International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Special cases
The Sovereign Order of Malta This Order, established during the Crusades as a military and medical as- sociation, ruled Rhodes from 1309 to 1522 and was given Malta by treaty with Charles V in 1530 as a fief of the Kingdom of Sicily. This sovereignty was lost in 1798, and in 1834 the Order established its headquarters in Rome as a humanitarian organisation. 234 The Order already had interna- tional personality at the time of its taking control of Malta and even when it had to leave the island it continued to exchange diplomatic legations with most European countries. The Italian Court of Cassation in 1935 recognised the international personality of the Order, noting that ‘the modern theory of the subjects of international law recognises a number of collective units whose composition is independent of the nationality of their constituent members and whose scope transcends by virtue of their universal character the territorial confines of any single state’. 235 This is predicated upon the functional needs of the entity as accepted by third parties. It is to be noted, for example, that the Order maintains diplomatic relations with or is recognised by over eighty states and has observer sta- tus in the UN General Assembly. 236 It is not a state and it is questionable whether it has general international personality beyond those states and organisations expressly recognising it. 237 The Holy See and the Vatican City 238 In 1870, the conquest of the Papal states by Italian forces ended their ex- istence as sovereign states. The question therefore arose as to the status 234 Oppenheim’s International Law, p. 329, note 7; O’Connell, International Law, pp. 85–6, and Whiteman, Digest, vol. I, pp. 584–7. See also Crawford, Creation of States, pp. 231 ff., and B. J. Theutenberg, The Holy See, the Order of Malta and International Law, Skara, 2003. 235 Nanni v. Pace and the Sovereign Order of Malta 8 AD, p. 2. See also Scarf`o v. Sovereign Order of Malta 24 ILR, p. 1; Sovereign Order of Malta v. Soc. An. Commerciale 22 ILR, p. 1, and Cassese, International Law, pp. 132–3. 236 Crawford, Creation of States, p. 231. 237 Ibid., p. 233. 238 See Oppenheim’s International Law, p. 325; Crawford, Creation of States, pp. 221 ff.; J. Duursma, Fragmentation and the International Relations of Microstates: Self-determination and Statehood, Cambridge, 1996, pp. 374 ff.; Rousseau, Droit International Public, vol. II, pp. 353–77; Le Saint-Si`ege dans les Relations Internationales (ed. J. P. D’Onorio), Aix-en- Provence, 1989, and R. Graham, Vatican Diplomacy: A Study of Church and State on the International Plane, Princeton, 1959. See also Nguyen Quoc Dinh et al., Droit International Public, p. 455. 244 i n t e r nat i o na l l aw in international law of the Holy See, deprived, as it then was, of normal territorial sovereignty. In 1929 the Lateran Treaty was signed with Italy which recognised the state of the Vatican City and ‘the sovereignty of the Holy See in the field of international relations as an attribute that per- tains to the very nature of the Holy See, in conformity with its traditions and with the demands of its mission in the world’. 239 The question thus interrelates with the problem of the status today of the Vatican City. The latter has no permanent population apart from Church functionaries and exists only to support the work of the Holy See. Italy carries out a sub- stantial number of administrative functions with regard to the City. Some writers accordingly have concluded that it cannot be regarded as a state. 240 Nevertheless, it is a party to many international treaties and is a member of the Universal Postal Union and the International Telecommunications Union. It would appear that by virtue of recognition and acquiescence in the context of its claims, it does exist as a state. The Vatican City is closely linked with the Holy See and they are essentially part of the same construct. The Holy See, the central organisational authority of the Catholic Church, continued after 1870 to engage in diplomatic relations and enter into international agreements and concordats. 241 Accordingly its status as an international person was accepted by such partners. In its joint eleventh and twelfth report submitted to the UN Committee on the Elimination of Racial Discrimination in 1993, 242 the Holy See reminded the Committee of its ‘exceptional nature within the community of nations; as a sovereign subject of international law, it has a mission of an essentially religious and moral order, universal in scope, which is based on minimal territorial dimensions guaranteeing a basis of autonomy for the pastoral ministry of the Sovereign Pontiff ’. 243 Crawford has concluded that the Holy See is both an international legal person in its own right and the government of a state (the Vatican City). 244 239 130 BFSP, p. 791. See also O’Connell, International Law, p. 289, and Re Marcinkus, Mennini Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling