Wednesday, April 14, 2010

Is the Holy See above the law? -Times Online

Sir Ivor Roberts explains in The Times today why legally, there is no case against the Pope

Sir Ivor is President of Trinity College, Oxford, and a former British Ambassador to Italy, Ireland and Yugoslavia and the editor of the new edition of Satow’s Diplomatic Practice

He writes:

"Richard Dawkins is reported to be planning a “legal ambush” to have the Pope arrested for “crimes against humanity” on his visit, this September to the UK. The atheist Dawkins and Christopher Hitchens are consulting human rights lawyers at present (including Geoffrey Robertson) to ask them to produce a case for charging Pope Benedict XVI over an alleged cover up of sexual abuse in the Catholic Church.

In doing so they conflate and confuse two international identities. Before 1870, there were two subjects of international law: the Papal States and the Holy See.

Of these two persons in international law the one, the Papal States, was extinguished by the Italian post-Risorgimento government when they invaded and overran those States in September 1870.

But the Holy See which goes back to early Christian times and to an era where the concept of the nation state was unknown, continued to exist as the preeminent episcopal jurisdiction of the Catholic Church, and as such, diplomatically, and in other spheres, the Holy See was and is acting for the whole Catholic Church.

The Holy See remained a sovereign entity and a subject of general international law in the period between the annexation of the Papal States in 1870 and the Lateran Treaty of 1929 when the Vatican City State was created to solve the so-called Roman question (when the Pope withdrew to the Vatican and refused to recognise the Italian Government’s annexation of Rome and the Papal States) and give the Holy See a territorial dimension once again.

This can be seen by the practice of states, including Britain which re-established diplomatic relations with the Holy See in 1914 after a break of 450 years. During this period, when the Holy See had no territory, the Holy See continued to conclude concordats and continued, with the consent of a majority of states, to exercise the active and passive right of legation.

In fact in the course of the 59 years during which the Holy See held no territorial sovereignty, the number of states that had diplomatic relations with it, which had been reduced to 16, actually increased to 29.

So those like Robertson who claim that the Holy See’s international status was unilaterally created by the “fascist state of Italy in 1929” are using a bogus argument. And the reference to fascism is a complete red herring.

Since unification in 1870 successive Italian governments had attempted to solve the impasse with the Pope and had Mussolini not done so the first post-war Italian government would certainly have secured an agreement.

Since 1929 the Holy See has continued to be recognised, both in state practice and in modern legal scholarship, as a subject of public international law, with rights and duties analogous to those of States.

The Holy See is recognised by the United Nations as an Observer State in the UN system and is a full member of a large number of UN Specialised Agencies.

It maintains diplomatic relations with 178 states, it is a member state in various intergovernmental international organisations, and is respected by the international community of sovereign states and treated as a subject of international law having the capacity to engage in diplomatic relations and to enter into binding agreements with other states under international law.

Foreign embassies are accredited to the Holy See, not to the Vatican City, and it is the Holy See that establishes treaties and concordats with other sovereign entities. Thus the British Ambassador to the Holy See is contrary to some assertions, not the head of an apostolic mission while papal representatives to states and international organisations are recognised as representing the Holy See, not the Vatican City State.

A call for rigorous evidence-based prosecution of both those accused of the heinous crime of child abuse and those involved in covering up such crimes would rightly attract widespread support inside and outside the Catholic Church.

By being so obviously sensible and equitable, it would however attract rather less publicity and fewer headlines even were the call to come from such high profile figures as Robertson and Dawkins.

But those who sincerely want to see the Church’s Augean stables comprehensively cleaned might judge that this is the common sense path to follow rather than an unrealistic and spurious call for an international court appearance by the Pontiff.

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