by George Weigel
Pope John Paul II's considerable effect on our times is conceded by admirers and critics alike. The imprint of the shoes of this Fisherman can be found throughout the new democracies of east central Europe, Latin America, and East Asia. His critique of "real existing democracy" has helped define the key moral issues of public life in the developed democracies and in the complex world of international institutions. Some sober analysts of Papal history argue that one must return to the early thirteenth century, to Pope Innocent III, to find a Pontificate with such a marked influence on contemporary public life.
Yet there is a paradox here: the "political" impact of this Pontificate, unlike that of Innocent III, has not come from deploying what political realists recognize as the instruments of political power. Rather, the Pope's capacity to shape history has been exercised through a different set of levers.
As Bishop of Rome and sovereign of the Vatican City micro-state, John Paul has no military or economic power at his disposal. The Holy See maintains an extensive network of diplomatic relations and holds Permanent Observer status at the United Nations. But whatever influence John Paul has had through these channels simply underscores the fact that the power of his Papacy lies in a charism of moral persuasion capable of being translated into political effectiveness.
This paradox -- political effectiveness achieved without the normal instruments of political power -- is interesting in itself. It also has heuristic value. It tells us something about the nature of politics at the dawn of a new millennium. Contrary to notions widely accepted since the late eighteenth century, the public impact of John Paul II suggests that politics (understood as the contest for power), or economics, or some combination of politics and economics, is not the only, or perhaps even the primary, engine of history. The revolution of conscience that John Paul ignited in June 1979 in Poland -- the moral revolution that made the Revolution of 1989 possible -- is simply not explicable in conventional political or economic categories. John Paul's public accomplishment has provided empirical ballast for intellectual and moral challenges to several potent modern theories of politics, including French revolutionary Jacobinism, Marxism-Leninism, and utilitarianism. The political world just doesn't work the way the materialists claim.
At the end of a century in which it was widely agreed that "power comes out of the barrel of a gun," the paradox in the public impact of John Paul II also reminds us of five other truths: that the power of the human spirit can ignite world-historical change; that tradition can be as potent a force for social transformation as a self-consciously radical rupture with the past; that moral conviction can be an Archimedean lever for moving the world; that "public life" and "politics" are not synonymous; and that a genuinely humanistic politics always depends upon a more fundamental constellation of free associations and social institutions in which we learn the truth about ourselves as individuals and as members of communities.
In sum, and precisely because it has not been mediated through the "normal" instruments of political power, the "worldly accomplishment" of John Paul II has helped free us from the tyranny of politics. By demonstrating in action the linkage between profound moral conviction and effective political power, this pontificate has helped restore politics to its true dignity while keeping politics within its proper sphere.
The distinctive modus operandi of this politically potent Pope also suggests something about the future of the Papacy, the world's oldest institutional office, and about Catholicism in the third millennium of its history.
It is tempting to see John Paul's public accomplishment as the expression of his singular personal experience. His "culture-first" view of history and his bold confidence in the political efficacy of moral truth have indeed been deeply influenced by his curriculum vitae. His Slavic sensitivity to spiritual power in history (prefigured in Soloviev and paralleled in Solzhenitsyn); his Polish convictions about the cultural foundations of nationhood (shaped by a lifelong immersion in the literary works of Mickiewicz, Norwid, and Slowacki); his experience in the underground resistance during World War II and his leadership in a culturally based resistance to communism from 1947-1978--all of these are, if you will, distinctively "Wojtylan" experiences. History viewed from the Vistula River basin does look different than history viewed from Berlin, Paris, London, or Washington, D.C. This difference has certainly shaped the potent public presence of the first Slavic and Polish Pope.
But John Paul II would insist that he is not a "singularity," to adapt a term from astrophysics. Rather, he and his pontificate are the products of the contemporary Catholic Church, as the Church has been shaped by the Second Vatican Council -- which Karol Wojtyla has always understood as a great, Spirit-led effort to renew Catholicism as an evangelical movement in history. I would press this farther. In the paradoxical public potency of John Paul II, we are seeing played out, in dramatic form, trends that have been underway in Catholicism for two centuries: trends that were waiting, so to speak, for a new kind of Pope to forge a new kind of interaction between the Papacy and the world of power.
That Popes have been "players" in the world of power since at least the fifth-century Pontificate of Pope Leo the Great is a well-known fact of Western history (if there are "well-known facts of Western history" these days). So is the fact that, from 756 until 1870, the Popes were temporal rulers of a large part of central Italy, the Papal States. The details of that millennium-long history of temporal power are beyond the scope of this discussion. Suffice it to say that it is a tale in which the student of history will find goodness and wickedness, justice and injustice, civility and incivility, ecclesiastical interference in civil affairs and political interference in internal Church affairs. But from this vastly complex story, in which the Popes were civilizers as well as temporal rulers, and political leaders on more than one occasion because of the default of those who ought to have taken political responsibility, three key points may be drawn.
The first involves the Pope's unique position as universal pastor of a global Church. From at least the late fifth century, when Pope Gelasius I distinguished between "the consecrated authority Of the priesthood" and the "royal power" as two distinct modes of authority "by which this world is ruled," it has been understood that the Pope cannot be the subject of any other sovereignty. He must himself be a sovereign, in the specific, technical sense that in the free exercise of his universal Christian ministry he cannot be subject to any earthly power. Indeed, as Father Robert Graham, S.J., wrote forty-some years ago, "The Papacy was exercising a form of sovereignty long before that word took on the clear-cut political and juridical meaning it was later to have." That is why Papal diplomacy is conducted by the Pope not as head of Vatican City State, but as an expression of the sovereignty of the "Holy See"--the juridical embodiment of the universal pastoral ministry of the Bishop of Rome. The recognition of this Papal sovereignty in the exchange of ambassadors between the Holy See and sovereign states, and in the Holy See's representation in international organizations, tells us something about the world as well as about the Papacy: it is a tacit recognition that moral norms are relevant in international public life and that there are actors in the drama of world politics other than states.
The second lesson to be drawn from the Papacy's entanglement with temporal power involves the Church's role in the creation of civil society. The libertas ecclesiae, the "freedom of the Church," has been a check on the pretensions of state power for centuries, whether that be the power of feudal lords, absolutist monarchs, or the modern secular state. Where the Church retains the capacity to order its life and ministry according to its own criteria, to preach the gospel, and to offer various ministries of charity to the wider society, that very fact constitutes an antitotalitarian or, to put it positively, a pluralist principle in society. According to that principle, there are spheres of conviction and action where state power does not, or ought not try to, reach.
However confusedly the various Popes may have sought to assert this principle theologically or to secure it practically, the fact remains that the libertas ecclesiae was a crucial factor in creating the social space in which other free institutions could form over the centuries; the controversy with Gregory VII that brought Henry IV to Canossa was about more than the relative positions of these men in the society of their time. No matter how tyrannically some popes behaved on occasion, the papacy as an institutional reality has been a barrier to the tyranny of the political for a millennium and a half or more. And if the institutions of "civil society" are schools for learning the proper exercise of political freedom, then the Papacy's defense of the libertas ecclesiae helped lay the foundations of modern democracy.
In many instances, however, the Papacy's involvement with temporal power involved a tacit commitment to play the political game by the accepted "realist" conventions. And therein lies the third lesson for today: that this kind of entanglement, the agreement to play by others' rules, can lead to difficulties and betrayals. The worst of these were in the realm of the human spirit and involved attempts to coerce consciences (as Pope John Paul II acknowledged on the First Sunday of Lent last year, when he asked God's forgiveness for the times in which the Church had used coercive state power to enforce its truth claims). But there was another, perhaps less familiar, dimension to this aspect of the problematic of entanglement: the fact of the Papal States and the pope's position as a temporal sovereign could lead the papacy into alliance politics that set the universal pastor against part of the flock. In 1830-31, for example, Pope Gregory XVI, because of the complex web of European alliance politics and then-regnant Catholic theories of the rights of constituted sovereigns, sided with Czarist Russia as it suppressed a rebellion of independence-minded Poles.
There are multiple ambiguities surrounding the term "Constantinian," but neither "Carolingian" nor "Gregorian" quite captures the phenomenon I am trying to describe here. So permit me to call the deep entanglement of the Church and the papacy with state power, and the papacy's tacit acceptance of criteria for political judgment that were sometimes incompatible with the Church's evangelical mission and the papacy's evangelical function, the "Constantinian arrangement"--and to note that this state of affairs was the product of both a distinctive history and a strategic judgment: that the Church's truth claims and public position required the buttressing of something like "Christendom." This "Constantinian arrangement" had numerous theological and practical tensions built into it from the outset. With the Second Vatican Council and the pontificate of John Paul II, a renewed ecclesial self-understanding and different historical circumstances have created a new model of engagement between the papacy and power. With Vatican II and John Paul II, what I am calling (for want of a better term) the "Constantinian arrangement" has been quietly buried.
The beginnings of a new form of papal engagement with the world of power date to the mid-nineteenth century. At that point, the Papal States had been under continuous pressure for forty years, first from revolutionary France and Napoleon, later from Italian nationalism. The popes resisted the loss of their temporal sovereignty to the bitter end. Yet as the old edifice of papal temporal power was crumbling, the first probes toward a papacy of witness and moral suasion could be detected.
Cambridge historian Owen Chadwick locates the first of these probes in 1839, when Pope Gregory XVI condemned the slave trade. It was a condemnation he had no capacity to enforce; Gregory XVI couldn't even get the Portuguese government, the chief offender on this score, to pay him any attention. But he issued the condemnation anyway, in an effort at moral persuasion. A new method of papal engagement with the world of power could also be detected in the mid-nineteenth-century popes' struggles with European governments, defending local bishops and local churches on contested questions such as local episcopal authority and marriage law. Here, for the first time, the popes brought into play the levers of international public opinion and the international press. During this period, the popes gained more effective control over local churches; but this trend, often deplored as "centralization," also meant that the popes could help local churches against various governmental pressures. Because of this, Chadwick concludes, Catholics in Germany, France, the United Kingdom (and even Spain and Austria) came to think of papal power as "indispensable to their freedoms."
In 1854, 1862, 1867, and 1869-70, large numbers of bishops came to Rome from all over the world for, respectively, the doctrinal definition of Mary's immaculate conception, a protest against encroachments on the temporal power, a celebration of the jubilee of the martyrdoms of Peter and Paul, and the First Vatican Council. These bishops' presence in Rome demonstrated to the European powers that the Church had a life of its own, independent of the assertive modern state and its tendency to occupy every nook and cranny of social space.
The largest of these gatherings, Vatican I, was, among many other things, a pivotal moment in the emergence of a new form of papal engagement with the world of power. The Council's declaration that the pope enjoyed a universal pastoral jurisdiction denied, as a matter of principle, that the modern state had any role in the Church's internal governance; this in turn began a process in which the authority of local bishops (over 80 percent of whom were appointed by governments in the early nineteenth century) was once again tied to their communion with the Bishop of Rome, rather than to their "communion" with their temporal rulers. The large representation of Catholic bishops from outside Europe at the Council demonstrated, against European secularists, that the Catholic Church was not simply a department of the ancien regime. And the immense personal popularity of Pope Pius IX, widely perceived throughout the Catholic world as a victim of unscrupulous men of power after the loss of the Papal States in 1870, bound individual Catholics to the papacy while creating the modern model of the pope as a charismatic public personality.
The demise of the Papal States was, in fact, the crucial change creating the conditions for the possibility of a papacy that engaged world politics with its own evangelical instruments. This first became evident in the pontificate of Leo XIII, who was, as Chadwick notes, "the first pope since Charlemagne not to inherit a state to govern." Leo's 1879 encyclical on the reform of Thomism, Aeterni Patris, suggested that the Church had a distinctive way of engaging the intellectual life, as well as a spiritual life independent of modern state politics. Rerum Novarum, Leo's 1891 encyclical "on the condition of the working class" and the Magna Carta of Catholic social doctrine, became a powerful instrument in the hands of a papacy seeking to teach the nations, not rule them--a papacy exerting its influence by argument. (Could such a statement of social doctrine have been issued if the popes had remained temporal rulers of the Papal States, burdened with the notion that they possessed plenipotentiary power in social, economic, and political life? It seems unlikely, perhaps even impossible.)
As with any historical process involving a venerable institution, though, the evolution of a "post-Constantinian" papacy from Pius IX to John Paul II was complex and uneven. At the same time as the popes were exploring new modes of engagement with politics and the world of power, the Holy See sought to restore itself as a player in international affairs after the loss of the Papal States. The Lateran Treaty of 1929 settled one problem: as sovereign of Vatican City State (all 108.7 acres of it), the pope was not subject to any higher temporal authority. Throughout the turbulent middle years of the twentieth century, the Holy See tenaciously sought to rebuild its diplomatic relations, to secure the Church's legal standing in modern states, and to give the Church a place at the table in international forums. The table was not always welcoming. In 1919, the Holy See had diplomatic relations with only twenty-six states, principally from Latin America, and Pope Benedict XV was blocked from participating in the Versailles peace conference by Clause 15 of the secret accord that bound Italy to the Allies in 1915.
Conventional ways of thinking about international affairs could lead to myopia at the Vatican at times when clarity of evangelical and moral insight would have been welcome. No serious student of these matters believes that Pope Pius XII was an anti-Semite or that he welcomed the prospect of a Nazi-dominated Europe. Indeed, serious students of this period know that Pius XII took heroic actions on behalf of European Jews and other victims of Nazism, to the point of acting as a middleman in a plot to overthrow Hitler by force. At the same time, senior diplomatic figures in the Holy See may have been so conditioned by realist modes of analysis that they missed the totalitarian difference in German National Socialism, thinking it rather a particularly ugly form of classic German nationalism. If this is true, it must be noted that the Holy See's diplomats were not alone in this misreading. But it must also must be said that one expects more in terms of moral clarity from the Holy See than from Number 10 Downing Street or the Quai d'Orsay.
In any event, by the mid-1960s the Holy See's quest for a place at the table of international political life had been vindicated. The Holy See had full diplomatic relations with fifty-two countries by 1965 and a settled place as a Permanent Observer at the United Nations after 1964. While these developments were unfolding in the aftermath of World War II, Pius XII and John XXIII developed the model of the pope as a charismatic public figure with international moral authority. Then came the crucial moment: the Second Vatican Council, whose teaching accelerated the transformation of Catholicism into a "post-Constantinian" Church and made possible the reconstitution of the papacy as a primarily evangelical institution.
Rather than conceiving the Church by analogy to the state, as both theology and canon law had done for centuries, Lumen Gentium, the Council's Dogmatic Constitution on the Church, described the Church as an evangelical movement with a global mission, a movement in which the purpose of office (including the Office of Peter) is to facilitate the response of all the baptized to the universal call to holiness. According to Lumen Gentium, every other function of the Church, including its relationship to the world of power, must serve these primary purposes of evangelization and sanctification.
Dignitatis Humanae, the Council's Declaration on Religious Freedom, taught that the state was incompetent in theological questions and declared that the Church would no longer put coercive state power behind its truth claims. In doing so, Dignitatis Humanae made possible the emergence of the Catholic Church as an assertive, effective proponent of basic human rights.
Gaudium et Spes, Vatican II's Pastoral Constitution on the Church in the Modern World, portrayed the free and virtuous society in pluralistic terms, as created by the interaction of a political system, an economic system, and a cultural system. In doing so, Gaudium et Spes suggested an image of the Church as the teacher and evangelist of culture, rather than a political player in the conventional sense.
And Christus Dominus, the Council's Declaration on the Pastoral Office of Bishops in the Church, drew a bright line between the Church and the world of power by teaching that, in the future, governments would not be allowed "rights or privileges" in the nomination of bishops.
On the other hand, as if to underline the unevenness of evolutionary change in large institutions and the complexity of the issues involved in the encounter between the Office of Peter and the world of power, the immediate post-Vatican II period witnessed what may have been the last significant initiative in the 1,650-year history of the "Constantinian" papacy: the Ostpolitik of Pope Paul VI (the former Giovanni Battista Montini) and his chief diplomatic agent, Archbishop Agostino Casaroli.
The Montini/Casaroli Ostpolitik was a fourteen-year-long attempt to achieve, through classic bilateral diplomacy, a modus non moriendi (a "way of not dying") with the Communist states of Central and Eastern Europe. The Ostpolitik included both a tacit papal commitment to avoid a public moral critique of Marxist-Leninist systems, and efforts by the Holy See to curb the activities of clandestinely ordained underground priests and bishops in Warsaw Pact countries. This diplomatic strategy of salvare il salvabili ("saving what could be saved," as Casaroli often described it) was informed by two "realist" political assumptions: that the Yalta division of Europe was a fact of international life for the foreseeable future, and that the breach marked by the Iron Curtain would only be closed by a gradual "convergence," in which a slowly liberalizing East eventually met an increasingly social-democratic West. During that glacial process, Montini and Casaroli agreed, the Church had to make provision for the appointment of bishops and the continuity of the Church's sacramental life by reaching agreements with existing governments, even if such agreements were deplored (as they usually were) by the local underground Church.
In electing a Polish pope in 1978, the College of Cardinals did not consciously reject this strategy of accommodation (which Patti VI, who was deeply ambivalent about it, described privately as "not a policy of glory"). Some of those who promoted Cardinal Karol Wojtyla's candidacy were advocates (and, in one instance, an architect) of the Ostpolitik. But in the first year of his Pontificate, John Patti II made clear that he intended to pursue, personally, a different tack--a "post-Constantinian" strategy of resistance through moral revolution.
Three times in the first four days of his pontificate, John Paul vigorously defended religious freedom as the first of human rights and the nonnegotiable litmus test of a just society; it was a theme that had been muted under the Ostpolitik of Paul VI and Archbishop Casaroli. Then, during his epic first pilgrimage to Poland in June 1979, John Paul comprehensively unveiled his strategy of political change through moral revolution. By returning to his people their authentic history and culture, and thus giving them a form of power that the regime's truncheons could not reach, the Pope demonstrated that the Communist emperor had far fewer clothes than "realist" analysts (including both Western political leaders and Vatican diplomats) suspected. In doing so, he opened the path to the emergence of Solidarity. And the rest, as they say, is history.
In his recent, posthumously published memoirs, Il martirio della pazienza [The Martyrdom of Patience], the late Cardinal Casaroli, whom John Paul II appointed his Secretary of State in April 1979, suggests that there was no substantive difference between his Ostpolitik and the "eastern politics" of John Paul, only a difference of "phases." This is not a claim that will withstand close scrutiny, as two examples will illustrate. Just before John Paul's address to the United Nations in October 1979, Cardinal Casaroli, the cautious diplomat, systematically went through the draft text of the speech, eliminating references to religious freedom and other human rights issues the Soviet Union and its satellites might find offensive; John Paul, the evangelical witness, just as systematically restored the cuts. Then, on a trip to Poland in 1983, shortly after the Pope had had what diplomats refer to as a "frank exchange of views" with General Wojciech Jaruzelski over martial law (those outside the door heard fists being pounded on desks inside), John Paul, standing at the window of the dining room of the archbishop's residence in Krakow, engaged in some banter with students clamoring outside while several guests, including Cardinal Casaroli, tried to continue their dinner. Finally, according to another eminent guest who was present, Cardinal Casaroli exploded, saying to the startled dinner table, "What does he want? Does he want bloodshed? Does he want war? Does he want to overthrow the government? Every day I have to explain to the authorities that there is nothing to this!" That does not sound like the reaction of a man whose differences with his superior were merely matters of tactics or timing.
The more plausible explanation of the relationship between Pope John Paul II and Cardinal Casaroli--an explanation that illustrates the complex dynamics of the relationship of the papacy to power at this transitional moment in papal history--is that, in appointing this loyal and skilled churchman, the architect of Paul VI's Ostpolitik, as his own Secretary of State, John Paul was deliberately adopting a dual strategy. Remnants of a "Constantinian" approach to playing by the rules of the game would be deployed for whatever they might achieve; the diplomatic dialogues initiated by Casaroli over the previous fourteen years would continue, and the Communist regimes in question could not charge the Vatican with "reversing course" or reneging on formal agreements. Meanwhile, the Pope himself would pursue a "post-Constantinian" strategy of appealing directly to peoples who could be aroused to new, nonviolent forms of resistance--and thence to self-liberation--through a call to moral arms and a revival of Christian humanism.
The Ostpolitik of John Paul II is the clearest example to date of a "post-Constantinian" model of engagement between the papacy and the world of power. It was unmistakably different from the Montini/Casaroli Ostpolitik, ecclesiologically, strategically, and tactically. It marked a decisive break with the "Constantinian" arrangement of the past.
What does all this mean for the future? Let me begin to attempt an answer by telling a tale of two journalists.
One of them, a distinguished American columnist and a Jew who has been known to say, "I don't know whether I believe in God but I sure fear Him," asked me, on May 16, 2000, who the next pope would be. I said I hadn't got the faintest idea, to which he replied, "Well, will he be like John Paul?" Yes, I replied, I thought the next pope would continue the evangelical style of John Paul II, including the Papal role as global defender of basic human rights. Good, my friend said--and then laughed. When I asked what was so funny he said, "You know, in 1978, I couldn't have cared less who the next Pope would be. Now it's something important to me." My friend has no personal religious investment in the Papacy. But he recognized that there was something good for the world in the fact of a universal moral reference point, embodied in an ancient office whose occupant acted in world affairs according to the logic of the Church's truth claims, rather than according to the realist rules of the game.
Three days later, Vittorio Messori, a prominent Italian journalist who had been John Paul II's interlocutor in the international bestseller Crossing the Threshold of Hope, wrote a column in Turin's La Stampa arguing that twenty-two years of Slavic exceptionalism and "agitation" had been enough for the Church, and that a return to "normality" was called for--by which Messori meant a return to the Italian papacy. Italians, Messori argued, had a native disposition for the papal office and for maneuvering deftly through the rocks and shoals of history.
The American Jewish agnostic, it seems to me, has a clearer insight into what the Papacy of John Paul II has meant for the Church and the world than the Italian Catholic journalist. And while he would obviously not put it in these terms, my agnostic friend also has a firmer grasp on the fact that the Church, while a "resident alien" in the world, always exists for the world, for the world's salvation, than does the Catholic commentator for whom the Church remains primarily an institution to be managed.
Be that as it may, the clash between these two readings of the meaning of John Paul II will likely be the issue in the succession to John Paul II: Quale Papa? What kind of Pope? Popes, to be sure, have both evangelical and institutional responsibilities. But quale Papa: a pope who is primarily an institutional manager, or a Pope who is primarily an evangelical witness?
In the locks along the ship canal that divides Seattle north and south, salmon swimming home to spawn pass through a series of "trapgates," beyond which there is no possibility of return. With the Second Vatican Council as authoritatively interpreted and embodied by John Paul II, the Catholic Church has passed through a trapgate in history from which there is no turning back. The next Pope, or the Pope after that, or his fourth or fourteenth successor, may not bring such exceptional gifts of spirit and intellect to the Office of Peter. We don't know. But Karol Wojtyla's achievement in recasting the Papacy is not Wojtyla's alone. There is a logic--a theo-logic, if you will--in the evangelical/pastoral model of the Papacy Wojtyla has so brilliantly embodied that will be difficult to reverse.
There is no one image of Peter in the New Testament, but rather a tapestry of images: Peter the fisherman-disciple, who "left everything" to follow Jesus (Luke 5:10-11); Peter the witness to great moments in the ministry of Jesus, including the raising of Jairus' daughter (Mark 5:37) and the Transfiguration (Mark 9:2); Peter the shepherd, entrusted with the keys to the kingdom of heaven (Matthew 16:19) and enjoined to feed the Lord's lambs (John 21:15-17); Peter the first confessor of the faith, whose sermon on Pentecost after the outpouring of the Spirit marks the beginning of Christian mission (Acts 2:14-41); Peter the visionary who is given supernatural guidance as he baptizes the Gentile centurion Cornelius and his family (Acts 10:9-16); Peter the Christian martyr, whose ministry means being led, finally, "where you do not wish to go" (John 21:8). But the "figure in the tapestry," to adapt an image from Henry James, the thread that ties these multiple images together, is Peter's distinctive mission to "strengthen the brethren" (Luke 22:32)--the dominical injunction so frequently cited by John Paul II.
John Paul II has revitalized the Papacy for the twenty-first century by retrieving and renewing its first-century roots, which lie in the New Testament's portrait of Peter's unique role as the apostle who "strengthens the brethren." In doing so, John Paul has aligned the exercise of the Office of Peter with the Second Vatican Council's teaching on the nature of the episcopate, in which, the Council Fathers write, "preaching the gospel has pride of place." Bishops are, first and foremost, evangelists, not managers. As John Paul has demonstrated with effect, that is as true for the Bishop of Rome as it is for the bishop of the smallest missionary diocese.
That this process of retrieval and renewal will continue beyond John Paul II is also likely because the structure of expectations surrounding the papacy has changed. Now more than ever, both the Church and the world expect the Bishop of Rome to be a global witness to moral truths about the dignity of the human person. Neither the Church nor the world should expect the next conclave to produce a duplicate of Karol Wojtyla; no such carbon copy exists. But the world and the Church are quite right to expect an evangelical/pastoral Papacy in the future, rather than a bureaucratic/managerial one. Those expectations must bear on the deliberations of the cardinal-electors, who will know that they are electing a Pope not for the Catholic Church alone, and certainly not for themselves, but for the world.
To argue that the Pontificate of John Paul II constitutes a decisive moment of development in the Office of Peter in the Church is not to say that the "post-Constantinian" papacy will be without its own ambiguities and tensions, however.
There are built-in ecumenical tensions in the exercise of a global Papal ministry of moral witness and persuasion. More than a few evangelical Protestants find this the most compelling aspect of John Paul II's Papacy. But the development of this model in the twenty-first century may cause further difficulties with Orthodox Christians, some of whom will see in it a claim of universal jurisdiction they cannot abide. I think they will be mistaken in this, for, as John Paul II suggested in the 1995 encyclical Ut Unum Sint, the papacy's universal ministry of witness need not include a jurisdictional role in the East of the sort the Bishop of Rome exercises in the West. But psychology can be as determinative as theology in these matters, and Catholics must frankly face the fact that the emergence of an evangelical/pastoral Papacy with universal "reach" has added another item to the list of problems to be sorted out with Orthodoxy.
There are also tensions between the evangelical/ pastoral model of the Papacy and the current diplomatic position of the Holy See. Despite a recent and bizarre effort to strip the Vatican of its Permanent Observer status at the UN, the issue here is not whether the Holy See can act as a diplomatic agent with international legal "personality"; that is a long-settled issue in international law and diplomatic practice. The question is, should it?
At the moment, the Holy See enjoys full diplomatic exchange at the ambassadorial level with 172 countries. In developed democracies in which the Church's legal position is secure, this diplomatic representation has little to do with public affairs, and the Papal nuncio functions almost exclusively as the papal representative to the Catholic Church in a given country, a representation that has to do primarily with the selection of bishops. In new democracies, Papal diplomacy has helped secure free space for the Church to function, through concordats and other legal instruments. In places where Catholics are persecuted or under pressure, the Papal nuncio can function as a safeguard for local Catholics: a lifeline to Rome, and to the capacity of Popes to focus the spotlight of international public attention on things that authoritarian regimes would rather keep hidden. The fact that the Holy See is a recognized international diplomatic and legal actor also gives the Church and the pope a means of engaging totalitarian regimes with whom the Holy See does not have diplomatic relations, which are usually countries in which the local Church is too weak to defend itself effectively.
In addition to its Permanent Observer status at the UN, the Holy See is represented diplomatically at the European Union, the Organization for Security and Cooperation in Europe, and the Organization of American States. On this international plane, where issues of grave moral import are now regularly being decided, the diplomatic quiddity, so to speak, of the Holy See can make a significant difference. John Paul II's defense of the universality of basic human rights at the UN in 1979 was a factor in the collapse of communism, as it was in 1995 in meeting the challenge of those who claimed that the very idea of "human rights" was Western "cultural imperialism." The Pope's personal campaign prior to the 1994 Cairo World Conference on Population and Development, and adroit Holy See diplomacy in Cairo itself, frustrated the efforts of the Clinton Administration and its European and NGO allies to have abortion-on-demand declared a fundamental human right under international law. Holy See diplomacy since 1994 has been important in rallying opposition to the new totalitarianism of lifestyle libertinism in regional and international forums, on issues of the family, homosexuality, etc. There are undoubtedly ambiguities in aspects of this kind of Papal engagement with the world of power; in trying to accomplish certain moral ends (e.g., to secure universal access to education and parental rights in education) the Holy See may find itself acceding to declarations full of other dubious matter (e.g., the International Convention on the Rights of the Child). But it is also true that something important would have been lost these past two decades had the Holy See and the papacy not been diplomatically engaged on the international plane.
No matter how the debate--quale Papa?--is resolved, it is extremely unlikely that any Pope in the foreseeable future will dismantle the Holy See's diplomatic network. In some instances, this would damage the position of hard-pressed local churches. Internationally, it would mean abandoning a modest but real leverage that, in itself, is arguably good for the international system: the leverage of moral [per]suasion, which reminds the world of power that the world of power is not all there is.
But try, for a moment, a thought experiment: From the Church s distinctively evangelical point of view, would the abandonment of international legal and diplomatic linkages between the Office of Peter and the world of power be desirable? Is this engagement not in deep tension with the notion of the Church as an evangelical movement in history? Can Popes be moral witnesses and "players" at the same time? Wouldn't it be simpler, cleaner, purer if the papacy abandoned all formal linkages to the structures of worldly power and acted as an agency of moral witness alone?
It depends on what you mean by "Church" and by "politics."
The Church, according to Vatican II, is an evangelical movement in history. To be such a movement in history means to have a concrete institutional form and to deal with other institutions through the best means that human beings have developed for ordering our common life: law and politics. The Church is not a state and must carefully avoid acting like a state. But the Catholic Church is more than a voluntary association with a cause. It is the institutional embodiment of truth claims, and according to its own self-understanding, the basic forms of that institutionalization are of the will of God: the Church as a communio of believers; the episcopate, the priesthood, and the Office of Peter as servants of that communio and its service to the world.
However ambiguously--and the ambiguities will be lessened if the Church of the third millennium further develops the "post-Constantinian" model of engagement with power--the fact of the Papacy's formal entanglement with national and international political structures is an expression of the Church's reality as a sovereign community: a community that fully possesses the means to achieve its spiritual ends, and is therefore neither dependent on, nor subject to, other sovereignties in the pursuit of those ends. That expression is important for the Church to be what she is.
The reality of the Papacy's formal entanglement with politics is also important for politics, however. If by "politics" we mean the will-to-power and my capacity to impose my will on you, then it would be unseemly, even self-contradictory, for an evangelical movement committed to the method of persuasion to be a "player" in that game. But if we understand politics, even international politics, to include mutual deliberation about the oughts of our common life--if in politics, even the politics of nations, we understand ourselves to be engaged in the sphere of ethics--then things look different. A global evangelical movement constituted as a sovereign institution for its own spiritual ends has a place at the table in the deliberation of those oughts. That "place" is both a reminder of the ethical dimension of the exercise of power and a check on the absolutist tendency built into all modern politics. By reminding the world of power that it is not sovereign over all aspects of life, the papacy, engaged diplomatically, performs an invaluable service to the world of power. It is not the power to bring princes to confession on their knees, in the snow. It is more important than that.
The Holy See today plays a central role in mounting one crucial kind of moral argument--an argument rooted in the inalienable dignity of the human person--in an international political environment in which multiple other "moral" claims are in play: most particularly, at this moment in history, the desperately defective morality of utilitarianism and its reduction of the human person to an object fit for manipulation. For the papacy to withdraw from formal involvement in international political life would be to concede, in practice, a considerable part of the terrain of moral argument to the new Benthamites and their plans for remaking the human condition by remanufacturing human beings. The Holy See is not the only actor engaged in moral and political combat with the new utilitarians. But as the Cairo Population Conference demonstrated, it is the most potent and effective defender of the dignity of the human person as the foundation of rightly ordered thinking about politics.
Thus, precisely for the world's sake, the Church must continue to run the risks of ambiguity in its engagement with worldly power, even as the Papacy of the twenty-first century is transformed in the image of John Paul II, the heir and champion of the Second Vatican Council.
The fact is that the Papacy and the Roman Catholic Church demands religious (religio-political) freedom for itself alone, and yet has denied the same to others when it controlled the civil power, eg. during the Medieval Inquisition, and other more recent periods in history.
GEORGE WEIGEL is Senior Fellow at the Ethics and Public Policy Center and author of Witness to Hope: The Biography of Pope John Paul II. This essay is adapted from his Erasmus Lecture, delivered in New York in November 2000.
Papacy and Power - George Weigel.
First Things: A Monthly Journal of Religion and Public Life. (Roman Catholic publication)
COPYRIGHT 2001 Institute on Religion and Public Life
by James Kurth
THE MOST ANCIENT and enduring of European institutions is the Roman Catholic Church. For much of the past two millennia, it was a central presence that shaped and defined European life. For the past half-millennium or what we know as the modern age, it has been a target of all the great movements of European history--the Renaissance, the Reformation, the French Revolution, the industrial revolution, communism, and fascism. Through it all, the Catholic Church has endured, and at times even prevailed.
Now on the eve of the third millennium, Europe is entering into yet another era in its long history, brought about by the collapse of the Soviet empire and communism in Eastern Europe, by the disintegration of Yugoslavia, by the integration of the European Community, and, above all, by the reunion of the two half-Europes--Western and Eastern--for the first time in a half-century. In doing so, Europe once again is having great consequences for the rest of the world.
Recognizing these changes and the potential that they bring for even more changes in the future, Pope John Paul II in 1991 promulgated a new papal encyclical, Centesimus Annus (the title of the English-language edition is On the Hundredth Anniversary) which presented a distinctive Catholic conception of a just social order for the new Europe and the new world, and he has continued since to advance this conception on many occasions. Thus, the ancient Church addresses the new era, the premodern institution addresses the post-modern age. But the Catholic Church not only addresses the new era; it will again help to shape and define it too.
As the center of a transnational institution which will help shape the new, the Papacy will have significant consequences both for Europe and for the United States. But there will be different perceptions of these consequences on the two sides of the Atlantic. Europeans, who have been dealing with the Papacy for centuries, will more readily understand this new chapter in an old history. Americans, in contrast, have had almost no dealings with the Papacy in the course of their national history, and accordingly some misunderstandings are sure to arise.
A Legacy of Opposites
THE UNITED STATES is the most powerful actor in international affairs. The Roman Catholic Church is the oldest. They are the two most pervasive organizations in the world today. They are sure to connect, and on occasion to conflict.
It has always been exceptionally difficult for Americans to comprehend the nature of the Papacy. Both the Protestant origins and the contemporary liberalism of the United States have given rise to perspectives that are very different from those of the Catholic Church, and from the Papacy that is its head. But beyond these familiar differences grounded in theology and ideology are differences grounded in international roles.
The Papacy's role in international affairs is shaped by three essential features:
(1) As the Vatican, it is a small state, indeed the smallest state in the world.
(2) As the Holy See, it is the representative of a universal (i.e., catholic) church in a world of nation-states, of one faith composed of many nations.
(3) As the Pontiff (Pontifex Maximus, or the Master Bridge-Builder), it is the bridge, the mediator, between the secular world and the spiritual one.
Each of these three essential features of the Papacy makes it extremely difficult for Americans to understand, for the United States is in a large measure the opposite in each of these aspects:
(1) The United States is a superpower, indeed it is the most powerful state in the world.
(2) The United States is one nation composed of many faiths.
(3) The United States is an unusually secular society, with strict separation of church and state and with virtually no official recognition of the claims of the spiritual world.
Despite these differences in perspective, the United States and the Papacy clearly have had common interests in international politics, and there have been many points of convergence between their policies. The convergence was most pronounced in the 1980s, during the presidency of Ronald Reagan and the Papacy of John Paul II. The central axis of agreement, of course, lay in their common opposition to Marxism and especially to Soviet power.
During the first half-century after the Russian Revolution of 1917, the United States and the Catholic Church shared a common resistance to the expansion of Soviet power, but the emphasis and the timing varied. At some times--during the 1930s, the Second World War, and the late 1950s-- the Catholic Church was more opposed to the Soviet Union than was the United States. At other times--for example, the 1960s--the United States was more opposed to the Soviets than was the Church.
During the last two decades, however, there was increasing convergence between the perspectives of the two. The 1970s were the period of greatest accommodation with Marxism on the part of both the United States (the policy of detente) and the Catholic Church (the rise of Liberation Theology). Conversely, the 1980s were the period of greatest resistance to Marxism on the part of both, with the most anti-Soviet president and the most anti-Soviet pope at least since the late 1940s.
With the decline of Marxism and the end of Soviet power, it is natural enough to think that we now live in an era defined by the almost-universal acceptance of American liberal ideals, including liberal capitalism, an era defined by the "end of history." But the disappearance of the Marxist and Soviet threat has also meant the disappearance of the central axis of convergence between the United States and the Catholic Church. We are likely to see a growing awareness of fundamental differences between the liberal and the Catholic ideals and between U.S. and papal foreign policies. This would represent not only the return of history; it would be something of a return of antiquity as well.
Transfigurations and Resurrections
FOR MUCH OF the past half-millennium, the history of Europe and especially Central Europe was defined by the grand alliance between the Catholic Church and the Habsburg monarchy. Together, these two great transnational institutions shaped the society, the culture, and the lifestyle of Central Europe into distinctive forms, sometimes summed up in the idea of Mitteleuropa. This half-millennium, which corresponds to the modern era, is often seen as the story of the rise of secular national states, whose prototypes were France and England, to be followed in the nineteenth century by Germany and Italy. Seen from the other side of the coin, however, it is the story of the decline of the two great transnational institutions, the Catholic Church and the Habsburg monarchy.
For the Habsburg monarchy, it was a decline that culminated in its destruction in 1918. For the Church, however, it has been a decline that has been punctuated by a long series of reforms and revivals, of transfigurations and resurrections, so that it remains a vital transnational institution even today.(1)
During much of this time, the Papacy had its own territorial domain, a small but still significant realm known as the Papal States. These stretched across central Italy and included the area around Rome and also Umbria, Emilia-Romagna, and the Marches (about 16,000 square miles in all).
The military protector of this realm was, of course, not the famous Swiss Guards but the Habsburg army. When this army was defeated, as in Napoleon's conquest of Italy and 1797 and Napoleon III's support of Italian unification in 1859, the Pope's territories were threatened with extinction. But for a decade from 1860 to 1870, Napoleon III himself became the military protector of the last remaining Papal State around Rome (in order to gain political support from French Catholics). When he in turn was defeated in the Franco-Prussian War in 1870, the new Italian state annexed the Papal State, putting a decisive and complete end to the Pope's territorial domain. At the time, a great Church Council was being held in the Vatican (it would be known as Vatican I; Vatican II would be held in 1962-1965). It was this Council that declared the dogma of papal infallibility. Thus the moment of the total extinction of the Pope's temporal power coincided with that of the most extreme expansion of his spiritual claims.
Pope Pius IX retreated into the Vatican, never to leave it again (thus becoming known as "the prisoner of the Vatican"). The estrangement between the Roman Catholic Church and the secular (and usually liberal) Italian state was to last for almost sixty years. It was brought to an end in 1929 with a treaty and a Concordat known as the Lateran Agreements. Concluded between Mussolini and Pope Pius XI, they established the Vatican State (all one-sixth square mile of it) as an independent state recognized by Italy and by international law.
Despite the Agreements, it was not long before the Catholic Church and the Fascist regime were in dispute over a range of issues, especially over education in Catholic schools. But Italy was no longer the secular power that seemed to pose the greatest threat to the Church. That was now the power that had arisen out of the Russian Revolution.
Revolution and Holocaust
THE GREAT DIVIDE between the Catholic Church and the Russian state goes back almost a thousand years, to the Great Schism between the two halves of Christendom, Western and Eastern, Latin and Greek, Roman and Orthodox. Ever since, there have never been many Roman Catholics among the Russian people themselves. But the Russian Empire of the Czars, that "prison of nations," ruled tens of millions of Catholics in Poland and Lithuania. When that empire collapsed with the Russian Revolution and with the peace settlements after the First World War, Poland and Lithuania became independent. Thus, the new Soviet state contained almost no Catholics at all. It was clear, however, that any expansion of Soviet power toward the West would immediately bring millions of Catholics once again under the rule of a deeply anti-Catholic regime, one that this time was not only hostile to the Catholic faith but was militantly atheist as well.
Beyond this possibility of Soviet territorial expansion to the West, there was also the possibility of Soviet-supported communist revolutions in Europe, as had happened briefly in 1919 in Bavaria and Hungary, those two very Catholic countries. Of course, in the 1920s and 1930s, the Soviet Union for the most part withdrew from any significant efforts to encourage revolution in European countries; this was particularly the case after Stalin came to power and imposed the conception of "socialism in one country." During this period, the domestic threats to the Catholic Church came not from Communist parties but from Socialist ones (e.g., in Spain and France) or even from bourgeois parties with a long traditional of anti-clericalism (e.g., the Radicals in France).
Ironically, it was during the time of the greatest cooperation between the Soviet Union and liberal democratic parties, the period of the Popular Front (1935-1939), that the Soviet Union posed the greatest threat to the Catholic Church. This was in the Spanish Civil War. Here the Spanish Communist Party, under the firm guidance of the Soviet Union, insured that the Spanish Republic continued to respect bourgeois property and norms. At the same time, however, the bourgeois and socialist parties in the Republic were relentlessly anti-clerical. In 1937, at the height of the Spanish conflict, Pope Pius XI promulgated a major encyclical which vigorously condemned communism (Divini Redemptoris; its English-language title was Atheistic Communism). This document articulated a coherent conception of the containment of communism, a decade before the famous article by George Kennan in Foreign Affairs, "The Sources of Soviet Conduct."
The Catholic Church was also threatened by the Nazi regime in Germany and even by the Fascist regime in Italy. In 1937 Pius XI issued an encyclical condemning Nazism (Mit Brennender Sorge or With Burning Concern) and was about to issue one against fascism, when he died in 1939. The Papacy clearly judged each of those totalitarian movements to be grave threats to the ideals and the interests of the Church. Still, at the time, the Soviet Union and communism seemed to be the greatest threat. After all, both Nazi Germany and fascist Italy gave substantial military support to the Franco or pro-Catholic forces in Spain.
The successor to Pius XI was Cardinal Eugenio Pacelli, who became Pius XII. He was the Papal Secretary of State and had spent years as the leading diplomat of the Holy See. Indeed, he saw one of his greatest achievements to have been the conclusion of a concordat between the Holy See and Germany, which had been opposed by many of the political parties in the Weimar Republic but which was quickly accepted in 1933 by the new Nazi regime. (From the perspective of the Vatican at the time, this was rather like the recently concluded concordat between the Holy See and Italy. That too had been opposed by many of the political parties during the liberal era in Italy, but was eventually concluded with the fascist regime.) Upon becoming Pope in 1939, Pius XII was immediately confronted with the outbreak of the Second World War and soon after with the mass murder of the Jews by the Nazis.
The response, or non-response, of Pius XII to the Holocaust is the greatest historical burden that the great and terrible events of the twentieth century have placed upon the Papacy. It has been an ongoing issue in Catholic-Jewish relations for three decades. The silence of the Pope at the time of the Holocaust appears either incomprehensible or all too comprehensible, in light of two millennia of hostility between Catholicism and Judaism. The issue is sharpened because it was the protests in 1941 of Catholic bishops in Germany itself that caused Hitler to halt the program of euthanasia: the single most effective case of opposition to a policy of the Nazi regime. In fact, the Vatican did make diplomatic protests against the persecution of Jews, as well as of other peoples. Nazi Foreign Minister Joachim von Ribbentrop boasted that he had a drawerful of such letters from the Papal Nuncio, which he had left unanswered. But Pius XII did not make public protests against the killing of the Jews. In part this was because he did not protest anything publicly, not even the Nazi killing of three million Polish Catholics. His reasoning was not that of a moral prophet but of the career diplomat that he had been. As he told a group of Cardinals in June 1943:
Every word which we have sent to the respective authorities about such matters and each of Our public pronouncements must be the object of long and thoughtful deliberation in the interests of the suffering peoples themselves, lest involuntarily their position should be made worse, more difficult and unbearable.(2)
The Christian Democracy Solution
THE SOVIET EXPANSION west-ward at the end of the Second World War amply confirmed the Papacy in its judgment of the Soviet Union and communism. The newly-installed Communist regimes in Poland, Czechoslovakia, Hungary, and Lithuania (the latter annexed into the Soviet Union) ruthlessly and brutally persecuted the Catholic Church in these countries. In addition, there seemed to be a high probability in 1946-1948 that domestic communist parties would come to power by electoral means in several West European countries, including Italy, the territorial center of the Catholic Church itself. The specter of the Spanish Republic was haunting the Vatican. At this moment, there were obvious common interests between the Papacy and the United States in the containment of Soviet power and communist parties. And there were virtually no conflicting interests between them. It was true that there were rather different views of the Franco regime in Spain. But when the Eisenhower administration concluded a mutual defense treaty with Spain in 1953, even this difference between the Papacy and the United States disappeared.
The political form that best expressed the common interests, the grand alliance, between the Papacy and the United States was the Christian Democratic party. In the special conditions of post-war and Cold-War Western Europe, Christian Democracy appeared to be a perfect embodiment and a stable equilibrium of these common interests, although the Christian aspect was more important to the Papacy, and the Democratic aspect more important to the United States. The political institution of the Christian Democratic party seemed the ideal solution to the problem of how to bring stable democracy to countries which had large Catholic populations, which had only recently been receptive to fascist regimes (Italy, Germany, even France) and which now had large communist parties (Italy and France). The Truman administration gave substantial support to Christian Democratic parties, including covert financial aid to the Italian party in the crucial election of 1948. And indeed the Christian Democratic formula was a striking success in Italy and in West Germany, from 1948 until the early 1960s.
When the United States and the Papacy both became concerned in the mid-1950s about the growing threat of Marxism in Latin America, it appeared sensible to transport the Christian Democratic formula from Europe to that new continent. This was especially the case in regard to that Latin-American country whose political traditions were most in accord with liberal democracy and whose multi-party political system was quite similar to that of Italy, i.e., Chile. From the mid-1950s to 1970 and under the leadership of Eduardo Frei, the Christian Democratic party of Chile seemed to be a model not only for that country, but perhaps for other Latin American countries as well. The Kennedy and Johnson Administrations gave it substantial support, again including covert financial aid in the crucial election of 1964.
Christian Democracy was an unstable equilibrium, however. In West Germany, where only half the population was nominally Catholic, the party had to reach out to other groups for a wider political base. These became big business interests and middle-class Protestants. The Christian content of the party faded away, and it became largely a conservative, pro-business party like any other in Western Europe. In France, where roughly half the population had been anti-clerical since the French revolution, the Christian Democrats (known as the Popular Republican Movement or MRP) never became more than a minority party, and they disappeared into the ranks of the Gaullist party with the establishment of the Fifth Republic in 1958. In Italy, the Christian Democratic formula had its greatest and most enduring success, and the party has been the dominant party in the national government for forty-five years. Even here, however, the Christian Democrats have been simply the largest of the political parties in a multi-party system, ordinarily gaining 35-40 percent of the votes in national elections. By the early 1960s, this meant that they too needed to reach out to other groups or parties to provide support in parliamentary coalitions. This occurred in 1963 with the then-famous "opening to the Left," which was an opening to the Italian Socialist party, with its longtime anti-clerical traditions. Finally, in Latin America, with its underdeveloped economies and its military regimes, Christian Democratic parties were successful only in Chile (and there only briefly), Venezuela (the richest country in the region), and E1 Salvador (a melancholy success indeed).
In short, Christian Democracy fell between two stools. A Catholic (or Christian) party could not gain a majority of the votes in a democratic election. The voters who would be willing to cast their ballots according to their Catholic identity added up to no more than a third of the electorate in any country. Thus, the parties had to make compromises with non-Catholic groups and parties.
These compromises made the Christian Democratic parties more "democratic" and therefore more attractive to the United States. But they also made the parties less Christian and therefore less relevant to the Papacy, which saw the parties as very lukewarm vehicles of Catholic ideals and interests. Indeed, it is probably fair to say that, within the arena of democratic politics, the Papacy never has found a satisfactory replacement for the Christian Democratic parties as they existed from the late 1940s to the early 1960s. In the past three decades, the Catholic countries of Western Europe, which once contained both large Catholic parties and large Communist ones, have steadily moved away from both of these great political institutions and have conformed themselves more and more to the image of the liberal, secular United States.
The critical issues involving the Papacy and the United States during these three decades were found outside Western Europe.(3)
The focus in the next sections will be on three areas:
(1) Eastern Europe;
(2) Latin America (with reference also to what might be called Latin Asia, i.e., the Philippines);
(3) the United States itself.
The Polish Model
THE PAPACY OF John Paul II greatly reflects the experience of the Catholic Church in Eastern Europe, especially in Poland. For this Papacy, the model of a coherent and vigorous Church, supple and resilient in its resistance to secular powers, has been the Polish Church.
We earlier observed that it has always been difficult for Americans to comprehend the nature of the Papacy. Similarly, it has been difficult for them to comprehend the experience of Poland. Like the Vatican, Poland is in many ways the opposite of the United States. At the very time that the United States was gaining its independence in the 1780s, Poland was losing its independence in the famous Partitions. While Americans have hardly ever known foreign occupation (with the interesting exception of the South during Reconstruction), Poles have hardly known anything else (the exceptions being the period 1919-1939 and the period since 1989).
The collapse of the Soviet bloc was in large part initiated by the Catholic Church in Poland and by a Catholic Pope from Poland. In Poland (as in Ireland), because of the long history of foreign occupation and persecution of both the Catholic Church and local nationalism, there has long been a greater unity between the hierarchy and the society than in most other Catholic countries. From 1945 to 1989, the national state was rejected as a foreign imposition, while the local branch of a universal church was accepted as the fullest embodiment of the national ideal. Conversely, the Polish nation was probably the most Catholic in the world, in a sense the fullest embodiment of the Catholic ideal. For several decades, the Polish Church has been the most perfect example of that "integral" Catholicism that was the Catholic project in Latin Europe (Spain, Portugal, and Italy) in the first half of the twentieth century.
The Polish hierarchy and John Paul II readily developed the conception that the real Poland was represented by the Catholic Church, social solidarity (expressed in the union Solidarity), and "civil society," while the communist state merely represented the formal, or even phony, Poland. In the peculiar conditions of a nation subjected to a foreign power, a transnational church could become the most authentic and dynamic national institution, more so than the national state itself. Thus over time, the civil society or real Poland relentlessly hollowed out the communist state or formal Poland, until in August 1989 the Polish regime became the first communist government to give up power to an anticommunist movement.
For a variety of reasons, the Polish Church is unique among the Catholic countries of Eastern Europe. The historical experience of Czechoslovakia and Hungary resulted in churches that were less robust and resilient in their resistance to the communist state. In both countries, the Catholic Church was identified for centuries with Habsburg rule. The Church was seen as especially alien in the Czech lands of Bohemia and Moravia, which by the late nineteenth century had a highly developed movement of secular nationalism. Still, even in Czechoslovakia and Hungary, the Catholic Church was the most resilient of non-communist institutions.
What will be the role of the Church in the post-communist era? There have been efforts to establish Christian Democratic parties on the model of Italy, West Germany, and France in the post-war era after 1945, but these parties have not yet become strong and successful. Eastern Europe is still in a period of reaction to state socialism, of promotion of unregulated markets, and of a wild variety of political parties. It is likely, however, that the Catholic countries of Eastern, or now more accurately Central, Europe will eventually settle down to a system dominated by a strong conservative party and a strong labor party, like the Christian Democratic and Social Democratic parties of Western Europe, especially of Germany and Austria.
Catholic Social Teaching
THE CATHOLIC CHURCH and any allied political parties in Central Europe will be guided by what is known as Catholic social teaching. This has been articulated in a century-old tradition of papal encyclicals. The first encyclical on social questions, Rerum Novarum (whose English title is The Condition of the Working Classes), was promulgated in 1891 by Pope Leo XIII. It has been followed since then by a half-dozen comparable encyclicals, each focusing on the social questions of the time. They include Quadragesimo Anno (Social Reconstruction, 1931) by Pius XI, Mater et Magistra (Christianity and Social Progress, 1961) by John XXIII, and Laborem Exercens (On Human Work, 1981) by John Paul II. To commemorate this centennial and to direct the application of this Catholic social tradition to the new Europe and to the world, Pope John Paul II designated 1991 as the Year of Catholic Social Teaching, in which he promulgated the new encyclical on contemporary social questions, Centesimus Annus (On the Hundredth Anniversary).
The Papal encyclicals and the social teaching of the Church have consistently criticized both socialism and liberal capitalism as incomplete and flawed ideologies. In their place, the Church advocates such conceptions as society's need to have both business organizations and labor unions, but also the "principle of the priority of labor over capital"; the need for meaningful work and a "just wage" for the full development of the human person; and the need to limit state power to its proper role by the "principle of subsidiarity," which devolves power and responsibilities to intermediate institutions between the state and the individual.(4)
The most recent encyclical of John Paul II continues and expands on this tradition. Centesimus Annus celebrates the fall of communism in Eastern Europe in 1989. But it also condemns two forms of capitalism, the "national security state" (such as existed in Latin America from the 1960s until the 1980s) and "consumer society" (such as exists in the United States and increasingly in Western Europe). Instead, the Pope praises "a democratic society inspired by social justice" (such as that pursued in much of Western Europe for most of the period since the Second World War). As John Paul sees it, such societies endeavour to preserve free market mechanisms, ensuring, by means of a stable currency and the harmony of social relations, the conditions for steady and healthy economic growth in which people through their own work can build a better future for themselves and their families. At the same time, these attempts try to avoid making market mechanisms the only point of reference for social life, and they tend to subject them to public control which upholds the principle of the common destination of material goods. In this context, an abundance of work opportunities, a solid system of social security and professional training, the freedom to join trade unions and the effective action of unions, the assistance provided in cases of unemployment, the opportunities for democratic participation in the life of society--all these are meant to deliver work from the mere condition of "a commodity," and to guarantee its dignity.(5)
The Papal encyclicals and the social teaching of the Catholic Church will fit the economic needs and realities of the countries of Central Europe for many years to come. They could provide an intellectual order, political legitimation, and policy guidance to governments after the collapse of state socialism and out of the turmoil of liberal capitalism. Catholic social teaching helps to make Catholic capitalists more social in their economic activities, and it helps to make Social Democratic policies more acceptable to a Catholic population. The social teaching of the Papacy, which has provided a common denominator and ideological consensus for the Christian Democratic and Social Democratic parties of Germany and Austria, could do the same in the other nations of Central Europe in the immediate future. Obviously, this is most likely with the Papacy of John Paul II, the Pope from Central Europe. But it will probably be true under his successor as well.
It is thus the third nature of the Papacy, that of master bridge-builder, that could come to have the most importance for the United States. This is because it is this nature that could come to have the most meaning and consequence for the peoples of Central Europe, that region which is so central in so many ways. They are peoples who for a half-century have been particularized, atomized, and pulverized and who now live among the ruins and ashes of extinguished secular faiths. What they now most seek are the builders of bridges--bridges between their occupations, classes, and nations; between their past, present, and future; and between their material, intellectual, and spiritual selves.
Latin America and Liberation Theology
THE VAST REALM of Latin America is of central importance to both the United States and the Papacy. Latin America is the foreign region of most longstanding U.S. influence and presence. In many instances a U. S. approach toward the world has been prefigured by an earlier U. S. approach toward Latin America. For example, the pattern of U. S. foreign economic relations with Latin America before the Second World War was generalized to other regions after the war, and the Rio Treaty of 1947 was recapitulated in the NATO Treaty of 1949. Thirty-five years later, President Reagan in 1983 stated that if the U.S. could not prevent a Marxist victory in El Salvador, it would lose credibility in every other part of the world, and the Reagan Doctrine of aid to anticommunist insurgents was first developed for the Contras in Nicaragua.
For the Papacy, Latin America is that region where there are more Catholics than anywhere else. Of the some 900 million Roman Catholics in the world, 370 million or not far from a half are in Latin America. (Europe contains 260 million, Asia 80 million, Africa 95 million, and North America 90 million.) With the relatively high Latin American birth rates, the weight of Latin America within the Catholic Church will continue to increase. Indeed, it might be said that there are three great geographical realms or pillars within the Catholic world--Europe, the United States, and Latin America--and that each makes its own distinctive contribution to the Church. Europe provides the tradition and the institution, the shepherd as it were; the United States provides the financial resources or the pasture; and Latin America provides most of the faithful or the flock.
In Latin America, the United States and the Papacy has each faced a double threat. Until the late 1980s, the United States confronted Soviet-supported Marxist movements but also the rather more subtle yet substantial threat of radical nationalism, which in the Latin-American context meant radical anti-Americanism. Marxism probably has disappeared for good, but radical nationalism almost surely will return, as it has many times before.
Similarly, the Vatican also confronted Soviet-supported Marxist movements, but it also confronted and continues to confront the more subtle and substantial threat of liberation theology and the "popular church," which in the Latin-American context often means opposition to the Vatican and to the institutional Church. Liberation theology poses a threat to the U.S. in regard to the capitalist economy, and it poses a threat to the Papacy in regard to the traditional hierarchy. In this vast realm of such importance to both the United States and to the Papacy, therefore, there can be points of convergence in perspectives and policies.
There are important differences, however. The U.S. ideal in Latin America is a series of countries which are liberal in their politics and capitalist in their economies. Current examples are the Menem government in Argentina and the Salinas government in Mexico. Indeed, since the mid-1980s Latin America has come closer to the U.S. ideal than ever before, even more than at the time of the Alliance for Progress, in the early 1960s.
The Vatican perspective is rather different. The Catholic Church is much closer to the people of Latin America than are the agencies of the U.S. government, be it the Peace Corps on the one hand or the CIA on the other. The social teachings of the Catholic Church, most authoritatively expressed in the papal encyclicals, place little faith in political reforms by themselves. The Church has seen numerous times when liberal regimes have collapsed under the pressure of economic crises and social conflicts. This happened in many Latin-American countries from 1963 to 1973 (and in many European countries from 1922 to 1936). The Vatican ideal in Latin America would be a series of countries which undertake serious and sustained social reform, including major reform in the capitalist economy, with the reform under the guidance of the national conferences of Catholic bishops.
Overall, the Papal analysis of the international political economy is from the perspective of the dependency theory developed by the Third World, rather than the neo-classical theory of the First World or the Marxist theory of what was once the Second World. Not long after the creation of dependency theory by Latin-American political-economists (often associated with ECLA, the United Nations Economic Commission for Latin America), Pope Paul VI incorporated many of its conceptions into his encyclical, Populorum Progressio (The Development of Peoples, 1967). This provided a sort of papal imprimatur to much of the radical economic program of liberation theology. Twenty years later, John Paul II continued these themes in his own encyclical on the international political economy, Sollicitudo Rei Socialis (Social Concerns, 1987), in which the Pope critiqued the negative consequences of liberal capitalism for underdeveloped countries.
Underdevelopment is not just a feature of the Latin-American economies; it is also a feature of the Latin-American hierarchies. In this region especially, the Church confronts a condition in which there are a large number of (nominal) Catholics, but a small number of priests. The priestly mediation between the Papacy and the laity is too thin a reed on which to build a robust Church. Therefore the Church has turned to a new ecclesial form, comunidades eclesiales de base (literally ecclesial communities of the base, but often referred to in English as basic Christian communities). These are small groups of lay people who gather together to discuss the Bible and the ways in which their faith can apply to their lives.
Not surprisingly, a typical basic Christian community will be found at the base of the socio-economic pyramid, i.e., among the poor. In such communities, some parts of the Bible will be especially meaningful. These are Exodus and the prophetic books of the Old Testament and the gospels of the New testament. The story of the Hebrews' deliverance from captivity in Egypt and the Sermon which Jesus delivered on the Mount are two central texts.
The basic Christian community is a place where a person's Catholic faith becomes enriched through discussion of the Scriptures and their application to one's life. As such, it is a place where the life of the Church is renewed. It is difficult to imagine an ecclesial form more appropriate to the conditions of Latin America and more conducive to revival of the Church in that region, or in the Third World more generally.
On the other hand, as the Bible and the history of the Church themselves suggest, in every ecclesial institution there is a tension between the spiritual and the temporal, the sacred and the profane, the universal and the particular. The organizational form of the basic Christian community, a Bible study group without priestly leadership, has much in common with Protestant conceptions. The Protestant Reformation, and the rise of new Protestant denominations within older Protestant churches, arose out of similar groups. The Vatican has thus been concerned that basic Christian communities might become the embryo of a new church, a "people's church," which breaks away from the authority of the hierarchy and from communion with Rome.
Similarly, the social teaching of the basic Christian community, with its focus on social justice, the deliverance of the poor, and the displacement of the rich, has much in common with Marxist ideals, and liberation theology has even more in common with Marxist ideology. The various communist revolutions arose out of similar ideas. Again, it is not surprising that the Vatican has been concerned that basic Christian communities combined with liberation theology might become the incubator or transition stage for the passage of the devout poor from Catholicism to Marxism.
The combination of theology and communities, then, has the potential for a new version of the Protestant Reformation, just as the combination of Marxist ideology and Leninist organizations until recently had the potential for a new version of the Russian Revolution. Indeed, at one time, there was even the potential for the conjunction of the two combinations, for the simultaneous existence within the same country of (1) basic Christian communities inspired by liberation theology becoming a people's church and (2) a Marxist-Leninist movement becoming a hostile revolutionary regime, i.e., the conjunction of the Protestant Reformation and the Russian Revolution. These were the great issues at stake in the little country of Nicaragua during the 1980s. The Papacy had an even greater interest than the United States in reducing the power of the Sandinista regime.
There remain some countries in Latin American where the Catholic Church has been largely untouched by the vitality of basic Christian communities and liberation theology, where the Church for many years has followed a path of accommodation with the powers-that-be. A prominent example is Argentina. Although such situations do not raise the world-historical issues that were posed in Nicaragua, they are not the preferred state of the Church from the perspective of the Papacy. Such churches can do little more than maintain a ritual Catholic presence in their locale. They can provide none of the resources (e.g., a vigorous community of the faithful, candidates for the priesthood, or material assets) which the Papacy needs to draw upon in order to meet its challenges in the 1990s and beyond.
From the Papal perspective, rather, the preferred state of the Church in Latin America is best represented in Brazil. In Brazil there is the most extensive and most experienced network of basic Christian communities in the world. There is a vigorous development and exposition of liberation theology (so much so that the Vatican had to take special measures to correct it). But there is also a strong and confident national conference of Catholic bishops, which has been distinguished by progressive social and political action, by inspiring and effective leadership (such as Bishop Dom Helder Camara), and by the maturity and experience that came from resistance to the authoritarian military regime that ruled from 1964 to 1984. Similar developments occurred in Chile under the Pinochet regime of 1973 to 1989.
The most dramatic example of effective Church leadership bringing an end to an authoritarian regime has not been in Latin America but in what might be called Latin Asia--the Philippines. The Philippines shares a number of features with countries in Latin America: The Spanish colonial past; the weighty American political influence and economic presence; a socio-economic system based upon extreme inequality and export agriculture; and under Ferdinand Marcos, a dictatorship very much in the mode of the caudillos of Latin America. Not surprisingly, the Catholic Church in the Philippines also has much in common with that in Latin America. There has developed an extensive network of basic Christian communities and a lively engagement in liberation theology, as well as a strong Catholic bishops conference under the leadership of Cardinal Jaime Sin.
A pastoral statement of the bishops conference after the election fraud of February 1986 carefully and systematically laid the groundwork for large-scale, wide-spread civil disobedience against the Marcos regime. The statement closely followed the principles of the Catholic theory of Just War (as articulated, for example, in the pastoral letter on nuclear war issued by the U.S. Conference of Catholic Bishops in 1983) and extended these principles into the arena of domestic conflict. As such, the statement developed a sort of prototypical theory of Just Revolution.
The cases of Brazil and the Philippines demonstrate that the Church can play an essential and constructive role in bringing about transition from a decaying authoritarian regime to a new democratic one. The United States and the Catholic Church, each in their own way, can influence crucial supporters of the old regime to make their great transition. The U.S. government will have its familiar points of access with the upper levels of the local military, but in itself this is unlikely to result in much more than a palace coup. It is the Church, with its closeness to the people, that can touch the hearts and change the minds of large numbers up and down the class and bureaucratic ladders. These include the ordinary citizens who can engage in non-violent demonstrations and the ordinary soldiers who can refuse to fire upon them.
The Critique of America
FOR MOST OF its history, particularly from 1867 to 1984, the United States did not have diplomatic relations with the Holy See. Indeed, during much of this period the United States and the Soviet Union were the only great powers without such relations. From time to time, a President would try to upgrade his "personal representative" to the Vatican to the level of a diplomatic official, but for many years, this was always prevented by a grand alliance of Protestant, Jewish, and liberal organizations who objected to "the establishment of a religion." In 1984, however, the Reagan administration at last effected the establishment of full diplomatic relations, at the level of an ambassador, with the Holy See. Secure in the support of evangelical Protestants on most other issues, President Reagan could at last transcend this ancient Catholic-Protestant dispute.
The Reagan administration had its own political reasons for establishing relations with the Vatican. During the Reagan years, the U.S. Conference of Catholic Bishops promulgated pastoral letters on nuclear weapons (The Challenge of Peace: God's Promise and Our Response, 1983) and the American economy (Economic Justice for All: Catholic Social Teaching and the U.S. Economy, 1986). These letters took policy positions that were in clear and coherent opposition to the policies of the Reagan administration (or indeed of any U.S. administration since 1945). The administration wanted the Pope to rein in the American bishops on these issues, and for a while it thought that this was possible, given the convergence of interests on other issues. This was a principal reason why it wanted a U. S. ambassador at the Vatican. In fact, however, the Pope's expressed positions on nuclear weapons (a series of strong public statements) and the capitalist economy (his encyclical, On Human Work, 1981) were much closer to the positions of the American bishops than to the positions of the U.S. government.
It is true that on the nuclear weapons issue, the Pope also had to take into account the positions of two other national conferences of Catholic bishops, those of West Germany and France. The West German and French Catholic bishops, like the Christian Democratic party and the West German and French governments, still insisted upon a strategy of nuclear deterrence. A decade later, however, the end of the Soviet threat means that at least the German bishops no longer see a necessity to support nuclear deterrence. The papal opposition to nuclear weapons is likely to deepen in the future.
In regard to the economic issue, the Pope's encyclical, On Human Work, offered an even more comprehensive critique of the capitalist world-view and a more comprehensive conception of an alternative Catholic economy than did the American bishops' letter. The most recent social encyclical, On the Hundredth Anniversary, continues this exposition of an alternative Catholic economy.
At first glance it might seem that the Clinton administration will issue in a new era of convergence between the foreign policies of the United States and the Vatican. The administration's plans to cut defense spending should reduce the differences over nuclear weapons, and its plans for economic recovery should reduce the differences over capitalist inequalities.
In fact, however, the Clinton administration has moved the points of contention between the United States and the Papacy to a sharper focus and a deeper level than anytime since at least the 1920s. For the Papacy, social and moral issues have always been more fundamental than military and economic ones, and it is on these issues, on abortion and sexuality, that the administration chose to make its first and most distinctive mark. The prospects then are for a deepening estrangement between the United States and the Papacy for a long time to come.
Into the Post-Modern Age
AT THE HEIGHT of the Second World War, Stalin made his famous and mocking jibe, "How many divisions has the Pope?" At the time, no one could have imagined that in less than a half-century the Pope, even with only his Swiss Guards, would have more divisions than the Soviet Union, which, since it had ceased to exist, would have no divisions at all.
At the height of the Cold War, thoughtful authors wrote that the great struggle between liberalism and communism and between the United States and the Soviet Union was likely to go on for centuries, like the earlier great struggle between Christianity and Islam and between the Habsburgs and the Ottomans. At the time, no one could have imagined that in less than a quarter-century the prophets of liberalism would write about the end, not just of communism, but of history itself, and that the Soviet state would have expired after hardly more than the biblical human lifetime of three-score-years-and-ten.
From the perspective of the United States and its liberalism, the two great struggles against the totalitarian state--against Nazi Germany in the first half of the twentieth century and against the Soviet Union in the second half--have come to a triumphant end. From the longer perspective of the Papacy and its Catholicism, however, the view is rather different.
For more than two centuries, the Papacy has been engaged in a great struggle against the most modern products of the modern age, the ideas of the Enlightenment and the secular powers that have promoted and imposed them. The great struggle of the nineteenth century was against France and its protege, Italy, against the liberal nation-state. The great struggle of the twentieth century was against the Soviet Union, which, by carrying state power to its totalitarian extreme, represented the idolatry of the state. It is possible that the great struggle of the twenty-first century will be with the United States, which, by carrying liberalism to its individualist extreme, represents the idolatry of the self.
The Popes have believed that the modern age and its Enlightenment are not the culmination of history, but rather only a phase in a great cycle of error, disaster, repentance, and wisdom. The fatal logic of the modern age will drive the world into the post-modern one, and this will be an age when the pre-modern Church and its faith that transcends all ages will have far more to say than will all of the modern states and ideologies combined. By grounding itself in the deepest yearnings and highest callings of the human spirit, the Papacy has survived -- and in some measure defeated -- Revolutionary France, liberal Italy, Nazi Germany, and the Soviet Union. Now, at the height of their liberal triumph, Americans might reflect that the Papacy might survive the United States as well.
(1) A comprehensive account is Eric O. Hanson, The Catholic Church in World Politics (Princeton, 1987).
(2) Quoted in John S. Conway, "The Vatican, Germany and the Holocaust," unpublished paper, 1991; originally quoted in W. Bussmann, "Der Papst und die Diktatur," Der Monat (May 1963), p. 18.
(3) A succinct overview of this period is J. Bryan Hehir, "Papal Foreign Policy," Foreign Policy (Spring 1990), pp. 26-48.
(4) A number of American Catholic writers, of whom Michael Novak is the most well-known, have sought to interpret the Pope's statements on the economy to be a defense of American-style liberal capitalism. This is a new version of an old phenomenon, in which American commentators appropriate -- and oversimplify and misinterpret -- European authors to serve immediate American purposes and to obscure complex European understandings.
(5) On the Hundredth Anniversary (Boston, 1991), pp. 28-29.
The Vatican's Foreign Policy - James Kurth
The National Interest. Issue: 32.
COPYRIGHT 1993 The National Affairs, Inc.
A Retrospective Analysis after Fifteen Years
By MAURO GIOVANNELLI
On 18 February 1984, the Republic of Italy and the Vatican signed the Revised Agreement of the 1929 Lateran Covenant. 1 This entered into effect in the Italian legislation on 25 March 1985 (Law No. 121) after ratification by the House of Representatives and Senate.
The Agreement called for the creation of a Bilateral Commission in charge of developing a specific regulation on two difficult and controversial matters: the regulation of ecclesiastical institutions and the review of the financial commitments of the Italian government in favor of the Catholic clergy.
Within the assigned time frame the Commission drafted a regulation on these subjects which was approved by the Italian government and the Vatican in a special protocol signed on 15 November 1984. Fifteen years after the historic Revised Agreement, in spite of the long
1. After the Risorgimento, which led to the Unity of Italy and was concluded with the annexation of Rome, capital of the Vatican, to Italy (1870), the Lateran Covenant carried out a much needed reconciliation between the Italian state and the Catholic Church. The expression "Lateran Covenant" or "Lateran Agreement" refers to two protocols signed by the Italian government and the Holy See on 11 February 1929 in the Lateran Apostolic Palace.
The protocols are composed by:
i) a Treaty, with four enclosures, and in particular
a) the Vatican City territory map;
b) a list of real estate privileges of extraterritoriality and immunity from expropriation and taxation;
c) a list of real estate with immunity from expropriation and taxation; and
d) a financial Convention;
ii) a Concordat.
The purpose of the Covenant was to resolve two historical problems of national importance: the well known "Roman Issue," regarding the territorial status of the city of Rome, and the other concerning the expression of religion and the position of the Catholic Church in Italy. The Treaty was principally intended to solve the first; the Concordat the second. For a complete treatment of this subject, see V. Del Giudice, Manuale di diritto ecclesiastico (Milano, 1964 ). For the relations between the Lateran Covenant and the Revised Agreement, see S. Lariccia Diritto ecclesiastico (Padova, 1986 ).
The 1929 Covenant resolved the so-called "Roman issue" and reestablished religious peace in Italy but, after more than half a century, was considered by everyone concerned to be outdated. Moreover, its provisions, such as the establishment of Roman Catholicism as the sole state religion, contradicted the principles of a secular state, equality of all citizens before the law, and the freedom of confession and belief as established by the Italian Constitution and endorsed by the Second Vatican Council II.
2. In addition, Article 7 of the Constitution, which was approved by a large majority, not only mentions the Lateran Covenant as an instrument that defines the relationship between the Republic of Italy and the Catholic Church, but also expresses the principle that special agreements are required to regulate the relationship between the Republic and all religious confessions in Italy (Art. 8).
3. The Revised Agreement of 1984 resolved these historical issues that had caused friction between Italy and the Catholic Church for
2. It is important to note that Article 1 of the Lateran Covenant, quoted in Article 1 of the Concordat, defined the Roman Apostolic Catholic Religion as the "only religion of the State." This principle was consistent with the conception that identifies a state with its Prince (in this sense, the Catholic state was the state governed by a Catholic prince, subject to the Canon Law) and justified the existence of many privileges granted to the Catholic Church. On the contrary, a central point of the Revised Agreement 1985 is the lack of any reference to an established religion and the express provision that "the principle formerly established in the Lateran Covenant affirming that the catholic religion is the only religion of the State, is no longer in effect." The subject of religious freedom is very wide and complex in the Canon Law. It is possible to say, in summary, that the idea of freedom of confession originates from theological requirements and that it is not indifferent to the content of a particular religion, nor does it consider equivalent all the religions. For a specific treatment of this subject see F. Finocchiaro, Libertá religiosa, Enciclopedia Giuridica (Rome, 1990 ). One of the main sources of religious freedom and "Libertas Ecelesiae" in the Canon law is certainly the Declaratio de libertate religiosa seu de jure personae et communitatum ad libertatem socialem et civilem in re religiosa of 7 December 1965. It was defined by the Second Vatican Council "Declaratio dignitatis humanae" and it is correctly considered "the real and actual present Magna Charta of freedom of confession for the Catholic Church post Concilium." On this point, see P. A. D'Avack, Trattato di diritto canonico (Milano, 1980 ); and J. C. Murray, Religious Freedom (New York, 1966 ).
3. In Italy commentators debate on the nature of the agreements reached by the state with the non-Catholic confessions: "Their relations with the State are regulated by the law on the base of agreements with their respective representatives" (Article 8.3 of the Constitution).
On this point see F. Finocchiaro, Le intese nel pensiero dei giuristi italiani, Le intese tra Stato e confessioni religiouse: problemi e prospettive (Milano, 1978 ); and F. Bolognini, I rapporti tra Stato e confessioni religiose nell'art. 8 della Costituzione (Milano, 1981 ). However, also considering these agreements differently from the Concordat, it remains that Article 7.2 and Article 8.3 of the Constitution "have a common general principle that prescribes that the public legislation on religious matter can not be unilateral, but previously agreed. (as stated by V. Crisafulli, Art. 7 della Costituzione e vilipendio della Religione dello Stato, Archivio penale, 1950 , II, 415).
more than a century by establishing the principle of separation (a free church in a free state) and by setting the precedent that special agreements are to be signed between the Republic and all religious confessions in Italy, not [just] simply with the Roman Catholic Church.
It goes without saying that this solution may not be valid forever and should be reevaluated again if the conditions change. Nevertheless, it is important to realize that the main achievement of the Covenant was not to free the government from clerical bounds, as some maintain or to free the church from political affiliation as others contend. There are indeed good and bad concordats as there are good and bad regimes for the separation of church and state (rather anticlerical in the case of France; more interesting is the United States one). It is obvious, however, that in Italy the potential for conflict between the government and the church has always been very strong. As stated by Professor Carlo Cardia, a prominent lay negotiator for this agreement: "A good covenant ensures greater legal and political stability than a separation regime. In the first case you have a bilateral agreement be, tween two countries that only a long and complex process can change, whereas in the case of a separation regime any parliamentary majority can bring modifications and revitalize old tensions."
The implementation of Article 8 of the Italian Constitution resulted in important agreements with several non-Catholic confessions including the Valdese (Vaudoise/Waldensian) 4 Church (21 February 1984), the Union of Italian Adventist Churches of the Seventh Day (29 December 1986), Assemblies of God in Italy (29 December 1986), and most recently the Italian Jewish Community. These agreements concern the civil recognition of religious marriages, the legal status of religious institutions, and the incentives given to charity activities. Some of these agreements also involved the participation of citizens in financially supporting clergy, based on the principle of personal freedom of choice. All are based on the notion that religious entities play an important role in society and that the state takes seriously the task of defining its relationship to religious communities. Therefore it can be said that the model set forth by the Constitution was strengthened and consolidated after the Revised Agreement.
An intense debate has been occurring on some delicate issues regarding the relation between the state and the Catholic Church, but for the most part the intervention of the Constitutional Court has clarified them. The first issue concerns teaching the Catholic religion in public schools. The Revised Agreement (Art. 9) resolves this issue by guaranteeing that the government will continue "to ensure the teaching of Catholic religion in public schools other than universities, in the framework of the general educational purposes of schooling." However, "in order to ensure the respect of freedom and parental responsibility over education everyone is granted the right to choose whether to attend the teaching of the Catholic religion and no form of discrimination shall derive from this choice." The controversial aspect of this disposition is to determine whether religious education should be considered elective or required and therefore whether it should be taught after or during regular school hours. The decisions of the Constitutional Court (No. 203 on 12 April 1989 and No. 13 on 14 February 1991) recognized that teaching of Catholic religion is lawful and that alternative activities cannot be made compulsory, thereby allowing students who do not choose religious education to leave school early or enter later than others. It is interesting to note that 90 percent of Italian students and their families have chosen religious education. 5
Religious matrimony is the second historical subject dealt with by the Covenant. Article 8 of the Revised Agreement established the principle of legal and civil recognition of all legal effects of weddings celebrated according to the Code of Canon Law, as well as the validity before Italian law of the cancellation of marriage (annulment) pronounced by ecclesiastical courts, following practices applied in the case of foreign courts.
One major problem was classifying whether Italian civil courts had any jurisdiction if a church marriage was declared invalid or annulled by canonical (e.g. religious) authorities; that is to say, would a secular court have the authority to declare a marriage legally valid even if an ecclesiastical tribunal had invalidated it? (Cassation Court, 13 February 1993, n. 1824). The legal difficulties associated with this stem not only from the interpretation of the Covenant rules but also from the law which gives civil recognition to canonical marriage. The Constitutional Court eliminated any uncertainty on this point (Constitutional Court, 1 December 1993, n. 421) and reaffirmed the principle that
5. Articles 9 and 10 of the Revised Agreement and numbers 5 and 6 of the Additional Protocol regulate the teaching of the Catholic religion in the public schools. This issue raised many difficulties in the process of reform of the Concordat. The Revised Agreement establishes important general principles, but it postpones the solution of the most difficult practical problems to subsequent agreements between the competent school boards and the Italian Episcopal Conference. For a specific treatment of this subject, see S. Lariccia, L'insegnamento della religione tra concordato e legislazione unilaterale dello Stato, II diritto ecclesiastico ( 1983 ), I, 3; G. Dalla Torre, L'insegnamento della religione nel concordato revisionato, Il diritto ecclesiastico, 1984 , I, 379; and G. Feliciani, Il dibattito nel mondo cattolico, Cittá e religione, 1977 , 201.
jurisdiction over the canonical wedding belongs only to the ecclesiastical judge, even after it is registered for civil effects. 6
Other subjects that the Covenant addresses are: religious assistance, ministry education, and culture. While the Covenant guarantees its availability for police forces, in many instances it is ad hoe subnational regulation that guarantees religious ministry in hospitals and prisons and in the Army (2 December 1993). Regarding education, a special agreement was made to grant legal recognition to academic degrees earned in institutions approved by the Holy See, such as seminaries. In regard to culture, the Vatican and Italy recently signed a protocol of cooperation for the conservation of the historical and artistic heritage pursuant to Article 12 of the Covenant, which calls for "measures to protect value and enhance cultural heritage of religious interest belonging to ecclesiastic institutions and . . . the conservation of historical archives and libraries" of the church. This field is of primary importance considering the size and value of ecclesiasticallybased cultural heritage in Italy, such as historical charities and monasteries and the artwork contained in them.
The most innovative part of the Revised Agreement is the regulation of ecclesiastic institutions and the measures to financially support the clergy. The formulation of the norms regarding these two points had been the result of six months of work of the Bilateral Commission. The regulation of ecclesiastical institutions had already been an important matter in the 1929 Covenant and Italy had previously devoted to that issue law No. 848 of 27 May 1929 and other related norms (R.D. 2262 of 2 December 1929). 7 In 1984, Cardinal Casaroli, Secretary of State of the Vatican, upon signing the protocol of agreement with Italy mentioned the importance ecclesiastic institutions for the church not only for their religious purpose but "to develop that ample charitable action, assistance, education and cultural initiatives that form almost a natural integration and emanation of the Church's spiritual mission." The Revised Agreement defines more accurately than ever before several key aspects regarding ecclesiastical institutions. Article 7 reaffirms
6. The commentators have deeply studied the problems related to the matrimonial matter (principles established by the Constitution, introduction of divorce in Italian law, family law reform), and, especially, the significance of the provisions of the Revised Agreement. For a summarizing analysis of this subject, see S. Lariccia, Diritto ecclesiatico (Padova, 1986 ).
7. For an analysis of the historical roots of the ecclesiastical institutions in the Canon Law before the 1983 Codex of Canon Law, see V. Del Giudice, Nozioni di Diritto canonico (Milano, 1953 ). After the Codex, see G. Feliciani, Le basi del diritto canonico dopo il codice del 1983 (Bologna, 1983 ). Regarding the problem of the ecclesiastic institutions in the relations between Italy and the Vatican, see V. Del Giudice, Manuale; S. Lahecia, Diritto ecclesiastico; and T. Matiro, Il contenuto del Concordato: gli enti ecclesiastici, I problemi di Ulisse, 1980 , 126.
the full legal status and capacity of ecclesiastical institutions "which have religious and worship purposes. In addition, the Agreement confirms the freedom of the church to develop activities other than those which Italian law considers religious and worship. This is recognized both with the general statement that "the Italian Republic recognizes that the Catholic Church has full freedom to develop its pastoral, educational and charitable mission and to preach the gospel" (Art. 2), and with the disposition that "nonreligious activities developed by ecclesiastic institutions, according to their structure and purpose, are subject to the Italian Law, including the tax regime" (Art. 7, No. 3).
Following these principles, the Revised Agreement concentrated on the clear definition of ecclesiastical institutions so that, once defined properly, both Italian and Vatican regulation over such institutions is fully compatible and noncontradictory.
Institutions that belong to the Catholic Church, religious institutes, and seminaries are not required to be certified with regard to their ecclesiastical status, which is considered automatic by Italian law. In any other case, obviously the majority, in order to obtain legal recognition, an institution is examined to determine whether the activities it sponsors follow a religious or worship-based purpose. It is interesting to note that this evaluation is not done on the basis of the institutional objectives of a given entity but on the actual activities that it carries out or sponsors. These activities are examined to determine if the religious purpose is "essential and inherent," although it does not have to be exclusive. In fact any other purpose "directed to charitable ends in accordance with the Code of Canon Law" is admitted.
The Agreement also defines activities that are considered religious in order to separate them from others. This was not an easy task but it was necessary to "give additional certainty to procedures that recognize the legal status of ecclesiastical institutions," thereby limiting the discretionary power of those public officials who certify that status. Religious activities were defined as "those directed to the practice of worship, care of souls, education of clergy, missionary activities, catechism and Christian education." A more daunting task was to define activities which are not considered inherently religious, because the church was obviously cautious to preserve its mission also in charitable activities and education. Nonreligious activities have been defined as "those directed to assistance, volunteer work, instruction, culture and in any case all for-profit activities." The new system is therefore much more precise in defining the recognition of ecclesiastical institutions. For instance, the presence of schooling, assistance, and volunteer work tended to exclude the ecclesiastical nature of an institution, and an institution that performs those activities can be defined as ecclesiastical only if it meets the above mentioned definition.
Naturally, all these activities can be freely developed by any entity which is recognized by the Canonical Code or linked to the Catholic Church, but this will not earn it a recognition as ecclesiastical. These entities will instead be considered by the Italian law as private legal entities, pursuant to Article 10 of the Agreement, and be eligible to apply for legal status granted by the law, which grants them ample freedom in carrying out ministry, charitable, and education activities (Art. 33 and 34 of the Constitution). 8
Of all the issues addressed by the Revised Agreement, the most complex and controversial has been the new regime for the remuneration of clergy. 9 Article 7, No. 6 of the Agreement signed on 18 February 1984, entrusts this matter to the Bilateral Commission and calls for "the revision of the financial commitment of the Italian Republic in managing ecclesiastical institutions." This broad definition allowed the Commission to work independently on this delicate subject under the sole guidance of the dispositions of Italian law and the Second Vatican Council.
From 1976 to 1982, six drafts of the revision of the Lateran Covenant were elaborated, but none of them addressed the issue of financial commitments of the Italian Government vis-à-vis the Catholic Church. The first and second draft simply reinstated the old discipline on this subject and recommended a later agreement on this topic. The third and fourth drafts omitted this issue and only the fifth draft called for the establishment of a Bilateral Commission to work on this subject which later resulted in Article 7, No. 6 of the Revised Agreement. The Commission devoted most of its efforts to the definition of a new regime to financially support clergy (Title II from Art. 21 to Art. 53). These articles have been accepted by both parties and became law in Italy on 20 May 1985, No. 222.
The Commission's solution is based on the principles of freedom of the Catholic Church and of collaboration between the Italian government and the church. The first principle implies not only freedom in the pastoral ministry but also in the a ministration of ecclesiastical assets. This objective has been achieved by exempting these assets from government control in case of sale or reinvestment. 10 The second principle
8. On the reform of the regulations of ecclesiastical institutions introduced by the revised Agreement, see G. Dalla Torre, La riforma deua legislazione ecclesiastica. Testi e documenti per una ricostruzione storica (Bologna, 1985 ); and S. Lariccia, Diritto ecclesiastico.
9. On this point see ibid.
10. On the development (government control) of the clerical institutions, see F. Finocchiaro , Enti Ecclesiastici Cattolici, Enciclopedia Giuridica (Roma, 1989 ).
implies the acceptance of the commitment of the Italian government, through the contributions of the Catholic community to financially assist the church and especially to support the priests. The government was not willing to withdraw completely its assistance given the extent and the importance of social work done by the church in Italy. The difficult task was therefore to harmonize these principles with the Constitution of the Republic which recognizes the equality of every religion before the law and the equality of every citizen notwithstanding religious beliefs.
The system that resulted is based on two sources of financing. The first is the donation that any citizen can make to a central fund established within the Italian Episcopal conference, which is not taxed up to an amount of $1000 per year (two million Italian liras). The second source is a transfer from the Italian government of 0.8 percent of revenues of the personal income tax (Irpef). Every citizen when filing income taxes has the option of assigning this fixed percentage of his taxes to the Catholic Church, to other churches, or to social and assistance work done directly by the government. The Italian Reniiblic has signed special agreements with several churches to include them as potential recipients of these funds.
11. Proceeds from this second source are not directed specifically to support clergy but can be used also for this purpose if donations from the Catholic community or other income coming from church activities is insufficient to that end. On the other hand, the church commits itself to use that financing to satisfy the religious demands of the population as well as to promote charitable work in local communities and abroad in developing countries.
12. The Commission arrived at this result after taking into account three factors. First, the Italian legal and historical tradition since the Middle Ages is based on the concept of benificium ecclesiasticum
13. and on the obligation of the state to meet the financial needs of the Church (Art. 30 of the 1929 Lateran Covenant). Second, there remains a need to compensate the Catholic Church for the confiscation of its assets that started in Italy in the eighteenth century and was intensified after
11. For the specific agreements with non-Catholic religious confessions, see S. Berligò, Sostentamento dei Ministri di Culto, Enciclopedia Giuridica (Roma, 1993 ).
12. On this point, see F. Margiotta Broglio, Riforma della legislazione concordataria sugli enti e sul partimonio ecclesiastico: I principi della Commissione Paritetica Italia-Santa Sede, Foro italiano, 1984 , V, 368; G. Feliciani, Sostentamento del clero, Enciplopedia Diritto (Milano, 1990 ); and C. Cardia, Il finanziamento della Chiesa, Politica in Italia. I fatti dell'anno e le interpretazioni (Bologna, 1991 ).
13. On the nature of the ecclesiastical benefits in the Canon Law before the 1983 Code of Canon Law, see V. Del Giudice, Nozioni di Diritto cananico. The Code of Canon Law (canon 1272) recommends the abolition of such benefits and its substitution with other means of maintenance.
the unification in the nineteenth century (see law No. 3036 of 7 July 1866, on the suppression of religious corporations). Finally, the Second Vatican Council forbids priests to use their ministry in for-profit activities and to retain earnings for their own families. The Council also affirmed the right of the clergy to obtain sufficient support, the obligation of the Catholic community to participate with donations, and urged the reform of ecclesiastical benefits paid by the government. This reform was the responsibility of the Commission that reviewed the Canonical Code. The new Code in effect since November 1983 clearly affirms the need to devise a new system to support clergy based on Diocesan Institutes (Canon 1274).
Three factors accelerated the need for reform: (i) financial support provided by the Italian government to the clergy before 1984 had become outdated as it was meant to guarantee a minimum of four hundred dollars of income per year, obviously insufficient to cover basic needs; (ii) government control over revenues obtained from the sale of ecclesiastical assets and the requirement to reinvest them resulted in undue interference in the management of church assets and caused their investment in liquid instruments rather than real estate; (iii) the reduction of clergy in Italy after the Second World War opened the issue of how to cover for the, shortfall, for government benefits, which were assigned per capita.
Before settling this issue, the Commission considered other solutions to support clergy. One entailed freezing government financial contributions to clergy and transferring them to a central institute from where they would have been distributed to each priest. This was not accepted by the delegation of the Vatican because of the maintenance of governmental controls and influence over the direction of these contributions. In addition, it would have compounded the problem of loss of purchasing power of contributions over time given at the government was not willing to index them to the inflation rate. A second proposal was for the government to directly assure the responsibility of supporting clergy on the basis of their social work, but this would have put priests under direct control of the state, a solution obviously not favored by the Vatican. A third solution could have been the disbursement of a single lump sum to the Catholic Church and the end of any state support thereafter. This option was not considered viable given the potential public opposition to a large transfer, the issue of how to invest those resources, and the need to ensure support of the clergy over time.
The solution that prevailed is based on the principles of libertas Ecclesiae (freedom of the church) and sana cooperatio (healthy cooperation) and has the advantage of being applicable to any religious confession. In summary, the main advantages of this approach are:
(i) the new system determines the end of the interference of the Italian Republic circa sacra;
(ii) it insulates the Church from the potential negative influence resulting from paying a salary to the priests or controlling Church assets;
(iii) it has the advantage of giving the same treatment to all Catholic clergy as recommended by the Second Vatican Council; and
(iv) it allocates the main responsibility of supporting clergy to the Catholic community.
After fifteen years, the system has proved to be successful. More than 80 percent of revenues of the 0.8 percent of income taxes has been voluntarily assigned by citizens to the Catholic Church. This allowed the church to support all priests, to contribute to the restoration of its historical sites, and to carry out charitable activities both domestically and internationally. The system also has the advantage of being transparent given that every year the income statement of ecclesial institutions is approved by the Italian Episcopal Conference and made public. The clergy was initially skeptical but then widely accepted the new system even though the principle of equal remuneration of all priests has brought a substantial decrease in disposable income, especially for high clergy members such as bishops and monsignors. The system has been somewhat less successful in providing an incentive to citizens' donations. Although tax deductible up to $1000 per year, these donations averaged an estimated $25 million per year, well below the $200 million needed to support Catholic clergy in Italy.
In conclusion, it can be said that after fifteen years, the Revised Agreement has achieved almost all of its objectives. In particular it has been successful in the difficult task of adapting old and outdated practices to the new requirements of the 1948 Italian Constitution and the dispositions of the Second Vatican Council. The Agreement reconfirms and strengthens the fundamental principles of sovereignty, freedom, and pluralism.
• MAURO GIOVANNELLI
( J.D., University of Florence, Italy) is a lawyer in private practice in Prato and Florence, Italy. His articles have appeared in Scritti in onore di Cesare Grassi, Periodico a cura delle Misericordie e delle Confraternite d'Italia, and La Settimana. Special interests include administrative and ecclesiastical law.
The author was a member of the Bilateral Commission that drafted the 1984 Revised Agreement between the Republic of Italy and the Vatican.
This article shows some results drawn from applied debate that followed it, both the Catholic Church and the Italian people have strongly benefited from it.
COMMUNIQUE CONCERNING POPE'S MEETING WITH TONY BLAIR
VATICAN CITY, JUN 23, 2007 (VIS) - At midday today, the Holy See Press Office released the following communique to journalists:
"Today, June 23, 2007, the Holy Father Benedict XVI received in audience Tony Blair, Prime Minister of the United Kingdom. The Prime Minister subsequently went on to meet with Cardinal Secretary of State Tarcisio Bertone S.D.B., and Archbishop Dominique Mamberti, secretary for Relations with States.
"In the course of the meeting, certain significant contributions made by Prime Minister Blair during his ten years in office were examined. There followed a frank discussion on the current international situation, including certain particularly delicate questions such as the conflict in the Middle East and the future of the European Union in the wake of the Brussels summit.
"Finally, following an exchange of views on certain laws recently approved by the UK parliament, Tony Blair was offered best wishes as he is about to leave the office of prime minister, also bearing in mind the fact that he has expressed a strong desire to commit himself particularly to peace in the Middle East and to inter-religious dialogue."
OP/AUDIENCE/BLAIRVIS 070625 (200)
Vatican Information Service
INTERVENTION BY THE HOLY SEE
AT THE GENERAL ASSEMBLY OF THE UNITED NATIONS
ON THE OCCASION OF THE ADOPTION OF THE
RESOLUTION ON THE PARTICIPATION OF THE HOLY SEE
IN THE WORK OF THE UNITED NATIONS
INTERVENTION BY H.E. MSGR CELESTINO MIGLIORE
Thursday, 1 July 2004
I am most grateful to you, Mr. President, and to this General Assembly for the adoption by consensus of this Resolution on the participation of the Holy See in the work of the United Nations, under agenda item 59, entitled "Strengthening of the United Nations system."
The adoption of this Resolution could not have come at a more auspicious time than this, as the Permanent Observer Mission of the Holy See is happily celebrating the fortieth anniversary of its presence at this Organization this year.
In the context of strengthening the role of the United Nations and of revitalizing the work of this General Assembly, the adoption of this Resolution is an important step forward and reflects the lofty values and collective interests shared by the Holy See and the United Nations. We are committed to the same objectives that necessitate the protection of the fundamental human rights, the preservation of the dignity and worth of the human person and the promotion of the common good. To achieve these goals, we need an ordered international community built upon the strong edifice of law - a law not of whim and caprice but of principles stemming from the very universality of human nature - that can guide human reason for the future. With an edifice built on such principles guiding our efforts, we can be assured of attaining our mutual quest for a lasting and universal justice and peace.
Allow me to say a word of warm thanks to you for the unflinching support and much appreciated willingness to submit this Resolution as a presidential text. My gratitude also to the esteemed members of the staff in the Office of the President and of the Department of the General Assembly and Conference Management for their kind support.
Mr. President, through you, may I also thank His Excellency, Ambassador Marcello Spatafora, Permanent Representative of Italy to the United Nations, for having assisted you, and facilitated so skillfully and efficiently the consultation on this draft Resolution leading it to a successful conclusion.
Finally, Mr. President, I would be remiss if I do not express a word of gratitude to so many Permanent Representatives who expressed to me their personal and their Governments’ support for the Resolution just adopted. My thanks as well to all Member States for their invaluable support in the adoption of this Resolution.
Thank you, Mr. President.
INTERVENTION BY THE HOLY SEE
AT THE 113th SESSION OF THE COMMITTEE OF MINISTERS
OF THE COUNCIL OF EUROPE
INTERVENTION BY H.E. MSGR. JEAN CLAUDE PÉRISSET
5-6 November 2003
Allow me to express through you the gratitude of the Holy See to the Committee of Ministers for the invitation to attend its 113th Session. We also wish to congratulate the Moldovan Authorities on the preparation and arrangements for this session, and record our acknowledgment of the good will of the Moldovan chairmanship.
The Holy See shares the conviction that cooperation between the European Institutions remains a high priority for the Council of Europe, as enlargement brings the European Union into still greater relief within the pan-European architecture. Pope John Paul II has described the role of the European Institutions "in the work of creating a new face for the continent" as "in many ways decisive" (Ecclesia in Europa [EIE], 113), while that of the Council of Europe is specifically "to build a Europe of freedom and solidarity" (idem).
It is the hope of the Holy See that the consolidation of efficacious cooperation will recognise and enhance the particular competence and unique expertise already acquired by the Council of Europe. For more than half a century it has been engaged in consistent and effective efforts in key areas which touch the lives of countless Europeans. The complimentary character of the roles and competences of both Council and Union will prove to be in the interests of the common good.
The prospect of a constitutional Treaty for the European Union promises further opportunities for institutional cooperation between the Churches, Ecclesial Communities and other religious organizations and the European Institutions. Such "healthy cooperation" (EIE, 114) will consolidate the already significant contribution which the Churches have made and are making to the building of Europe. Such recognition of the public role to be played by religious institutions is welcomed, as is that of the importance which must surely be given to the religious dimension in guaranteeing the secure and peaceful development of society.
The Holy See shares the belief, often voiced at the Council, that culture plays a indispensable role in such efforts and possesses even greater potential to do so. Thus, we trust that enhanced cooperation between the Institutions will be focussed particularly in this area. It is also our conviction that the religious dimension and heritage, in all their splendid diversity, are most enriching, as they clearly form an integral part of a multitude of identities, which can only be successfully integrated within Europe through being valued and celebrated. At the same time, it will be to the enduring advantage of all Europeans if due recognition is given to the unique and undisputable contribution of Christianity to European civilization. This will also greatly assist Europe in achieving "a proper ordering of society... rooted in authentic ethical and civil values" (idem).
The Holy See applauds the efforts being made at many levels and within the Council of Europe itself to confront what is rightly described as one of the most shameful scourges of our age, that modern slavery which is trafficking in human beings, and in young women and girls in particular. Initiatives at every level to combat such criminality, which exploits the most vulnerable and subverts their very humanity, command our support.
To conclude, Mr Chairman, may I express the very best wishes of this Delegation for the forthcoming Dutch chairmanship, to which we offer the assurance of our support and collaboration. I can assure the Committee of Ministers that the longstanding commitment of the Holy See to the principles, aims and values of the Council of Europe will not falter, and we look forward to the Third Summit and to the important decisions to be taken then for the future benefit of all Europeans.
Thank you Mr Chairman.
DISCORSO DI GIOVANNI PAOLO II
AL PRESIDENTE DEL SOVIET SUPREMO DELL’URSS
(Address of Pope John II with Soviet President Mikhail Gorbachev - Italian).
Venerdì, 1° dicembre 1989
1. Mi è particolarmente gradito di rivolgere il più cordiale saluto a lei, alla sua gentile signora, al signor ministro degli esteri e a tutti i componenti del suo seguito.
La visita che ella ha voluto rendere al successore di Pietro costituisce un evento importante nella storia dei rapporti dell’Unione Sovietica con la Sede Apostolica e come tale è considerata con profondo interesse dai cattolici del mondo intero, come da tutti gli uomini di buona volontà. Come è noto, la casa del Papa è da sempre la casa comune per tutti i rappresentanti dei popoli della terra. Signor Presidente, sia dunque cordialmente benvenuto. Nella sua persona desidero salutare, inoltre, tutte le popolazioni delle Repubbliche dell’Unione Sovietica, alle quali vanno la mia stima ed il mio affetto.
2. L’anno scorso abbiamo celebrato il millennio del Battesimo della Rus’, che marcò così profondamente la storia dei popoli che vi ricevettero il messaggio di Cristo. In tal modo, la ricchezza della Rivelazione sulla dignità e sul valore della persona umana, derivante dal suo rapporto con Dio, creatore e Padre comune, si fuse mirabilmente con il patrimonio originale di quelle popolazioni, patrimonio che nel corso dei secoli si è arricchito di tanti altri valori religiosi e culturali.
Per citarne una eloquente espressione, mi è gradito riferirmi alle icone che sono esposte nella mostra da me inaugurata alcuni giorni fa. L’icona, infatti, è una mirabile sintesi di arte e di fede, che eleva l’animo verso l’Assoluto, in una fusione unica di colori e di messaggi.
3. Mi piace di guardare alla sua visita, signor Presidente, sullo sfondo della celebrazione del millennio e, al tempo stesso, come ad un seme carico di promesse per il futuro. Essa, infatti, ci permette di guardare all’avvenire delle comunità dei credenti in Unione Sovietica con maggiore fiducia.
Sono a tutti note le vicende dei decenni passati e le dolorose prove a cui furono sottoposti tanti cittadini, a motivo della loro fede.
In particolare, è noto come numerose comunità cattoliche oggi attendano con ansia di potersi ricostituire e di poter godere della guida dei loro Pastori.
L’evoluzione recente e le nuove prospettive aperte ci portano a sperare in un cambiamento della situazione, grazie alla decisione del suo governo, più volte ribadita, di procedere ad un rinnovamento della legislazione interna, al fine di adeguarla pienamente ai solenni impegni internazionali, sottoscritti anche dall’Unione Sovietica.
In questo momento faccio mia l’attesa di milioni di suoi concittadini, - e con essi di milioni di cittadini del mondo - che, cioè, la legge sulla libertà di coscienza, che presto sarà discussa dal Soviet Supremo, contribuisca a garantire a tutti i credenti il pieno esercizio del diritto alla libertà religiosa, che è - come molte volte ho ricordato - fondamento delle altre libertà. Il mio pensiero va particolarmente a quei cristiani che vivono nell’Unione Sovietica, in piena comunione con la Sede Apostolica. Per tutti loro - siano essi di rito latino, di rito bizantino o di rito armeno - faccio voti che possano praticare liberamente la loro vita religiosa.
In un clima di ritrovata libertà, i cattolici potranno così collaborare adeguatamente con i fratelli della Chiesa ortodossa, a noi così vicini. Con essi abbiamo, infatti, un patrimonio comune e con essi vogliamo lavorare, in un rinnovato impegno ecumenico, per annunziare il Vangelo di Cristo alle nuove generazioni e per collaborare insieme nel vasto campo della promozione umana, in attesa di ricostruire quell’unità che fu voluta da Cristo per la sua Chiesa.
4. Con lei, signor Presidente, abbiamo avuto modo di parlare anche della situazione internazionale e di alcuni problemi specifici più urgenti. Abbiamo pure trattato dello sviluppo dei nostri contatti sia per la soluzione dei problemi della Chiesa cattolica in URSS sia per promuovere un impegno comune in favore della pace e della collaborazione nel mondo.
5. Questa collaborazione è possibile giacché essa ha come oggetto e soggetto l’uomo. Infatti, “l’uomo è la via della Chiesa”, come ebbi modo di ricordare fin dall’inizio del mio pontificato Redemptor Hominis, 14).
E se da una parte la Chiesa viene a conoscere il mistero dell’uomo alla luce del mistero di Cristo Gaudium et Spes, 22), è pur vero che essa impara a comprenderlo anche attraverso le esperienze degli individui, come attraverso i successi e le sconfitte delle nazioni. Per questo, la Chiesa, come “esperta in umanità” (Paolo VI, “Allocutio ad Nationum Unitarum Legatos in urbe “New York” habita”, die 4 oct. 1965: Insegnamenti di Paolo VI, III  507ss.), si associa oggi più che mai a tutti coloro che vogliono servire la causa dell’uomo e contribuire al progresso delle nazioni.
Alla fine del secondo millennio dell’era cristiana, la Chiesa si rivolge a tutti coloro che hanno a cuore le sorti dell’umanità, perché si uniscano in un comune impegno per la sua elevazione materiale e spirituale. Tale sollecitudine per l’uomo può portare non solo al superamento delle tensioni internazionali ed alla fine del confronto fra i blocchi, ma può anche favorire il nascere di una solidarietà universale soprattutto nei riguardi dei paesi in via di sviluppo. Infatti, “la solidarietà - come già ho avuto modo di rilevare - ci aiuta a vedere l’“altro” - persona, popolo o Nazione - non come uno strumento qualsiasi, . . ., ma come un nostro “simile”, un “aiuto” (cf. Gen 2,18.20), da rendere partecipe, al pari di noi, al banchetto della vita, a cui tutti gli uomini sono egualmente invitati da Dio” (Sollicitudo Rei Socialis, 39).
Ciò vale in particolare per le nazioni più forti e più dotate. Nei loro riguardi osservavo che “superando gli imperialismi di ogni tipo e i propositi di conservare la propria egemonia, . . . (esse) debbono sentirsi moralmente responsabili delle altre, affinché sia instaurato un vero sistema internazionale, che si regga sul fondamento della uguaglianza di tutti i popoli e sul necessario rispetto delle loro legittime differenze” (Sollicitudo Rei Socialis, 39).
6. Certo, l’umanità oggi attende nuove forme di cooperazione e di aiuto reciproco. La tragedia della seconda guerra mondiale ci ha insegnato, però, che se si dimenticano i valori etici fondamentali, possono nascere conseguenze tremende per le sorti dei popoli ed anche i più grandi progetti possono fallire. Per questo, nella lettera apostolica scritta per commemorare il cinquantesimo anniversario dell’inizio della seconda guerra mondiale ho sentito il dovere di ricordare all’umanità che “non c’è pace se l’uomo ed il diritto sono disprezzati” e “se i diritti di tutti i popoli - e particolarmente di quelli più vulnerabili - non sono rispettati” (L elapso anno ad initio secundo magno bello saec. XX, 8, die 27 aug. 1989: vide supra, p. 387).
Inoltre, ho espresso agli uomini di governo e ai responsabili delle nazioni “la mia profonda convinzione che il rispetto di Dio ed il rispetto dell’uomo vanno di pari passo. Essi costituiscono il principio assoluto che permetterà agli Stati e ai Blocchi politici di andare oltre i loro antagonismi” (L elapso anno ad initio secundo magno bello saec. XX, 12, die 27 aug. 1989: vide supra, p. 389).
7. Signor Presidente, questo incontro non può non colpire vivamente, nella sua novità, l’attenzione dell’opinione pubblica mondiale, come qualcosa di singolarmente significativo, segno di tempi lentamente maturati e ricco di promesse.
La Santa Sede segue con grande interesse il processo di rinnovamento da lei avviato nell’URSS, augura successo ed è pronta a favorire ogni iniziativa che serva a meglio proteggere ed armonizzare i diritti ed i doveri della persona e dei popoli per salvaguardare la pace in Europa e nel mondo.
Ella avrà già domani un incontro con il Presidente degli Stati Uniti d’America, signor George Bush. Da parte mia, auguro cordialmente e prego che i prossimi colloqui possano portare a nuove intese, ispirate ad attento ascolto delle esigenze e delle attese dei popoli.
Con questi sentimenti, signor Presidente, le rinnovo i miei voti per la sua persona e la sua missione, per la sua famiglia e per il suo Paese, invocando su tutti la benedizione di Dio onnipotente.
Monday, Feb. 24, 1992
By CARL BERNSTEIN
HOW REAGAN AND THE POPE CONSPIRED TO ASSIST POLAND'S SOLIDARITY MOVEMENT
AND HASTEN THE DEMISE OF COMMUNISM.
Only President Ronald Reagan and Pope John Paul II were present in the Vatican Library on Monday, June 7, 1982. It was the first time the two had met, and they talked for 50 minutes. In the same wing of the papal apartments, Agostino Cardinal Casaroli and Archbishop Achille Silvestrini met with Secretary of State Alexander Haig and Judge William Clark, Reagan's National Security Adviser. Most of their discussion focused on Israel's invasion of Lebanon, then in its second day; Haig told them Prime Minister Menachem Begin had assured him that the invasion would not go farther than 25 miles inside Lebanon.
But Reagan and the Pope spent only a few minutes reviewing events in the Middle East. Instead they remained focused on a subject much closer to their heart: Poland and the Soviet dominance of Eastern Europe. In that meeting, Reagan and the Pope agreed to undertake a clandestine campaign to hasten the dissolution of the communist empire. Declares Richard Allen, Reagan's first National Security Adviser: "This was one of the great secret alliances of all time."
The operation was focused on Poland, the most populous of the Soviet satellites in Eastern Europe and the birthplace of John Paul II. Both the Pope and the President were convinced that Poland could be broken out of the Soviet orbit if the Vatican and the U.S. committed their resources to destabilizing the Polish government and keeping the outlawed Solidarity movement alive after the declaration of martial law in 1981.
Until Solidarity's legal status was restored in 1989 it flourished underground, supplied, nurtured and advised largely by the network established under the auspices of Reagan and John Paul II. Tons of equipment -- fax machines (the first in Poland), printing presses, transmitters, telephones, shortwave radios, video cameras, photocopiers, telex machines, computers, word processors -- were smuggled into Poland via channels established by priests and American agents and representatives of the AFL-CIO and European labor movements. Money for the banned union came from CIA funds, the National Endowment for Democracy, secret accounts in the Vatican and Western trade unions.
Lech Walesa and other leaders of Solidarity received strategic advice -- often conveyed by priests or American and European labor experts working undercover in Poland -- that reflected the thinking of the Vatican and the Reagan Administration. As the effectiveness of the resistance grew, the stream of information to the West about the internal decisions of the Polish government and the contents of Warsaw's communications with Moscow became a flood. The details came not only from priests but also from spies within the Polish government.
Down with Yalta
According to aides who shared their leaders' view of the world, Reagan and John Paul II refused to accept a fundamental political fact of their lifetimes: the division of Europe as mandated at Yalta and the communist dominance of Eastern Europe. A free, noncommunist Poland, they were convinced, would be a dagger to the heart of the Soviet empire; and if Poland became democratic, other East European states would follow.
"We both felt that a great mistake had been made at Yalta and something should be done," Reagan says today. "Solidarity was the very weapon for bringing this about, because it was an organization of the laborers of Poland." Nothing quite like Solidarity had ever existed in Eastern Europe, Reagan notes, adding that the workers' union "was contrary to anything the Soviets would want or the Communists (in Poland) would want."
According to Solidarity leaders, Walesa and his lieutenants were aware that both Reagan and John Paul II were committed to Solidarity's survival, but they could only guess at the extent of the collaboration. "Officially I didn't know the church was working with the U.S.," says Wojciech Adamiecki, the organizer and editor of underground Solidarity newspapers and now a counselor at the Polish embassy in Washington. "We were told the Pope had warned the Soviets that if they entered Poland he would fly to Poland and stay with the Polish people. The church was of primary assistance. It was half open, half secret. Open as far as humanitarian aid -- food, money, medicine, doctors' consultations held in churches, for instance -- and secret as far as supporting political activities: distributing printing machines of all kinds, giving us a place for underground meetings, organizing special demonstrations."
At their first meeting, Reagan and John Paul II discussed something else they had in common: both had survived assassination attempts only six weeks apart in 1981, and both believed God had saved them for a special mission. "A close friend of Ronald Reagan's told me the President said, 'Look how the evil forces were put in our way and how Providence intervened,' " says Pio Cardinal Laghi, the former apostolic delegate to Washington. According to National Security Adviser Clark, the Pope and Reagan referred to the ) "miraculous" fact that they had survived. Clark said the men shared "a unity of spiritual view and a unity of vision on the Soviet empire: that right or correctness would ultimately prevail in the divine plan."
"Reagan came in with very simple and strongly held views," says Admiral Bobby Inman, former deputy director of the CIA. "It is a valid point of view that he saw the collapse (of communism) coming and he pushed it -- hard." During the first half of 1982, a five-part strategy emerged that was aimed at bringing about the collapse of the Soviet economy, fraying the ties that bound the U.S.S.R. to its client states in the Warsaw Pact and forcing reform inside the Soviet empire. Elements of that strategy included:
-- The U.S. defense buildup already under way, aimed at making it too costly for the Soviets to compete militarily with the U.S. Reagan's Strategic Defense Initiative -- Star Wars -- became a centerpiece of the strategy.
-- Covert operations aimed at encouraging reform movements in Hungary, Czechoslovakia and Poland.
-- Financial aid to Warsaw Pact nations calibrated to their willingness to protect human rights and undertake political and free-market reforms.
Economic isolation of the Soviet Union and the withholding of Western and Japanese technology from Moscow. The Administration focused on denying the U.S.S.R. what it had hoped would be its principal source of hard currency in the 21st century: profits from a transcontinental pipeline to supply natural gas to Western Europe. The 3,600-mile-long pipeline, stretching from Siberia to France, opened on time on Jan. 1, 1984, but on a far smaller scale than the Soviets had hoped.
-- Increased use of Radio Liberty, Voice of America and Radio Free Europe to transmit the Administration's messages to the peoples of Eastern Europe.
Yet in 1982 neither Reagan nor the Pope could anticipate the accession of a Soviet leader like Mikhail Gorbachev, the father of Glasnost and Perestroika; his efforts at reform unleashed powerful forces that spun out of his control and led to the breakup of the Soviet Union. The Washington-Vatican alliance "didn't cause the fall of communism," observes a U.S. official familiar with the details of the plot to keep Solidarity alive. "Like all great and lucky leaders, the Pope and the President exploited the forces of history to their own ends."
The campaign by Washington and the Vatican to keep Solidarity alive began immediately after General Wojciech Jaruzelski declared martial law on Dec. 13, 1981. In those dark hours, Poland's communications with the noncommunist world were cut; 6,000 leaders of Solidarity were detained; hundreds were charged with treason, subversion and counterrevolution; nine were killed; and the union was banned. But thousands of others went into hiding, many seeking protection in churches, rectories and with priests. Authorities took Walesa into custody and interned him in a remote hunting lodge.
Shortly after Polish security forces moved into the streets, Reagan called the Pope for his advice. At a series of meetings over the next few days, Reagan discussed his options. "We had a massive row in the Cabinet and the National Security Council about putting together a menu of counteractions," former Secretary of State Haig recalls. "They ranged from sanctions that would have been crushing in their impact on Poland to talking so tough that we would have risked creating another situation like Hungary in '56 or Czechoslovakia in '68."
Haig dispatched Ambassador at Large Vernon Walters, a devout Roman Catholic, to meet with John Paul II. Walters arrived in Rome soon after, and met separately with the Pope and with Cardinal Casaroli, the Vatican secretary of state. Both sides agreed that Solidarity's flame must not be extinguished, that the Soviets must become the focus of an international campaign of isolation, and that the Polish government must be subjected to moral and limited economic pressure.
According to U.S. intelligence sources, the Pope had already advised Walesa through church channels to keep his movement operating underground, and to pass the word to Solidarity's 10 million members not to go into the streets and risk provoking Warsaw Pact intervention or civil war with Polish security forces. Because the communists had cut the direct phone lines between Poland and the Vatican, John Paul II communicated with Jozef Cardinal Glemp in Warsaw via radio. He also dispatched his envoys to Poland to report on the situation. "The Vatican's information was absolutely better and quicker than ours in every respect," says Haig. "Though we had some excellent sources of our own, our information was taking too long to filter through the intelligence bureaucracy."
In the first hours of the crisis, Reagan ordered that the Pope receive as quickly as possible relevant American intelligence, including information from * a Polish Deputy Minister of Defense who was secretly reporting to the CIA. Washington also handed over to the Vatican reports and analysis from Colonel Ryszard Kuklinski, a senior member of the Polish general staff, who was a CIA informant until November 1981, when he had to be smuggled out of Poland after he warned that the Soviets were prepared to invade if the Polish government did not impose martial law. Kuklinski had issued a similar warning about a Soviet military action in late 1980, which led the outgoing Carter Administration to send secret messages to Leonid Brezhnev informing him that among the costs of an invasion would be the sale of sophisticated U.S. weapons to China. This time, Kuklinski reported to Washington, Brezhnev had grown more impatient, and a disastrous harvest at home meant that the Kremlin did not need mechanized army units to help bring in the crops and instead could spare them for an invasion. "Anything that we knew that we thought the Pope would not be aware of, we certainly brought it to his attention," says Reagan. "Immediately."
The Catholic Team
The key Administration players were all devout Roman Catholics -- CIA chief William Casey, Allen, Clark, Haig, Walters and William Wilson, Reagan's first ambassador to the Vatican. They regarded the U.S.-Vatican relationship as a holy alliance: the moral force of the Pope and the teachings of their church combined with their fierce anticommunism and their notion of American democracy. Yet the mission would have been impossible without the full support of Reagan, who believed fervently in both the benefits and the practical applications of Washington's relationship with the Vatican. One of his earliest goals as President, Reagan says, was to recognize the Vatican as a state "and make them an ally."
According to Admiral John Poindexter, the military assistant to the National Security Adviser when martial law was declared in Poland, Reagan was convinced that the communists had made a huge miscalculation: after allowing Solidarity to operate openly for 16 months before the crackdown, the Polish government would only alienate its countrymen by attempting to cripple the labor movement and, most important, would bring the powerful Church into direct conflict with the Polish regime. "I didn't think that this (the decision to impose martial law and crush Solidarity) could stand, because of the history of Poland and the religious aspect and all," Reagan says. Says Cardinal Casaroli: "There was a real coincidence of interests between the U.S. and the Vatican."
The major decisions on funneling aid to Solidarity and responding to the Polish and Soviet governments were made by Reagan, Casey and Clark, in consultation with John Paul II. "Reagan understood these things quite well, including the covert side," says Richard Pipes, the conservative Polish-born scholar who headed the NSC's Soviet and East European desks. "The President talked about the evil of the Soviet system -- not its people -- and how we had to do everything possible to help these people in Solidarity who were struggling for freedom. People like Haig and Commerce Secretary Malcolm Baldrige and James Baker (White House chief of staff at the time) thought it wasn't realistic. George Bush never said a word. I used to sit behind him, and I never knew what his opinions were. But Reagan really understood what was at stake."
By most accounts, Casey stepped into the vacuum in the first days after the declaration of martial law in Poland and -- as he did in Central America -- became the principal policy architect. Meanwhile Pipes and the NSC staff began drafting proposals for sanctions. "The object was to drain the Soviets and to lay blame for martial law at their doorstep," says Pipes. "The sanctions were coordinated with Special Operations (the CIA division in charge of covert task forces), and the first objective was to keep Solidarity alive by supplying money, communications and equipment."
"The Church was trying to modulate the whole situation," explains one of the NSC officials who directed the effort to curtail the pipeline. "They (Church leaders) were in effect trying to create circumstances that would head off the serious threat of Soviet intervention while allowing us to get tougher and tougher; they were part and parcel of virtually all of our deliberations in terms of how we viewed the evolution of government-sponsored repression in Poland -- whether it was lessening or getting worse, and how we should proceed."
As for his conversations with Reagan about Poland, Clark says they were usually short. "I don't think I ever had an in-depth, one-on-one, private conversation that existed for more than three minutes with him -- on any subject. That might shock you. We had our own code of communication. I knew where he wanted to go on Poland. And that was to take it to its nth possibilities. The President and Casey and I discussed the situation on the ground in Poland constantly: covert operations; who was doing what, where, why and how; and the chances of success." According to Clark, he and Casey directed that the President's daily brief -- the PDB, an intelligence summary prepared by the CIA -- include a special supplement on secret operations and analysis in Poland.
The Pope himself, not only his deputies, met with American officials to assess events in Poland and the effectiveness of American actions and sent back messages -- sometimes by letter, sometimes orally -- to Reagan. On almost all his trips to Europe and the Middle East, Casey flew first to Rome, so that he could meet with John Paul II and exchange information. But the principal emissary between Washington and Rome remained Walters, a former deputy director of the CIA who worked easily with Casey. Walters met with the Pope perhaps a dozen times, according to Vatican sources. "Walters was sent to and from the Vatican for the specific purpose of carrying messages between the Pope and the President," says former U.S. Ambassador to the Vatican Wilson. "It wasn't supposed to be known that Walters was there. It wasn't all specifically geared to Poland; sometimes there were also discussions about Central America or the hostages in Lebanon."
Often in the Reagan years, American covert operations (including those in Afghanistan, Nicaragua and Angola) involved "lethal assistance" to insurgent forces: arms, mercenaries, military advisers and explosives. In Poland the Pope, the President and Casey embarked on the opposite path: "What they had to do was let the natural forces already in place play this out and not get their fingerprints on it," explains an analyst. What emerges from the Reagan- Casey collaboration is a carefully calibrated operation whose scope was modest compared with other CIA activities. "If Casey were around now, he'd be having some smiles," observes one of his reluctant admirers. "In 1991 Reagan and Casey got the reordering of the world that they wanted."
The Secret Directive
Less than three weeks before his meeting with the Pope in 1982, the President signed a secret national-security-decision directive (NSDD 32) that authorized a range of economic, diplomatic and covert measures to "neutralize efforts of the U.S.S.R." to maintain its hold on Eastern Europe. In practical terms, the most important covert operations undertaken were those inside Poland. The primary purposes of NSDD 32 were to destabilize the Polish government through covert operations involving propaganda and organizational aid to Solidarity; the promotion of human rights, particularly those related to the right of worship and the Catholic Church; economic pressure; and diplomatic isolation of the communist regime. The document, citing the need to defend democratic reform efforts throughout the Soviet empire, also called for increasing propaganda and underground broadcasting operations in Eastern Europe, actions that Reagan's aides and dissidents in Eastern Europe believe were particularly helpful in chipping away at the notion of Soviet invincibility.
As Republican Congressman Henry Hyde, a member of the House Intelligence Committee from 1985 to 1990, who was apprised of some of the Administration's covert actions, observes, "In Poland we did all of the things that are done in countries where you want to destabilize a communist government and strengthen resistance to that. We provided the supplies and technical assistance in terms of clandestine newspapers, broadcasting, propaganda, money, organizational help and advice. And working outward from Poland, the same kind of resistance was organized in the other communist countries of Europe."
Among those who played a consulting role was Zbigniew Brzezinski, a native of Poland and President Jimmy Carter's National Security Adviser. "I got along very well with Casey," recalls Brzezinski. "He was very flexible and very imaginative and not very bureaucratic; if something needed to be done, it was done. To sustain an underground effort takes a lot in terms of supplies, networks, etc., and this is why Solidarity wasn't crushed."
On military questions, American intelligence was better than the Vatican's, but the church excelled in its evaluations of the political situation. And in understanding the mood of the people and communicating with the Solidarity leadership, the church was in an incomparable position. "Our information about Poland was very well founded because the bishops were in continual contact with the Holy See and Solidarnosc," explains Cardinal Silvestrini, the Vatican's deputy secretary of state at that time. "They informed us about prisoners, about the activities and needs of Solidarity groups and about the attitude and schisms in the government." All this information was communicated to the President or Casey.
"If you study the situation of Solidarity, you see they acted very cleverly, without pressing too much at the crucial moments, because they had guidance from the church," says one of the Pope's closest aides. "Yes, there were times we restrained Solidarnosc. But Poland was a bomb that could explode -- in the heart of communism, bordered by the Soviet Union, Czechoslovakia and East Germany. Too much pressure, and the bomb would go off."
Meanwhile, in Washington a close relationship developed between Casey, Clark and Archbishop Laghi. "Casey and I dropped into his (Laghi's) residence early mornings during critical times to gather his comments and counsel," says Clark. "We'd have breakfast and coffee and discuss what was being done in Poland. I'd speak to him frequently on the phone, and he would be in touch with the Pope." Says Laghi: "They liked good cappuccino. Occasionally we might talk about Central America or the church position on birth control. But usually the subject was Poland."
"Almost everything having to do with Poland was handled outside of normal State Department channels and would go through Casey and Clark," says Robert McFarlane, who served as a deputy to both Clark and Haig and later as National Security Adviser to the President. "I knew that they were meeting with Pio Laghi, and that Pio Laghi had been to see the President, but Clark would never tell me what the substance of the discussions was."
On at least six occasions Laghi came to the White House and met with Clark or the President; each time, he entered the White House through the southwest gate in order to avoid reporters. "By keeping in such close touch, we did not cross lines," says Laghi. "My role was primarily to facilitate meetings between Walters and the Holy Father. The Holy Father knew his people. It was a very complex situation -- how to insist on human rights, on religious freedom, and keep Solidarity alive without provoking the communist authorities further. But I told Vernon, 'Listen to the Holy Father. We have 2,000 years' experience at this.' "
Though William Casey has been vilified for aspects of his tenure as CIA chief, there is no criticism of his instincts on Poland. "Basically, he had a quiet confidence that the communists couldn't hold on, especially in Poland," says former Congressman Edward Derwinski, a Polish-speaking expert on Eastern Europe who counseled the Administration and met with Casey frequently. "He was convinced the system was falling and doomed to collapse one way or another -- and Poland was the force that would lead to the dam breaking. He demanded a constant (CIA) focus on Eastern Europe. It wasn't noticed, because other stories were more controversial and were perking at the moment -- Nicaragua and [El]Salvador."
In Poland, Casey conducted the kind of old-style operation that he relished, something he might have done in his days at the Office of Strategic Services during World War II or in the early years of the CIA, when the democracies of Western Europe rose from the ashes of World War II. It was through Casey's contacts, his associates say, that elements of the Socialist International were organized on behalf of Solidarity -- just as the Social Democratic parties of Western Europe had been used as an instrument of American policy by the CIA in helping to create anticommunist governments after the war. And this time the objective was akin to creating a Christian Democratic majority in Poland -- with the church and the overwhelmingly Catholic membership of Solidarity as the dominant political force in a postcommunist Poland. Through his contacts with leaders of the Socialist International, including officials of socialist governments in France and Sweden, Casey ensured that tactical assistance was available on the Continent and at sea to move goods into Poland. "This wasn't about spending huge amounts of money," says Brzezinski. "It was about getting the message out and resisting: books, communications equipment, propaganda, ink and printing presses."
Look for the Union Label
In almost every city and town, underground newspapers and mimeographed bulletins appeared, challenging the state-controlled media. The church published its own newspapers. Solidarity missives, photocopied and mimeographed on American-supplied equipment, were tacked to church bulletin boards. Stenciled posters were boldly posted on police stations and government buildings and even on entrances to the state-controlled television center, where army officers broadcast the news.
The American embassy in Warsaw became the pivotal CIA station in the communist world and, by all accounts, the most effective. Meanwhile, the AFL- CIO, which had been the largest source of American support for Solidarity before martial law, regarded the Reagan Administration's approach as too slow and insufficiently confrontational with the Polish authorities. Nonetheless, according to intelligence sources, AFL-CIO president Lane Kirkland and his aide Tom Kahn consulted frequently with Poindexter, Clark and other officials at the State Department and the NSC on such matters as how and when to move goods and supplies into Poland, identifying cities where Solidarity was in particular need of organizing assistance, and examining how Solidarity and the AFL-CIO might collaborate in the preparation of propaganda materials.
"Lane Kirkland deserves special credit," observes Derwinski. "They don't like to admit (it), but they literally were in lockstep (with the Administration). Also never forget that Bill Clark's wife is Czechoslovak, as is Lane Kirkland's wife. This is one issue where everybody was aboard; there were no turf fights or mavericks or naysayers."
But AFL-CIO officials were never aware of the extent of clandestine U.S. assistance, or the Administration's reliance on the church for guidance regarding how hard to push Polish and Soviet authorities. Casey was wary of "contaminating" the American and European labor movements by giving them too many details of the Administration's efforts. And indeed this was not strictly a CIA operation. Rather, it was a blend of covert and overt, public policy and secret alliances. Casey recognized that in many instances the AFL- CIO was more imaginative than his own operatives in providing organizational assistance to Solidarity and smuggling equipment into the country. According to former deputy CIA director Inman, Casey decided that the American labor movement's relationship with Solidarity was so good that much of what the CIA needed could be financed and obtained through AFL-CIO channels. "Financial support wasn't what they needed," says Inman. "It was organization, and that was an infinitely better way to help them than through classic covert operations."
The Solidarity office in Brussels became an international clearinghouse: for representatives of the Vatican, for CIA operatives, for the AFL-CIO, for representatives of the Socialist International, for the congressionally funded National Endowment for Democracy, which also worked closely with Casey. It was the place where Solidarity told its backers -- some of whose real identities were unknown to Solidarity itself -- what it needed, where goods and supplies and organizers could be most useful. Priests, couriers, labor organizers and intelligence operatives moved in and out of Poland with requests for aid and with detailed information on the situation inside the government and the underground. Food and clothing and money to pay fines of Solidarity leaders who were brought before Polish courts poured into the country. Inside Poland, a network of priests carried messages back and forth between the churches where many of Solidarity's leaders were in hiding.
In the summer of 1984, when the sanctions against Poland seemed to be hurting ordinary Poles and not the communists, Laghi traveled to Santa Barbara to meet with Reagan at the Western White House and urge that some of the sanctions be lifted. The Administration complied. At the same time, the White House, in close consultation with the Vatican, refused to ease its economic pressures on Moscow -- denying technology, food and cultural exchanges as the price for continuing oppression in Poland.
Much of the equipment destined for Solidarity arrived in Poland by ship -- often packed in mismarked containers sent from Denmark and Sweden, then unloaded at Gdansk and other ports by dockers secretly working with Solidarity. According to Administration officials, the socialist government of Sweden -- and Swedish labor unions -- played a crucial role in arranging the transshipment of goods to Poland. From the Polish docks, equipment moved to its destination in trucks and private cars driven by Solidarity sympathizers who often used churches and priests as their point of contact for deliveries and pickups.
"The Administration plugged into the Church across the board," observes Derwinski, now Secretary of Veterans Affairs. "Not just through the church hierarchy but through individual churches and bishops. Monsignor Bronislaw Dabrowski, a deputy to Cardinal Glemp, came to us often to tell us what was needed: he would meet with me, with Casey, the NSC and sometimes with Walters." John Cardinal Krol of Philadelphia, whose father was born in Poland, was the American churchman closest to the Pope. He frequently met with Casey to discuss support for Solidarity and covert operations, according to CIA sources and Derwinski. "Krol hit it off very well with President Reagan and was a source of constant advice and contact," says Derwinski. "Often he was the one Casey or Clark went to, the one who really understood the situation."
By 1985 it was apparent that the Polish government's campaign to suppress Solidarity had failed. According to a report by Adrian Karatnycky, who helped organize the AFL-CIO's assistance to Solidarity, there were more than 400 underground periodicals appearing in Poland, some with a circulation that exceeded 30,000. Books and pamphlets challenging the authority of the communist government were printed by the thousands. Comic books for children recast Polish fables and legends, with Jaruzelski pictured as the villain, communism as the red dragon and Walesa as the heroic knight. In church basements and homes, millions of viewers watched documentary videos produced and screened on the equipment smuggled into the country.
With clandestine broadcasting equipment supplied by the CIA and the AFL-CIO, Solidarity regularly broke into the government's radio programming, often with the message "Solidarity lives!" or "Resist!" Armed with a transmitter supplied by the CIA through church channels, Solidarity interrupted television programming with both audio and visual messages, including calls for strikes and demonstrations. "There was a great moment at the half time of the national soccer championship," says a Vatican official. "Just as the whistle sounded for the half, a SOLIDARITY LIVES! banner went up on the screen and a tape came on calling for resistance. What was particularly ingenious was waiting for the half-time break; had the interruption come during actual soccer play, it could have alienated people." As Brzezinski sums it up, "This was the first time that communist police suppression didn't succeed."
"Nobody believed the collapse of Communism would happen this fast or on this timetable," says a cardinal who is one of the Pope's closest aides. "But in their first meeting, the Holy Father and the President committed themselves and the institutions of the Church and America to such a goal. And from that day, the focus was to bring it about in Poland."
Step by reluctant step, the Soviets and the Communist government of Poland bowed to the moral, economic and political pressure imposed by the Pope and the President. Jails were emptied, Walesa's trial on charges of slandering state officials was abandoned, the Polish Communist Party turned fratricidal, and the country's economy collapsed in a haze of strikes and demonstrations and sanctions.
On Feb. 19, 1987, after Warsaw had pledged to open a dialogue with the church, Reagan lifted U.S. sanctions. Four months later, Pope John Paul II was cheered by millions of his countrymen as he traveled across Poland demanding human rights and praising Solidarity. In July 1988, Gorbachev visited Warsaw and signaled Moscow's recognition that the government could not rule without Solidarity's cooperation. On April 5, 1989, the two sides signed agreements legalizing Solidarity and calling for open parliamentary elections in June. In December 1990, nine years after he was arrested and his labor union banned, Lech Walesa became President of Poland.
by Guido Acquaviva
In this Article, the Author challenges the definition of the term "state" that is commonly accepted in legal scholarship as the basis for assessing whether an entity is a subject of international law. By analyzing a number of cases that do not fit into the "traditional" model--including the Holy See, Napoleon, and the Confederacy--the Author reaches the conclusion that the only essential element of a subject of international law is its sovereignty. An entity is sovereign when it is able effectively to assert that it is not subordinate to another authority: territory and population are therefore not essential attributes of international personality. The Author also explores the close relationship between the status of an entity as a subject of international law and international responsibility. The conclusions and analytical approaches employed in the Article are applicable to the study of entities long considered "lesser" subjects than states, such as intergovernmental organizations, insurgents, or belligerents, and even to the analysis of contemporary terrorist networks such as al-Qaeda.
TABLE OF CONTENTS
II. STATE ACTORS?
A. Attempting to Define "State".
C. Atypical Quasi-State Actors?
1. The Holy See
2. The Boers
4. Spain and Turkey
5. The Confederate States of America
6. China and Taiwan
III. POWERS AS SUBJECTS OF INTERNATIONAL LAW
A. Subjects superiorem non recognoscentes
B. Intergovernmental Organizations and Other Subjects
C. Is There a Real Difference in the Treatment of State and Non-State Actors?
D. Effective Authority
IV. SHIFTING THE FOCUS TO RESPONSIBILITY
Non sunt multiplicanda entia praeter necessitatem.
- Ockham's Razor
The idea that states are the primary subjects of international law stems from the fact that they appear to constitute the most complete type of subject, having a more or less stable authority over a generally well-defined territory and population. Arguably, this cannot be said for entities such as international organizations, which generally lack a territorial basis, or of belligerents, which are not deemed to possess the quality of a stable authority.
This Article aims to challenge the idea that since states are the primary subjects of international law, (1) they are qualitatively different from other subjects of international law. If proved, this proposition would entail that non-state actors have, in principle, the same rights and obligations as states under customary international law. (2) The fundamental consequence would be the need to rethink the way in which the international community regards non-state actors.
Part II of this Article first addresses the most common definition of "state" under international law. It also identifies a number of borderline cases in which subjects of international law not falling within that definition raise interesting questions as to the propriety of using this definition in deciding whether a certain entity is a subject of international law. These cases, although admittedly few, are assumed to be representative of a larger number of similar instances. Although these instances vary greatly in nature, they all point to the same conclusion. Also, they are gathered from different time periods, because the assumption is that the fundamental rules of international law relating to the personality and identity of subjects have not changed during the past centuries.
Part III of this Article then proposes a more general definition of subjects of international law, a definition capable of easing the incongruities raised by the examples discussed in Part II. In particular, it suggests that for an entity to be considered a subject of international law, the entity must be able to assert effectively that it is not subordinate to another authority; in other words, it must have the ability not to recognize any entity as a superior. Such a status--defined as sovereignty (3)--is established through the analysis of that entity's powers within the entity itself and, under certain circumstances, of its relations with other subjects of international law.
Part IV of the Article explores the real basis for this definition and puts forward the view that a close link exists between theories of personality under international law, on the one hand, and international responsibility, on the other. Finally, the conclusions in Part V address the potential significance of the application of the findings presented in the previous parts to cases that do not apparently harmonize with the traditional view of international subjects.
II. STATE ACTORS?
A. Attempting to Define "State"
The Restatement (Third) of Foreign Relations explains: "Under international law, 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." (4) This definition is fundamentally consistent with the one contained in the Montevideo Convention on the Rights and Duties of States, which provides that "[t]he 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" (5) and is referred to by scholars, especially in the United States, as indicative of customary international law. (6) The aforementioned elements are often defined "requirements" or "essential conditions" for an entity to be regarded as a state under international law. (7)
This definition is not satisfactory. First, part of the definition requires that the entities with which a state engages in formal relations be states themselves. But because they can only be states if they are able to have relations with other such entities, a vicious circle seems unavoidable. It seems difficult to characterize the capacity to engage in formal relations as an essential element, if only because this would entail the need to pre-define whether the other entities are already states.
The Comment to the Restatement further cautions that, although the definition is generally accepted, "each of its elements may present significant problems in unusual situations." (8) If a definition is generally accepted, but each of its elements is put into doubt in borderline situations, the solution would be to look for a better definition, not to try to force unusual situations to conform to the legal definition. (9) Uncommon situations test the veracity and reliability of the definition itself, at least if the definition is to serve any practical purpose. (10)
Also, the definition does not place enough emphasis on the element of "external" sovereignty. The expression "under the control of its own government" in the Restatement may admittedly refer to this requirement, but it is insufficient to identify properly this feature. In fact, federated states may be said to rule a defined territory and population, and some of them are allowed to enter into relations with other subjects--in certain cases even with other subjects of international law. They are not, however, states within the meaning of international law. In the case of federated states, it is their lack of independence with regard to the federal state that prevents them from being considered subjects of international law. This is the case, for example, for the states and territories of the United States, (11) or the republics making up the former Soviet Union until 1991. The latter is especially interesting because, notwithstanding the fact that Byelorussia (now Belarus) and the Ukraine were among the founding members of the United Nations--an organization that is open only to "states" pursuant to a joint reading of articles 3 and 4 of its Charter--none of the republics constituting the U.S.S.R. was a state within the meaning of international law. (12)
It is therefore difficult to accept the Restatement's definition of a "state" under international law. But it will be assumed that this definition describes what a state in the sense of international law looks like. Throughout this Article, this description of the state will be identified as the "traditional" way to address the problem of statehood in international law--this being the view widely held in the past decades, especially among U.S. scholars.
Before introducing the cases, a short explanation of the phenomenon of recognition is also necessary. "Recognition of governments" denotes the act through which it becomes apparent that a subject of international law is willing to enter into certain relations with another authority. (13) Many states today assert that they do not intend explicitly to recognize governments. (14) "Recognition of states" is the act through which a subject of international law indicates its willingness to enter into inter-state relations with another subject of international law and thus is evidence--but not proof--that the latter has acquired international personality. (15) Recognition may be explicit--through an official statement issued by the recognizing authority--or, more often, implicit--through some other act presupposing recognition that the other entity is a subject of international law. (16)
There are two fundamental reasons why recognition may not establish the international personality of states and other subjects. First, the principle of the sovereign equality of the subjects of international law would be infringed by the possibility that one or more subjects could deny the existence of another subject by refusing to recognize it.
Second, it is illogical--and ultimately impractical--to allow an entity to be considered a subject of international law by some subjects but not by others. Since, for example, it is common that a newly created state is not immediately recognized as a state by the international community as a whole, the absurd result would follow that an effective and independent government over a population and a territory would be considered a state by some subjects, but as nonexistent--within the international realm--by others. It is not clear with which rules of customary international law an entity lacking unanimous recognition would be bound to comply. (17) This means that an independent authority, existing as a matter of fact, (18) is thereafter recognized by other subjects wishing to enter into some kind of intercourse with it; such recognition, however, has no bearing on the fact that this subject already exists and is part of the so-called "international community." Independence as the essential attribute of all subjects of international law--a topic further analyzed in this Article--also demonstrates that recognition is not a requirement for a state to be a subject of international law. (19)
In 1991, the European Community issued "guidelines" for the recognition of republics aspiring to independence during the process of the dissolution of the Soviet Union and Yugoslavia in the early 1990s. (20) Contrary to commonly held belief, (21) these guidelines do not show a novel approach, but rather follow the long-standing practice of trying to impose specific obligations on new subjects. To mention only one example, following the Bolshevik revolution in Russia in 1921, the French Minister of Foreign Affairs declared that
Le gouvernment francais n'a pas l'intention de reconnaitre le pouvoir des soviets tant que celui-ci n'aura pas donne des garanties de sa volonte de se conformer au droit des gens et de respecter les engagements et les obligations des Gouvernments russes qui l'ont precede a l'egard des gouvernments et des particuliers etrangers.
(22) Whether or not the proponents of such statements actually abided by them, the purported aim appears to be the same: setting standards for governments to be recognized within the "family of the nations."
(23) But these kinds of declarations by (older) members of the international community imply that the new entities are already subjects of international law. No state would ask entities that are not already subjects of international law to undertake international legal obligations. An entity has certain rights and obligations only because it already is a subject; others may wish to force compliance under the threat of non-recognition from a political standpoint, and therefore isolation, but this stand does not, and may not, affect the legal personality of those new entities.
(24) To hold the contrary, one would need to argue that an entity lacking the quality of a subject of international law--and not enjoying the rights and duties thereof--acquires that status by starting to comply with the legal obligations of a subject, which it still is not. Such reasoning leads to the absurd result that an entity would only become a subject of international law when it finally complies with those duties, and its conduct is finally acknowledged by others (a process that might take considerable time). Similarly, continued recognition of entities that have ceased to fulfill the requirement of effectiveness and independence shows that sometimes recognition is not based on any consistent set of empirical criteria, but rather on the acceptability of that entity "to current international mythologies of legitimate statehood."
(25) This is another reason not to assign excessive importance to recognitions.
C. Atypical Quasi-State Actors?
A first critique of the traditional model of the international community relies on the acknowledgement that there are certain actors of international law that are treated like states (and are even sometimes defined as states), although they do not meet all the criteria that are traditionally deemed necessary for them to be called states. The following pages contain an analysis of various such cases.
1. The Holy See
"When I request an audience from the Vatican, I do not go to see the King of Vatican City, but the head of the Catholic Church." (26) This statement by Dag Hammarskjold, Secretary-General of the United Nations between 1953 and 1961, describes the paradox of the relationship among the Holy See, the Vatican, and the Catholic Church. The Roman Pontiff, supreme head of the Catholic Church, has occupied a position of high political authority since the Middle Ages and, through the vicissitudes leading to the end of the "universal" rule of the Holy Roman Empire and the gradual formation of a community of sovereign entities, has acquired a status equal to that of a head of state. (27)
Part of the confusion stems from the fact that the Pontiff has, for most of the existence of the Holy See, ruled the Papal States situated in central Italy. Only for a certain period after 1808, and then again between 1870 and 1929, did the Pontiff have no jurisdiction over any territory at all. (28) Following the signature of the Lateran Treaty, the Pontiff now rules the Vatican City. (29) But these changes in territorial control (or lack thereof) have not affected in any sense the international personality of the Holy See. After the conquest of the Papal States by Napoleon in 1808, a concordat--a real international agreement between sovereign subjects (30)--was signed by Napoleon and the Pope, ensuring the exercise of the activities of the Pontiff "in the same forms of his precedessors," as well as the right to receive and appoint ambassadors. (31) Even after the conquest of Rome by the Italian state in 1870, the Holy See continued to maintain its activities and relations with other subjects of international law as if nothing had changed. (32)
The Holy See is currently party to various conventions, including the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864, (33) the Geneva Conventions of 1949, (34) the Convention on the Rights of the Child of 1989, (35) and the Vienna Convention on Diplomatic Relations. (36) The Holy See is a member of the World Intellectual Property Organization, (37) a member of the International Atomic Energy Agency, (38) and has the status of the only "Non-member State Permanent Observer to the United Nations." (39) These facts show that, regardless of the doctrinal differences and theories, the Holy See --though not a state under the definition of the Montevideo Convention--is considered, in essence, an equal to states--par inter pares. (40)
The Holy See is the government of the Church and, de facto, also of the minuscule city of the Vatican; there is no reason to create complex theories on the relationship among these three bodies. The Vatican City lacks independence and is an entity governed by the Holy See: it is therefore not a subject of international law. It is true that, on some occasions, the Holy See prefers to deal with certain matters of its own through the Vatican state. (41) But if one is to go beyond mere appearances, it is evident that the real subject on the international plane is the Holy See, which effectively controls the Vatican City (a mere territorial administration) and the Catholic Church (the world-wide network of persons and institutions). An example clarifies this apparent confusion. In 1993, the Holy See and Israel signed a treaty which, in addition to mutual recognition and the establishment of diplomatic relations, relates to the regime of the Catholic Church on Israeli territory. (42) Article 1.2 of the treaty states "[t]he Holy See... affirms the Catholic Church's commitment to uphold the human right to freedom of religion and conscience, as set forth in the Universal Declaration of Human Rights and in other international instruments to which it [the Holy See] is a party." (43) Thus, the parties agreed that the Holy See was the subject of international law capable of assuming binding obligations on behalf of the Catholic Church.
The Holy See, in sum, is a subject of international law equal to states, even if it does not possess the traditional elements of statehood. It is the same subject as the Holy See before 1808, the same subject as that which existed between the fall of Napoleon and 1870, and the same subject as that which existed between 1870 and 1929. Changes in territory and population have not affected its nature as a sovereign subject. (44) Currently, the expression "Holy See" is used to define the government of the Vatican. Should the Holy See once again lose its territorial basis, however, it would still remain a subject of international law in its own right.
2. The Boers
One case of an entity subject to international law that moved from one territory to another--and therefore cannot be said to have possessed "a stable territory"--is exemplified by the "Great Trek" of the Boers in the first half of the nineteenth century. (45) The Cape of Good Hope was settled by the Dutch in 1652 and, with some minor interruptions stemming from colonial conflicts, remained a Dutch dependency until 1806. (46) Movements of Boer farmers from the Dutch Colony of the Cape to the North were common throughout the eighteenth and the beginning of the nineteenth centuries. It was, however, after the cession of the colony to Great Britain in 1814, and especially after the abolition of slavery in 1833, that almost the entire African-Dutch community moved to form the Free State of Orange, (47) the African-Dutch Republic, (48) and the Colony of Natal. (49) Those settlers, according to the traditional view, would not have been able unilaterally to discard their bond of allegiance to the British Crown in accordance with domestic (British) rules. (50) Had this been a simple occupation of terra nullius, the new territory would automatically have become part of the British Empire. But the emigrants intended to reestablish their colony on an independent basis, with the privileges and liberties the new British sovereign denied them (including that of being a slave-owner).
Leaving aside any moral judgment on the Boers' aims, (51) there is no doubt that other countries recognized these entities as subjects of international law because they effectively discharged state functions in their respective territories until their final annexation by Great Britain. In fact, the domination by the Netherlands through its East India Company was a nominal one, allowing for a high degree of de facto self-government. (52) When British rule replaced the nominal Dutch authority, it was simply not recognized by the local ruling class of Dutch origin. (53) The manifesto describing the intentions of the emigrants, drafted in 1837, is clear in this respect, stating that "we are resolved, wherever we go, that we will uphold the first principles of liberty" and that "we quit this colony under the full assurance that the English Government has nothing more to require of us, and will allow us to govern ourselves without interferences in the future." (54) The Boers believed that they "were an oppressed nation under foreign supremacy." (55) As such, they moved to another territory to retain their own identity. The British government recognized that the Transvaal was constituted by the "emigrant farmers beyond the Vaal river." (56)
In this case, the nation (or rather, the white governing elite) moved with its property (including slaves) to an altogether different territory, maintaining an identity recognized by Great Britain and other nations. The government--with its legal system and constitutive rules--and the population changed location, but both kept their identity. In response to this reasoning, it might be said that because the Boers were colonists under Dutch rule, they could not be an entity under international law before the Great Trek; therefore, it is impossible to define their migration as a modification of the territory of a subject of international law. The better view, however, is that Dutch rule was more formal than effective and that subsequent history demonstrates that the Boers left in order to maintain the integrity of their traditions and institutions. Moreover, when the Boer entities formed after the Great Trek ahead of the still-advancing British presence, they began to withdraw beyond the river Vaal. In this instance, a real migration of an internationally constituted entity, exercising effective authority over its subjects, took place. (57)
The foregoing case shows that "the total change of territory by a people which, under the same government and law, settles in a different territory, leaves the identity of the state [or of the subject] intact." (58)
Czechoslovakia, as a subject of international law, was born without any territorial basis and practically without a population, but it developed into a state without losing its identity. The Czechoslovak Republic had its genesis in the Czechoslovak National Council that acted, during the First World War, as a representative of the Czechoslovak nation. (59) Under the Council, a 30,000-strong Czechoslovak army fought the Great War against the Austrian Empire and its allies on different fronts. (60)
These two entities were considered by the Allied Powers (Entente) as the legitimate representatives of the Czechoslovak people. The British Foreign Office heavily financed the recruiting operations of this army; it stated that "[s]ince the beginning of the war, the Czecho-Slovak nation has resisted the common enemy by every means in its power.... In consideration of its efforts to achieve independence Great Britain regards the Czecho-Slovaks as an allied nation." (61) From October 24, 1917 onward, Italy recognized the Council as a Czechoslovak government well before any authority on the territory of Czechoslovakia had been secured. (62) On April 21, 1918, Italy and the National Council signed a Convention mentioning the existence of a sole and autonomous Czechoslovak army under the authority of the National Council; (63) on June 30, 1918, a Convention between Italy and the National Council envisaged the direct execution of the laws passed by the latter within the Italian kingdom and stated that the Czech military was under the jurisdiction of Czech court-martials. (64) A Czechoslovak government in exile was established in Paris only later (65) and recognized by several nations, including France, Serbia, Belgium, Greece, and Italy. (66)
The expressions of recognition of the National "Council and of the government in exile could be construed as the expression of the political will to recognize an entity representing one of the nationalities within the Austro-Hungarian Empire fighting against the empire itself--that is, a politically motivated recognition to a military group as a way of persuading it to join the war effort. But when one considers these recognitions together with events unfolding after the end of the Great War, another explanation appears more likely. The peace treaties of Saint Germain-en-Laye (with Austria) (67) and Trianon (with Hungary) (68) list Czechoslovakia among the winning "Allied and Associated Powers." To be among the victorious states, the subject called "Czechoslovakia" must have already been in existence before the end of the war and the dissolution of the Austro-Hungarian Empire. But there is no doubt that, at least before November 3, 1918, the date of the armistice of Villa Giusti between the Empire and Italy (the last official act of Emperor Karl), (69) neither the National Committee nor the "government in exile" enjoyed effective control over any portion of the territory of what would become Czechoslovakia.
The only logical explanation is that a subject of international law (an ally of the Entente) existed before the dissolution of the Empire and was able to engage in international relations with other subjects; when the war ended, that same subject was finally able to acquire a territorial basis. The late acquisition of territory by this (already existing) international subject, however, did not modify its nature and its "essence," for it was considered the same subject which had fought as an "Allied and Associated Power." (70) No other national group or liberation committee was recognized among the "Allied and Associated Powers" in the same treaties. In this case, a subject of international law, par inter pares, existed before it was able to exercise effective authority over any territory; when it did acquire this ability, it continued to exist according to its new situation without any essential modification of its personality and identity.
The last three cases suggest that entities without a stable territory or population (or both) are not necessarily different from states. In fact, all these subjects retained their own identity as subjects of international law, with the rights and duties flowing from this position, both in times when they enjoyed effective control over a territory and in times when they were forced by circumstances to survive on some other state's territory--as if in a sort of "artificial lung" that kept them alive (Holy See, Sovereign Order of Malta) (71) or even assisted them at their birth (Czechoslovakia). In cases of what at the time was regarded as occupation of terra nullius (Boers), the transfer of the organized population to an altogether new territory did not alter the personality of the subject.
4. Spain and Turkey
In addition to the above-mentioned cases, in which subjects of international law regarded as equal to states (or, in certain cases, regarded as states proper) do not possess all the attributes set out in the classical definition of the Restatement, there are cases of subjects--insurgents or belligerents (72)--developing into states or being attributed rights and duties typical of states.
There are different views on the legal evaluation of the events surrounding the Spanish Civil War, dating from July 17, 1936 to March 28, 1939. (73) According to the standard account, the lawfully elected Republican government was replaced by the Nationalist one at least by March 28, 1939, when troops led by General Franco entered Madrid. At that point (although the exact time is subject to debate), Nationalist insurgents somehow became an organ of the Spanish state, which did not cease to exist. The Republican government, representing "Spain" until March 27, is said to have disappeared, leaving the territory and population (of Spain) under the rule of Franco. How exactly an entity (the insurgent community under Franco) had become an organ of another entity (Spain, the state it was fighting until March 27) is a mystery. How the Republican government of Spain, being an essential element of the state of Spain according to the definition of "state" provided for in the Restatement, could disappear but, at the same time, "leave in inheritance" the "state of Spain" to the next government is an even greater mystery.
If, however, we focus our attention on effective authorities--governments--rather than on "states," the matter can be interpreted in an altogether different light. As time passed and the Nationalist government gained ground through force (aided by Italian and German interventions), its sphere of effective jurisdiction expanded with every victory in the field; conversely, the Republican government (Spain) saw its authority diminished as far as control over territory was concerned. These entities were not qualitatively different one from the other. For this reason, the international community saw them as belligerents, qualitatively on the same level, and consequently applied the rules of warfare and neutrality. (74)
Both governments ruled their respective territory with effective authority and engaged in international intercourse. Many of the diplomats of "Spain" before 1936 joined the Franco regime and became "ministers" or charges d'affaires to other countries. (75) An example of this is provided by the disputes regarding the gold of the Spanish National Bank. In 1931, the Spanish National Bank had deposited a large amount of gold with the French National Bank. This gold was requested, after the beginning of the civil war, both by the Nationalist and by the Republican governments, each of which had, by that time, its own "Spanish National Bank."
Each government deemed itself entitled to the whole sum as the representative of "Spain." The problem was that, according to French or international law, there was no rule to decide which entity was "Spain"; the French judiciary therefore refused to take a stand on the issue. (76 The decision was finally taken by the French government, on a purely political level, to recognize the Franco regime on February 27, 1939. (77) Similarly, in June 1938, the British Government expressed its view that
His Majesty's Government recognizes the Nationalist Government as a Government which at present exercises de facto administrative control over the larger portion of Spain [and] effective administrative control over all the Basque Provinces of Spain.... [T]he Nationalist Government is not a Government subordinate to any other Government in Spain. (78) Courts generally abided by this view, stating that there were two sovereigns in Spain, albeit one de facto (Nationalist) and one de jure (Republican); no substantial difference seemed to exist on the legal level between the two characterizations. In an action before a Norwegian court by a charge d'affaires of the Nationalist government to hold and dispose of the property of the former ambassador to Norway, the plaintiff claimed that the Court should have decided "for itself whether or not the necessary conditions have been fulfilled in order that that Government must be recognized as exercising a lawful authority over Spain or a part thereof." (79) The District Court, however, referred to the executive branch of Norway and declared that "[a]s long as there exists a Spanish State and Government recognized by the Norwegian authorities, the right to possess and dispose of effects of such State ... belongs to the representative of such State." The Supreme Court followed this reasoning. (80) Although this conclusion seems at odds with the previously cited French one, it is actually based on the same logic--i.e., that the executive is allowed to make decisions in this area of international relations because there is no strict legal provision a tribunal can apply to decide which government represents a certain state during a civil war--unless one of the two governments intends not to gain ultimate control over the whole territory, but merely to secede. (81) German courts predictably took the opposite view--that the Nationalist government was the de jure one, while the Republic should be regarded as an insurgent, exercising de facto authority on Catalonia and other regions. (82) Recognition, too, could not solve the issue decisively. The different examples of competing recognitions by a different group of states only show that recognition is merely a political choice, with no effective bearing on the qualification of an entity as a subject of international law. In fact, the Republican government-in-exile was recognized as the only legitimate Spanish government by Yugoslavia and Mexico until March 1977, when democracy was restored to the country. (83)
A case analogous to Spain, contrary to the opinion of most scholars, is that of the Ottoman Empire and the Turkish Republic after the First World War, which involved two subjects of international law confronting each other. These were the Ottoman Empire, which had declared and lost the war alongside Germany and the Austro-Hungarian Empire, and the Kemalist Republic, which was born out of a group of nationalist insurgents to become present-day Turkey. (84)
Domestic decisions related to recognition of other governments are not able to deny international status to the new entity seeking power and recognition. They merely intend to reaffirm that one subject of international law wishes to keep conducting business as usual with the other subject--be it the Republican Government of Spain, the Ottoman Empire, or the Government of Sierra Leone. Some countries leave this appreciation entirely in the hands of the executive branch of the government, while others allow courts to make this determination. (85)
5. The Confederate States of America
Similar to the examples above is the case of insurgents or belligerents not succeeding in their efforts, as long as their control over (a portion of) the territory is effective and they are able to engage in affairs both inside and outside their borders. The Confederacy created by those states seceding from the United States of America in 1861 is a prime example. In that case, seven seceding states created a Constitution to form a new subject. The secession and all following acts were based on the premise that the states composing the Union were "Free and Independent States [with] full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." (86) The position of the Confederates was that the U.S. Constitution always speaks of states, though united through a compact, as separate entities. (87)
During the years of war, the Confederate States of America (CSA) strove to reach the political objective of official recognition by other countries--notably France, Great Britain, and Mexico. (88) The fact that the CSA never succeeded in reaching this aim did not preclude it (89) from engaging in international interaction. (90) The only reason recognition was not granted was fear of U.S. reprisal. (91) If the view is accepted that recognition is not constitutive of international subjects, the lack of recognition does not as such have any bearing on the conclusion reached with respect to the international personality of the CSA. In this respect, U.S. Secretary of State Seward instructed the U.S. ambassador to London that should Great Britain recognize the Confederacy, he was to communicate to the British government "promptly and without reserve that all negotiations for treaties of whatever kind between the two governments will be discontinued." (92) According to this statement, the United States was not going to act through a countermeasure, which would have been allowed under international law had the act of recognition of the CSA been considered a breach of international law, but through a mere act of retortion, aimed at adversely affecting British interests but not British rights under international law. (93) Thus, even the United States did not consider recognition of the CSA illegal under international law, but just an act of overt unfriendliness toward it.
The most important countries of the time declared themselves neutral in the war, thus accepting that both belligerents were on an equal footing and had the same rights and duties regarding the laws of warfare. (94) The declaration of neutrality by Great Britain (95) is especially important, since it gave rise to a series of legal disputes between Great Britain and the United States; most of these disputes (the so-called Alabama claims) were later to be solved by a joint Tribunal of Arbitration. (96)
The United States wished to portray the Confederates as rebels and the war as a mere domestic disturbance. According to this line of reasoning, the U.S. government never officially declared war, never recognized the Confederacy as a sovereign state, and deemed the soldiers fighting under Confederate colors traitors or pirates when assaulting U.S. vessels. This position, however, belied the facts. President Lincoln ordered measures in the manner of a blockade (97) to counter the CSA's bid for survival. U.S. courts tried Confederate soldiers accused of treason or piracy but often failed to enter convictions. (98) The U.S. Supreme Court recognized that in determining whether the United States could condemn the property of rebels, the right to condemn enemy property during war was an accepted practice under international law. (99) The U.S. Supreme Court also acknowledged that promissory notes in Confederate money were enforceable in U.S. courts after the war (100) and that investments in Confederate bonds were lawful. (101)
The Confederacy was a subject of international law with all the rights and duties pertaining to a state. (102) Although it was not officially recognized as a state, it acted as the paramount authority over the territories it held, and the population thereon; it engaged in international interaction with other subjects; it was considered a lawful belligerent party. "The insurgent community therefore possessed a government established as formally as is possible in a society the separate political existence of which is not acknowledged." (103) Judge Grier, writing for the majority in the Prize Cases remarked that "[this] is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force--south of this line is enemy's territory, because it is held in possession by an organized, hostile and belligerent power." (104)
This is not to say that the secession by the Confederate states was legal under the U.S. legal system (105) or under international law at the time, nor that it might be considered lawful under current understandings of the self-determination principles enshrined in the U.N. Charter and supporting documents. In particular, the position of the U.S. government and Supreme Court--that, according to the U.S. Constitution, the seceding states had never actually seceded--has no direct relation to the question of the international personality of the Confederacy. (106) The issue of the existence of a separate international subject has no direct relation with the legality of its conduct under domestic or international law; on the contrary, the analysis of its possibly unlawful acts presupposes its existence as a distinct entity. If the Confederacy had not been a subject of international law, no possible discourse on violations of international law by that entity would be conceivable.
As stated in the preceding pages, the creation and death of states in the sense of international law is a question of fact--and, de facto, the CSA acted as the governing body over a defined territory for over four years, just as the original thirteen colonies had done, more successfully, after they effectively rejected the lawfully constituted government of the British Crown. (107)
Evidence of the state-like status of the Confederacy is also provided by recent U.S. judicial rulings that considered it a predecessor of the United States. (108) In the Steinmetz case, the United States accepted that rights and duties flowed from the CSA as they would have from a conquered state and espoused the view that the United States is a successor state in respect of the Confederacy; therefore, the CSA must have been a subject of international law entitled to wage war, to own military property, and to be a predecessor with respect to public property.
6. China and Taiwan
The case of Taiwan, also known as the Republic of China (ROC), demonstrates the uncertainties of the Restatement's definition of "state"; the Comment appended to paragraph 201 and the Reporters' Notes indeed make reference to Taiwan and its status under international law. (109) A brief historical analysis of the events leading to the present situation may help shed some light on the actual situation.
In 1683, the Ch'ing dynasty ruling mainland China annexed the island to its empire, incorporating it into the province of Fukien. (110) In 1886 the island of Formosa (Taiwan) formally became a province of China. (111) After Japan defeated China in 1895, Taiwan was ceded to Japan "in perpetuity" under the Treaty of Shimonoseki (112) and remained under Japanese sovereignty until the Second World War.
The Chinese imperial government was overthrown in 1911; the new (republican) government was recognized by the United States, Japan, Russia, Great Britain, and other states in the following years. (113) But its legitimacy in parts of the territory purportedly under its authority was challenged by a number of local warlords well into the 1920s. (114)
During the Second World War, both the Cairo Declaration of 1943 (115) and the Potsdam Declaration of 1945 (116) stated that Chinese sovereignty should be restored over all the territories taken by Japan, including Taiwan. The Chinese government, a founding member of the United Nations, was therefore recognized as the same international subject that had relinquished its authority over Taiwan in 1895.
With Japan's surrender in 1945, (117) the Supreme Allied Command invited Chinese armed forces to Taiwan with the aim of enabling the Chinese government to regain possession of the island. Chinese administration attempted to assume control on October 3, 1945 as a military government under an Administrator-General and Concurrently Supreme Commander for Taiwan Province. Between September 2, 1945 (118) and October 3, 1945, the island was neither governed by Japan nor effectively controlled by China. (119) After October 3, 1945, some authority on the island was vested in the Chinese government under the Guomindang party, although it is by no means clear whether this government was sovereign or, rather, was acting under the mandate of the Allied Supreme Command. (120)
The matter is complicated by the fact that, at least by 1949, two different governments openly struggled to be recognized as the Chinese government. (121) This fact, together with the political clout created by the confrontation between the communist and the capitalist "fields" since the late 1940s, has puzzled international scholars, with a few exceptions, (122) up to the present day.
The debate on this issue has generally concerned the right (or duty) to recognize each of the two governments, as well as the diplomatic, political, and economic relations between members of the international community and each of the two subjects. (123) The debate is also tainted by strong political considerations, and it does not provide a clear legal answer on the identity of either subject. (124)
The civil war between the Communist forces under the leadership of Mao Zedong and the Nationalist forces under Chiang Kai-shek started in 1927. (125) At least from 1931, two different subjects of international law existed on the territory of today's "mainland China." One was the Chinese government (usually called "Nationalist," or Guomindang from the name of its ruling party at the time), which exercised effective authority over a large, though slowly shrinking, portion of mainland China. The other was the Communist entity, increasingly asserting its authority over portions conquered from the Nationalist government. (126) In 1949, the Nationalist government escaped to Taiwan, and hostilities between the two subjects effectively came to an end. That event did not affect in any way the identity of the two contenders.
As far as the Communist People's Republic of China (PRC) as a subject of international law is concerned, different theses have been proposed. The most widely accepted seems to be that the movement led by Mao Zedong, a mere insurgent before 1949, became a successor government to China and then changed the nation's name to the PRC. After some years of uncertainty, so the argument goes, the United Nations acknowledged the situation by accepting the PRC as the sole Chinese representative in the organization, and practically all of the states that had previously rejected this position gradually accepted it. Thus, the argument links membership in international organizations, and in particular the permanent seat in the U.N. Security Council, not only to the issue of statehood in general, but also to the identity of the PRC and ROC as subjects of international law.
The incongruities deriving from this formulation are significant. First, as it was pointed out above, it is not clear how an insurgent--which is a subject itself--may turn into a mere organ of another subject. Second, the Republic of China did not disappear after Mao Zedong took power in mainland China. It is difficult to conceive how an insurgent becomes an organ of the very state against which it has fought and which the insurgent has forced to migrate to a different territory.
Third, and more important, the PRC and the ROC govern separate territories, do not recognize any other subject as superior, and effectively engage in the activities of the subjects of international law. In fact, the only reasonable explanation of the kind of relationship they have with each other is that the PRC and the ROC are two different subjects. At least since 1979, the Taipei government stated that the ROC "is an independent sovereign state with a legitimate established government." (127) On July 10, 1999, the Taiwanese President noted that contacts between Taiwan and the PRC would be treated as "state-to-state relations." (128)
Starting from the assumption discussed above that recognition has no constitutive effect, the fact that the vast majority of the countries of the world do not recognize Taiwan does not, in itself, constitute a ground to deny the existence of the ROC as an independent state. (129) Recognition by most states that the PRC is, today, "China" in international relations cannot be deemed decisive. (130) The same can be said about the relationship between the United Nations and China. Since 1971, when the PRC replaced the ROC as the legitimate Chinese government holding the permanent seat in the Security Council, (131) the idea that the ROC is not a state any longer--and, in any event, is not China--has gained support. (132) But the United Nations--as a sovereign intergovernmental organization--is allowed to decide which governments to admit as members and which governments to refuse. If the admission by the U.N. of Byelorussia and the Ukraine did not elevate those republics to the level of subjects of international law, (133) the refusal after 1971 to accept the ROC as a U.N. member does not necessarily have any effect on the personality of the entity involved.
The alternative approach, which reconciles the factual reality of the situation with the relevant legal principles, is to acknowledge that notwithstanding the lack of recognition by a significant number of the international community's members, it cannot be maintained that the PRC was not a state before its accession to the United Nations. Had the PRC attacked another country in the 1950s, this would have been regarded as a war of international character. U.N. Security Council Resolutions 82 to 85 dealing with the Korean War do not mention Chinese intervention in the conflict. (134) But the Security Council, with Resolution 88, did invite a representative of the PRC to discuss the terms for a cease-fire in 1950. (135) During the same period, moreover, the Security Council, as reflected in Resolution 87, considered that the dispute between the two Chinese entities--namely the armed invasion of the island of Taiwan--was likely to lead to international friction or to give rise to an international dispute. (136) In this case, the Security Council was concerned about a possible war between two states exercising their effective authority over different, well-defined territories. PRC and Taiwan were thus regarded as distinct--and formally equal--subjects of international law. Since neither has ceased to exist to this date, they both continue to be distinct subjects of international law.
U.S. courts have also recognized the fact that, regardless of political considerations, the ROC is a subject, the same subject with which the United States had entered into bilateral relations before the recognition of the PRC. For example, in New York Chinese TV, the U.S. Court of Appeals for the Second Circuit affirmed a finding that Taiwan was still a party to a copyright treaty with the United States signed in 1946. (137) If the treaty is still in force, and no issue of state succession is raised, then Taiwan still exists as the same subject of international law. Other similar judicial decisions, by U.S. and non-U.S. courts, point to the same conclusion. (138)
The last cases confirm the view that some entities that are not regarded as states under traditional international doctrine for various reasons actually do enjoy the status of a subject within the international realm and do possess all attributes normally sufficient to qualify as states. They are considered subjects distinct from the officially recognized government against which they are fighting; they can be predecessors in matters of state succession; they are entitled to enter into treaty relations with states on an equal footing. If they succeed in replacing the old government, they are considered representatives of the territory previously ruled by that one; if they do not succeed, but perish, they are considered to be just like any other conquered state. As long as these "competing" subjects coexist, political considerations may lead certain subjects to treat them differently from other states, but this does not signify that they are essentially of a different nature.
In truth, considering personalities of entities involved in armed conflicts--whether international or non-international--is a delicate matter because a stable factual situation usually results only at the end of the hostilities. The examples of Czechoslovakia (which was regarded as a state after the end of the Great War, but as the same subject as the belligerent during the hostilities), the CSA (which was deemed a predecessor of the United States under international law, just like any other "conquered state"), and China and Taiwan (which have been distinct subjects of international law from the Chinese Civil War to this day), however, all show that issues of identity and the applicability of international law are not necessarily peculiar in times of armed conflict.
Napoleon was exiled to the island of Elba in 1814. An interpretation of the events surrounding his exile might be that Napoleon, as Emperor, was simply replaced as the head of the French state by King Louis XVIII; a simple substitution of governments took place, and France remained substantially the same subject.
But the evidence points to a different conclusion. After Napoleon's defeat, two different governments existed in France: one under Napoleon, which controlled no territory, and one under Louis XVIII. This is shown by the fact that, at the end of the war, two treaties were signed. One of the treaties was signed, on the one side, between Austria, Russia, Prussia, and Great Britain and, on the other, Napoleon, who renounced every right to France and accepted the isle of Elba as his new territory. (139) The other treaty was signed by the same Great Powers, on the one side, and by France, represented by Louis XVIII, on the other. The international acts were, thus, two: one stipulated by Napoleon, on behalf of his Court, his family, and his army, (140) and the other by Louis XVIII. (141) The latter would be able to regain for himself and his dynasty the territory of France only after, and partly as a consequence of, the signing of this treaty. After Napoleon's attempt to regain control of France and his confinement to Saint Helen in 1815, Lord Chancellor Eldon, upon the request of the British Prime Minister, wrote an opinion, which is of some interest, on Napoleon's legal status. (142)
If, before the Emperor of Elba [that is, Napoleon] entered France, to regain the throne he was not a French Subject, does his Attempt to regain that Throne again make him a French subject, or a French subject in rebellion--If, upon Grounds resulting out of the various situations & characters, in which [he] has been placed, & with which he has been clothed, you can consider him as, in no way, in the relation of Subject, or subject in rebellion ag[ainst] France, then may not the War be considered as a War against him, ag[ainst] him as our Enemy, without reference to any Character, that he may be alledged [sic] to have, bound up in the national Character of France--against him & his adherents making, as an Enemy against us, an hostile Attempt to break down the System of Gov[ernment], which existed in France, thereby introducing a System of Government in direct subversion of a Treaty with our Allies, founded upon their & our insecurity[,] under any such Government as he would introduce into France? If we can make this out, then might we not steer clear of the difficulty, that belongs to excluding from Peace with France or French Subject or a French Rebel? [H]e would then be a distinct, substantive Enemy, independent of any relation to the Sovereign of France, with whom we might be at Peace, or in Alliance? [A] conquered Enemy indeed, with whom, according to the Law of Nations, we should deal as mercifully as our Security would admit after he was conquered. But then we should only have to determine, as between ourselves & him, whether we did so treat, and the rules of the Law of Nations would be to be applied in the decision of that Question of fact, without reference to any Rule of that Law to him as a Subject of any Sovereign? Great Britain thus considered Napoleon to be the rival "power," a government. Conversely, it considered France not as an enemy, but as an ally. On March 25, 1815, Austria, Great Britain, Prussia, and Russia had even signed a treaty, (143) to which France acceded, (144) according to which, "having taken into consideration the consequences which the Invasion of France by Napoleon Bonaparte, and the actual situation of that Kingdom [created]," the parties agreed: to direct in common, and with one accord, should the case require it, all their efforts against [Napoleon], and against all those who should already have joined his faction, or shall hereafter join it, in order to force him to desist from his Projects, and render him unable to disturb in future the tranquility of Europe and the General Peace. (145) The subject of international law against whom the war had been fought--and won--was Napoleon. He was the government who, once defeated, had been conquered by Britain. (146) Diplomatic correspondence of Joseph de Maistre, diplomat in St. Petersburg on behalf of the Kingdom of Sardinia, dated July 13, 1815 confirms that "Ainsi les allies declarent solennement qu'ils ne font la guerre qu'a sa personne [that is, Napoleon]; et lorsqu'enfin sa personne est tombee sous leurs mains, ils n'en parlent plus!" (147) Had he been considered a war prisoner, albeit a former head of state, the obligation on Great Britain would have been to send him back to his country. The only explanation is that he was not a subject of France, but that he had somehow elevated himself to a subject of international law. (148)
III. POWERS AS SUBJECTS OF INTERNATIONAL LAW
A. Subjects superiorem non recognoscentes
All the cases analyzed above make up what Max Weber would have called "inconvenient facts," those which a party to a struggle does not wish to see. (149) Common experience dictates that a state remains the same--retaining the same name, the same position in the international community, the same rights and duties, the same governmental structure--even if it acquires large swaths of new territory (150) or, conversely, loses extensive areas previously under its jurisdiction. Territory and population undoubtedly help in establishing or consolidating a subject of international law and in assisting the subject in claims of being a sovereign center of authority. (151)
The main issue, however, is the effective control over territory and population--and the support that this effective control gives to the idea of being the superior entity. (152) When a subject does not have authority over territory or population, as in the case of international organizations or governments in exile, it is granted exceptions from the (territorial) jurisdiction of the state(s) where it is based.
The fact that government is therefore the essential element characterizing states as subjects of international law also explains the common conception that, when no government is effectively functioning, no state actually exists. (153) This is the case for all types of annexations: the government of the annexing country is simply considered to be extending jurisdiction over the territory and population of the annexed country or territory. (154) It is also the case for states ceasing to exist for debellatio, a conquest so total that it includes devolution of sovereignty. (155) In all such situations, and in many similar ones, the territory and the population continue to exist; however, the state is said to have disappeared because of the lack of an effective and independent government.
A short historical analysis may help to establish a "least common denominator" rule for identifying subjects of international law. Throughout the history of modern international relations, the main feature of subjects of international law has been their ability to assert that they are not subordinates to other authorities; in other words, subjects of international law were those entities superiorem non recognoscentes, able not to recognize any superior within the international community. This feature is at the basis of the fact that the international community is not structured as a hierarchical society, but rather as a community of (formal) peers. (156)
States, as we know them, were born as entities superiorem non recognoscentes when weakening political and religious bodies gradually lost their purported universal jurisdiction during the Middle Ages. (157) The expression ius inter gentes did not appear until after the Westphalian Peace, when it was used by the English scholar Richard Zouche. (158) Only at this time was there a commonly shared doctrinal acknowledgement of the fact that the respublica christiana had broken up into different effective authorities; international law as we understand it could then be conceived. (159) Thus, the only constitutional rules of the law of nations are the factual equality of members and their exemption from superior authority. In the international community, the functions of law-making, law-determining, and law-enforcement are not organized in any centralized way. (160)
This is reflected by the statement that states are independent. Independence, in this sense, is the feature distinguishing subjects of international law from other entities. The only possible analogy in this respect, although partial, is not the comparison between states under international law and juridical entities in domestic systems, but rather between states and natural persons. (161) The fact that domestic systems view the state as a juridical person is not sufficient to transfer this approach to the arena of international relations. "The Law of the Nations is but private law 'writ large.' It is an application to political communities of those legal ideas that were originally applied to the relations of individuals. Its leading distinctions are therefore naturally those with which private law has long ago rendered us familiar." (162) International law takes states for granted and does not prescribe a model they need to follow in order to be recognized as states. (163) This does not necessarily mean, especially in the past sixty years, that international law has not come to prescribe anything on how a country should be governed. These prescriptions, however, do not impeach the fact that a state is a subject within the international community; these prescriptions, in effect, presuppose this membership. (164)
Vattel described this situation in the following terms:
[U]n Etat est ... un corps politique.... Toute nation qui se gouverne elle-meme, sous quelque forme que ce soit, sans dependence d'aucun etranger, est un Etat souverain.... Pour qu'une nation ait droit de figurer immediatement dans cette grande societe, il suffit qu'elle soit veritablement souveraine & independante, c'est-a-dire qu'elle se gouverne elle-meme, par sa propre autorite & par ses lois. (165) By the end of the eighteenth century, the idea that recognition would somehow create (or help establish) other states was therefore implicitly rejected because the intrinsic equality among sovereign states rendered such a process impossible. The analysis by Vattel on the status of international law during his time, moreover, is relevant both to the issue of subjects of international law other than states and especially to the subjects arising from an insurrection or a civil war. Vattel clarifies that rebels are "sujets qui prennent injustement les armes contre le conducteur de la societe" (166) and that the Sovereign has a right to repress them. (167) Nonetheless, if an insurgency is strong enough (because it stops obeying the sovereign and resists him) and it forces the sovereign to make war to try to defeat it, (168) then a civil war starts, and the civil war "fait naitre deux parties independans," that is, gives birth to two independent parties, both subjects of international law. The fact that they are two subjects of international law derives from the acknowledgement that they regard themselves as enemies and do not recognize any common authority to judge them. That is, they are both superiorem non recognoscentes, and the same obligations existing between states apply to the parties of a civil war. (169) It is noteworthy that Vattel wrote this at about the time of the successful rebellion of the thirteen U.S. colonies against British rule; his book aptly describes the course of the war of independence on that occasion and provides a fundamental tool for understanding similar events.
A few years later, William Blackstone described the subjects of international law in essentially the same way:
[A]s it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse called 'law of nations': which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any. (170) Another principle follows from the idea that states do not recognize a higher authority--namely, that each state is to treat other states as equal legal subjects. This concept, too, is challenged from time to time on the basis of political considerations, but strictly speaking, on legal grounds, general international law cannot accept such pretensions without losing its very meaning. (171) Vattel refers to states and other groups (what today we would call "belligerents"). Blackstone apparently refers only to states and not to insurgents or belligerents. Nonetheless, when he refers to the lack of superior recognized authority, he is taking into account all self-proclaimed effective governments not recognizing any superior. Therefore, subjects of international law are such only when they are actually superiorem non recognoscentes, i.e., when they are able to act, in principle, with no superior entity restricting them, unless they have accepted those restrictions. Such a statement logically implies a minimum of internal organization allowing each entity to act as a whole, as one subject vis-a-vis others. There is at least a prima facie case that no element other than this understanding of sovereignty (for example, territory, population, intercourse with other entities, recognition) defines a subject of international law.
B. Intergovernmental Organizations and Other Subjects
States are, therefore, one class of the many entities superiorem non recognoscentes. Although territory and population distinguish them on the descriptive level from other subjects, no essential differentiation is warranted with respect to the legal status of entities that may lack, at some point in their existence or even at all times, a stable territory or population (or both).
This is further illustrated by the fact that rules of general international law also apply, with the necessary adjustments, to intergovernmental organizations (IGOs). In their case, too, international legal personality does not flow from recognition by other subjects of international law or from the simple recognition of that international personality by the member states in the establishing treaty. It is only when the formal establishment of the IGO is followed by its effective possibility to act independently as a distinct subject that international legal personality actually ensues. (172) From that moment onward, the organization also acquires a personality distinct from those of its member states, at least as long as it is able to maintain such de facto independence. (173) It is therefore not clear why the view is widely held that intergovernmental organizations are not among the "primary players" in international law.
In fact, the International Court of Justice has stated that IGOs are bound not only by their constitutive instruments and by the treaties they conclude, but also by "any obligations incumbent upon them under general rules of international law." (174) IGOs are therefore generally subject to all rules pertaining to other subjects, except those not applicable to them for factual reasons in the specific circumstances of each case. For example, when an IGO--which usually does not control any territory--exercises the functions of a government over a territory and a population, e.g. East Timor (through UNTAET) (175) and Kosovo (through UNMIK), (176) it is deemed to be subject to all customary rules pertaining to the treatment of nationals by states, even though such regimes are not deemed to possess full-fledged sovereignty over those territories. (177) UNMIK, for instance, was deemed to be subject to human rights standards applicable to European states. (178) To be able to enjoy immunity from responsibility arising out of the misconduct of its agents in those territories--much like the state it was replacing had tried to do in the past--UNMIK was forced to have recourse to carefully drafted immunity instruments, and this shows that immunity would not automatically follow from the traditional immunity of organizations. (179) UNMIK even signed a technical act with the Council of Europe relating to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which allows an independent committee of experts to examine the treatment of persons in Kosovo deprived of their liberty by UNMIK. (180)
Another borderline example is the International Committee of the Red Cross (ICRC), an international non-governmental organization (created by individuals, not states) recognized as an independent holder of rights and duties, acting as a peer to states in international relations and having as its main objective the protection of certain individuals during armed conflict. (181) According to Article 9 of the First, Second, and Third 1949 Conventions and Article 10 of the Fourth Convention, the ICRC is entrusted with the mandate of providing relief to victims of armed conflict. Article 81 of Additional Protocol I strengthens this right of initiative by imposing upon states obligations to cooperate with the ICRC. The ICRC has signed treaties, such as the "Agreement between the International Committee of the Red Cross and the Swiss Federal Council to determine the legal status of the Committee in Switzerland" of March 19, 1993, (182) which provides for almost all of the immunities usually enjoyed by intergovernmental organizations. These cases, which are representative of many similar ones, show that nothing prevents subjects that appear different from states from having rights and obligations traditionally attributed to states only.
C. Is There a Real Difference in the Treatment of State and Non-State Actors?
One of the main problems of the traditional view espoused in the Restatement is that most scholars derive from this definition the consequence that if an entity does not meet the criteria to be considered a state, it is, at best, a "minor" subject of international law; in extreme cases, it might not be regarded a subject of international law at all. In the face of this problem, uncertainties are posed by those entities that do not fulfill the traditional criteria of "states" but nevertheless act in the international arena with all the rights and duties they can effectively possess. (183)
One possible approach may be to identify what the "least common denominator" of these subjects really is--namely, effective sovereignty. The proposal is to use the word "powers" to define all those subjects that are effectively able not to recognize any entity as their superior. (184)
In this sense, all powers are equal under international law because governments as such do not differ from one another, although their territorial basis may vary greatly. The formal equality of subjects--like the formal equality of human beings before domestic systems--does not prevent huge differences in wealth, size, or age. Thus, for example, a non-state power without a territory is not subject to the rules of international law governing territory for the simple reason that it does not have a territory. Similarly, a state without coastlines is not subject to the rules governing, for example, territorial waters; this does not imply that that state is essentially different from other states with coastlines, but only that a difference of fact confines its rights and duties. Should that state acquire, legally or not, a coast, its essence would not be modified; rather, it would have new rights and duties flowing from that new factual position. In both cases, there is no need to create a special category of subjects construed as qualitatively "inferior" to states. The addition of new subjects to the international community (usually identified as transnational corporations, human rights' NGOs, and financial IGOs), even if true, would be only an "environmental change," not a "systemic change." (185)
With respect to the "hegemonic" pretensions of certain states during certain phases of the history of international relations, (186) formal equality may at times be challenged by the material ability of one or more players to use legal rules, and even to develop new laws, for their own purposes. But in this day and age this appears to be the case almost exclusively within IGOs, and within the United Nations' system in particular. These treaty-based organizations are not an accurate reflection of what the international community is like, and they do not have any direct effect on the "constitutional" framework of the international community. (187)
D. Effective Authority
Each authority superiorem non recognoscens is a subject formally at the same level of the others and is also a subject forming part of the so-called "international community." The question is, therefore, what exactly is this authority superiorem non recognoscens? What exactly is a power in the sense of international law? It is not the individual persons making up the government, apart from rare instances (e.g., Napoleon); nor it is a specific government as such. Rather, it seems to be a government as the expression of a system that reasonably considers itself identical to previous ones in relation to other subjects of international law. In this sense, the Soviet government after the October Revolution may be considered a new government, a new power vis-a-vis the international community. Its willingness and ability to mark its differences with the previous governments (the Tsarist one and the ad interim one between February and October), even against widespread protests, show that the new Soviet power did make its case for discontinuity. (188) In contrast, for example, the Islamic Revolution in Iran, which led to the establishment of a radically new government, accepted its continuity with the previous governments, as shown by the many awards rendered by the Iran-U.S. Claims Tribunal citing the position of Iran itself in the international arena. (189) In this case, there is a succession of governments, in the domestic sense, without any change in state identity (in the meaning of international law). A factual analysis must be carried out by legal scholars and practitioners on a case-by-case basis to assess all relevant facts in light of the law.
As is shown by the cases in which there is continuity between a non-state actor and a state actor (e.g., the Czechoslovak National Council and all cases in which a liberation movement seizes power over a state), both state and non-state "powers" are superiorem non recognoscentes. This definition of sovereignty constitutes, in theory, only a display of effective authority. (190) The pivotal requirement, for state and non-state actors alike, to be regarded as subjects of international law and to be able to assert identity is an effective display of authority. (191) In this sense, there is no real dichotomy of "form" and "fact." An entity needs to be in fact superiorem non recognoscens to become a formal peer in international relations. Should the entity lose its de facto ability to exclude other subjects, it will also lose its formal status as a subject of international law.
To understand whether this effective authority is actually exercised, two alternative tests can be used: authority within the entity itself or relations with other subjects on a level of formal equality. When the former test is met, an entity is a power, a subject of international law. If the first test is not met--because of the lack of data or inconclusive evidence--one might turn to the second one that, however, only provides for a rebuttable presumption that an entity is indeed a subject of international law. The first helps to understand the true reality of things in cases such as Taiwan, when recognition is withheld on political grounds. The second is particularly relevant in understanding dubious cases of effective authority, such as those of the Holy See or Napoleon. These tests should not be understood as part of the definition of what a subject of international law is; rather, they should be used as evidence to make this finding, which is essentially factual in nature.
IV. SHIFTING THE FOCUS TO RESPONSIBILITY
One of the ways to gather evidence on effective authority by a subject is to shift the attention from issues of personality to issues of responsibility. It has been pointed out that when the law is "confronted with nasty behaviour from entities that are not generally to be considered states, [it] runs into problems." (192) States try to restrict IGOs by, for example, drafting conventions on their behalf that unreasonably modify the rules applicable to all subjects. (193) States also try to introduce distinctions between inter-state conflicts and other conflicts. (194) although authoritative interpretation of legal instruments increasingly stresses that, in the most fundamental areas, the difference in regime between states and other subjects of international law is narrowing. (195) In addition, this "statist" prejudice creates the problem of unreasonably limiting the scope of important instruments in preventing crimes jure gentium. (196) But an attempt can be made to apply the basic concepts of responsibility to the international community. (197) An entity is not ultimately responsible when it is dependent on another to act, when it is not genuinely in control of its own decisions, or when it derives its existence and powers from another entity's authority. For the purposes of international law, it is not a subject. In other cases, however--such as with states, de facto governments, belligerents, and IGOs--subjects are, in fact, held responsible under international law. This is because they have effectively established their authority as "superior." They consequently deserve to be endowed with rights and duties under international law.
Thus, by expanding the wording of articles 5 to 10 of the Draft Articles on State Responsibility (198) and applying the same principles to non-state actors, it follows that entities, organs, or persons that exercise only derived authority--as opposed to sovereign authority--are not themselves responsible under international law. The Commentary to the Draft Articles on State Responsibility clarifies that "no government can be held responsible for the conduct of rebellious groups committed in violation of its authority" and that this is "premised on the assumption that the structures and organization of the movement are and remain independent of those of the State." (199)
For example, Turkey was deemed responsible by the European Court of Human Rights for violations of human rights that occurred in the Turkish Republic of Northern Cyprus, an entity under its actual authority. (200) It was not possible for Turkey to "shift the blame" to the purported authorities of Northern Cyprus because international law looks at the reality of the situation, not at the cloaks devised for political purposes. This is not different from what happens when a state within a federation infringes upon the rights of a foreign country: the federation answers for the international breach. (201) In contrast, acts by the Taiwanese authorities are not imputed to the PRC government, for the simple reason that the latter lacks effective control over the former. And it would be fundamentally unjust to do so. (202)
The necessary condition for an entity to be considered a "power," a subject of international law, seems to be the fact that the entity is able to establish itself as superiorem non recognoscens, as an entity that engages in relations as a peer with other subjects and that, therefore, is held responsible when it causes damage. The best way to understand if an entity is really superiorem non recognoscens and if it is indeed a subject of international law (whether the international community agrees to calling it "state" or not) is the fact that breaches emanating from its "organs"--considered in the broadest terms--are imputed to that entity, and not to others. (203) Thus, although from a logical standpoint personality comes before responsibility, the latter is a means to carry out the complex empirical analysis needed to establish whether an entity is sovereign.
This explains why Napoleon was considered to be, at a certain point and regardless of his relationship with the territory and population of France, a subject of international law: he was able to create "international" problems, raising the concerns of Great Britain, Austria-Hungary, and Russia. Similar cases are those of the Franco regime before the conquest of Madrid and of the Confederates during the U.S. Civil War: in both cases entities rebelling against the central authorities reached a degree of power and authority such that the opponent, and the international community, could no longer deal with them as an internal matter. Acts by these entities had international consequences that could not be ascribed to any other existing international subject, not even using the fictio of vicarious responsibility. They had become subjects under international law.
Hobbes suggested that "[b]efore the names of Just, and Unjust can have place, there must be some coercive power." (204) In fact, the monopoly on the use of force within a certain territory is one of the traditional ways through which entities have asserted themselves as subjects of international law, although by no means the only one. From the moment an entity is superiorem non recognoscens, discourse on its rights, duties, and responsibilities under international law may begin. It is submitted that this is the characterization that should be applied in order to establish whether an entity is indeed a power, a subject of international law, especially in dubious cases such as internal disturbances developing into civil wars (205) and the case of al-Qaeda. (206) With regard to the latter, the U.S. government has recently suggested that there is an international armed conflict, but it is not just about the Taliban and Afghanistan.... [I]t is about the international terrorist organization Al Qaida. Al Qaida has conducted attacks across the globe.... This is truly a global war against a determined, organized, and capable enemy. (207)
Going back to the definition of "state" presented at the beginning of this Article--the one enshrined in the Montevideo Convention and substantially adopted by the Restatement--it is true that the three (or four) elements may generally assist in the determination of whether a certain entity is indeed a state. Not being a "state," however, does not mean not being a "power" with all the rights and duties that, through an empirical study, can be found to be applicable pursuant to customary international law. For example, customary rules on international responsibility should be deemed to apply to any "power" regardless of whether all elements making up a state do exist in the specific circumstances. (208) Fundamental rules on armed conflict would also apply. (209) Moreover, general rules on non-interference in internal affairs--except, of course, in cases of armed conflict--might be applicable, as well. In this sense, U.S. court decisions relating to the Civil War, (210) among others, show that states usually recognize transactions in the ordinary course of civilian life (e.g., investments, contracts, marriages) carried out under the laws of the subjects of international law against whom they are fighting, insofar as they are not closely related to the war effort. (211)
Rules of international law relating to territory and jurisdiction would only apply to subjects enjoying effective control on portions of land. (212) In short, the presumption should be that state and non-state actors enjoy, in principle, the same rights and duties; the distinction between state and non-state actors remains important only because states--in devising treaties to codify and further international law--are fighting hard to maintain it. The international community is a much more complex environment than many are ready to acknowledge.
(1.) Practically all scholars dealing with the issue of subjects of international law hold this view. See, e.g., IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 58 (6th ed. 2003); DOMINIQUE CARREAU, DROIT INTERNATIONAL [subsection] 813-816 (7th ed. 2001); GEORG DAHM ET AL., 1 VOLKERRECHT 125 (1989); LOUIS HENKIN ET AL., INTERNATIONAL LAW CASES AND MATERIALS 241 (3rd ed. 1993);
STARKE'S INTERNATIONAL LAW 85 (I.A. Shearer ed., 11th ed. 1994); JOE VERHOEVEN, DROIT INTERNATIONAL PUBLIC 49-50 (2000); Colin Warbrick, States and Recognition in International Law, in INTERNATIONAL LAW 205 (Malcolm D. Evans ed., 2003).
(2.) See, e.g., CARREAU, supra note 1, [section] 816. In fact, "[t]he monolithic view of statehood upon which traditional international law doctrine depends significantly limits the scope of international law. One consequence is that it establishes a model for full international personality that other claimants for international status cannot replicate."
HILLARY CHARLESWORTH & CHRISTINE M. CHINKIN, THE BOUNDARIES OF INTERNATIONAL LAW 125 (2000).
(3.) Although virtually every definition of the term "sovereignty" has been challenged, its use as a synonym of "independence" to explain the "Grundnorm" of international relations has been dominant at least since the end of the eighteenth century. See, e.g., Stephane Beaulac, Emer de Vattel and the Externalization of Sovereignty, 5 J. HIST. INT'L L. 237, 286-92 (2003). The fact that sovereignty is a complex concept, pervaded by political and other considerations, is also suggested in James Rosenau, Sovereignty in a Turbulent World, in BEYOND WESTPHALIA? STATE SOVEREIGNTY AND INTERNATIONAL INTERVENTION 191 (Gene Lyons & Michael Mastanduno eds., 1995).
(4.) RESTATEMENT (THIRD) OF FOREIGN RELATIONS [section] 201 (1987).
(5.) Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1, 165 L.N.T.S. 19, reprinted in 28 AM. J. INT'L L. 75 (Supp. 1934) [hereinafter Montevideo Convention].
(6.) See Thomas D. Grant, Defining Statehood: the Montevideo Convention and Its Discontents, 37 COLUM. J. TRANSNAT'L L. 403, 405-22, 435-47 (1999) (explaining different definitions of state and the insufficiencies of the definition enshrined in the Montevideo Convention).
(7.) See, e.g., HENKIN ET AL., supra note 1, at 246; Christian Tomuschat, International Law: Ensuring the Survival of Mankind on the Eve of a New Century, in 281 HAGUE ACADEMY OF INTERNATIONAL LAW COLLECTED COURSES 9, 96 (1999); see also I.I. LUKASCHIUK, MEZHDUNARODNOE PRAVO 293 (1999) (evidencing that Soviet and Russian legal literature identifies these three elements as "making up" the state). (8.) RESTATEMENT (THIRD) OF FOREIGN RELATIONS [section] 201 cmt. a (1987).
(9.) See MALCOLM N. SHAW, INTERNATIONAL LAW 217 (5th ed. 2003) (stating that "whether or not the entities discussed above constitute international persons or indeed states or merely part of some other international person is a matter for careful consideration in the light of the circumstances of the case ...").
(10.) Such as including some entities within the category and excluding others.
(11.) In United States v. Belmont, the U.S. Supreme Court applied this rule of international law, stating that "the external powers of the United States are to be exercised without regard to state laws or policies.... In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear." 301 U.S. 324, 331 (1937).
(12.) See BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS--A COMMENTARY 156 (1994). It has been suggested by local scholars that the two Soviet republics indeed did play a certain role in international relations thanks to their membership in various U.N. bodies. See Svetlana Svilas, Istoriografia i istochniki po istorii vneshnepoliticheskoj deiatelnosti BSSR v 1954-1990 gg., 2003(4) BELARUSSIAN JOURNAL OF INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 40. The example of Byelorussia and the Ukraine as founding members of the United Nations is particularly curious in view of the letter dated February 10, 1945 by Franklin D. Roosevelt, President of the United States, to Joseph V. Stalin, Secretary-General of the U.S.S.R. Communist Party, suggesting that the U.S. should also be given two additional votes in the General Assembly. Stalin apparently assented to this view, but the United States did not pursue the matter further. The letter by Stalin, with reference to the previous correspondence, is reprinted in EDWARD R. STETTINIUS, JR., ROOSEVELT AND THE RUSSIANS 283 (Walter Johnson ed., 1949).
(13.) STEFAN TALMON, RECOGNITION OF GOVERNMENTS IN INTERNATIONAL LAW 269 (Ian Brownlie ed., 1998).
(14.) Id. at 3-5.
(15.) See, e.g., ANTONIO CASSESE, INTERNATIONAL LAW 48-49 (2001); MARIO GIULIANO ET AL., DIRITTO INTERNAZIONALE (PARTE GENERALE) 84-96 (1991).
(16.) See, e.g., CASSESE, supra note 15, at 48-49; GIULIANO ET AL., supra note 15, at 84-96.
(17.) See CASSESE, supra note 15, at 48-49; GIULIANO ET AL., supra note 15, at 84-96; see also HANS KELSEN, DAS PROBLEM DER SOUVERANITAT UND DIE THEORIE DES VOLKERRECHTS ch. 8 (1920).
(18.) In Russian Reinsurance Co. v. Stoddard, the court stated:
The fall of one governmental establishment and the substitution of another governmental establishment which actually governs; which is able to enforce its claims by military force and is obeyed by the people over whom it rules, must profoundly affect all the acts and duties, all the relations of those who live within the territory over which the new establishment exercises rule. Its rule may be without lawful foundation; but lawful or unlawful, its existence is a fact and that fact cannot be destroyed by juridical concepts. 240 N.Y. 149, 158 (N.Y. 1925). (19.) It is sometimes suggested that, for example, Member States of the European Union are not fully sovereign in that decisions of organs such as the European Commission or the European Court of Justice have supremacy and direct effect within their territories. See, e.g., Michael P. Scharf, Earned Sovereignty: Juridical Underpinnings, 31 DENV. J. INT'L L. & POL'Y 373, 376-77 (2003). But because a state has given its consent to be bound by treaties or by decisions of other subjects of international law and can withdraw its consent, it remains a subject of international law regardless of these self-imposed limitations. The power of these organs is a mere product of an agreement between states: the authority of the organization's acts derives from the founding treaty. See Gaetano Arangio-Ruiz, Dualism Revisited. International Law and Interindividual Law, 86 RIVISTA DI DIRITTO INTERNAZIONALE 909, 998 (2003) [hereinafter Arangio-Ruiz, Dualism Revisited]. In fact, the principle nemo plus iuris transferre potest quam ipse habet and its corollaries have been recognized since the Wimbledon Case, when the Permanent Court of International Justice stated that "[n]o doubt any convention creating an obligation ... places a restriction upon the exercise of the sovereign rights of the State.... But the right of entering into international engagements is an attribute of State sovereignty." S.S. Wimbledon (Gr. Brit., Fr., Italy, Japan, Pol. v. F.R.G.), 1923 P.C.I.J. 25 (ser. A) No. 1 (Aug. 17).
(20.) The Declaration on Yugoslavia was issued at the Extraordinary Ministerial Meeting held on December 16, 1991, in Brussels. See European Community: Declaration on Yugoslavia and on the Guidelines on the Recognition of New States, Dec. 16, 1991, 31 I.L.M. 1485. It contained the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, where EC Member States agreed to recognise, subject to the normal standards of international practice and the political realities in each case, those new states which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. Id. (21.) See, e.g., Diane F. Orentlicher, Separation Anxiety: International Responses to Ethno-Separatist Claims, 23 YALE J. INT'L L. 1, 66 n.374 (1998); Marc Weller, Current Development: the International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AM J. INT'L L. 569, 587-88 (1992). But see Martii Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT'L L. 455, 490 n.54 (1996) (suggesting that this approach to the recognition of states constitutes a "resuscitated" approach).
(22.) Answer by the representative of the French Government during a parliamentary debate, 5 January 1921, in ALEXANDRE CHARLES KISS, 2 REPERTOIRE DE LA PRATIQUE FRANCAISE EN MATIERE DE DROIT INTERNATIONAL PUBLIC 385 (1966).
(23.) The same applies to decisions of "non-recognition" by the United Nations. See, e.g., Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 58 (June 21) (holding that U.N. Member States must "recognise the illegality of South Africa's presence in Namibia" and refrain from acts implying recognition of the South African government's authority over that territory). This decision, not based on general international law but binding only Member States of the United Nations under article 25 of the U.N. Charter implies that, pursuant to the principle pacta tertiis nec nocent nec prosunt, absent the Security Council's binding statement, states would retain their freedom to recognize or not. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 131 (July 9) (separate opinion of Judge Higgins), available at http://www.icjcij.org; SIMMA, supra note 12, at 407-09, 416.
(24.) In this Article, the terms "subject" and "actor" of international law are used as synonyms. But see Pierre-Marie Dupuy, Sur les Rapports entre Sujets et "Acteurs" en Droit International Contemporain, in MAN'S INHUMANITY TO MAN: ESSAYS ON INTERNATIONAL LAW IN HONOUR OF ANTONIO CASSESE 261 (Lal Chand Vohrah et al. eds., 2003).
(25.) CHRISTOPHER S. CLAPHAM, AFRICA AND THE INTERNATIONAL SYSTEM: THE POLITICS OF STATE SURVIVAL 14 (1996) (emphasis omitted).
(26.) EDWARD GRATSCH, THE HOLY SEE AND THE UNITED NATIONS 1945-1995 10 (1997).
(27.) On this issue, see the decision issued by the Italian Court of Cassation, 5th section (penal), on July 17, 1987 in the case In re Marcinkus et al., 1988 RIVISTA DI DIRITTO INTERNAZIONALE 216. According to the court:
[O]f no importance, for the purpose of this decision, is the examination of the causes, of the reasons and of the historical origins of the present position of the Holy See, within the international legal order.... The only determining and relevant issue to evaluate is, in this matter, its undisputed and undisputable nature of subject of international law. Id. (translated by author). (28.) See 2 J.H.W. VERZIJL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 295-97 (1969).
(29.) See Treaty of the Lateran, Feb. 11, 1929, Italy-Vatican City, O.V.T.S. 161, Europ T.S. No. 590019, reprinted in 23 AM. J. INT'L L. 187 (Supp. 1929) [hereinafter Lateran Treaty]. Article 2 of the Lateran Treaty provides, "Italy recognises the sovereignty of the Holy See in international matters as an inherent attribute in conformity with its traditions and the requirements of its mission to the world," and article 3 states, "Italy recognises the full ownership, exclusive dominion, and sovereign authority and jurisdiction of the Holy See over the Vatican as at present constituted, together with all its appurtenances and endowments, thus creating the Vatican City, for the special purposes and under the conditions hereinafter referred to." Id.
(30.) Concordats are international treaties relating to the status of the Roman church and its ministers and to matters of cult within the territory of the states with which they are concluded, and they are therefore distinguishable on grounds of their content, not of their nature. See Gaetano Arangio-Ruiz, On the Nature of the International Personality of the Holy See, 1996 REVUE BELGE DE DROIT INTERNATIONAL 354, 365.
(31.) Concordat of Fontainebleau of January 25, 1813, 5 Martens Recueil des Traites 552 (Supp. I).
(32.) See the ruling by the Italian Court of Cassation, 1st section (civil) of December 3, 1988, (reprinted in ALBERTO MIELE, 2 LA COMUNITA' INTERNAZIONALE (I SOGGETTI) 67 (2000)), holding that "the Holy See has survived as a subject of international law to the extinction of the Pontifical state due to debellatio, occurred in 1870 as a consequence of the annexation of Rome by the Italian state" (translated by author). See also Josef Kunz, The Status of the Holy See in International Law, 46 AM. J. INT'L L. 308, 312 (1952) (noting that during the period 1870-1929, the Pope acted as an international mediator between Germany and Spain and as an arbiter between Haiti and Santo Domingo; during the First World War, the Holy See had vessels with its own flag declared neutral in the hostilities).
(33.) For the original French text of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864, see 129 Consol. T. S. 361,362. For the status of ratifications, see http://www.icrc.org (last visited Nov. 2004).
(34.) For the text of the Geneva Conventions of 1949, see 75 U.N.T.S. 31, 85, 135, 287. For the status of ratifications, see http://www.icrc.org (last visited Nov. 2004).
(35.) For the text of the Convention on the Rights of the Child of 1989, see 28 I.L.M. 1448. For the status of ratifications, see http://www.icrc.org (last visited Nov. 2004). The United States of America and Somalia are the only countries that have not ratified the Convention.
(36.) For text of the Vienna Convention on Diplomatic Relations, see 500 U.N.T.S. 95. It was already at the Congress of Vienna of 1815 that the "Reglement on the Precedence of Diplomatic Agents" was drafted, which "n'apportera aucune innovation relativement aux Representants du Pape." See 64 Consol. T.S. 2.
(37.) For the text of the Convention establishing the World Intellectual Property Organization, see 828 U.N.T.S. 3. For the members of the organization, see http://www.wipo.int (last visited Nov. 2004).
(38.) For the Statute of the International Atomic Energy Agency, see 276 U.N.T.S. 3 and subsequent amendments. For the members of the organization, see http://www.iaea.org (last visited Nov. 2004).
(39.) See http://www.un.org/Overview/missions.htm#nperm (last visited in Nov. 2004). On July 1, 2004, the U.N. General Assembly expanded the possibilities of participation in the organization by the Holy See; the Holy See is now allowed to participate in the Assembly's general debate (after the last member on the list), to respond to speeches made during debates, to circulate its communications directly as official documents of the organization, to co-sponsor draft resolutions, and to raise a "point of order" during committee meetings. See G.A. Res. 314, U.N. GAOR, 58th Sess., U.N. Doc. A/RES/58/314 (2004).
(40.) See Prosecutor v. Bagosora, Case No. ICTR-98-41-T, Decision on Defence Motion to Obtain Cooperation from the Vatican Pursuant to Article 28 (Trial Chamber I, I.C.T.R. 2004) (treating the Vatican as a sovereign state, over which the Charter of the United Nations, and the Statute of the Tribunal, does not--may not--impose obligations). Although the reference in the decision is to the Vatican state, the request regarded cooperation by the "former Ambassador of the Holy See to Rwanda," and it is apparent that "Holy See" and "Vatican" are used by the Trial Chamber as interchangeable terms. For the text of the Decision, see http://www.ictr.org (last visited Nov. 2004).
(41.) This seems the case of treaties having specific territorial application. See HENKIN ET AL., supra note 1, at 299.
(42.) Fundamental Agreement Between the Holy See and the State of Israel, Dec. 30, 1993, Vatican-Isr., 33 I.L.M. 153 (1994).
(43.) Id. at 154.
(44.) A similar analysis applies to the less famous case of the Sovereign Order of Malta. See MALCOLM N. SHAW, INTERNATIONAL LAW 171 (4th ed. 1997). For example, the Order of Malta was invited to the Geneva Conference of 1929, convened under the auspices of the Red Cross on the prisoners of war; it was not invited to the Universal Postal Union Conference of 1937. See PAUL GUGGENHEIM, REPERTOIRE SUISSE DE DROIT INTERNATIONAL PUBLIC: DOCUMENTATION CONCERNANT LA PRACTIQUE DE LA CONFEDERATION EN MATIERE DE DROIT INTERNATIONAL PUBLIC, 1914-1939 498-99 (1975); see also CASES AND MATERIALS ON INTERNATIONAL LAW 152 (Martin Dixon & Robert McCorquodale eds., 4th ed. 2003) (quoting an Italian judgment on the status of the Order of Malta).
(45.) See J. Westlake, L'Angleterre et la Republique Sud-Africaine, 28 REVUE DE DROIT INTERNATIONAL ET DE LEGISLATION COMPAREE 268, 269-72 (1896).
(46.) JOHN DUGARD, INTERNATIONAL LAW--A SOUTH AFRICAN PERSPECTIVE 14-15 (2000).
(47.) See Westlake, supra note 45 (noting that this entity maintained its external independence until 1881 when the Pretoria Convention made it a British protectorate).
(48.) Later, this entity became the Republic of South Africa and was annexed by Great Britain as Transvaal in 1877. Id.; see also JOHN NIXON, THE COMPLETE STORY OF THE TRANSVAAL 12-21 (1885).
(49.) Natal was annexed by the British government at the Cape in 1843. NIXON, supra note 48, at 19. See generally M. J. De Louter, L'annexion du Transvaal, 13 REVUE DE DROIT INTERNATIONAL ET DE LEGISLATION COMPAREE 194 (1881).
(50.) See VERZIJL, supra note 28, at 65.
(51.) See Tamara Rice Lave, Note, A Nation at Prayer, a Nation in Hate: Apartheid in South Africa, 30 SWAN. J. INT'L L. 483, 486-91 (1994) (analyzing the roots of South African apartheid policies).
(52.) See NIXON, supra note 48, at 14.
(53.) Id. The Dutch-speaking group in South Africa actually also includes descendants of French Huguenots and Germans. See FRANK CANA, SOUTH AFRICA --FROM THE GREAT TREK TO THE UNION 5-23 (1909); T.R.H. DAVENPORT, SOUTH AFRICA: A MODERN HISTORY 6-8 (4th ed. 1991).
(54.) DAVENPORT, supra note 53, at 16-17.
(55.) Id. at 18.
(56.) See NIXON, supra note 48, at 339-41.
(57.) For an analysis of this issue, see DONATO DONATI, STATO E TERRITORIO 33-34 (1924). The author also provides an interesting study of the theoretical qualifications of "nomadic States." Id. at 28-31.
(58.) Joseph L. Kunz, Identity of States in International Law, 49 AM. J. INT'L L. 68, 72 (1955).
(59.) See JOSEF KALVODA, THE GENESIS OF CZECHOSLOVAKIA 180-206 (1996).
(61.) Diplomatic Note of Aug. 9, 1918, in 1 GREAT BRITAIN AND THE LAW OF NATIONS 236 (Herbert Smith ed., 1932). Note the sheer difference with the declaration on the Polish National Committee in London of October 15, 1917, which only stated "His Majesty's Government are very willing to recognise this official Polish organisation." Id. at 235.
(62.) KALVODA, supra note 59, at 259.
(63.) See MIELE, supra note 32, at 54.
(64.) Supplementary Convention between the Italian Government and the Czechoslovak National Council of June 30, 1918, reprinted in MIELE, supra note 32, at 106-07.
(65.) On these events, see Antoine Hobza, La Republique Tchecoslovaque et le droit international, 29 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 385-409 (1922).
(66.) TALMON, supra note 13, at 287.
(67.) Treaty of Peace between the Allied and Associated Powers and Austria, Sept. 10, 1919, Consol. T.S. 8, 4 U.K.T.S. 103, reprinted in 14 AM. J. INT'L L. 1 (Supp. 1920).
(68.) Treaty of Peace between the Allied and Associated Powers and Hungary, and Protocol and Declaration, June 4, 1920, reprinted in 15 AM. J. INT'L L. 1 (Supp. 1921).
(69.) See KRYSTYNA MAREK, IDENTITY AND CONTINUITY OF STATES IN PUBLIC INTERNATIONAL LAW 203 (2d ed. 1968).
(70.) According to the High Administrative Tribunal of Czechoslovakia, and therefore on the basis of that country's domestic legal order, Czechoslovakia was in existence since October 28, 1918, the date of the proclamation of independence by the National Committee, and therefore before the dissolution of the Empire (November 1918) and the peace treaties recognizing its sovereignty (signed in 1919 and 1920). See Establishment of Czechoslovak State, 3 I.L.R. 13, 14 (Sup. Admin. Ct. of Czech Rep. 1925). This judgment does not exclude the possibility that the subject of international law existed even before October 28, 1918, although without the forms typical of a state.
(71.) For this image, see Arangio-Ruiz, On the Nature of the International Personality of the Holy See, supra note 30, at 365.
(72.) See Eibe Riedel, Recognition of Belligerency and Recognition of Insurgency, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 167-73 (Rudolf Bernhardt ed., 1997) (providing definitions of insurgency and belligerency); see also BROWNLIE, supra note 1, at 63 (noting that insurgents and belligerents are both considered subjects entitled to enter into legal relations on the international plane); SHAW, supra note 9, at 219-20, 1040-41 (observing that the concepts of insurgency and belligerency are not easily distinguishable).
(73.) See generally James W. Garner, Questions of International Law in the Spanish Civil War, 31 AM. J. INT'L L. 66 (1937).
(74.) See also ROBERT HODGSON, SPAIN RESURGENT 74-99 (1953). Hodgson's analysis of the policy of non-intervention in the Spanish Civil War, especially by Great Britain, albeit appallingly biased in favor of the Franco regime, provides a large amount of useful information on the general attitude of diplomatic circles toward the two belligerents.
(75.) See MARINA CASANOVA, LA DIPLOMACIA ESPANOLA DURANTE LA GUERRA CIVIL 241-53 (1996) (providing a list of diplomats who joined the Franco regime). Casanova's book is extremely interesting especially with respect to the "parallel" diplomacy that ensued after the beginning of the Civil War and the necessity of the Republic to acquire weapons in the battle for its own survival. See id. at 27-35, 161-93.
(76.) See Georges Scelle, La guerre civile espagnole et le droit de gens--L'or de la banque d'Espagne, 45 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 649 (1938).
(77.) MIELE, supra note 32, at 20-21.
(78.) In re Arantzazu Mendi,  A.C. 256 (H.L. 1939) reprinted in 9 I.L.R. 60, 61-62. The House of Lords unanimously interpreted these statements as implying that the Nationalist government, "for the purposes of international law," was "a foreign sovereign State." The extension of the two states' territories, and their modifications, was regarded as immaterial. See id. at 66. In addition, the English Court of Appeals held in Banco de Bilbao v. Sancha and Rey, 9 I.L.R. 75, 77 (1987), that the decrees of the de jure government had no effect in the territory of the de facto one in. More recently, this approach was followed by the Queen's Bench Division (Commercial Court) in Sierra Leone Telecommunications Co. Ltd. v. Barclays Bank,  2 All E.R. 821, 822 (Q.B. 1998), in which the Court sided with the U.K. government and refused to recognize the military junta in control of Freetown, the capital of Sierra Leone, as the "Government of Sierra Leone." Interestingly, the Special Court for Sierra Leone--set up jointly by the U.N. and the Sierra Leone Government for crimes committed during the civil war in that country after November 30, 1996--rested on that very ruling to find that it had jurisdiction in Prosecutor v. Callon, No. SCSL-2004-14-AR72E, [paragraphs] 72-79 (decision on constitutionality and lack of jurisdiction of March 13, 2004), available at http://www.sc-sl.org (last visited Nov. 2004).
(79.) See Campuzano v. Spanish Government, 11 I.L.R. 68, 69 (Sup. Ct. of Norway 1938).
(80.) Id. at 71.
(81.) See discussion infra Part II.C.5.
(82.) See In re Spanish Republican Government (Security for Costs), 9 I.L.R. 73 (Ct. App. of Germany 1938).
(83.) See TALMON, supra note 13, at 298.
(84.) See Enrico Zamuner, Le Rapport entre Empire ottoman et Republique turque face au droit international, 6 J. HIST. INT'L L. 209 (2004) (detailing the underlying history of the relevant events and providing a demonstration in law of the existence of two different subjects in that instance).
(85.) BROWNLIE, supra note 1, at 95-96.
(86.) THE DECLARATION OF INDEPENDENCE (U.S. 1776), available at http://www.ushistory.org/declaration/document. For a discussion of this topic from a Confederate perspective, see JEFFERSON DAVIS, THE RISE AND FALL OF THE CONFEDERATE GOVERNMENT 70-73, 126-30 (1881).
(87.) See, e.g., U.S. CONST. art. I, [section] 9, cl. 8 ("no Person holding any Office of Profit or Trust under them") (emphasis added); U.S. CONST. art. III, [section] 2 ("[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority") (emphasis added); U.S. CONST. art. III, [section] 3, cl. 1 ("[t]reason against the United States, shall consist only in levying War against them") (emphasis added). It is noted in U.S. Supreme Court decisions that there is no consistency concerning whether the United States of America should be addressed in the singular or in the plural. Compare Heckers v. Fowlers, 69 U.S. 123, 128 (1864) ("[w]here the United States are plaintiffs"), and In re Henderson's Distilled Spirits, 81 U.S. 44, 58 (1871) ("the United States are entitled to judgement"), and Dow v. Johnson, 100 U.S. 158, 175 (1879) ("the United States are plaintiffs or petitioners"), with Davidson Bros. Marble Co. v. United States, 213 U.S. 10, 17 (1909) ("a suit in which the United States is plaintiff"), and United States v. Shaw, 60 S. Ct. 659, 663 (1940) ("when the United States is plaintiff"). Common English language has accepted that the United States "is," although other languages have chosen a different path. Among others, German, French, Italian, Greek all refer to the "Unites States of America" with plural verbal forms.
(88.) See generally FRANK LAWRENCE OWSELY, KING COTTON DIPLOMACY--FOREIGN RELATIONS OF THE CONFEDERATE STATES OF AMERICA 318-577 (1931).
(89.) Although the confederated states saw themselves as a plurality of sovereign subjects, I am using the singular form to address them because, in its international relations, the Confederacy was clearly deemed by its own participants as one entity.
(90.) A compelling case in this respect is made by the historical analysis in FREDERIK GRAHAM WINN, A STUDY OF THE DIPLOMATIC RELATIONS BETWEEN FRANCE AND THE CONFEDERATE STATES OF AMERICA 6-9, 30-33, 95-98 (1958).
(91.) See 1 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 103-05 (1906) (reprinting the Circulars of Mr. Black (Feb. 28, 1861) and Mr. Seward (Mar. 9, 1861), U.S. Secretaries of State, addressed to U.S. diplomatic envoys abroad). The circulars state that recognition of the Confederacy would amount to disturbance of the "friendly relations, diplomatic and commercial, now existing between those powers and the United States." Id. No mention of breaches of international obligation is made.
(92.) Id. at 106.
(93.) See Peter Malanczuk, Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility, in UNITED NATIONS CODIFICATION OF STATE RESPONSIBILITY 197, 207 (Marina Spinedi & Bruno Simma eds., 1987) (writing that "retortion is an unfriendly act against another State with the object to persuade that State to end its harmful conduct").
(94.) See 10 VERZIJL, supra note 28, at 115.
(95.) See ARNOLD DUNCAN MCNAIR, INTERNATIONAL LAW OPINIONS 146-47 (1956).
(96.) For the history of the arbitration, see JOHN BASSETT MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 496-97 (1898); 10 VERZIJL. supra note 28, at 118.
(97.) See the discussion on the meaning of this formulation in the judgment and dissenting opinion of The Prize Cases, 67 U.S. 635, 665-71, 682-85 (1862).
(98.) See Susan Poser & Elizabeth Varon, United States v. Steinmetz: The Legal Legacy of the Civil War, Revisited, 46 ALA. L. REV. 725, 744-50 (1995).
(99.) Miller v. United States, 78 U.S. 268, 306-07 (1870). No need to refer to international law would have existed had the Supreme Court considered the matter a mere question of U.S. domestic law.
(100.) Thorington v. Smith, 75 U.S. 1 (1868), cited in Aboitiz & Co. v. Prince, 99 F. Supp. 602 (D.C. Utah 1951) (applying this principle to an armed conflict of international character).
(101.) Baldy v. Hunter, 171 U.S. 388, 400 (1898).
(102.) See also Mauran v. Alliance Ins. Co., 73 U.S. 1, 14 (1867). Justice Nelson wrote that "the so-called Confederate States were in the possession of many of the highest attributes of government, sufficiently so to be regarded as the ruling or supreme power of the country...." Id. (emphasis added). In fact,
[w]hen [a rebellion] has become a recognised war those who are engaged in it are to be regarded as enemies. And they are not the less such because they are also rebels. They are equally well designated as rebels or enemies. Regarded as descriptio personarum, the words "rebels" and "enemies," in such a state of things, are synonymous. Miller, 78 U.S. at 309. (103.) WILLIAM EDWARD HALL, A TREATISE ON INTERNATIONAL LAW 44 (1924).
(104.) See The Prize Cases, 67 U.S. 635, 673-74 (1862).
(105.) The situation, according to U.S. domestic law, was in fact no different from the one of the thirteen colonies in their struggle against British rule under (British) constitutional law or, for that matter, of the seceding states of Slovenia, Croatia, Bosnia and Herzegovina, and Macedonia according to the constitutional law of the former Yugoslavia. In particular, see the arguments suggesting the illegality of the secession of the Yugoslav republics in the early 1990s, according to Yugoslav constitutional law, by ROBERT M. HAYDEN, BLUEPRINTS FOR A HOUSE DIVIDED--THE CONSTITUTIONAL LOGIC OF THE YUGOSLAV CONFLICTS 30-52 (2002).
(106.) See Keith v. Clark, 97 U.S. 454, 461 (1878) (stating that "the State [of Tennessee] remained a State of the Union. She never escaped the obligations of that Constitution, though for a while she may have evaded their enforcement.")
(107.) EDWARD S. MORGAN, THE BIRTH OF THE REPUBLIC 1763-1789 58-64 (1956). King George III, in his speech before the British Parliament on October 26, 1775, found that "[rebels in America] have raised Troops, and are collecting a Naval Force; they have seized the public Revenue, and assumed to themselves Legislative, Executive, and Judicial Powers, which they already exercise in the most arbitrary Manner over the Persons and Properties of their Fellow Subjects." See Merrill Jensen, American Colonial Documents to 1776, in 9 ENGLISH HISTORICAL DOCUMENTS 851 (David C. Douglas ed., 1955). This declaration is a recognition of a state of fact existing in the thirteen colonies, against which the British government had to take extraordinary steps; the situation had reached the stage of an insurgency. The fact that the thirteen colonies had become de facto independent at least during 1775 or 1776 was later confirmed by the U.S. Supreme Court in Ware v. Hylton, in which the Court stated:
This abolition of the Old Government, and this establishment of a new one was the highest act of power, that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with Great Britain absolutely and forever ceased; and no formal declaration of Independence was necessary.... 3 U.S. 199, 223 (1797). (108.) United States v. Steinmetz, 973 F.2d 212 (3d Cir. 1992), cert. denied, 507 U.S. 984 (1993). In fact, a program of military naval building was envisaged by the Confederacy among the actions taken to wage the war. Since the blockade declared and effectively put in place by the U.S. prevented the CSA from building its own warships in local ports, the Confederate government took steps to have the ships built in European ports as commercial vessels and then to outfit them on the high seas. One such ship, the Alabama, was sunk in 1864 by the U.S. Navy; its bell was recovered some seventy years later and ended up in the shop of an antiques' dealer, Mr. Steinmetz. The U.S. government successfully claimed title on the premise that the U.S. is the successor of the CSA under international law by relying on United States v. Huckabee, in which the Supreme Court stated:
[I]f the nation is entirely subdued, or in case it be destroyed and ceases to exist ... [the rights of the conqueror] are no longer limited to mere occupation of what he has taken into his actual possession, but they extend to all the property and rights of the conquered state.... 83 U.S. 414, 434-45 (1873) (emphasis added). (109.) RESTATEMENT (THIRD) OF FOREIGN RELATIONS [section] 201, cmt. F, reporters' n.8 (1987).
(110.) Jonathan I. Charney & J.R.V. Prescott, Resolving Cross-Strait Relations between China and Taiwan, 94 AM. J. INT'L L. 453, 454-56 (2000).
(111.) SIMONG LONG, TAIWAN: CHINA'S LAST FRONTIER 1-23 (1991).
(112.) Treaty of Peace, Apr. 17, 1895, China-Japan, 181 Consol. T. S. 217.
(113.) See JEROME ALAN COHEN & HUNG DAH CHIU, PEOPLE'S CHINA AND INTERNATIONAL LAW 207 (1974).
(114.) See generally Tarcisio Gazzini, Some International Legal Aspects of the Chinese Civil War (1927-1949), 1 J. ARMED CONFLICT L. 141 (1996) (providing a brief and clear account of the Chinese Civil War and its consequences on the identity of the ROC).
(115.) Final Text of the Communique, Dec. 1, 1943, 3 Bevans 858. 1943 FOREIGN RELATIONS OF THE UNITED STATES, THE CONFERENCES AT CAIRO AND TEHRAN 448.
(116.) Proclamation by the Heads of Governments, United States, China and United Kingdom, July 26, [paragraph] 8, 3 Bevans 1204, 1945 FOREIGN RELATIONS OF THE UNITED STATES, 2 THE CONFERENCE OF BERLIN (THE POTSDAM CONFERENCE) 1474.
(117.) Surrender by Japan, Terms Between the United States of America and the Other Allied Powers and Japan, Sept. 2, 1945, 59 Stat. 1733, E. A. S. No. 493.
(118.) September 2, 1945 was the date of the unconditional surrender of Japan to the Allied forces. The Act of surrender contained the obligation "for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith." Id. This instrument shows that the Potsdam Declaration provisions regarding Japan were considered legally binding on the parties to the Act of Surrender (including, among others, the United States, China, and Japan).
(119.) The Act of Surrender of Japanese Forces in China reads:
The Emperor of Japan, the Japanese government and the Japanese Imperial General Headquarters, having recognized the complete military defeat of the Japanese military forces by the Allied forces and having surrendered unconditionally to the Supreme Commander for the Allied powers, having directed by his general order no. 1 that the senior commanders and all ground, sea, air and auxiliary forces within China excluding Manchuria, Formosa and French Indo-China north of 16 degrees north latitude shall surrender to Generalissimo Chiang Kai-shek.... Act of Surrender of Japanese Forces in China, Sept. 9, 1945, available at http://www.taiwandocuments.org/japansurrender.htm (last visited Nov. 2004). (120.) General Chiang Kai-shek recognized that he was to accept the surrender of all Japanese forces within China (excluding Manchuria), Formosa, and French Indo-China north of 16 degrees north latitude in compliance with the General Order issued by the President of the United States on behalf of the Allied Powers to General MacArthur, and not of his own authority. See WOODBURN KIRBY, THE WAR AGAINST JAPAN 283 (1969). Later, the Treaty of Peace between the Republic of China and Japan provided that "[i]t is recognised that under [the multilateral Peace treaty of 1951] Japan has renounced all rights, title and claim to Taiwan (Formosa)." Treaty of Peace between the Republic of China and Japan, Apr. 28, 1952, 138 U.N.T.S. 3, 38. The fact that a treaty recognizes the loss of sovereignty of one state over a portion of its territory does not indicate that this succession actually took place on the date of the entering into force of the treaty itself, however. Succession is "the replacement of one State by another in the authority over a territory." See Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 7, 1983, 22 I.L.M. 306, 308 (1983). Therefore, effective substitution of authority must occur before succession actually takes place.
(121.) The PRC was established in 1949, but Guomindang forces have had effective control over Taiwan since at least 1947, when they put down a rebellion by the indigenous Taiwanese people. See Parris Chang & Kok-ui Lim, Taiwan's Case for United Nations Membership, 1 UCLA J. INT'L L. & FOREIGN AFF. 393, 413 (1996).
(122.) See Gazzini, supra note 114. The following legal explanation of the civil war between Mao Zedong and Chiang Kai-shek relies on Gazzini's analysis.
(123.) See, e.g., Lori Fisler Damrosch, The Taiwan Relations Act After Ten Years, 3 J. CHINESE L. 157 (1989).
(124.) One example of this is provided by discussions in U.S. legal and diplomatic circles on the recognition of Communist China during the 1950s and 1960s. See generally ROBERT P. NEWMAN, RECOGNITION OF COMMUNIST CHINA? 104-241 (1961) (exploring a variety of political issues underlying the choices in favor and against recognition). See also Lung-chu Chen & W.M. Reisman, Who Owns Taiwan: A Search for International Title, 81 YALE L.J. 599 (1972); Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 93 AM. J. INT'L L. 879 (1999); Guiguo Wang & Priscilla M.F. Leung, One Country, Two Systems: Theory Into Practice, 7 PAC. RIM L. & POL'Y J. 279 (1998).
(125.) See Gazzini, supra note 114, at 141-49 (recounting the different phases of the war).
(127.) Id. at 150.
(128.) See 1 SEAN D. MURPHY, UNITED STATES PRACTICE IN INTERNATIONAL LAW 1999-2001 134 (2002). It has been argued that the main reason why Taiwan is not a state under international law is that it does not claim to be one. See JAMES CRAWFORD, THE CREATION OF STATES 151 (1979). Therefore, the ROC should arguably be considered a state after these proclamations. See also Alan M. Wachman, The State-to-State Flap: Tentative Conclusions about Risk and Restraint in Diplomacy Across the Taiwan Straits, 4 HARV. ASIA Q. (2000), available at http://www.fas.harvard.edu/~asiactr/haq/200001/0001a008.htm.
(129.) The reasoning underlying most analyses, though, is based precisely on this assumption. See, e.g., Michael D. Swaine, Trouble in Taiwan, FOREIGN AFF. 39, 46-47 (Mar.-Apr. 2004). Swaine claims that "recognition of a people's status as a nation-state is conferred by the international community and is highly subject to the calculations and interests of the most influential powers involved" and concludes that "[b]y this standard, Taiwan is not currently an independent nation." Id. at 47. The real issue is, of course, whether this is the appropriate standard.
(130.) See Markus G. Puder, The Grass Will Not Be Trampled Because the Tigers Need Not Fight--New Thoughts and Old Paradigms for Detente Across the Taiwan Strait, 34 VAND. J. TRANSNAT'L L. 481, 520-22 (2001) (providing the number of states holding various different positions in respect to the PRC and the ROC).
(131.) As is well-known, G.A. Res. 2758 (XXVI) of October 25, 1971 did not treat the admission of the delegates of the PRC as a membership issue, but rather as a question of the right to represent the founding member, China. See SIMMA, supra note 12, at 157; see also Samuel S. Kim, The People's Republic of China in the United Nations: A Preliminary Analysis, 26 WORLD POL. 299 (1974) (addressing the events surrounding this fundamental switch in U.N. members' policy).
(132.) See, e.g., Anthony D'Amato, Purposeful Ambiguity as International Legal Strategy: The Two China Problem, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF THE 21ST CENTURY 109-11 (Jerzy Makarczyk ed., 1996).
(133.) See supra note 12 and accompanying text.
(134.) Sec. Res. 82, U.N. SCOR, 5th Sess., 473d mtg. at 4, U.N. Doc. S/1501 (1950); Sec. Res. 83, U.N. SCOR, 5th Sess., 473d mtg. at 5, U.N. Doc. S/1511 (1950); Sec. Res. 84, U.N. SCOR, 5th Sess., 473d mtg. at 5, U.N. Doc. S/1588 (1950); Sec. Res. 85, U.N. SCOR, 5th Sess, 473d mtg. at 6, U.N. Doc. S/1657 (1950).
(135.) Sec. Res. 88, U.N. SCOR, 5th Sess., 520th mtg. at 7, U.N. Doc. S/1892 (1950).
(136.) Sec. Res. 87, U.N. SCOR, 5th Sess., 506th mtg. at 7, U.N. Doc. S/1836 (1950).
(137.) New York Chinese TV Programs Inc. v. U.E. Enter., 954 F.2d 847, 854 (2d Cir. 1992).
(138.) See, e.g., Bank of China v. Wells Fargo Bank, 104 F. Supp. 59 (N.D. Cal. 1952); see also Gazzini, supra note 114, at 149-50 (citing the Kyoto District Court Decision of 1977, reprinted in 22 JAPANESE ANN. INT'L L. 151 (1978)).
(139.) Elba was not part of France, but rather, terra nullius since the extinction of the Ludovisi dynasty. This demonstrates how Napoleon was not restricted to a smaller territory than the one he was governing before; rather, he "migrated" with his court and his (drastically diminished) army. See MIELE, supra note 32, at 18.
(140.) Traite entre l'Autriche, la Russie et la Prussie, d'une part, et Napoleon Bonaparte de l'autre; avec accession partielle de la Grande-Bretagne, Apr. 27, 1814, 1 Martens Recueil des Traites 696 (Supp.).
(141.) Traite de paix signe entre la France et l'Autriche et ses allies, May 30, 1814, 2 Martens Recueil des Traites 1 (Supp.).
(142.) John Hall Stewart, The Imprisonment of Napoleon: A Legal Opinion by Lord Eldon, 45 AM. J. INT'L L. 571 (1951). This opinion was also published and thoroughly explained in GAETANO ARANGIO-RUIZ, SULLA DINAMICA DELLA BASE SOCIALE NEE DIRITTO INTERNAZIONALE 103-07 (1954) [hereinafter ARANGIO-RUIZ, DINAMICA], where other similar examples are also cited.
(143.) Treaty of Alliance, Mar. 25, 1815, Aus.-Gr. Brit.-Pruss.- Russ., 64 Consol. T. S. 28.
(144.) Id. at 66 (Declarations of the Plenipotentiaries of the Four Powers, Relative to the Accession of the King of France to the Preceding Treaty, May 1815).
(145.) Id. at 31-32.
(146.) Napoleon had a territory and a population, though small, when he was given the kingdom of Elba. In contrast, he had none on Saint Helen, but this did not prevent Great Britain from considering herself to be in a permanent state of war against him. See ARANGIO-RUIZ, DINAMICA, supra note 142, at 106-07.
(147.) 2 JOSEPH MARIE MAISTRE, CORRESPONDANCE DIPLOMATIQUE DE JOSEPH DE MAISTRE, 1811-1817 87 (Albert Blanc ed., 1860) (emphasis in original).
(148.) ARANGIO-RUIZ, DINAMICA, supra note 142, at 106-07.
(149.) Max Weber, Science as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 147 (Hans Gerth & Wright Mills eds., 1975).
(150.) See ENRICO ZAMUNER, LA FORMAZIONE DELLO STATO ITALIANO 47-51 (2002). Zamuner carefully reviews the positions of scholars with respect to the conquest of the Italian peninsula by the Kingdom of Sardinia during the early 1860s by comparing preconceived ideas with documents from that time. One of the conclusions is that the identity of the Kingdom of Sardinia, as a subject of international law, was not altered by the conquest of the other states and by the modification of its name into "Kingdom of Italy."
(151.) For an example of the many pronouncements in this sense, see the Aaland Islands case of 1920, where the report of the International Committee of Jurists appointed to study the status of the islands stated that Finland did not become a sovereign state "until a stable political organization had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state" by themselves. LEAGUE OF NATIONS O.J. Spec. Supp. 4, at 8-9 (1920).
(152.) The often cited Opinion No. 1 by the Badinter Commission regarding the dissolution of Yugoslavia is somewhat misleading. The Commission, in order to reach its conclusion that the Socialist Federal Republic of Yugoslavia was in the process of dissolution, noted three items: (1) the willingness of some republics to attain independence (as such, not an element showing the creation of a new subject); (2) the fact that the "composition and workings of the essential organs of the Federation no longer meet the criteria or participation and representativeness inherent in a federal State" (hardly a sign that a subject of international law is ceasing to exist); (3) the fact that the "recourse to force has led to armed conflict between the different elements of the Federation" and that "the authorities of the Federation and the Republics have shown themselves to be powerless to enforce respect for the succeeding ceasefire agreements." Only the last item (the loss of effective control by the federal organs) might justify the conclusion that new independent entities were emerging, although the fact that the republics seemed unable to enforce cease-fires might suggest that they were not in control of their internal structures and were not, therefore, subjects of international law. Conference on Yugoslavia, Arbitration Committee, Opinion No. 1, July 4, 1992, 31 I.L.M. 1494.
(153.) So-called "failed states" are actually governments unable to assert themselves as superiorem non recognoscentes. With regard to the confused situation of Somalia and Somaliland, see GERARD KREIJEN, STATE FAILURE, SOVEREIGNTY AND EFFECTIVENESS: LEGAL LESSONS FROM THE DECOLONIZATION OF SUB-SAHARAN AFRICA 84-87 (2003); Steve Kibble, Somaliland: Surviving Without Recognition; Somalia: Recognised but Failing?, 15 INT'L REL. 3 (2001); Riikka Koskenmaki, Legal Implications Resulting from State Failure in Light of the Case of Somalia, 73 NORDIC J. INT'L L. 1 (2004) (not distinguishing, however, the notions of "state" and of "subject of international law"). See also Jan Nemitz, The Legal Status of the Republika Srpska, 43(2/3) OSTEUROPA-RECHT 89 (1997) (providing a theoretical analysis of whether the "entity" of Republika Srpska within Bosnia and Herzegovina may be considered able to assert itself as a state under international law).
(154.) One of the most representative examples of annexation is the German Anschluss of Austria in 1938. See, e.g., ROBERT E. CLUTE, THE INTERNATIONAL LEGAL STATUS OF AUSTRIA 1938-1955 (1962); James Wilford Garner, Question of State Succession Raised by the German Annexation of Austria, 32 AM. J. INT'L L. 421 (1938); Schausberger, Der Anschluss, in OSTERREICH--DIE ZWEITE REPUBLIK (Erika Weinzier ed., 1972); Herbert Wright, The Legality of the Annexation of Austria by Germany, 38 AM J. INT'L L. 621 (1944). The Preamble to the so-called 1955 "State Treaty" between Austria and the four Occupying Powers (U.S.S.R., U.S., U.K., and France) explicitly mentions the annexation of Austria and of its "participation in the war as an integral part of Germany." See State Treaty, May 15, 1955, 6 U.S.T. 2369, 217 U.N.T.S. 223. Article 1 implies that, after 1938, Austria did not exist anymore as a subject superiorem non recognoscentes: "The Allied and Associated Powers recognise that Austria is re-established as a sovereign, independent and democratic country." Id. The same view is taken by HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 262 (1952).
(155.) 1 D.P. O'CONNELL, INTERNATIONAL LAW 441 (2d ed. 1970). The typical case is that of Germany after the Second World War. See Unconditional Surrender of German Forces, May 8, 1945, reprinted in 1945 AM. J. INT'L L. SUPPL. 169 (1945); see also Declaration Regarding the Defeat of Germany, in 7 DOCUMENTS ON AMERICAN FOREIGN POLICY 217 (Leland M. Goodrich & Marie J. Carroll eds., 1947) ("There is no central Government or authority in Germany capable of accepting the responsibility for the maintenance of order, the administration of the country, and compliance with the requirements of the victorious Powers."). In July 1951, President Truman expressed his view that "[t]he rights of the Occupying Powers result from the conquest of Germany, accompanied by the disintegration and disappearance of its former government, and the Allied assumption of supreme authority." GERHARD VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 289 (1957) (quoting the Information Bulletin from the Office of the High Commissioner for Germany, August 1951). In this case, the defeat had as a consequence the complete annihilation of the state apparatus--and therefore the lack of any identity of the Reich with the subjects later arisen on the same territory (the German Democratic Republic and the German Federal Republic). This is shown by the fact, for example, that France, the U.K., and the USA decided in 1950 to authorize the West German government to "give effect to" German Reich treaties. See Elmer Plischke, Reactivation of Prewar German Treaties, 48 AM. J. INT'L L. 245, 252 (1954); see also Frederik A. Mann, The Present Legal Status of Germany, in JAHRBUCH FOR INTERNATIONALES UND AUSLANDISCHES OFFENTLICHES RECHT 27 (1948) (concluding that "Germany has ceased to be an independent sovereign state in the sense of international law, but continues to be a state"); Kay Hailbronner, Legal Aspects of the Unification of the Two German States, 2 EUR. J. INT'L L. 18, 22 (1991); Hans Kelsen, The Legal Status of Germany According to the Declaration of Berlin, 1945 AM. J. INT'L L. 518 (1945). No relevance can be given, in the international arena, to domestic decisions based on the legal fiction that the Federal Republic of Germany was identical (or "partly identical") to the German Reich as an "international legal subject." See, e.g., Entscheidungen des Bundesverfassungsgerichts [BVERFGE] [Federal Constitutional Court] 36, 1 (16, 22) (F.R.G.), available at http://www.oefre.unibe.ch/law/ dfr/bv036001.html (last visited Nov. 2004). The decision states that "[d]ie Bundesrepublik Deutschland ist also nicht 'Rechtsnachfolger' des Deutschen Reiches, sondern als Staat identisch mit dem Staat 'Deutsches Reich',--in bezug auf seine raumliche Ausdehnung allerdings 'teilidentisch.'" Id. But, later on, it states that "[d]ie Deutsche Demokratische Republik ist im Sinne des Volkerrechts ein Staat und als solcher Volkerrechtssubjekt." Id. Therefore, regardless of the statement that there was a German unitary state comprising the territories and populations of Federal Republic of Germany and of the German Democratic Republic, the decision must recognize that the German Democratic Republic "is a state in the sense of international law and, as such, a subject of international law." Id. This entails that the two German states were both independent subjects of international law.
(156.) The United Nations does not constitute anything short of a world-wide society. See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11). On the general issue of the personality of the United Nations and its consequences, see Gaetano Arangio-Ruiz, The 'Federal Analogy' and U.N. Charter Interpretation: A Crucial Issue, 8 EUR. J. INT'L L. 1 (1997). Various legal and political scholars have suggested that, since the end of the Cold War, a major "shift" in international relations has occurred which would have led to an increasingly "verticalized" organization of the international community. See, e.g., MICHAEL HARDT & ANTONIO NEGRI, EMPIRE CH. 2 (2000); Ugo Mattei, Globalization and Empire: A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 10 IND. J. GLOBAL LEGAL STUD. 383, 399-402 (2003). In my opinion, these suggestions lack decisive proof in order to be adopted as useful legal theories.
(157.) ARTHUR NUSSBAUM, n CONCISE HISTORY OF THE LAW OF NATIONS 23-28, 36-51 (1947).
(158.) GIULIANO ET AL., supra note 15, at 38.
(159.) But legal scholars in the previous centuries had already pointed out that, in fact, local authorities were in charge of all the affairs and that the Emperor ruled de jure, with no effective power. The formula "superiorem non recognoscens" is a product of this high-level theoretical analysis. See ALBERTO MIELE, 1 LA COMUNITA INTERNAZIONALE (I CARATTERI ORIGINARI) 45 (2000); CECIL N. SIDNEY WOOLF, BARTOLUS OF SASSOFERRATO, HIS POSITION IN THE HISTORY OF MEDIEVAL POLITICAL THOUGHT 371-83 (1913).
(160.) GAETANO ARANGIO-RUIZ, THE UNITED NATIONS DECLARATION ON FRIENDLY RELATIONS AND THE SYSTEM OF THE SOURCES OF INTERNATIONAL LAW 235 (1979) [hereinafter ARANGIO-RUIZ, THE U.N. DECLARATION]. The existence of this constitutional (fundamental) rule does not deny states the possibility to agree on and submit themselves to certain rules in some fields of conduct. Such agreements, however, do not have more authority to change the fundamental structure of the international community than normal contracts have to change the fundamental legal order within a country.
(161.) According to all systems of modern legal practice, a juridical entity (such as an organization, a company, a trade union, a political party, or even a federated state) within a domestic system derives its existence, and its rights and duties, from its recognition by the law and, therefore, by the system itself. In this process of constitutive recognition, the state is (must be) superior to the entity in order to be able to recognize it and its acts. Most philosophical and political theories have, on the contrary, abandoned the view that a human being can be denied its status according to the will of the state; human beings are persons as such: states just take them as given, and then attach rights and duties to them. For a complete discussion of this theory applied to international law, see GAETANO ARANGIO-RUIZ, GLI ENTI SOGGETTI DELL'ORDINAMENTO INTERNAZIONALE 98-108, 373-409 (1951).
(162.) THOMAS E. HOLLAND, STUDIES IN INTERNATIONAL LAW 152 (1898).
(163.) MIELE, supra note 32, at 5.
(164.) Arangio-Ruiz, Dualism Revisited, supra note 19, at 949-51.
(165.) 1 EMMERICH DE VATTEL, LES DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE APPLIQUES A LA CONDUITE & AUX AFFAIRES DES NATIONS & DES SOUVERAINS 11-12 (1775).
(166.) 3 id. at 129.
(167.) Id. at 130.
(168.) Id. at 132.
(169.) Id. at 132-33. The expression "superiorem non recognoscens (-ntes in the plural)" explains the claims of medieval local rulers to act independently in respect of the Emperor and of the Pope. See, e.g., Kenneth Pennington, Learned Law, Droit Savant, Gelehrtes Recht: The Tyranny of a Concept, 20 SYRACUSE J. INT'L L. & COM. 205, 214 (1994). Today, the expression is used to describe entities acting independently on the international arena. See, e.g., ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD 397 (1986) (discussing the progressive replacement of this principle with a concept of international law based on a more energetic sense of community).
(170.) 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 42 (14th ed. 1803) (emphasis added). Although reference apparently is made by the English scholar to "mankind" as constituting the population of the world and the states, the stress is then exclusively put on the fact that these states (or, rather, their governments) do not recognize any superior authority. No relevance is placed on population or territory as qualifying, or essential, elements of these subjects.
(171.) See UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW 117-95 (Michael Byers & Georg Nolte eds., 2003) (appraising the contemporary interplay between this fundamental principle of international law and the hegemonic pretensions of the United States).
(172.) ARANGIO-RUIZ, THE U.N. DECLARATION, supra note 160, at 243-46.
(173.) Id. at 246-48.
(174.) Agreement between the WHO and Egypt, 1980 I.C.J. 67, [paragraph] 37.
(175.) On October 25, 1999, the U.N. Security Council adopted Resolution 1272, establishing a United Nations Transitional Administration in East Timor (UNTAET) "endowed with overall responsibility for the administration of East Timor and ... empowered to exercise all legislative and executive authority, including administration of justice." Sec. Res. 1272, U.N. SCOR, 4057th mtg. at 2, [paragraph] 1, U.N. Doc. S/RES/1272 (1999).
(176.) On June 10, 1999, the U.N. Security Council adopted Resolution 1244, establishing a U.N. Interim Administration Mission in Kosovo (UNMIK), including a wide range of specifically indicated responsibilities. Sec. Res. 1244, U.N. SCOR, 4011th mtg. at 2, [paragraph] 11, U.N. Doc. S/RES/1244 (1999). The first legislative act by UNMIK clarified that "[a]ll legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK." UNMIK Reg. 1999/1, at 1, U.N. Doc. UNMIK/REG/1999/1 (1999).
(177.) See Andreas Zimmermann & Carten Stahn, Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo, 71 NORDIC J. OF INT'L L. 423, 425-29 (2001); see also Michael Bothe & Thilo Marauhn, U.N. Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration, in KOSOVO AND THE INTERNATIONAL COMMUNITY, A LEGAL ASSESSMENT 217 (Christian Tomuschat ed., 2002); Michael Matheson, United Nations Governance of Postconflict Societies, 95 AM. J. INT'L L. 76 (2001).
(178.) The Ombudsperson Institution in Kosovo has repeatedly denounced alleged misconduct by UNMIK--considered a "surrogate state" (or, rather, a "surrogate government')--against Kosovo residents. See Jonas Nilsson, UNMIK and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations "Surrogate State," 22 NETHERLANDS Q. HUM. RTS. 123 (2004).
(179.) In a similar way, although "blue-helmet" U.N. peace-keepers are not generally regarded as combatants, it is suggested that the rules of armed conflict apply to forces authorized by the U.N. when they are "engaged in hostilities as a belligerent." See Christopher Greenwood, Protection of Peacekeepers: The Legal Regime, 7 DUKE J. COMP. & INT'L L. 185, 188 (1996).
(180.) Press Release, UNMIK, SRSG Soren Jossen-Petersen and Walter Schwimmer, Secretary-General of the Council of Europe, Sign Two Agreements (Aug. 23, 2004), available at http://www.unmikonline.org (last visited Nov. 2004).
(181.) See, e.g., GEORGES WILLEMIN & ROGER HEACOCK, THE INTERNATIONAL COMMITTEE OF THE RED CROSS: INTERNATIONAL ORGANIZATION AND THE EVOLUTION OF WORLD SOCIETY 199-202 (1984); Allan Rosas, Notes on the Legal Status of National Red Cross Societies, in CHRISTOPHE SWINARSKI & JEAN PICTET, STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED CROSS PRINCIPLES IN HONOUR OF JEAN PICTET 959, 960-64 (1984).
(182.) The text of the treaty is available at http://www.icrc.org (last visited Nov. 2004).
(183.) Scholars have dealt with this problem in different ways. See, e.g., Eric Shy, New Players in International Relations, in STATE, SOVEREIGNTY, AND INTERNATIONAL GOVERNANCE 373-83 (Gerard Kreijen ed., 2002). The need to move beyond the idea of an international legal system essentially made up of sovereign states is also highlighted by Penelope Simmons, The Emergence of the Idea of the Individualized State in the International Legal System, 5 J. HIST. INT'L L. 293, 334-35 (2003). (184.) The term "power" is used as a synonym of "independent entity participating in international relations." Arangio-Ruiz, Dualism Revisted, supra note 19, at n.89.
(185.) Richard H. Steinberg, Who is Sovereign?, 40 STAN J. INT'L L. 329, 334 (2004).
(186.) For a legal definition of "hegemonic international law," see Jose E. Alvarez, Hegemonic International Law Revisited, 97 AM. J. INT'L L. 873 (2003); Detlev F. Vagts, Hegemonic International Law, 95 AM. J. INT'L L. 843 (2001).
(187.) This difference does not appear to be fully understood by some authors, who compare hegemonic pretensions by Great Powers in past centuries with the present structure of the United Nations, where some countries have a special position not because they are essentially different, but on the basis of the provisions of the U.N. Charter. See, e.g., GERRY SIMPSON, GREAT POWERS AND OUTLAW STATES 91-131, 165-93, 352-53 (2004). To argue that this distinction is not relevant because practically all states are today members of the U.N. misses the point for various reasons. First, newly created states do not necessarily join the organization immediately; their status before they do so is clearly extremely important. Second, as the case of Yugoslavia has shown, there might be specific periods when U.N. membership of a state is contentious. In fact, it has been argued that the "Federal Republic of Yugoslavia" was barred from U.N. membership in 1992, as the Security Council and the General Assembly rejected its claim to continue the membership of the Socialist Federal Republic of Yugoslavia. The Resolutions required Yugoslavia (Serbia and Montenegro) to apply for membership as a new state. See S.C. Res. 777, U.N. SCOR, 47th Sess., 3116th mtg., U.N. Doc. S/Res/777 (1992); G.A. Res. 47/1, U.N. GAOR, 47th Sess., Agenda Item 8, U.N. Doc. A/Res/47/1 (1992). Third, not all subjects of international law are "states" according to the definition provided by the Restatement and by the Montevideo Convention.
(188.) The fact that the U.S.S.R. was unanimously considered bound by previous (tsarist) debts and obligations does not necessarily contradict this reasoning. In fact, a rule of compulsory continuity of obligations has developed during the XIX and XX centuries with regard to instances of state succession and has been recently applied in a consistent manner to the cases of the dissolution of U.S.S.R., Yugoslavia, and Czechoslovakia. See Guido Acquaviva, The Dissolution of Yugoslavia and the Fate of Its Financial Obligations, 30 DENV. J. INT'L L. & POL'Y 173, 213-14 (2002).
(189.) Thus, assertions made by the subject involved provide one of the tools to establish whether, for example, a revolution had the effect of destroying the identity of the subject of international law. See the case of Iran after the revolution of 1979, as decided by the Iran-U.S. Claims Tribunal in the case United States v. Iran, where the Tribunal based its reasoning that "[t]he revolutionary changes in Iran fall under the heading of State continuity, not State succession" on the previous finding that "Iran does not assert that its situation is one of State succession." 32 Iran-U.S. Cl. Trib. Rep. 162, 176 (1996).
(190.) The decisions of various domestic courts denying that artificial islands declaring their "independence" can be regarded as states under international law appear, therefore, to miss the mark in holding that these entities are not states because of the lack of land or of a "cohesive community." See, e.g., the German case In re Duchy of Sealand, 80 I.L.R. 683 (1978) and the Italian case Chierici v. Ministry of the Merchant Navy, 71 I.L.R. 258 (1969). In all such cases, the entities considered were not subjects of international law only because they were not able to establish themselves as superiorem non recognoscentes.
(191.) In cases of states, this is expressed by saying that government is "the most important single criterion of statehood, since all others depend on it." JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 42 (1979); see also Chantal Charpentier, Les declarations des Douzes sur la reconnaissance des nouveaux Etats, in 96 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 343, 351 (1992).
(192.) Jan Klabbers, (I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors, in NORDIC COSMOPOLITANISM 351, 354 (Jarna Petman & Jan Klabbers eds., 2003).
(193.) Id. at 356 (providing examples of "childish" behavior in the drafting of the "Convention of the Law of Treaties between States and International Organizations or between Organizations" and the treatment of United Nation's laissez-passer).
(194.) Compare Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 8, 1978), with Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609. See also LIESBETH ZEGVELD, ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN INTERNATIONAL LAW 14-26 (2002) (discussing the obligations of armed groups under inter-state treaties); Christine Byron, Armed Conflicts: International or Non-International?, 6 J. CONFL. & SECURITY L. 63 (2001); Theodore Meron, The Humanization of Humanitarian Law, 94 AM. J. INT'L L. 239, 260-75 (2000) (discussing the different nature of the two Protocols and their threshold of application).
(195.) See Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, [paragraphs] 96-137 (ICTY App. Chamber 1995) (stating that article 3 common to the four Geneva Convention of 1949 is applicable to all armed conflicts, whether international or non-international in nature).
(196.) See, e.g., Grant M. Dawson, Defining Substantive Crimes Within the Subject Matter Jurisdiction of the International Criminal Court: What is the Crime of Aggression?, 19 N.Y.L. SCH. J. INT'L & COMP. L. 413, 444 (2000) (pointing out that one of the most widely accepted definitions of aggression envisages that only individuals affiliated with states can be responsible for that crime, thus excluding terrorists, insurgents, revolutionary groups, and other non-state actors).
(197.) See Draft Article on State Responsibility, Report of the International Law Commission on the work of its 53rd session, U.N. GAOR, 56th Sess., Supp. No. 10, Ch. IV.E.1, U.N. Doc. A/56/10 (2001). The fact that these articles are meant only to apply to states does not prevent their use as evidence that these principles are binding upon other subjects, too. Draft Article 33 provides:
1. The obligations of the responsible State set out in this Part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach. 2. This Part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.
Id. art. 33.
(198.) Article 5 of the Draft Articles on State Responsibility provides:
Conduct of persons or entities exercising elements of governmental authority. The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. Id. art. 5. Article 6:
Conduct of organs placed at the disposal of a State by another State. The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed. Id. art. 6. Article 7:
Excess of authority or contravention of instructions. The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions. Id. art. 7. Article 8:
Conduct directed or controlled by a State. The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. Id. art. 8. Article 9:
Conduct carried out in the absence or default of the official authorities. The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. Id. art. 9. Article 10:
Conduct of an insurrectional or other movement. 1. The conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law. 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law. 3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9. Id. art. 10. (199.) Commentary on the Draft Articles on State Responsibility, Report of the International Law Commission on the work of its 53rd session, U.N. GAOR, 56th Sess., Supp. No. 10, Ch. IV.E.2, at 112-13, U.N. Doc. A/56/10 (2001); see also Responsibility of International Organizations, Report of the International Law Commission on the work of its 56th session, U.N. GAOR, 59th Sess., Supp. No. 10, at 102-09, U.N. Doc. A/59/10 (2004).
(200.) See Loizidou v. Turkey (Admissibility), 310 Eur. Ct. H.R. (ser. A), [paragraphs] 62-63 (1995). The court stated:
[T]he responsibility of a Contracting Party may also arise when as a consequence of military action--whether lawful or unlawful--it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.... Id.
(201.) See Lynchings of Italians at New Orleans and Elsewhere, in MOORE, supra note 91, at 837-49 (describing the controversies arising from the failure to prevent and punish the lynching of some foreign nationals by various U.S. states which led to the recognition of responsibility by the United States' government).
(202.) One would just need to consider, for example, the absurdity of attributing to the PRC a breach of the rule of international law prohibiting aggression in the unlikely event of Taiwanese armed attack against Japan. In this hypothetical case, a state of war would not exist between Japan and the PRC. On the contrary, should the Texas State Guard invade Mexico under orders by the Governor of Texas, the act--absent a finding that Texas amounts to an "insurrectional or other movements," and thus a subject of international law itself--would be internationally ascribed to the United States of America.
(203.) On this issue, see the fundamental considerations already in ROLANDO QUADRI, DIRITTO INTERNAZIONALE PUBBLICO 534-35 (5th ed. 1968).
(204.) THOMAS HOBBES, LEVIATHAN 95 (J.C.A. Gaskin ed., Oxford Univ. Press 1998) (1651).
(205.) See Prosecutor v. Naletilid and Martinovic, Case No. IT-98-34-T, Judgment (ICTY 2003). The judgment states that the "Croatian Community of Herceg-Bosna" had de facto authority on a portion of Bosnia and Herzegovina for some time after April 10, 1992, and it waged an armed conflict with the army of Bosnia and Herzegovina controlled by Sarajevo. Id. [paragraphs] 15-16, 25. Similarly, on June 16, 2004, Trial Chamber III of the same Tribunal found that the prosecution had adduced sufficient evidence such that a trier of fact could reasonably conclude that there was an "armed conflict" in Kosovo prior to March 24, 1999, thus implying that the Kosovo Liberation Army (KLA) was an "organized armed group," a subject of international law. See Prosecutor v. Milosevic, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal, [paragraphs] 14-40 (ICTY 2004).
(206.) On the background of al-Qaeda and its relations with the Taliban regime in Afghanistan, see Hirad Abtahi, From the Destruction of the Twin Buddhas to the Destruction of the Twin Towers: Crimes Against Civilization under the ICC Statute, 4 INT'L CRIM. L. REV. 1, 3-7 (2004); U.S. National Commission on Terrorist Attacks upon the United States, Overview of the Enemy (July 16, 2004), available at http://www.911commission.gov/hearings/hearing12.htm (last visited Nov. 2004). Suggestions have indeed been made that "Al Qaeda ... has evolved into something like a virtual Islamist state that is trying to find a permanent place for itself in the actual world...." Lawrence Wright, The Terror Web, NEW YORKER, Aug. 2, 2004, at 40, 53. The U.S. Supreme Court has spoken of a mission of the United States Armed Forces to "subdue al Qaeda." Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2635 (2004).
(207.) United States v. Hicks, Prosecution Response to Defence Motion: Armed Conflict in Afghanistan Has Ended (Oct. 15, 2004), available at http://www.defenselink.mil/ news/Oct2004/d20041026motion.pdf (last visited Nov. 2004).
(208.) See Michael Schoiswohl, De Facto Regimes and Human Rights Obligations--The Twilight Zone of Public International Law?, 6 AUSTRIAN REV. INT'L & EUR. L. 45, 85-90 (2001) (containing suggestions relating to international human rights obligations).
(209.) See LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 52-58 (2002). Moir states that insurgents are bound by Common Article 3 of the Geneva Conventions of 1949 because the content of this article is now part and parcel of customary international law. This would imply that customary international law regarding armed conflict is automatically binding on all subjects able to wage an armed conflict. See also supra notes 34, 44 (regarding the participation of the Holy See and of the Sovereign Order of Malta to conventions and conferences related to the conduct of hostilities). The same conclusion seems to have been also implied when Czechoslovakia was recognized as a winning power of the First World War. See supra, notes 67-68 and accompanying text. The "conflict" between the U.S. and al-Qaeda is improperly characterized as "international" by the prosecution in the case U.S. v. Hicks, and one wonders whether the U.S. government has thoroughly considered the possible consequences of such a qualification. See supra note 207 and accompanying text. It is noteworthy, however, that even the characterization of the struggle as a "conflict" lends support to the claim that al-Qaeda is indeed a subject of international law, though not necessarily a state.
(210.) See supra notes 100-01 and accompanying text.
(211.) This appears to be the application of that rule of international law which, according to certain scholars, mandates the recognition of "internal" acts of nonrecognized governments. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS [section] 205(3) (1987); see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 125 (June 21); In re Al-Fin Corporation's Patent,  Ch. 160, 177-81 (Apr. 2, 1969); Hopkins v. United Mexican States, 4 U.N. Rep. Int'l Arb. Awards 41 (1926);
PAUL GUGGENHEIM, REPERTOIRE SUISSE DE DROIT INTERNATIONAL PUBLIC: DOCUMENTATION CONCERNANT LA PRACTIQUE DE LA CONFEDERATION EN MATIERE DE DROIT INTERNATIONAL PUBLIC, 1914-1939 484-85 (1975) (reprinting the decision of June 4, 1926, by the Section of public law of the Swiss Federal Tribunal in Schinz v. Tribunal Superior de Zurich).
(212.) Thus, for example, when an IGO governs a portion of territory, rules of customary international law relating to governing territory and population would apply. See supra note 178 and accompanying text. When an entity does not have a territory, rules pertaining, for example, to mail regulations are not applicable. See supra note 44 and accompanying text.
Guido Acquaviva, LL.M. in International and Comparative Law, Tulane Law School; Ph.D. in Law, History, and Theory of International Relations, Universita degli studi di Padova. Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia. The opinions expressed in this Article are those of the Author and do not necessarily reflect those of the International Tribunal or of the United Nations. The Author would like to express his gratitude to Julie Barr, Lucia Catani, Ron Davidson, Professor Tullio Scovazzi, and Alexander Zahar for commenting on earlier drafts of this Article. The Author can be reached at firstname.lastname@example.org.
Subjects of International Law: A Power-Based Analysis.
Vanderbilt Journal of Transnational Law. Volume: 38. Issue: 2., 2005.
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