The Holy See is the supreme governmental organ of the Catholic Church, representing it in the international arena. The subject of international law, for some, is the Church, while for others it is the Holy See itself. Beyond this discussion, one can verify an international performance of the latter that comprises the exercise of the right of passive and active legation, the participation as a member or as an observer in different international organizations, the celebration of bilateral (concordats or agreements of that nature) and multilateral treaties, as well as its role in the peaceful solution of international controversies. Said performance dates back several centuries, and has been ongoing in an uninterrupted manner, even during the times in which the Holy See has been deprived of a piece of territory under its sovereignty, such as, for example, during the time period between 1870 and 1929. On the other hand, in virtue of the Lateran Treaty of 1929 between the Holy See and Italy, the latter recognizes the sovereignty and ownership of the former over Vatican City, an area of 44 hectares embedded in Rome and which serves as a guarantee of liberty and independence of the Holy See. The majority opinion is that it is a State which, in its own unique way, gathers the presupposed requirements of said condition, with its own international legal personality. In spite of this, it acts internationally through the Secretariat of State of the Holy See, even though there are some treaties and international organizations to which it is, respectively, in and of itself a party of or a member of as such, in other words, as the Vatican City State. Finally, there is discussion as to whether there is only one subject of international law or if there are two subjects of international law. The more widespread criterion is the latter one, even though opinions are divided between those who propose that said subjects are the Roman Catholic Church and the Vatican State on the one hand, and those who sustain that this condition falls on the Holy See and the Vatican State on the other. At the same time, various appreciations in regards to the relationship between these two subjects have been given, in the sense that it can be defined as a personal union, a real union, or a vassal relationship of the Vatican State to the Holy See.
The Catholic Church has in its structure a supreme organ, the Holy See, which represents it internationally and—even after the disappearance of the Pontifical States in 1870—celebrating treaties (concordats) and exercising the right of legation. The Lateran Treaty of 1929 celebrated between the Holy See and Italy recognizes the sovereignty of the former over Vatican City, which guarantees its independence. The Vatican is subject to international law that integrates some organizations of technical character (Diez de Velasco 2004), even though for some (Rousseau 1966) it is not a State due to the exiguity of its territory. For some authors (Miaja de la Muela 1979) the subject of international law is the Catholic Church, while for others it is the Holy See, which has the capacity to act internationally (Acquaviva 2005, Barboza 2008, Diez de Velasco 2004, Nkambo Mugerwa 1973, Podestá Costa and Ruda 1985, Travieso 2012, and Verdross 1982).
Acquaviva, Guido. “Subjects of International Law: A Power-Based Analysis.” Vanderbilt Journal of Transnational Law 38 (March 2005): 345–396.
Because of its sovereignty, the Holy See is subject to international law, equivalent to States, even though it doesn’t have some of the elements of these. It is the Holy See, a governmental organization of the Catholic Church and Vatican City, to which falls the international personality. This exercises the right of legation and the “ius tractatuum.”
Barboza, Julio. Derecho internacional público. Buenos Aires, Argentina: Zavalía, 2008.
It explains that for some authors, the Catholic Church is not a subject of international law because it is the Holy See which conducts its relations in that area; for others, the Church would be the subject and the Holy See its governmental organization which represents it internationally.
Diez de Velasco, Manuel. Instituciones de derecho internacional público. Madrid: Tecnos, 2004.
The Holy See acts as a subject of international law exercising the right of legation and celebrating concordats, even between 1870 and 1929, when it lacked territory. Vatican City seeks to assure the independence of the Holy See. It is subject to international law celebrating treaties and integrates international organizations.
Miaja de la Muela, Adolfo. Introducción al derecho internacional público. Madrid: Gráficas Yagües, 1979.
The international subject is the Church, with the Pope and the Holy See being its organs. The Vatican is a State with its own territory and population. The Pope acts in the international arena as Head of the Catholic Church and as that of that State, at times, as the supreme organ of the Church at others.
Nkambo Mugerwa, Peter James. “Sujetos de derecho internacional.” In Manual de derecho internacional público. Edited by Max Sorensen, 260–313. Mexico City: Fondo de Cultura Económica, 1973.
The 1929 Lateran Treaty created the Vatican State, physical basis for the legal personality of the Holy See. This holds diplomatic relations with third-party States and is part of treaties, while Vatican City is a member of specialized organizations such as the International Union of Telecommunications and the Universal Postal Union (UPU).
Oppenheim, L. Tratado de derecho internacional público. Barcelona: BOSCH, Casa Editorial, 1961.
The disappearance of the Pontifical States in 1870 did not alter the international performance of the Holy See. It celebrated the Lateran Treaty; its right of legation and the sovereignty of Vatican City, of which it is Head, is recognized for purposes essentially different from those of States.
Podestá Costa, L. A., and José María Ruda. Derecho internacional público. Buenos Aires, Argentina: Tipográfica Editora Argentina, 1985.
The Holy See subsisted as an international institution after the integration of the Pontifical States in Italy. Because of the Lateran Treaty, Italy recognizes its right of legation as well as its sovereignty and ownership over the Vatican. The Holy See has international personality, equal to that of States, although it is unique given that political attributions are excluded.
Rousseau, Charles. Derecho internacional público. Barcelona: Ariel, 1966.
The sovereignty of the Papacy is different from that of the States. The Holy See is not a State, for it does not possess the inherent elements of one. The exiguous character of Vatican territory, in contrast with that of the former Pontifical States, is an impediment in its path to be seen as a State.
Travieso, Juan Antonio. Derecho internacional público. Buenos Aires, Argentina: AbeledoPerrot, 2012.
The international personality of the Pope as Head of the Catholic Church and of the Pontifical States is recognized. In losing temporal sovereignty, the Pope still exercises the right of legation and the negotiation of treaties. Because of the Lateran Treaty, the Holy See has sovereignty over Vatican City; both are different international juristic persons.
Verdross, Alfred. Derecho internacional público. Madrid: Aguilar, 1982.
The Holy See is a subject of international law that has the right of legation and celebrates concordats with States. The international subjectivity of the Church is independent of that of the Pontifical States, as was seen in 1870; said subjectivity is recognized by the Lateran Treaty (Articles 12 and 24).
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