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The Status of the Holy See in International Law

Published online by Cambridge University Press:  20 April 2017

Josef L. Kunz
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Editorial Comment
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American Journal of International Law , Volume 46 , Issue 2 , April 1952 , pp. 308 - 314
Copyright
Copyright © American Society of International Law 1952

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References

1 Thus in two leading treatises: William Edward Hall (7th ed., Oxford, 1917), and T. J. Lawrence (7th ed., London, 1925).

2 Even Fenwick’s, Charles G. “International Law” (3rd ed., New York, 1948)Google Scholar discusses the problem briefly, only in relation to the City of the Vatican (pp. 124–125); and the full discussion in Oppenheim-Lauterpacht, International Law, A Treatise, Vol. I (7th ed., 1948, pp. 226–230), is not wholly free from ambiguous statements. Horace F. Cumbo’s study, “The Holy See and International Law,” The International Law Quarterly (London), Vol. II (1948), pp. 603–620, although written with the express purpose of clarifying controversial issues, defends the untenable thesis that the Papal State did not come to an end in 1870 and that, therefore, the state of the City of the Vatican is not a new state. He follows in that respect D’Avack, , Chiesa, Santa Sede e Città del Vaticano (Florence, 1937)Google Scholar. The brief statements are correct in Sereni, A. P., The Italian Conception of International Law (New York, 1943)Google Scholar, and Eoss, Alf, A Textbook of International Law (London, 1947), pp. 103–104 Google Scholar.

3 See, e.g., F. v. Liszt, , Das Völkerrecht (12th ed., Berlin, 1925), pp. 92–94 Google Scholar; Ernst Vanselow, Völkerrecht (Berlin, 1931).

4 See Fauchille, P., Traité de Droit International Public, Vol. I, 1st Part (Paris, 1922), pp. 727–756 Google Scholar; Knubben, R., Die Subjekte des Völkerrechts (Stuttgart, 1928), pp. 427–438 Google Scholar; Diena, G., Diritto Internationale (3rd ed., Milan, 1930), pp. 195–216 Google Scholar; Hold-Ferneck, A., Lehrbuch des Völkerrechts, Vol. I (Leipzig, 1930), pp. 238–246 Google Scholar; Strupp, K., Eléments du Droit International Public, Vol. I (Paris, 1930), pp. 44–49 Google Scholar; Fedozzi, P., Corso di Diritto Internationale (Milan, 1931), pp. 137–153 Google Scholar. In all these works, as well as in Oppenheim-Lauterpacht, op. cit., there are large bibliographies. The best, although a brief, discussion is now to be found in Verdross, A., Völkerrecht (Vienna, 1950), pp. 205–207 CrossRefGoogle Scholar, 211–213.

5 That is why the recent attempt by an Austrian writer (Brandweiner) to treat relations between Protestant churches in different countries as falling under international law, is legally untenable, because of being in contradiction with the practice of states. That is why the argument that American diplomatic relations could not be given to all churches, is not to the point. It is as if one would oppose American diplomatic relations with the new Kingdom of Libya, because they could not be given to the Arab communities of Algeria, Tunisia and Morocco.

6 Not the Catholic Church as such; not the Pope. The relation between the concepts of the Holy See and of the Pope are analogous to the relation in British constitutional law between the concepts of the Crown and of the King.

7 Contrary, e.g., to insurgents, recognized as a belligerent party.

8 Contrary, e.g., to the Sovereign Maltese Order which is only a person in particular international law. The status of its representatives is not based on general international law but only on recognition by the receiving states.

9 See, as to the international personality of international organizations, the statement of the International Court of Justice in its Advisory Opinion of April 9, 1949 (Reports of Judgments, Advisory Opinions and Orders, 1949, p. 179).

10 The Lateran Treaty of 1929 is a normal international treaty. Recently the Holy See signed and ratified the four new Geneva Conventions of 1949.

11 “Romanus Pontifex … habet supremam et plenum potestatem jurisdictions in universam Ecclesiam. Haec potestas est … a quavis humana auctoritate independent.” (Codex Juris Canonici, Canon 218, pp. 1, 2.)

12 Between 1920 and 1930 nine concordats were concluded with states, including Latvia and Prussia.

13 This is fully recognized by this country. See Secretary of State Fish to Mr. Cushing, Minister to Spain (Moore, Digest of International Law, Vol. I, p. 39), and Acting Secretary of State Adee to the American Minister to Costa Rica, April 29, 1908 (Hackworth, Digest of International Law, Vol. IV, p. 636).

14 A spokesman for the American Jewish Congress stated that “a Vatican Ambassador might become a disservice to the Roman Catholics in that the ‘princes of the church’ might be considered agents of another country and thus have to register as alien agents.” This remark is rather strange, since the leaders of American Zionism themselves warned that, after the independence of Israel, they must be careful not to become alien agents. The view is, furthermore, wholly untenable. “Cardinals,” wrote Secretary of State Hughes to Mr. Cunliffe-Owen on April 21, 1924, “are not accredited to this Government, and have no official status before this Government. They are merely officers of a church.” (Hackworth, op. cit., Vol. IV, p. 637.)

15 “Le Vatican est en effet le point de l’univers d’où l’on pent le mieux observer l’ensemble des évènements politiques mondiaux.” (Fauchille, op. cit., p. 742.)

16 See Coella, La Conferencia de Berlin, y la cuestión de las Carolinas (1885); P. de Andrade, Historia del conflicto de las Carolinas (1886); Selosse, L’affaire des Carolines (1886).

17 Giudice, Del, La questione Romana e i rapporti fra Stato e Chiesa fino alia Conciliazione (Rome, 1948)Google Scholar.

18 It is, therefore, not correct, as Oppenheim-Lauterpacht (op. cit., p. 228) states, that “the hitherto controversial international position of the Holy See was clarified as a result of the Treaty.”

19 The contrary position of D’Avack and Cumbo is legally untenable.

20 The statement in Oppenheim-Lauterpacht (op. cit., p. 229) is therefore incorrect: “The Lateran Treaty marks the resumption of the formal membership, interrupted in 1871, of the Holy See in the Society of States.”

21 Oppenheim-Lauterpacht, op. cit., p. 230.

22 Verdross, op. cit., pp. 87–88.

23 See Roberto Ago, Occupazione bellica dell’ Italia e Trattato Lateranense (1946).

24 Text in the New York Times, Dec. 25, 1951, p. 4.

25 Cansacchi, G. P., II Papa e la Società delle Nazioni (Turin, 1929)Google Scholar.

26 Not to the Pope; not to the state of the City of the Vatican. The phrase “American Ambassador to the Vatican” is merely a diplomatic one, just as we speak of the envoy to Great Britain as “the Ambassador to the Court of St. James,” or as French or Austro-Hungarian foreign policy was diplomatically referred to as the foreign policy of the “Quai d’Orsay” or of the “Ballhausplatz.”

27 E.g., at this time Egypt and Indonesia. At the end of 1951 forty-three states—the majority of states—were diplomatically represented at the Vatican.