Thursday, January 12, 2017

The legal limits on the Vatican’s authority (Opinion)

While the Sovereign Military Order of Malta may no longer be military or govern the island of Malta, it remains a truly sovereign entity and is recognised as such in international law. 

The order issues its own passports and stamps, and has full diplomatic relations with more than 100 countries – including the Holy See. 

Like the Holy See, the order has permanent observer status at the United Nations. 

As most people know, its roots go back to the Crusader era when it was known as the Order of Knights of the Hospital of St John of Jerusalem, later becoming the governing body of the islands of Rhodes and Malta, the latter until the Napoleonic Wars.

The order may be a Catholic religious order, but unlike any other order, it does not report to the Holy See’s Congregation for Institutes of Consecrated Life and Societies of Apostolic Life – or to any other Vatican department, for that matter. 

The constitution of the order, its own sovereign law, makes clear that “The religious nature of the order does not prejudice the exercise of sovereign prerogatives pertaining to the order in so far as it is recognised by states as a subject of international law.” 

While its members make vows or promises of obedience (depending on the class of knight they are) their religious obedience remains strictly within the order itself. Indeed, its constitution specifically states, in the section on relations with the Holy See, that “Religious members through their vows, as well as members of the Second Class through the Promise of Obedience, are only subject to their appropriate Superiors in the Order.” 

Even the Grand Master of the order is elected without papal approval or ratification.

It can seem jarring to most people that there is a large, internationally prominent, explicitly Catholic body which does not answer to the Vatican, but that is exactly what the Order of Malta is. The closest thing there is to curial oversight of the order is the office of Cardinal Patron, currently Cardinal Burke, who is appointed by the Pope to “promote the spiritual interests of the order and relations between the Holy See and the order”. 

The role is, legally speaking, chaplain and papal ambassador to the knights; he has no executive or deliberative function within the order, or any governing power to exercise.

The sovereignty of the order was originally granted by the pope, and the order’s constitution retains a legal mechanism for the pope to abrogate it. This is not, however, something that can be done informally, haphazardly or on a whim; the rights of the order which a pope intends to revoke have to be “expressly abrogated”, meaning a formal legislative act on the part of the Holy Father. 

As a matter purely between the order and the Holy See, this would be of enormous significance, but taken in the context of international law and diplomacy the scope of the impact would be hard to predict.

While the order originally received its sovereign status through an act of the pope, it has since independently forged full diplomatic ties with many other countries which recognise the order as a sovereign subject of international law, including the UN. 

For the Holy See to effectively revoke its independence, over, say, a matter of internal governance, would be a serious diplomatic event akin to Britain involving itself in the governmental affairs of a former colony.

Given that the Holy See and the order are, at least in international law, very similar, any act by the Vatican which undercuts the sovereign status of the order could easily be turned back against the Holy See by its own international critics. 

A diplomatic row between the two could well spiral into a serious threat to the international legitimacy of both institutions.

* Ed Condon is a canon lawyer

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