Church or State? The Holy See at the United Nations.
This special report by Center For Reproductive Law & Policy concludes that:
" . . the status of the Holy See as a
non-member state permanent observer in the United Nations is questionable.
Moreover, there are doubts about whether, in 1964, the Holy See met the
established criteria for attaining this position. . . the United Nations is
creating a precedent for similar claims by other religions.
To ensure that the United Nations does not promote
one particular religious view, religious entities such as the Roman Catholic
Church should not be permitted to participate in that body as nonmember states.
. . "
CENTER FOR REPRODUCTIVE LAW & POLICY
Church or State?
The Holy See at the United Nations
The Roman Catholic Church is uniquely positioned to
influence international deliberation on a wide range of issues, including
population, family planning, and women's rights. Since the inception of the
United Nations, the Roman Catholic Church has been an active participant in
numerous international conferences organized by this powerful organization.
Recently the Church has been involved in the 1992 United Nations Conference on
Environment and Development, the 1993 Vienna Conference on Human Rights, and
the preparatory process of the 1994 International Conference on Population and
Development. In some of these conferences, the Church has taken high profile
positions that have sparked worldwide attention and raised questions regarding
its status at the United Nations. This publication provides information about
the position and role of the Roman Catholic Church at the United Nations.
The Holy See and the Vatican City
Because the Roman Catholic Church has elected to participate
in the United Nations as the “Holy See,” it is important to understand the
historical origins of this entity and its current relationship to the Vatican
The “Holy See” is “the supreme organ of government of the
[Catholic] Church,”1 with the Pope designated as its head in the Code of Canon
Law.2 The Holy See consists of the Pope, the College of Cardinals, and the
central departments that govern the Church.3 It is, by definition, a non-- territorial religious entity Prior to
1870, the Holy See was associated with the government of the Papal States,
which had been created by Pepin-le-Bref and his son Charlemagne in the Ninth
Century4 In 1870, Italian troops annexed the Papal States and granted freedom
to the Apostolic Palaces in Rome. The Lateran Agreement of 1929, signed by
Italy and the Holy See, finally settled that Rome was under the jurisdiction of
Italy while the State of the Vatican City remained under the “sovereignty of
the Supreme Pontiff.”5
The Vatican City is widely regarded as a “vassal” territory
of the Holy See.6 Unlike any other modern nation, the Vatican City does not
exist to support its citizens. Rather, its purpose is to provide a base for the
central administration of the Roman Catholic Church. Only 0.44 square
kilometers in size,7 the Vatican City is the smallest area in the world
claiming to be a state.8 Its population is nominally 800 residents and 400
citizens, primarily constituted of Church officials who are there on a non-permanent
basis.9 Italy carries out a number of official functions for the Vatican City
by supplying the police force to patrol it,10 providing for the punishment of
crimes committed within the city,11 and maintaining the water and railway
systems for the area. The Vatican City is also dependent upon Italy for freedom
of communications and transportation. 12
Status at the United Nations
In 1944, the Roman Catholic Church made tentative inquiries
regarding the eligibility of the Vatican City to become a member state of the
United Nations.13 Although the United Nations does not provide the
international community with a definition of the term “state,”14 it does have
requisite conditions for admission as a member.15 An applicant to the United
Nations must: (1) be a State; (2) be peace-loving; (3) accept the obligations
of the United Nations Charter; (4) be able to carry out these obligations; and
(5) be willing to do so.16 Although the historical record is scant, there is
some indication that member states viewed the Vatican City as being ineligible
for United Nations membership. For example, United States Secretary of State
Cordell Hull, in his reply to Vatican inquiries regarding possible membership,
concluded that the Vatican City did not meet the requirements for admission.17
Article 24 of the Lateran Agreement binds the Holy See and the Vatican City to
neutrality, and this policy of neutrality is regarded as incompatible with
membership. In fact, the Vatican City has never made a formal membership application.
The Roman Catholic Church first officially participated at
the United Nations when the Vatican City was invited to United Nations
conferences through its membership in the Universal Postal Union and the
International Telecommunication Union.18 In 1957, through an exchange of
letters, the Holy See and the Secretary--General of the United Nations agreed
to refer to the Papal delegation at the United Nations as the “Holy See.”19
Finally, on March 21, 1964, Pope Paul VI established the first Holy See “permanent
observer” mission at the United Nations. As a result, the Holy See is regarded
as a “non--member state” permanent observer.20 Switzerland is the only other
entity that currently maintains non--member state permanent observer status.
The status of a permanent observer places restrictions upon
an entity’s role at the United Nations, and these limitations generally vary
according to the type of permanent observer status.21 There are no provisions
in either the United Nations Charter or the Rules of Procedure of the Economic
and Social Council (“ECOSOC”) that specifically refer to the participation of
non--United Nations members in ECOSOC meetings. However, non-member state
observers have been invited to participate in meetings discussing matters of concern
to those states.22 Since the Holy See is a permanent observer, it cannot cast a
vote in the General Assembly of the United Nations. But permanent observers
have sometimes participated, on an ad hoc basis, in General Assembly
discussions and decisions.23 The Holy See has participated in the General
Assembly on several occasions. Pope Paul VI addressed that body on October 4,
1965,24 and Pope John Paul II did so on October 2, 1979. In 1978, the Permanent
Observer for the Holy See addressed the Tenth Special Session of the General
Assembly Devoted to Disarmament.
The Holy See has also participated actively in several
United Nations conferences. Its position as a non-member state permanent
observer has provided it with many advantages. Rules regarding access to and
procedure for United Nations conferences are most often determined by the
specific United Nations agency charged with organizing the meeting;25 the
organizing body can thus determine whether it will permit a permanent observer
to attend. Moreover, access to conferences convened by the General Assembly or
ECOSOC is also established by the parameters set out by these United Nations
agencies. Because the current United Nations trend is to provide widespread
access to international conferences, participation in these meetings has been
liberally granted.26 Recent General Assembly resolutions convening world
conferences have invited “all States” to participate. States invited to
participate in a conference in this manner are able to participate “in full, with
full voting rights,” unlike the restricted manner in which other types of
permanent observers participate.27 Because the United Nations treats the Holy
See as a state, the Roman Catholic Church is able to participate fully and to
vote in most conferences.
In granting the Holy See a non-member state permanent
observer position, the Secretary-General of the United Nations was required to
consult established criteria for a non--member state observer delegation. These
criteria were whether the state had membership in at least one specialized
agency of the United Nations and whether the state was generally recognized by
members of the United Nations.28 At the time the Holy See was admitted as a
non--member state permanent observer, it maintained delegates at specialized
agencies such as the International Atomic Energy Agency and the Council for
Cultural Co-operation of the Council of Europe.29 However, if “general
recognition” is defined to mean recognition by a majority of United Nations
members, the Holy See may have been incorrectly allowed to obtain non--member
state permanent observer status. As of January 1, 1985, the Holy See maintained
diplomatic relations with only fifty-three countries.30 Therefore, it is
unlikely that the Holy See maintained relations with a majority of the existing
112 member states of the United Nations at the time its mission was
Status under International Law
The international legal status of the Holy See has been subject
to scrutiny ever since it lost control over a specific territory3' After the
annexation of the Papal States by Italy in 1870, the Pope continued to conclude
agreements with some nations and to accredit and receive envoys.32 In 1929,
with the creation of the Vatican City, the Holy See once again became
associated with the government of a territory. But this territory can be
regarded as an artificial construct that provided the Holy See with some claim
to territorial integrity. While most international legal scholars would grant
that the Holy See may possess “a degree of international personality,”33 there
is considerable debate as to whether such personality amounts to statehood.
Even without an exhaustive review of international legal
definitions of statehood, there are indications that the Holy See does not meet
these criteria. According to the Montevideo Convention on the Rights and Duties
of States: “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.”34
These four factual criteria for determining statehood are founded upon
principles that have been accepted by a host of international law scholars and
are consistent with the foreign laws of some nations.35 The Holy See does not
satisfy this definition. Almost by definition, it does not possess a defined
territory Because the Holy See is the supreme organ of government for Catholics
worldwide, it cannot be said to have a “permanent population.” Finally, the
Holy See is itself the government of both the Roman Catholic Church and the
Vatican City It cannot therefore be regarded as an entity that possesses a
government. The only characteristic of a modern state that is attributable to
the Holy See is its capacity to enter into relations with other states. The
Holy See is party to international treaties and it, rather than the Vatican
City, receives foreign envoys.36
It is equally uncertain whether the Vatican City satisfies
the modern definition of a nation. Although it has a permanent population, a
defined territory, and a government, the Vatican City’s capacity to enter into
relations with other states is difficult to assess. The Vatican City has no
foreign service of its own and no foreign ministry distinct from that of the
Holy See.37 Article 3 of the Constituent Laws of the Vatican City
reserves “to the Sovereign Pontiff, by means of the State Secretariat, . . . the right of representation of the
Vatican State, with foreign powers, for the conclusion of treaties and for
diplomatic relations.”38 A state wishing to enter into official
relations only with the Vatican City would have to deal first with the Holy
See.39 There also appears to be no diplomatic mission accredited to
the Pope solely in his capacity as a temporal sovereign of the Vatican City40
Yet, at the same time, the Vatican City is a party to some international
and bilateral agreements.
Because it is uncertain whether the Holy See or the Vatican
City can be regarded as a state under international law, the status of the Holy
See as a non-member state permanent observer in the United Nations is
questionable. Moreover, there are doubts about whether, in 1964, the Holy See met
the established criteria for attaining this position. If the United Nations
treats the Holy See as a state with permanent observer privileges because of
the Roman Catholic Church’s religious authority, the United Nations is creating
a precedent for similar claims by other religions. To ensure that the United
Nations does not promote one particular religious view, religious entities such
as the Roman Catholic Church should not be permitted to participate in that
body as nonmember states.
1. Hyginus Eugene Cardinale, The Holy See And The International
Order 85 (1976).
2. Codex luris Canonici (1917) Code c. 331: “The bishop of the
Church of Rome, in whom resides the office given in a special way by the Lord
to Peter, first of the Apostles and to be transmitted to his successors, is
head of the college of bishops, the Vicar of Christ and Pastor of the universal
Church on earth; therefore, in virtue of his office, he enjoys supreme, full,
immediate and universal ordinary power in the Church, which he can always
3. Robert A. Graham, Vatican Diplomacy 157-183 (1959).
4. James Crawford, The Creation of States in International Law
5. Lateran Agreement, Feb. 11, 1929, Italy-Holy See, Art. XXVI,
0 VTS. 161, Europ.TS. No. 590019
6. Crawford, supra note 4, at 159; Josef Kunz, The Status of the
Holy See in International Law, 46 Am. J. of Int. Law 313 (1952). Note also that
the preamble to the Lateran Agreement states: A[I]t is deemed necessary to
constitute Vatican City with special dispositions, . . . with exclusive and
absolute power and sovereign jurisdiction over it to the Holy See.”
7. Edmund Jan Osmanczyk, Encyclopedia of the UN and
International Agreements 862 (1985).
8. Crawford, supra note
4, at 154.
9 Louis Henkin, Richard Pugh, Oscar Schachter, & Hans Smit, International
Law Cases and Materials 247 (3rd ed. 1993) (hereinafter “Henkin”).
10. Lateran Agreement, supra
note 5, at Art. III.
11. Id. at Art.
12. Id. at Art.
13. Crawford, supra note
4, at 156.
14. Hans Kelsen, Law
of the United Nations 68 (1964).
15. UN. CHARTER Art.
4, para. 1.
16. Kelsen, supra note
14, at 67.
17. Crawford, supra note
4, at 156.
18. Cardinale, supra note
1, at 265.
19. Letters exchanged between the Holy See and the Secretary-General
of the United Nations (Oct. 16, 1957, Oct. 29, 1957) (Discussing relations
between the UN. and the Holy See).
20. There are five types
of permanent observers: (1) Non-Member States; (2) Specialized Agencies of the
UN. system; (3) Intergovernmental organizations not part of the UN. system; (4)
National liberation movements recognized by the General Assembly; and (5)
Non-governmental organizations. See R. G. Sybesma-Knol, Status of
Observers in the UN. (1981).
21. Id. at 24.
22. Sybesma-Knol, supra
note 20, at 33.
23. Id. at 30.
24. Pope Paul VI’s
famous speech to the General Assembly includes the following statement:
“Respect for life, even with regard to the great problem of birth, should find
here in Your Assembly its highest affirmation and its most reasoned defence.
Your must strive to multiply bread so that it suffices for the tables of
mankind, and not favour an artificial control of birth, which would be
irrational, in order to diminish the number of guests at the banquet of life.”
Mark Shaw, Messenger Of Peace 59 (1965).
25. Id. at 27.
26. Id. at 34.
27. Id. at 35.
28. Selected Legal
Opinions of the Secretariat of the United Nations and Related Inter-
Governmental Organizations at 236, UN. Doc. ST/LEG/8 (1962).
29. Cardinale, supra note
1, at 260-265.
30. Osmanczyk, supra note
8, at 863.
31. Kunz, supra note
6, at 309 (the Holy See “remained, as always, a subject of general
international law”); Crawford, supra note 4, at 153 (“[i]t was
accordingly stated by various writers that the Holy See had no international
status after 1870”); Cardinale, supra note 1, at 88 (the Holy See never
lost its international juristic personality because “[between] 1870 and 1929
concordats and other agreements were signed with numerous countries, some. . .
non-Catholic”); Sybesma-Knol, supra note 20, at 325 (“[it] is only
logical that. . . there is some uncertainty about the legal status of these
entities [such as the Holy See in international law]”); Graham, supra note
3, at 184 (“[e]ven without a state of his own, the Pope remained an
international figure with an undefined standing”); Okeke, Controversial
Subjects of International Law 65 (1973) (the Holy See is able to make
international agreements, “one of the most effective and important evidences of
personality in international law”); Henkin, supra note 9, at 299
(“[s]ome territorial entities have an international legal status though they do
not easily fit into any of the established categories”).
32. Kunz, supra note
6, at 311.
33. Crawford, supra note
4, at 157.
34. Article I of the
Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49
Stat. 3097, TS. 881, 165 L.N.TS. 19, 3 Bevans 145. This Convention was
ratified by: Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic,
Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama,
United States and Venezuela.
35. For example, 201 of
the Restatement of the Foreign Relations Law of the United States provides that
a state is an “entity that has a defined territory and a permanent population,
under the control of its own government, and that engages in, or has the
capacity to engage in, formal relations with other such entities.” Restatement
(Third) of the Foreign Relations Law of the United States (1986).
36. Henkin, supra note
9, at 300; Graham, supra note 3, at 344-346; Crawford, supra note 4, at 152-60.
37. Graham, supra note
3, at 345.
38. Special supplement
of the Aeta Apostolicae Sedis, 7 June 1929
39 Graham, supra note 3, at 345.
40. Id.; Cardinale,
supra note 1, at 179-205.