negligence in relation to the traffic in paedophile priests, which happened on his watch over the 24 years when he ran the CDF.”

I don’t know which international lawyers he is referring to but Robertson’s arguments about how Statehood is created are erroneous. The Vatican fulfills the criteria for Statehood in international law (despite its tiny size) and this is the view of leading international lawyers. I refer readers back to my earlier post where I deal with the arguments.

Dawkins appears to have taken a different tack. He no longer argues that the Vatican is not a State but now seems to argue that the Vatican should be derecognised and its Statehood somehow taken away. In a letter to the Guardian newspaper, published today, Dawkins and other prominent UK personalities argue that while the Pope is free to visit the UK as a religious leader and citizen of Europe, he should not be given the honour of a State visit. They accept that:

“as well [being] as a religious leader, the pope is a head of state,” but go on to argue that

“the state and organisation of which he is head has been responsible: Opposing the distribution of condoms and so increasing large families in poor countries and the spread of Aids; Promoting segregated education; Denying abortion to even the most vulnerable women;Opposing equal rights for lesbians, gay, bisexual and transgender people; Failing to address the many cases of abuse of children within its own organisation. The state of which the pope is head has also resisted signing many major human rights treaties and has formed its own treaties (“concordats”) with many states which negatively affect the human rights of citizens of those states. In any case, we reject the masquerading of the Holy See as a state and the pope as a head of state as merely a convenient fiction to amplify the international influence of the Vatican.”

As one of our earlier commentators pointed out the Statehood of the Vatican gives the Catholic Church a privileged position that no other religion has. But the question is whether it is possible to reverse that position and whether such a reversal would actually diminish the influence of the Vatican. It is not at all clear that the Vatican’s influence was increased in 1929 when the Lateran Treaty was signed. Probably the influence of the Vatican has declined rather than increased over that period of time. Also, in an age in which NGOs are very influential in law making it is not apparent that if the Vatican were simply an NGO it would be less influential in treaty drafting than the Vatican State. Afterall, the Vatican is not a UN member (see an earlier post and comments) but participates actively in discussions on matters on which it has interests. Sure the Pope would not have a “State” visit when he goes abroad but one would have thought that the Vatican would remain committed to influencing international law formation on certain issues.

Finally, Robertson argues in his article:

As part of its “sovereignty”, the Vatican claims the right, in all states where its Church operates, to deal with its priests and other “religious” under canon law – the set of ecclesiastical rules that includes disciplinary provisions for offences ranging from ordaining women and promoting heresy to having sex with children.

But the Statehood of the Vatican cannot shelter its priests from operating under the law of the State where those priests commit crimes. The church may have its law for dealing with these crimes but that law cannot exclude the ordinary criminal law of the country concerned. The States where these crime occured have territorial jurisdiction over these crimes. Also the church itself (not the Vatican State) would be liable to suit in those countries.

While the use of the Papal visit to raise awareness of the problems that may have been caused by the Catholic Church may be a good PR strategy the legal  points made by the campaigners are very weak indeed.

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David Goddard says

September 16, 2010

It is interesting that the campaign has latched onto statehood as a significant enabler in the spread of Catholicism when statehood, in itself, does little to assist nations many times the size of the Vatican to be heard on the World stage. There is nothing inherent in the Vatican's statehood that prevents other states from exercising their sovereignty over the activities of the Catholic church in their jurisdiction. Allowing child sex abuse to go undetected and unpunished is a failing of the state in which it was perpetrated; whatever influence the Vatican might be able to exert over other states in this regard depends not on its statehood but on its cultural infiltration.

Geoffrey Robertson QC says

October 12, 2010

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.