Religious Actors and International Law by Ioana Cismas

Author:Ioana Cismas [Cismas, Ioana]
Language: eng
Format: azw3
Publisher: OUP Oxford
Published: 2014-07-17T04:00:00+00:00

4.2.2. The Lateran Treaty does not establish agency or representation

The Lateran Treaty proclaims the sovereignty of the Holy See over the Vatican.179 The fact that in the conduct of its international affairs the Holy See sometimes acts ‘on behalf and in the name of the Vatican’180 cannot be compatible with the requirement that a Vatican state must genuinely represent an independent interest. No such independent interest is retained by the Lateran Treaty.181 Any action of the Holy See in the name of the Vatican is not undertaken on behalf of the Vatican population—in itself a problematic term, as discussed earlier—but to advance the mission of the Holy See. For instance, the postal services at the Vatican are not intended to serve the needs of a permanent human community to communicate with the outside world, but are meant to serve the ‘population of functionaries’ supporting the works of the Holy See. Moreover, the subordination arrangement is not transitory or provisional, but has been sought as a permanent means of showcasing the independence of the Holy See from Italy and to fortify the legal status of the Holy See in the international realm.182 For comparative purposes, Robert Jennings’ analysis of the situation in Germany, when it was occupied by Allied Forces after World War II, may be edifying.

The view that the German state has ceased to exist rests very largely on the—it is submitted mistaken—assumption that the Allies have in fact vested themselves with full sovereignty over Germany in the ordinary sense of that term. The Berlin Declaration is obviously a carefully drafted document and it is significant that, far from declaring that the occupying Powers have assumed the sovereignty over Germany, it studiously avoids any reference to sovereignty. It speaks only of an assumption of ‘supreme authority’ (l’autorité suprême: oberste Regierungsgewalt), which is not necessarily the same thing. For the ‘supreme authority’ assumed by the occupying Powers is not without qualification: it is assumed for certain stated purposes; it is ‘without prejudice to any subsequent decisions that may be taken respecting Germany’; it is a provisional regime to provide for ‘the period when Germany is carrying out the basic requirements of unconditional surrender’; furthermore, it is specifically stated that ‘the assumption, for the purposes stated above, of the said authority and powers does not effect the annexation of Germany’.183

Against this background, it must be observed that there is no provision in the Lateran Treaty which resembles the qualifications of Allied Powers’ ‘supreme authority’ in the Berlin Declaration. Quite the opposite is true: the creation of the Vatican is qualified by the sovereignty of the Holy See over it.

Moreover, it would be inaccurate to regard the Vatican either as a vassal state of the Holy See or as state under its protectorate.184 These arrangements have been best explained by Hersch Lauterpacht.185 Suzerainty, as distinct from sovereignty, implies that the suzerain represents to a lesser or greater extent the vassal state on the international plane, while the internal affairs remain the domain of the former.

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