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A Forerunner for International Organizations: The Holy See and the Community of Christendom—with Special Emphasis on the Medieval Papacy

Published online by Cambridge University Press:  24 April 2015

Robert John Araujo  and
John A. Lucal
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Extract

In 1920 James Brown Scott, the celebrated teacher, international law scholar and practitioner, published his pioneering book The United States of America: A Study in International Organization. His underlying thesis was that the historic evolution of the United States provided a model for the development of international organizations in which local sovereignty and autonomy are preserved but “a more perfect union” is sought. Scott made the distinction that the delegates to the Federal Convention of 1787 did not merge the States in a union, “but formed a union of States.” One of Scott's goals was to provide the delegates who would be convening at The Hague the imagination to consider a “Society of Nations” as a frame of reference that could guide their post-Great War deliberations. As he said:

The Society of Nations may not be willing, and indeed even with good will may not be able, to go so far now or at any time as have the States forming the American Union. But however many steps they may take or however few toward the closer Union, the experience of the framers of the Constitution who traversed the entire path should be as a lamp to their feet.

Type
Articles
Information
Journal of Law and Religion , Volume 20 , Issue 2 , 2005 , pp. 305 - 350
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2004

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References

1. Scott, James Brown, The United States of America: A Study in International Organization (Oxford U. Press 1920)Google Scholar. For a similar point advanced by Scott, see Doren, Carl Van, The Great Rehearsal preface xx–xxi (repr. of 1948 ed., Time Life Books 1976)Google Scholar. While noting that the parallel was not exact, Van Doren identified similarities between the Constitutional Convention of 1787 and the deliberations establishing the United Nations. Van Doren, preface xx-xxi.

2. Id. at 467.

3. Id. at 468.

4. See e.g. U.S. Const. Amends. I-VIII. On the statutory side, the Civil Rights Act of 1964, as amended, has laid the groundwork for international principles involving non-discrimination. See Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights xvii–xviii (Random House 2001)Google Scholar.

5. Maastricht Treaty Preamble (1992).

6. RebeccaWallace, International Law 58 (2d ed., Sweet & Maxwell 1992)Google Scholar. She then quotes from the Advisory Opinion of the International Court of Justice in Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174, 178: (Apr. 11) [hereinafter Reparation].

The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law,…, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States.

7. See e.g. Brownlie, Ian, Principles of Public International Law 61–62 (5th ed., Oxford U. Press 1998)Google Scholar.

8. See Hahn, Hugo J., ERUATOM: The Conception of An International Personality, 71 Harv. L. Rev. 1001 (1958)CrossRefGoogle Scholar.

9. As Hahn argued, “International organizations, then, are derivative, not original members of the international community. They derive their international personality from the assent of the original subjects of international law as the need or the inclination of the latter may be ….” Id. at 1050.

10. Article 4.1 of the U.N. Charter states, “Membership … is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” U.N. Charter art. 4, para. 1 (available at http://www.un.org/aboutun/charter/). Article 1 of the League of Nation's Covenant provided:

The original Members of the League of Nations shall be those of the Signatories which are named in Annex to this Covenant and also such of those other States named in the Annex as shall accede without reservation to this Covenant. Such accession shall be effected by a Declaration deposited with the Secretariat within two months of the coming into force of the Covenant. Notice thereof shall be sent to all other Members of the League.

Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as may be prescribed by the League in regard to its military, naval, and air forces and armaments.

League of Nations Covenant art. 1, para. 1-2 (available at http://www.yale.edu/lawweb/avalon/leagcov.htm#art1).

11. For general background concerning the evolution of international organizations see Leonard, L. Larry, International Organization 23–41 (McGraw Hill 1951)Google Scholar; Amerasinghe, C.F., Principles of the Institutional Law of International Organizations 1–6 (Cambridge U. Press 1996)Google Scholar. For a history of textual sources see The United Nations System and Its Predecessors vol. II (Knipping, ed., Oxford U. Press 1997)Google Scholar.

12. For an overview of the contributions of the medieval papacy and canon law to international legal development, especially in the realm of the western encounter with indigenous peoples see Muldoon, James, Popes, Lawyers, and Infidels (U. Pa. Press 1979)Google Scholar.

13. Ubi Arcano Dei Consilio (On the Peace of Christ in the Kingdom of Christ) No. 45 (Dec. 23, 1922). The Pope recognized that the influence of Christianity amongst people had limitations. Thus, he continued by acknowledging that, “It cannot be denied that in the Middle Ages this law was often violated; still it always existed as an ideal, according to which one might judge the acts of nations, and a beacon of light calling those who had lost their way back to the safe road.” Id.

14. Reparation, 1949 I.C.J, at 179.

15. For example, the International Labor Organization's deliberations in the General Conference, under article 3 of its Constitution, include not only member States but also delegates representing employers and workers.

16. However, as Professor Leonard notes, the Congress was not all that successful in doing much of anything other than enabling the leaders of the participating States the opportunity to get together as “the future of Europe was being decided.” Leonard, supra n. 11, at 31.

17. See generally Kirgis, Frederic L. Jr., International Organizations in their Legal Setting (2d ed. W. Publg. Co. 1993)Google Scholar.

18. Reparation, 1949 I.C.J. 174.

19. Id. at 179.

20. U.N. Charter, Art. 1.

21. U.N. Charter, Art. 3.1.a.

22. Resolution 94 (I) of 11 December 1946. See United Nations, Yearbook of the United Nations, 1947-48, at 206-214 (United Nations).

23. See GA Resolution A/RES/47/33, 25 Nov. 1992.

24. International Law Commission, Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, Art. 1(a), 21 March 1986.

25. Id. at Art. 1(b).

26. The International Law Commission is currently studying guidelines for reviewing reservations and interpretative declarations to treaties made by States and international organizations. In addressing international organizations as well as States, the ILC implicitly acknowledges the personality of these organizations to enter into binding international agreements. See e.g. Mr. Alain Pellet, Eighth Report on Reservations to Treaties, A/CN.4/535, May 27, 2003.

27. International Law Commission, supra n. 24, at Art. 27.2. A subtlety concerning this is raised by Art. 46.2 which states:

An international organization may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of the rules of the organization regarding the competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of fundamental importance.

28. The original Latin term Sancta Sedes is thus translated as “Holy See.”

29. For some history explaining the distinction between the Holy See and the Vatican City State see Fenwick, C.G., The New City of the Vatican, 23 Am. J. Intl. L. 371 (1929)CrossRefGoogle Scholar; Ireland, Gordon, The State of the City of the Vatican, 27 Am. J. Intl. L. 271 (1933)CrossRefGoogle Scholar.

30. For an overview of the Church's history in the realm of international politics and relations see Murphy, Francis X., Vatican Politics: The Metapolitique of the Papacy, 19 Case W. Res. J. Intl. L. 375 (1987)Google Scholar. Fr. Joseph Lecler's work provides a more detailed, historical approach. See Joseph Leder, S.J., The Two Sovereignties: A Study of the Relationship Between Church and State (Phil. Lib. 1952).

31. See generally The Catholic Encyclopedia (1910), General Councils (available at http://newadvent.org/cathen/04423f.htm).

32. Pope Leo the Great sent an emissary to the Council of Calcedon in 453. However, he also sent Julian of Cos as his legate to the Emperor in Constantinople to serve as the Pope's representative at court. See Kelly, J.N.D., Oxford Dictionary of Popes 44 (Oxford U. Press 1986)Google Scholar.

33. To this day, the Holy See continues this involvement of being in but not of the political world through Papal diplomacy; serving as an arbitrator or mediator in disputes between other sovereigns; entering into treaties, concordats, or other international agreements; and, participating in international organizations. See Archbishop Hyginus Eugene Cardinale, The Holy See and the International Order 34–35 (Colin Smythe 1976)Google Scholar.

34. At his only audience with the diplomatic corps accredited to the Holy See, Pope John Paul 1 stated on Aug. 31, 1978:

[O]ur activity at the service of the international community is also—we would say, chiefly-situated at another level, one that could be more specifically called pastoral and which belongs properly to the Church. It is a matter of contributing, through documents and commitments of the Apostolic See and of our collaborators throughout the Church, to forming consciences-chiefly the consciences of Christians, but also those of men and women of good will, and through these forming a wider public opinion-regarding the fundamental principles that guarantee authentic civilization and real brotherhood between peoples. These principles are respect for one's neighbor, for his life and for his dignity, care for his spiritual and social progress, patience and the desire for reconciliation in the fragile building of peace, in short all the rights and duties of life in society and international life ….

35. Cartwright, John Keating, Contributions of the Papacy to International Peace, 8 Cath. Historical Rev. 155, 160 (1928)Google Scholar. See Matthews-Giba, F., O.F.M., Religious Dimensions of Mediation, 27 Fordham Urb. L.J. 1695 (2000)Google Scholar.

36. Murphy, Joseph J., The Pontifical Diplomatic Service, 41 Ecclesiastical Rev. 1 (1909)Google Scholar.

37. See Graham, Robert A., S.J., The Rise of the Double Diplomatic Corps in Rome: A Study in International Practice (1870-1875) 1 (Matinus Nijhoff 1952)CrossRefGoogle Scholar. Fr. Graham's study also details the fact that sovereign States recognized the need to have two distinct legations in Rome—one to represent itself before the new unified Italian State and one to the Holy See. This circumstance developed in stages. Id. at 97. The significance of diplomatic exchange with the Holy See increased during this era as Fr. Graham noted:

In the following decades [after 1870] the growing European rivalries inevitably had their repercussions in the Vatican and made this diplomatic post more important than it had ever been when the Pontiffs were in peaceful possession of the Temporal Power. The outbreak of the First World War only confirmed this trend.

Id. at 101.

38. Wood, L.J.S., Vatican Politics and Policies, 128 A. Mthly. 398, 404 (1921)Google Scholar.

39. Id. at 405. Interestingly, this same commentator speculated in 1921 about a rapprochement between the Holy See and Italy which had stripped the former of the Papal States. Id. at 403-404. This reconciliation came about eight years later with the Lateran Treaty of February 11, 1929.

40. As Professor James Brown Scott stated, “The case of the Carolines [between Spain and Germany] is very famous and shows that the role of the Papacy in the settlement of disputes is not ended, if it be desired, as it was frequently and to good effect in times past.” Scott, James Brown, Sovereign States and Suits Before Arbitral Tribunals and Courts of Justice 95 (NYU Press 1925)Google Scholar. As Professor Scott further details, the Pope “gladly complied with their request to mediate between them, and in 1885 proposed a method of adjustment which, accepted by both and incorporated in a treaty, ended the difficulty.” Id. at 96.

41. See Eppstein, John, The Catholic Tradition of the Law of Nations 470–474 (Burns Oates & Washburn 1935)Google Scholar, in which the author catalogues thirty instances in which disputes between rival States were the subject of the Holy See's mediation or arbitration.

42. See Cardinale, supra n. 33, at 89.

43. As the preamble to the Covenant of the League of Nations states:

THE HIGH CONTRACTING PARTIES, In order to promote international co-operation and to achieve international peace and security by the acceptance of obligations not to resort to war by the prescription of open, just and honourable relations between nations by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another Agree to this Covenant of the League of Nations. (1919).

44. See Editorial Comment, The Pontifical Letter of June 11, 1911, on International Peace, 5 Am. J. Intl. L. 707 (1911)CrossRefGoogle Scholar. See The Pontifical Letter of June 11, 1911, reproduced in 5 Am. J. Intl. L. 214-215 (Supp.) (1911).

45. See e.g. the encyclical Ad Beatissimi Apostolorum (Appealing for Peace), promulgated on Nov. 1, 1914.

46. Encyclical of Pope Benedict XV, Pacem, Dei Munus Pulchierrimum (On Peace and Christian Reconciliation) No. 16, promulgated on May 23, 1920. For a further discussion of Benedict's activities in the pursuit of world peace see Gwynn, Denis, Vatican Diplomacy and Peace, Dublin Rev. 233 (04 1940)Google Scholar.

47. See e.g. Encyclical of Pope Benedict XV, Paterno lam Diu (On the Children of Central Europe), promulgated on Nov. 24, 1919.

48. See Encyclical of Pope Benedict XV, Quod lam Diu (On the Future Peace Conference), promulgated on Dec. 1, 1918.

49. See Encyclical of Pope Benedict XV, Pacem, Dei Munus Pulcherrimum (Peace, the Beautiftil Gift of God) Nos. 8 & 14, promulgated on May 23, 1920.

50. Id. at No. 17.

51. Id.

52. See Eckhardt, Carl Conrad, The Papacy and World-Affairs 260–261 (U. Chi. Press 1937)Google Scholar.

53. Security Council Resolution, S/RES/1483, 22 May 2003.

54. See New Catholic Encyclopedia vol. 2, 280 (Cath. U. Am. 1967)Google Scholar.

55. See Rhodes, Anthony, The Vatican in the Age of Dictators: 1922-1945 (Hodder & Stoughton 1973)Google Scholar for a comprehensive investigation of how the Holy See dealt with the totalitarian States of the first half of the Twentieth Century.

56. Encyclical of Pope Pius XI, Ubi Arcano Dei Consilio (On the Peace of Christ in the Kingdom of Christ) No. 7, promulgated on Dec. 23, 1922 (available at http://www.vatican.va/holy_father/pius_xi/encyclicals/documents/hf_p-i_enc_23121922_ubi-arcano-dei-consillio_en.html).

57. Id. at No. 25.

58. For some useful background discussion contemporary with the pre-World War II era see Dawson, Christopher, Religion and the Totalitarian State, 14 The Criterion: A Literary Rev. 1 (10 1934)Google Scholar, where the author concludes with the reflection, “The Church exists to be the light of the world …. A secularist culture can only exist … in the dark. It is a prison in which the human spirit confines itself when it is shut out of the wider world of reality.” Id. at 16; Reed, Douglas L., The German Church Conflict, 13 For. Affairs 483 (1935)Google Scholar.

59. For an important article contemporary to these events see Gwynn, supra n. 46.

60. Encyclical of Pope Pius XII, Summi Pontiflcatus (On the Unity of Human Society) No. 28, promulgated on Oct. 20, 1939 (available at http://www.vatican.va/holy_father/pius_xii/encyclicals/documents/hf_p-ii_enc_20101939_summi-pontificatus_en.html). A week after this encyclical was issued, The New York Times published two articles under the common banner Pope Condemns Dictators, Treaty Violators, Racism; Urges Restoring of Poland 1 (10 28, 1939)Google Scholar.

61. Pope Pius XI, supra n. 60, at No. 22.

62. Id. at No. 28. While exercising his diplomatic training in the language he used, the pope assuredly was addressing the evils of National Socialism when he noted the distressing “signs of a corrupt and corrupting paganism,” id. at No. 30, and how many were abandoning the teachings of Christ and “being led astray by a mirage of glittering phrases” and “bartering the truth that sets free, for error which enslaves.” Id. at No. 31.

63. Id. at No. 35. The pope elaborated on the meaning of our “common origin” when he quoted from St. Paul's letter to the Colossians, ch. 3, verses 10-11, that “there is neither Gentile nor Jew, circumcision nor uncircumcission, barbarian nor Scythian, bond nor free.” Id. at No. 48.

64. Id. at No. 60.

65. Id. at No. 72. As one trained in the law, Pius XII placed his understanding of the principles of international natural law as that “which regulate [peoples'] normal development and activity” and “demand respect for corresponding rights to independence, to life and to the possibility of continuous development in the paths of civilization; they demand, further, fidelity to compacts agreed upon and sanctioned in conformity with the principles of the law of nations.” Id. at No. 74. Pius saw the role of the Church in this struggle as one of informing consciences so

that the truth which she preaches, the charity which she teaches and practices, will be the indispensable counselors and aids to men of good will in the reconstruction of a new world based on justice and love, when mankind, weary from its course along the way of error, has tasted the bitter fruits of hate and violence.

Id. at No. 108.

66. See Kelly, supra n. 32, at 320-321.

67. Pope John XXIII, Christianity and Social Progress (Mater et Magistra) No. 80 (St. Paul Eds. n.d.) (available at http://www.users.qwest.net/~slrorer/ChristianitySocialProgress2.htm).

68. In his earlier encyclical Mater et Magistra (Mother and Teacher) promulgated on May 15, 1961, Pope John XXIII stated:

As regards the common good of human society as a whole, the following conditions should be fulfilled: that the competitive striving of peoples to increase output be free of bad faith; that harmony in economic affairs and a friendly and beneficial cooperation be fostered; and, finally, that effective aid be given in developing the economically underdeveloped nations.

(available at http://www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j-xxiii_enc_15051961_mater_en.html).

69. Pope John XXIII, supra n. 67, at Nos. 142-145.

70. Id. at 160.

71. Pope Paul VI, Address of Pope Paul VI to the United Nations, in Moment of Reflection: The visit to the United Nations of His Holiness Pope Paul VI, Oct. 4, 1965, at 9 (U.N. 01 1966)Google Scholar. The pope continued by stating:

We have been carrying in Our heart for nearly twenty centuries [a wish]. Yes, you do remember, We have been on the way for a long time and We bear with Us a long history; here We celebrate the end of a laborious pilgrimage in search of a colloquy with the whole world, a pilgrimage which began when We were given the command: “Go and bring the good news to all nations.” And it is you who represent all nations.

The pope's U.N. address reflected the Pastoral Constitution on the Church in the Modern World (Gaudium et Spes) that would be promulgated at the end of the Second Vatican Council on Dec. 7, 1965. While noting that Christ did not give the Church a “proper mission in the political, economic or social order,” the Pastoral Constitution also acknowledged that the Church has a function to be “a light and energy which can serve to structure and consolidate the human community …. As a matter of fact, when circumstances of time and place produce the need, she can and indeed should initiate activities on behalf of all men.” Gaudium et Spes, at No. 42 (available at http://www.newadvent.org/library/docs_ec21gs.htm (accessed Aug. 22, 2005)).

72. With regard to the Holy See's “transnational” aspect see Cardinale, supra n. 33, at 93-94, where Archbishop Cardinale makes an important explanation:

In recent years one finds the term supra-national often used as an attribute of the Church and the Holy See. This is to be understood in an entirely different sense from the meaning of the word used in a political context, where it is perfectly homogeneous. For this reason such an attribute should be applied sparingly and cautiously to religious bodies …. [They] are often referred to as supra-national rather than international entities in the sense that by their very nature they are not tied to any particular people, nation or form of political government but carry out a spiritual mission that is universal, i.e., directed to all mankind without distinction.

73. Pope Paul VI, Sollicitude Omnium Ecclesiarum (The Care of all the Churches), promulgated on June 24, 1969, repr. in App. 1 of Cardinale, supra n. 33, at 309-318.

74. Id. at 312. As Paul also noted:

while this dialogue aims at guaranteeing for the Church free exercise of its activity so that it may be able to fulfill the mission entrusted to it by God, it ensures the civil authority of the always peaceful and beneficial aims pursued by the Church, and offers the precious aid of its spiritual energies and of its organisation for the achievement of the common good of society. The trusting colloquy which thus begins when there exists between the two societies and official relationship sanctioned by the body of habits and customs collected and codified in international law makes it possible to establish a fruitful understanding and to organise an activity truly salutary for all. Id. (italics added).

75. Address of the Holy Father to the New Ambassador of the Republic of Ghana to the Holy See (May 25, 2000) (available at http://www.vatican.va/holy_father/john_paul_ii/speeches/2000/apr-jun/documents/hf_jp-ii-spe_20000525_ambassador-ghana_en.html).

76. Address of the Holy Father to the New Ambassador of New Zealand to the Holy See (May 25, 2000) (available at http://www.vatican.va/holy_father/john_paul_ii/speeches/2000/apr-jun/documents/hf_jp-ii_spe_20000525_ambassador-new-zealand_en.html).

77. Mr. Myron Taylor, who was the personal representative of President Franklin Roosevelt, continued in that capacity under President Truman. See infra n. 97.

78. See Russell, Ruth, A History of the United Nations Charter: The Role of the United States 1940-1945, at 509 (Brookings Inst. 1958)Google Scholar.

79. Id. These concerns expressed by the United States in the earliest stages of the U.N. have disappeared. Moreover, Secretary Hull was concerned about the ability of a State to contribute military assistance to peacekeeping activities. But an entity can contribute many other services to peacekeeping besides military personnel and hardware, and the Secretary's statement does not take account of this. See Sybesma-Knol, R.G., The Status of Observers in the United Nations 324–325 (Klewer 1981)Google Scholar, where the author points to the different circumstances of Liechtenstein, Germany after the Second World War, and the Holy See, but concludes that an important factor in granting Permanent Observer status is “international (political) standing.” She concludes by stating, “Normally however, observers from States [after mentioning Liechtenstein, the German Republics, and the Holy See] are fully accepted by UN members; they enjoy the usual diplomatic status, and there are no problems of representativity involved.” Id. at 325.

80. See United Nations Yearbook—1951, at 36 n. 55, & 527.

81. Id.

82. Id. at 520.

83. See Cardinale, supra n. 33, at 233.

84. United Nations Yearbook—1956, at 532.

85. See generally Araujo, Robert J., S.J., The International Personality and Sovereignty of the Holy See, 50 Cath. U. L. Rev. 291 (2001)Google Scholar.

86. Wallace, supra n. 6, at 76.

87. See Cardinale, supra n. 33, at 80, where Archbishop Cardinale suggests:

As a subject of international law, the Catholic Church is an atypical organism. That is to say, considering her particular purpose, the social means she employs to further this purpose and her peculiar nature and social structure, the Church cannot be put on exactly the same level as a State, or any other subject of international law. Hence her position is analogous to, but not identical with, that of a national State.

See Bathon, Matthew N., The Atypical Status of the Holy See, 43 Vand. J. Transnatl. L. 597 (2001)Google Scholar.

88. Brownlie, supra n. 7, at 64. See Shaw, Malcolm, Accord, Intl. L. 172 (1997)Google Scholar; Seyersted, Finn, International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend Upon Their Constitutions, 4 Ind. J. Intl. L. 1, 42, 61 (1964)Google Scholar.

89. See Crawford, James, The Creation of States in International Law 154 (Clarendon Press 1979)Google Scholar.

90. Id. In the context of the Holy See, Professor Crawford explains that, “The chief peculiarity of the international status of the Vatican City is not size or population—or lack of them—but the unique and complex relation between the City itself and its government, the Holy See.” Id.

91. See Bilateral and Multilateral Relations of the Holy See (available at http://www.vatican.va/news_services/press/documentazione/documents/corpo-diplomatico_index_en.html (accessed Jan. 31, 2005)).

92. See Crawford, supra n. 89, at 157, who argues:

Though some writers denied that the Holy See had any international standing at all after 1870, the true position is that it retained after the annexation of the Papal States what it had always had, a degree of international personality, measured by the extent of its existing legal rights and duties, together with its capacity to conclude treaties and to receive and accredit envoys.

93. For example, a 1935 decision of the Italian Court of Cassation (Nanni & Others v. Pace & the Sovereign Order of Malta) noted that independence and sovereignty were never denied to the Holy See even prior to the existence of the Lateran Treaty of 1929. See Digest of International Law vol. 1, 42 (Whiteman ed., U.S. Dept. St. 1963)Google Scholar.

94. Robert Graham, S.J., Vatican Diplomacy: A Study of Church and State on the International Plane 201–202 (Princeton U. Press 1959)Google Scholar.

95. Cardinale, supra n. 33, at 88.

96. Id.

97. Dispatch of Mr. Bayard, Secretary of State to Mr. Dwyer, Nov. 7, 1887, quoted in I Moore's Digest of International Law 39 (1906)Google Scholar. The dispatch continued with the instruction that should a diplomat of the United States be at a court in which the Holy See is also represented, it is the “duty” of the American diplomat to observe those conventions extended to the Papal representative due to the 1815 agreements emerging from the Congress of Vienna. Id. During World War II, Presidents Roosevelt and Truman sent Mr. Myron Taylor as a “personal representative” of the President of the United States to the Holy See from 1939-49. Mr. Taylor held the title of “Ambassador.” See Wartime Correspondence Between President Roosevelt and Pope Pius XII (Macmillan Co. 1947)Google Scholar; Correspondence Between President Truman and Pope Pius XII (Macmillan Co. 1952)Google Scholar. Both of these collections include introductions by Mr. Taylor. The first text contains twenty-seven letters exchanged between President Roosevelt and Pope Pius XII from December of 1939 to November of 1944. The neutrality of the Holy See during the War did not preclude this warm exchange between two world leaders who were both in search of peace in the world. See Leich, Marian Nash, International Status of States—The Vatican (Holy See), 78 Am. J. Intl. L. 427 (1984)CrossRefGoogle Scholar. In a widely cited article appearing in 1952 in The American Journal of International Law, Josef Kunz commented that, “The protests in the United States against the nomination by the President of an American Ambassador to the Vatican reveal an astonishing lack of knowledge and understanding of the legal problem of the status of the Holy See in international law.” Kunz, Josef, The Status of the Holy See in International Law, 46 Am. J. Intl. L. 308, 308 (1952)CrossRefGoogle Scholar.

98. Municipality of Ponce v. Roman Catholic Apostolic Church in Porto Rico, 210 U.S. 296, 318 (1908)Google Scholar. The Court then cited Rivier's Principes du Droit des Gens, I. 120-123, appearing in I Moore's Digest of International Law 39 (1906)Google Scholar stating:

The Pope, though deprived of the territorial dominion which he formerly enjoyed, holds, as sovereign pontiff and head of the Roman Catholic Church, an exceptional position. Though, in default of territory, he is not a temporal sovereign, he is in many respects treated as such. He has the right of active and passive legation, and his envoys of the first class, his apostolic nuncios, are specially privileged …. His relations with the Kingdom of Italy are governed, unilaterally, by the Italian law of May 13, 1871, called “the law of guarantees,” against which Pius IX. and Leo XIII, have not ceased to protest.

Id. at 318-319.

99. See The Holy See v. Starbright Sales Enterprises, Inc., 102 I.L.R. 163 (Phil. Sup. Ct. 1994). The Court stated, in an opinion by Quiason, J.:

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as The Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is The Holy See that is the international person. The Republic of the Philippines has accorded The Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine Government since 1957. (citation omitted). This appears to be the universal practice in international relations. Id. at 169-170.

100. Falco, Mario, The Legal Position of the Holy See Before and After the Lateran Agreements: Two Lectures Delivered at the University of Oxford 15 (Oxford U. Press 1935)Google Scholar. Falco went on to state:

In reality the attitude of states in general towards the Holy See proves that they have recognized in the person of the Pope the supreme head of the Catholic religion, who as such possesses not only the highest moral authority but also exceedingly great political influence; hence they have recognized in the Pope one who has the capacity of willing and acting not only in the spiritual sphere but also in the sphere of temporal interests and inter-state relations—an international person.

Id. at 16.

101. See Maluwa, Tiyanjana, The Holy See and the Concept of International Legal Personality: Some Reflections, 19 Comp. & Intl. L.J. S. Africa 1 (1986)Google Scholar.

102. Id. at 7.

103. Id. at 11.

104. Id. at 12.

105. Id. at 23-24, 26.

106. Arangio-Ruiz, Gaetano, On the Nature of the International Personality of the Holy See, 29 Revue Belge de Droit International 354 (1996)Google Scholar. He hastens to add that the relationship amongst the Church, the Holy See, and the Vatican City State creates some ambiguities and doubts. Id.

107. Id. at 360.

108. Id. at 362-363.

109. For a helpful and careful analysis of the Holy See's exercise of treaty-making authority see Maluwa, Tiyanjana, The Treaty-Making Capacity of the Holy See in Theory and Practice: A Study of the Jus Tractum of a Non-State Entity, 20 Comp. & Intl. L.J. S. Africa 155 (1987)Google Scholar.

110. See Watson, Geoffrey R., Progress for Pilgrims? An Analysis of the Holy See-Israel Fundamental Agreement, 47 Cath. U. L. Rev. 497, 500–501 (1998)Google Scholar.

111. Concordats are agreements between the Holy See and another sovereign that address issues concerning the Church in that State. They have been defined as, “Public treaties or agreements with the force of international law, between the Church and states, regulating relations in areas of mutual concern.” Abbo, J.A., The New Catholic Encyclopedia vol. 4, 117 (Thomas Gale 1981)Google Scholar. They have “as their object civil or religious or, more commonly, mixed matters (res mixtae) compounded of both elements, hence subject to both authorities.” Id. at 118. The contracting parties are the universal Church—“personified by the Holy See”—and a sovereign state. Id. When duly ratified and promulgated, a concordat immediately becomes civil as well as Canon law. Id. For the classic and insightful treatment of concordats and their role in international law, see Wagnon, Herni, Concordats et Droit International (Gembloux, J. Duculot, ed. 1935)Google Scholar. Dr. Wagnon's remarkable work was reviewed in English by Fenwick, C.G., 30 Am. J. Intl. L. 568, 569 (1936)Google Scholar, where the reviewer states that the author traces a close parallel “between the law of concordats and the general law of treaties” because the Holy See “has the requisite capacity to enter into agreements valid at international law.” See Minnerath, Msgr. Roland, The Position of the Catholic Church Regarding Concordats from a Doctrinal and Pragmatic Perspective, 47 Cath. U. L. Rev. 467, 476 (1998)Google Scholar, who notes:

By establishing concordats with all types of states, common principles have arisen and are being enforced as conforming to the self-understanding of the Church and the demands of states under the rule of law. There is no question anymore of privileges, but strictly of human rights. Thus, the international character of the Holy See indirectly confers to the parallel agreements concluded between states and other religious communities, the support of an international treaty, as it is the first duty of the state to treat all its citizens equally.

112. These agreements include: The Four Geneva Conventions of August 12, 1949 (along with the two additional Protocols of 1977); the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958; the four Law of the Sea Conventions of 1958; the Vienna Convention on Diplomatic Relations of April 18, 1961; the Vienna Convention on Consular Relations of April 24, 1963; The Vienna Convention on the Law of Treaties of May 23, 1969; the Vienna Convention on Succession of States in Respect of Treaties of August 22, 1978; the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965; the Convention on the Rights of the Child of November 20, 1989; the Convention Relating to the Status of Refugees of April 22, 1954; the Convention on Long-Range Transboundary Air Pollution of November 13, 1979; the Ottawa Convention [Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on Their Destruction] of March 1, 1999.

113. Fundamental Agreement Between the Holy See and the State of Israel, 33 I.L.M. 153 (1994)Google Scholar. See the Symposium: The Fundamental Agreement Between the Holy See and the State of Israel—A Third Anniversary Perspective, 47 Cath. U. L. Rev. 369–533 (1998)Google Scholar.

114. Fundamental Agreement Between the Holy See and the State of Israel, supra n. 113.

115. Breger, Marshall J., Introduction: Symposium—The Fundamental Agreement Between the Holy See and the State of Israel—A Third Anniversary Perspective, 47 Cath. U. L. Rev. 369 (1998)Google Scholar.

116. As was reported by the New York Times upon the arrival of Pope John Paul II in Israel: The import of John Paul's visit to Israel, the first by a pope officially as a head of state, was underscored by the welcome he received at Ben Gurion International Airport. He was greeted by President Weizman, Prime Minister Ehud Barak and several Cabinet ministers-though no ultra-Orthodox government minister attended.

Stanley, Alessandra, Pope Arrives in Israel and Gets Taste of Mideast Politics, N.Y. Times A8 (03 22, 2000)Google Scholar.

117. Basic Agreement Between the Holy See and the Palestine Liberation Organization, signed Feb. 15, 2000. See Stanley, Alessandra, Vatican and PLO Sign Pact Guaranteeing Church's Rights, NY. Times late ed. A7 (02 16, 2000)Google Scholar.

118. See Oppenheim, Lassa, International Law vol. 1, 252, n. 2 (8th ed., Lauterpacht, ed. 1955)Google Scholar and the discussion of the 1934 Bavarian Supreme District Court decision in the case, In Re A Nun's Dress, where the court expressed its view that concordats “had the same internal validity as treaties.”

119. See Cumbo, Horace F., The Holy See and International Law, 2 Intl. L.Q. 603, 608 (1948–1949)Google Scholar.

120. See e.g. the Fundamental Agreement between the Holy See and the State of Israel, supra n. 113.

121. See Minnerath, Roland, The Position of the Catholic Church Regarding Concordats from a Doctrinal and Pragmatic Perspective, 47 Cath. U. L. Rev. 467 (1998)Google Scholar. As Msgr. Minnerath has stated in regard to their being agreements of international law:

these instruments have all the same legal force. They are treaties between two subjects of international law, each one sovereign in its own sphere; spiritual and political. They are negotiated, signed, and ratified according to current international practice. Under the regime of the League of Nations, some concordats were even registered in the Record Book of International Treaties in Geneva.

Id.

122. The Code of Canon Law, Canon 3 (1983)Google Scholar. This same canon continues by stating, “[these pacts] therefore continue in force as presently, notwithstanding any prescriptions of this Code to the contrary.” The Commentary to this canon states that the Code only regulates the “internal life” of the Church, and

it does not apply to international legal relations. The activities of the Church among the family of nations and its participation in international organizations are subject to the general norms of international law. Since the Holy See is an international juridic person, it has the capacity to conclude agreements with other such persons, i.e., all sovereign states and international associations and organizations formed by them …. Should there ever be a conflict between the canons and the pacts, the pacts must stand.

In addition, Canon 365 reminds pontifical legates that they must act in accordance with “norms of international law.” Code of Canon Law, Canon 365 § 1 (1983).

123. See Catechism of the Catholic Church, No. 2305; and see Isa 9:6 (all Biblical citations are taken from NRSV), and Ubi Arcano Dei, supra n. 13, No. 47.

124. See generally Eppstein, supra n. 41, ch. 1.

125. For an illuminating discussion on the early Christian response to military force, especially in the Roman Empire, see Helgeland, John, The Early Church and War: The Sociology of Idolatry, in Peace in a Nuclear Age: the Bishops' Pastoral Letter in Perspective (Reid, Charles J. Jr. ed., CUA Press 1986)Google Scholar.

126. Rom 13:1, 4a.

127. See Biblical sources in Eppstein, supra n. 41, at 7-26.

128. Id. at 49-62. Mr. Eppstein's narrative and the original texts he cites in this chapter concern the civic duties of Christians as they began to evolve from the time they were accepted into mainstream society.

129. Id. at 29-31, 31-45; Marin, Albert, War and the Christian Conscience: From Augustine to Martin Luther King, Jr. 25–45 (Henry Regnery 1971)Google Scholar.

130. Muldoon, James P. Jr., The Architecture of Global Governance: An Introduction to the Study of International Organizations 25–27 (Westview Press 2004)Google Scholar. Muldoon does not develop the notion that Christendom or the papacy was a progenitor of international or supranational governance.

131. See Scott, James Brown, Law, the State, and the International Community 184–195 (Colum. U. Press 1939)Google Scholar; Eppstein, supra n. 41, at 65-96; Coste, René, Le Problème du Droit de Guerre dans la Pensée de Pie XII 19–60 (Aubier 1962)Google Scholar. See generally Elshtain, Jean Bethke, Just War Theory (NYU Press 1992)Google Scholar; Finnis, John, Joseph Boyle & Germain Grisez, Nuclear Deterrence, Morality, and Realism (Oxford U. Press 1987)Google Scholar.

132. Paul Manceaux, L'Eglise et le Droit de Guerre, repr. in Eppstein, supra n. 41, at 80.

133. For a helpful investigation on the scriptural influences that may have influenced Augustine see Louis J. Swift, Search the Scriptures: Patristic Exegesis and the Jus Belli, in Helgeland, supra n. 125.

134. Id.

135. See e.g. Griffins, Paul J. & Weigel, George, Just War: An Exchange, First Things 31–36 (04 2002)Google Scholar.

136. See Augustine, Saint, The City of God bk. XV, ch. 4, at 600 (Bettenson, Henry trans., Penguin Books 1984)Google Scholar.

137. Id. bk. XIX, ch. 11 (The bliss of everlasting peace, which is the fulfillment of the saints, and ch. 12 (Peace is the instinctive aim of all creatures, and is even the ultimate purpose of war.).

138. Wright, Herbert F., St. Augustine on International Peace, CV The Catholic World 745 (09 1917)Google Scholar.

139. Eppstein, supra n. 41, at 67 quoting from Bryce, Lord James, The Holy Roman Empire 73 (Macmillan Co. 1907Google Scholar.

140. Benkert, Gerald F., O.S.B., The Thomistic Conception of International Society 16 (Cath. U.Am. Press 1942)Google Scholar.

141. See generally Cardinale, supra n. 33, at 63-64.

142. Ehler, Sidney & Morrall, John, Church and State Through the Centuries: A Collection of Historic Documents with Commentaries 10–11 (Burns & Oates 1954)Google Scholar.

143. Ehler, Sidney, Twenty Centuries of Church and State: A Survey of Their Relations in Past and Present 29, 32–33 (Newman Press 1957)Google Scholar.

144. Ullman, Walter, The Growth of Papal Government in the Middle Ages: A Study in the Ideological Relation of Clerical to Lay Power 38–41 (Methuen &. Co. Ltd. 1955)Google Scholar.

145. Pichon, Charles, The Vatican and Its Role in World Affairs 41 (E.P. Dutton 1950)Google Scholar.

146. Ullman, supra n. 144, at 229-230.

147. Pichon, supra n. 145, at 108-109.

148. See generally Ullman, supra n. 144, at ch. IX Gregory VII; and see Letter to Solomon, King of Hungary, October 1074, on Feudal Lordship, in Tierney, Brian, The Crisis of Church and State 1050-1300, at 50–51 (U. Toronto Press 1988)Google Scholar.

149. Ehler & Morrall, supra n. 142, at 51.

150. Id.

151. See generally Possony, Stefan T., Peace Enforcement, 55 Yale L.J. 910 (1946)CrossRefGoogle Scholar.

152. Wright, R.F., Medieval Internationalism: The Contribution of the Medieval Church to International Law and Peace 161–162 (Williams & Norgate 1930)Google Scholar.

153. Goyau, Georges, L'Eglise Catholique et le Droit des Gens, in Recueil Des Cours vol. 6, 150–157 (1925)Google Scholar; and see Wright, supra n. 152 at 147-148.

154. Wright, supra n. 152, at 147.

155. Id.

156. Id. at 148-149.

157. Goyau, supra n. 153, at 152-153. See Wright, supra n. 152, at 154-160.

158. In applicable part, Article 51 permits the use of force in self defense by stating “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations ….”

159. Wright, supra n. 152, at 158-159.

160. Id. at 172-180.

161. Quoted in Eppstein, supra n. 41, at 156.

162. Id. at 156.

163. Id. at 196, quoting from Nicholas I, Responsa ad Bulgaros.

164. Eppstein, supra n. 41, at 79-81, quoting from Monceaux, Paul, L'Eglise et le Droit de Guerre 25–71Google Scholar.

165. See Eppstein, supra n. 41, at 83-93 for his examination of Thomas Aquinas's treatment of the law of war.

166. Id. at 93.

167. See e.g. Message of His Holiness Pope John Paul II, For the Celebration of the World Day of Peace, January 1, 2004, No. 5 (available at http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-ii_mes_20031216_xxxvii-world-day-for-peace_en.html).

168. See e.g. Elshtain, Jean Bethke, Just War Against Terror: The Burden of American Power in a Violent World (Basic Books 2003)Google Scholar.

169. Id.

170. For a pertinent examination of the practical influence that canon law had on making the distinction between the just and unjust war see James A. Brundage, The Limits of War-Making Power: The Contribution of the Medieval Canonists, in Helgeland, supra n. 125.

171. Mattingly, Garrett, Renaissance Diplomacy 21–25 (Jonathan Cape 1955)Google Scholar.

172. This principle is still respected to this day under the currently applicable Code of Canon Law that codifies the principle of pacta sunt servanda. See The Code of Canon Law, supra n. 122 and accompanying text.

173. Benkert, supra n. 140, at 18-19.

174. Id. at 16-17.

175. For background discussion on the common good as it relates to international law and relations see e.g. Midgley, E.B.F., The Natural Law Tradition and the Theory of International Relations 360–367 (Paul Elek 1975)Google Scholar; Rommen, Heinrich, The State in Catholic Thought 620–625 (Herder 1947)Google Scholar.

176. Visscher, Charles De, Theory and Reality of Public International Law 3–4 (Princeton U. Press 1968)CrossRefGoogle Scholar.

177. Benkert, supra n. 140, at 23-25.

178. Goyau, supra n. 153, at 169.

179. Id.

180. Goyau, supra n. 153, at 164-178.

181. Eckhardt, supra n. 52, at 2-13.

182. Id. at 7-8.

183. Id. at 11-12.

184. Id. at 11.

185. Id. at 5.

186. Krey, August C., The International State of the Middle Ages: Some Reasons for Its Failure, XXVIII Am. Historical Rev. 7 (10 1922)Google Scholar.

187. de Wulf, Maurice, The Society of Nations in the Thirteenth Century, XXIX Intl. J. Ethics 210–229 (01 1919)CrossRefGoogle Scholar.

188. Wright, supra n. 152, at 216-224.

189. This rule reads in its entirety: “Only States or Members of the League of Nations can be parties in cases before the Court.” (available at http://www.worldcourts.com/pcij/eng/conventions/1920.12.16_statute.htm).

190. For a rich discussion of the interdict see The Catholic Encyclopedia Interdict (available at http://www.newadvent.org/cathen/08073a.htm (accessed Aug. 2, 2005)).

191. Toynbee, Arnold, The Holy See and the Work of Peace: An Historian's View, The Vatican and World Peace 33 (Sweeney, Francis ed., Colin Smythe 1970)Google Scholar.

192. Id. at 34.

193. Id. at 34-35.

194. Eppstein, supra n. 41, at 248-249.

195. Mattingly, supra n. 171, at 23.

196. For example, in the early 1980s, Chile and Argentina requested the Holy See to assist in resolving the border controversies in which the two States were embroiled. The Holy See's participation led to a peaceful resolution of the dispute.

197. Eppstein, supra n. 41 at 149.

198. As Suàrez stated:

In the case of Christian kings, however, a second point must be noted, namely, that the supreme Pontiff, although he has no direct power in temporal affairs outside of his own domain, nevertheless does possess such power indirectly, as is indicated in certain passages of the Decretals …. Therefore, under this title, he has a right to require that a cause of war be referred to him, and the power to give a judgment thereon, which the parties in question are bound to obey, unless his decision be manifestly unjust …”

Three Theological Virtues: On Charity, Section II, ¶ 4, in Classics of International Law, Suàrez, Selections from Three Works 808 (Scott, James Brown ed., Oxford U. Press 1944)Google Scholar. And see Nussbaum, Arthur, A Concise History of the Law of Nations 212 (Macmillan 1950)Google Scholar.

199. See Beales, A.C.F., The History of Peace: A Short Account of the Organized Movements for International Peace 22 (Dial Press 1931)Google Scholar; Goyau, supra n. 153, at 162.

200. Hemleben, Sylvester John, Plans for World Peace through Six Centuries 1 (U. Chi. Press 1943)Google Scholar.

201. Id. at 3, & n. 12.

202. Id. at 4-6.

203. Id. at 10.

204. Id. at 11.

205. Ehler & Morrall, supra n. 142, at 97.

206. Cartwright, supra n. 35, at 160-161.

207. The Catholic Encyclopedia, Western Schism (available at http://newadvent.org/cathen/13539a.htm (accessed Aug. 22, 2005)).

208. See Decline of Empire and the Papacy, in The Cambridge Medieval History vol. VII, 301–304 (Cambridge U. Press 1932)Google Scholar.

209. Hemleben, supra n. 200, at 14.

210. Id.

211. Id. at 14-15.

212. Benkert, supra n. 140, at 44.

213. Id.

214. Id.

215. Id.

216. Hemleben, supra n. 200, at 15.

217. Hodé, Jacques, L'Idée de Fédération Internationale dans L'Histoire 66 (Editions de la Vie Universitaire 1921)Google Scholar; Hemleben, supra n. 200, at 15.

218. Goyau, supra n. 153, at 200.

219. Mattingly, supra n. 171, at 17-18.

220. Id. at 105-106.

221. Id. at 106.

222. See Ehler & Morrall, supra n. 142, at 153-159.

223. See Article 22 of the Covenant of the League of Nations. For a fuller explanation of the Mandatory, see Knipping, et al., The United Nations System and Its Predecessors vol. II, 301–310 (Oxford U. Press 1997)Google Scholar.

224. Brophy, Liam, The Popes as International Arbitrators, LIX Soc. J. Rev. 1, 11–12 (04 1966)Google Scholar.

225. See The Catholic Encyclopedia Leo X (available at http://www.newadvent.org/cathen/09162a.htm (accessed Aug. 22, 2005)).

226. Hemleben, supra n. 201, at 21.

227. Mattingly, supra n. 171, at 167.

228. Id.

229. Id. at 169.

230. Id.

231. Id. at 170.

232. Goyau, supra n. 153, at 203 (Lucal trans.).

233. Id. at 181.

234. Pichon, supra n. 148, at 76-77.

235. Bernhart, Joseph, The Vatican as a World Power 282–284 (Longmans 1939)Google Scholar.

236. New Catholic Encyclopedia vol. 6, 781 (McGraw Hill 1967)Google Scholar.

237. The Catholic Encyclopedia Sixtus V. (available at http://www.newadvent.org/cathen/14033a.htm (accessed Aug. 22, 2005)).

238. Fox, Samuel, Sixtus V's League of Nations, Cath. Mind 561 (11 1918)Google Scholar.

239. Id. at 562.