Legal Research

The Vatican as a State

By Simon Fodden

As readers will doubtless know, there’s a good deal of unrest in some quarters about the impending visit of the Pope to the United Kingdom. (He lands in Edinburgh on Thursday.) As the scandals about child rape by priests have multiplied over the last few years, calls for justice in the courts have grown. Of particular interest is the suggestion that the Pope should be arrested upon his arrival in Britain, and, in the words of English barrister and author, Geoffrey Robertson, prosecuted:

“under international law, for having assisted in the protection of sex offenders in a mass atrocity . . . under the doctrine of command responsibility.”

Robertson, who was engaged by Christopher Hitchins and Richard Dawkins to propose a case for charging the Pope over his failure to stop and punish sexual abuse within the church, has just published a book with Penguin, The Case of the Pope – Vatican Accountability for Human Rights Abuse.

The late Augusto Pinochet was arrested in Britain 1998 as the result of his having been charged by a Spanish magistrate with human rights violations. The Chilean dictator was a former head of state at the time. The Pope, however, has the status of head of the Vatican state, and as a head of state is immune from arrest under international law.

This immunity has led his pursuers to examine and challenge the basis on which the Vatican claims statehood. This turns out to be the Lateran Treaty of 1929, a document signed by Mussolini and the representative of Pius XI, the then Pope. Robertson argues that this is a unilateral document, not a treaty to which the U.K. or any other government was a party; and, he says, if this sort of creation ex nihilo is possible, Britain could declare Canterbury to be a state — or, as he might have said, Saudi Arabia could make Mecca a state.

With the caveat that I am no international lawyer at all, it seems to me that the crux of the thing is recognition by other states. (Those wishing to pursue the matter might start with the book “Fragmentation and the International Relations of Micro-states”, Chapter 2: Criteria for Statehood, conveniently available online via Google Books.) As a moment’s thought will reveal, the recognition of an area’s statehood is a vexed, practical matter. Think Taiwan, Palestine, Kosovo, Moldova . . . . Often, reference is made to the Montevideo Convention on Rights and Duties of States of 26 December 1933, Article 1 of which reads:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

On this basis, the Vatican might have difficulty with the “permanent population” and perhaps with items (c) and (d) given the limitations imposed on it by the Lateran Treaty.

The fact remains, however, that the U.K. recognizes the Vatican as a state, which in turn makes any move to charge or arrest the Pope during his visit highly unlikely.

Full post as published by Slaw.ca on September 14, 2010 (boomark / email).