The Roman Catholic Church and International Law
by Philip Jones
(All papal documents, and the Code of Canon Law 1983, can be read on the www.vatican.va, the official website of the Holy See.)
Pope Leo XIII explained the status of the Catholic Church and the Holy See in international law in his encyclical Immortale Dei (1885)
The Catholic Church is a perfect society under the sovereign authority of the Holy See. A perfect society is defined as ‘perfect in its nature and in its title to possess … all needful provision for its maintenance and action’ (para 10).
A perfect society must be distinguished from a mere private association whose status as a society depends on ‘the concession and favour of the [secular] government’ (para 27).
The Catholic Church’s need to be constituted as a perfect society, and not as a mere private association, is explained by the response of the Apostles to the Jewish authorities which persecuted them for preaching the Gospel: ‘we must obey God rather than men’ (Acts 5, 29, quoted at para 12).
Papal sovereignty over the Catholic Church comes from divine law, from ‘The office uniquely committed by the Lord to Peter’ (Code of Canon Law 1983, canon 331). The Holy See and the Catholic Church both enjoy juridical personality by divine law (canon 113.1).
However, although papal sovereignty comes from divine law it is also recognised in secular international law: ‘in the making of treaties … sending and receiving ambassadors … [secular states] have been wont to treat with the Church as with a supreme and legitimate power’ (para 12).
The loss of the Papal States 15 years earlier did not affect the Holy See’s sovereignty over the Church. The Papal States, like the Vatican City State today, were a separate ‘civil sovereignty’, the purpose of which was to safeguard papal sovereignty over the Church (para 12).
Thus even if the Pope were to lose his sovereignty of the Vatican, his sovereignty over the Church would continue, just as it continued after the loss of the Papal States. Moreover, secular states recognised the Pope’s sovereignty over the Church by maintaining diplomatic relations with the Holy See after 1870, notwithstanding the loss of its territorial sovereignty.
The Vatican City State was constituted by the Lateran Treaty 1929, so the Pope again has two sovereignties, just as he had before 1870. Diplomatic representatives are accredited to the Holy See, not to the Vatican.
The Pope exercises his sovereignty with the assistance of three agencies:
(1) the Roman Curia (canon 360)
(2) papal legates (nuncios)
(3) the College of Cardinals.
The Curia acts in the Pope’s name and on his authority. Hence references in the 1983 Code to the Holy See / Apostolic See include the Curia (canon 361). The present structure of the Curia dates from the late mediaeval and tridentine eras (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, pp.293-4).
Within the Curia, the Secretariat of State is responsible for diplomatic relations with secular states and international agencies: see Pope John Paul II, Pastor Bonus (Apostolic Constitution of 1988), Articles 39-47.
Papal legates are not part of the Curia but they assist the Pope in his dealings both with secular states and local Churches. Thus the office of papal legate or nuncio resembles an unusual combination of ambassador and colonial governor (canons 362-7). It is at the same time both diplomatic and pastoral. (See also Pope Paul VI, Sollicitudo Omnium Ecclesiarum, an Apostolic Letter of 1969, on the duties on papal representatives.)
Like the Roman Curia, the system of legates and permanent nunciatures dates from the tridentine era, and originally had the function of implementing the decrees of the Council of Trent. Recognition of papal diplomats in international law dates from the Congress of Vienna, and was affirmed by the Vienna Convention of 1961 (Text and Commentary, p.301).
Legates continue in office during a vacancy in the Holy See (canon 367).
The old rule was that the Holy See only appointed a nuncio to a Catholic state, where the nuncio was ex officio the head or dean of the diplomatic corps in that country. Papal representatives to non-Catholic states were merely pro-nuncios. This rule was abolished in 1994, so now all papal representatives to states are nuncios (Eileen Denza, Diplomatic Law (3rd edition 2008, OUP, Oxford, p.111).
However, the Holy See remains proud of its special sovereignty. It does not accept an ambassador who is also accredited to the Republic of Italy (Denza, Diplomatic Law p.30). Thus states may not economise by employing the same ambassador to represent them on both sides of the Tiber.
If a papal representative is appointed only to a local Church and not to the local secular state, he is called an Apostolic Delegate, not a nuncio.
The College of Cardinals, of course, exercises sovereignty during a vacancy in the Holy See (canon 359). The Pope may appoint an individual cardinal as special legate (legatus a latere, meaning sent from beside the Pope). The 1983 Code suggests that special cardinal-legates are appointed only for pastoral rather than diplomatic matters (cf canon 358).
The 1983 Code makes clear that the Pope is judged by no one, and that any judicial proceedings against him are a nullity (canons 1404, 1406). Although the 1983 Code applies only to the internal law of the Church, these provisions indicate that the Pope claims the same immunity as heads of state enjoy in international law (Text and Commentary, p.951).
However, the officials of secular states do not enjoy the same immunity from the Holy See’s jurisdiction, if they are Catholics. As Catholics, they are subject to papal sovereignty.
The 1983 Code alludes to this point when it provides that the Pope personally exercises jurisdiction in cases concerning heads of state (canon 1405). This, of course, indicates that Catholic heads of state do not enjoy immunity from the Pope’s jurisdiction.
The special status of the Holy See and the Catholic Church in international law is important to any comparative study of ecclesiastical governance. As a commentator noted ‘non-Catholic Churches … do not claim an international juristic personality’ (H.E Cardinale, The Holy See and the International Order (1976, Macmillan, p.91). The Catholic status is unique.
The Church of England is clearly not an autonomous ‘perfect society’. It is merely one part of a perfect society, being the ecclesiastical branch of the English state. It might therefore be more appropriate to compare Roman Catholic law with English law as a whole, not just with that part of English law that regulates the Church of England.
The Church of Scotland claims a God-given independence from the secular state, but this is limited to ‘ matters spiritual’ (Article 4 of the Declaratory Articles scheduled to the Church of Scotland Act 1921). The secular state exercises jurisdiction over civil matters.
Thus the Church of Scotland cannot be a perfect society, since the jurisdiction of a perfect society is not limited, but extends to all matters of governance, whether spiritual or secular. The tension between spiritual and secular jurisdiction in Scotland was examined by the House of Lords in the case of Percy v Church of Scotland Board of National Mission (2005) UKHL 37.
There is a superficial resemblance between the governance of the Roman Catholic Church and that of Anglican Churches outside England (e.g the Church in Wales) and congregationalist Churches such as Methodists and Baptists. However, these other Churches are not perfect societies or independent of the states in which they exist. They are, as Leo XIII implied, private associations whose status as such depends on ‘the concession and favour of the [secular] government’. They receive their autonomy from the secular state itself, usually through the agency of contract or trust law, or by special legislation, out of respect for the ‘human rights’ of their members.