HOLY SEE. - The Catholic Church is a societas iuridice perfecta, that is, a primary juridical order, and as such, it naturally possesses the character of sovereignty. The person who, by divine right, exercises this sovereignty in the Church is the Roman Pontiff, who, in the exercise of this same sovereignty, is assisted by certain governing bodies, which together with him are known as the Holy See.
Its notion is provided by can. 7 of the CIC: Nomine Sedis Apostolicae vel Sanctae Sedis... veniunt non solum Romanus Pontifex, sed etiam, nisi ex rei natura vel sermonis contextu aliud appareat, Congregationes, Tribunalia, Officia, per quae idem Romanus Pontifex negotia Ecclesiae universae expedire solet.
Therefore, the expression Holy See can have two distinct meanings. In the first, broader sense—which is also its usual meaning—it includes, in addition to the Pontiff, the bodies that assist him in the governance of the Church, that is, the so-called Roman Curia. In the second, narrower sense—which is its exceptional meaning, to be adopted only when required ex rei natura vel sermonis contextu—it includes only the Pontiff, excluding all auxiliary bodies, but considering him in the abstraction of his supreme office, that is, as the Primatus Petri eiusque successorum a Jesu Christo constitutus, no longer as the individual persons of the Roman Pontiffs.
I. THE HOLY SEE IN CANON LAW
1. Legal Personality. - By positive divine law, the Holy See is not a mere office but a true legal person (cf. can. 100 § 1). The legal personality of the Holy See is therefore founded, like that of the Church, on divine law itself.There is no doubt that the legal personality of the Holy See is not to be confused with that of the Church and that it constitutes a subject of law, existing and operating within the societas Ecclesiae, yet with its own personality distinct from that of the ecclesiastical order itself; equally, there is no doubt that this personality is a true public-law subjectivity and that the Holy See must be considered a public legal person par excellence; nor, despite some isolated contrary opinions, is there any doubt that, like that of all other ecclesiastical offices and dignities, this personality has an essentially institutional rather than corporate nature.
Debatable and debated, however, is whether this personality pertains to the Holy See in its broader sense or rather in its narrower one. That the Holy See understood in the narrow sense, that is, the officium R. Pontificis, possesses the character of a moral person is uncontestable, both because by divine law it is the Roman Pontificate that exists, without which the ecclesiastical Dicasteries that assist it would have no meaning, and because the officium ecclesiasticum in general is almost always considered in the CIC as a true subject of law; and also because it has, if nothing else, the nature and characteristics of a true episcopal see (Sedes episcopalis Romana), and episcopal sees are explicitly recognized as having legal personality, independently and distinctly from their respective episcopal mensa (cf. can. 350 § 2). Equally uncontestable is that the Roman Curia, as a complex organism consisting of the Sacred Congregations, Tribunals, and Offices (can. 242), possesses its own legal personality, just as the diocesan curia does, and that, in any case, such personality is held by the individual Congregations, Tribunals, and Offices that compose II. The entire problem, therefore, reduces to determining whether these various moral entities, in addition to constituting a set of distinct subjects, also sometimes present themselves as a single subject of law in its own right, formed by the individual entities but with its own legal personality and capacity, distinct from that of the various members that compose it (the so-called Holy See in the broad sense). The affirmative answer, however, seems to impose itself as the most correct, since the prescription of can. 7 not only presupposes the possibility of the existence of this complex entity but formally sanctions that, as a general rule, by Apostolica Sedes must be understood precisely the unitary organism embracing the individual entities. Thus, can. 100 § 1 would refer to the Holy See both in the broad and narrow senses, that is, as a general rule in the former sense and as an exception in the latter.
2. Legal Capacity. - Regarding the legal capacity of this entity, it can first be observed that, as a subiectus iuris, it is naturally the holder in canon law of the same public and private legal capacity that is proper to all other ecclesiastical moral entities and that, like them, it enjoys by this title all those rights and privileges that the canon legislator attributes to them. Many of these rights find explicit consecration in specific provisions of positive law. Thus, particularly with respect to its private-law capacity, the CIC itself recognizes the Holy See’s right to stand in judgment and the ius acquirendi, retinendi et administrandi bona temporalia ad fines sibi proprios prosequendos (can. 1495 § 1).
Independently, however, of any express prescription, this capacity, representing in substance nothing other than the concrete manifestation of its legal personality, already constitutes in itself a true and proper ius nativum linked to its very nature, indeed a right belonging to it, precisely like its personality, ex ipsa ordinatione divina and therefore absolutely intangible, immutable, and imprescriptible, both in its title and in its exercise.
3. Sovereignty (Primacy) in the Church. - The Holy See deserves particular consideration for the special position it occupies in the juridical order of the Church according to the so-called ius publicum ecclesiasticum. From this public-law perspective, the Holy See presents itself: a) as the supreme spiritual governor of the universal Church, that is, as the universalis Ecclesiae primatus; b) as the temporal sovereign Vatican City (v.); c) as patriarch of the West, primate of Italy, metropolitan of the Roman ecclesiastical province, bishop of Rome.
Limiting the examination solely to the first of these aspects, that is, to its position, prerogatives, and rights as the supreme universal power of the Church, and referring for the examination of its position and attributes under the other aspects to the specific relative entries (v. PAPA; PATRIARCHI; PRIMA; VATICANO), the general juridical principles pertaining to it are expressly formulated in can. 218 § 1: Romanus Pontifex, beati Petri in primatu Successor, habet non solum primatum honoris, sed supremum et plenum potestatem iurisdictionis in universam Ecclesiam tum in rebus quae ad fidem et mores, tum in iis quae ad disciplinam et regimen Ecclesiae per totum orbem diffusae pertinent. § 2: Haec potestas est vere episcopalis, ordinaria et immediata tum in omnes et singulas ecclesias, tum in omnes et singulos pastores et fideles, a quavis humana auctoritate independens.
This canon, however, constitutes nothing more than a simple summary and a mere translation into juridical terms of the general theological principles already formulated as true articles of faith in the IV session of the last Vatican Council and formally and solemnly expressed in the famous Constitutio dogmatica prima de Ecclesia Christi; thus, canon law presents in this regard the singular and exclusive characteristic that this supreme primatial power proper to the Holy See finds its first roots, its preeminent protection, and its ultimate justification in theology rather than in law, that is, in dogma before juridical norms (v. PRIMA).
4. Its Nature and Characteristics. - On the basis of these theological-juridical norms, it is clearly determined what the nature and what the content and limits of the primatial authority belonging to the Holy See in the Church are.
As to its nature, it presents itself as: a) a potestas iurisdictionis plena et suprema, that is, as a true and effective sovereign power, and not as a mere primacy of honor or a simple power of representation, inspection, execution, or appeal; and, as such, as a power superior and distinct from all others, embracing the plenitudo iurium necessary and sufficient to govern the Church both in its universal unity and in its particular circumscriptions, even in the individual relations of the faithful, both in matters of faith and morals and in those pertaining to ecclesiastical discipline and administration.
b) Ordinary and immediate power: that is, ordinary insofar as it is inherent and proper to the office of the Holy See itself; and immediate (i.e., original), insofar as it is conferred directly and immediately upon its office by Christ Himself, not by delegation from the Church. From this arise two necessary consequences: 1) that the Holy See is the holder of this primatial power not by the will of the Church and through its conferral, but by the will of the Divinity, through its direct and immediate attribution, and thus not as a representative of a right of the canonical order, but rather as the bearer of a proper and personal right, of which it itself is the subiectus, thereby rising from a mere organ of the Church’s sovereignty to the true holder of the Church’s sovereignty itself; 2) that for this very reason, the enjoyment and exercise of these primatial powers remain naturally and necessarily independent and autonomous from the will and consent of the Church, since they are rights that are not even originally, even potentially and abstractly, within its purview, and thus remain absolutely incapable of any modification, change, or revocation by the Church, endowed with the fullest and most complete inalienability, imprescriptibility, and immutability.
c) Truly episcopal power, that is, a power that inherently possesses the full juridical capacity to substitute for the jurisdiction exercised by the various bishops within their diocesan territories, thus constituting a kind of Episcopus universalis, Episcopus totius Ecclesiae, with a jurisdiction potentially concurrent with that of the individual bishops of the various dioceses, of which it could assume full governance, or in which, for individual matters, it could issue dispositions in their place and stead.
5. Its Content. – a) The Pontiff as supreme legislator. – As for the content of this universal primatial power, it encompasses the sum of all supreme governing powers, conferring upon the Pontiff the juridical role of supreme legislator, supreme judge, supreme administrator, and supreme teacher and doctor of the Church.
The Holy See and the Ecumenical Council constitute the sole sources of production for universal canonical legislation, but it is the Pontiff who convenes and presides over the Council, whose canons do not acquire legislative force without his confirmation and ratification (can. 227). By virtue of this supreme legislative power, the Holy See declares and interprets natural and positive divine law and enacts universal and particular canonical laws: to the former it remains naturally bound and subject, while to the latter it is absolutely superior, so much so that it may be said to stand praeter, contra et supra legem, and thus may abrogate, derogate, and modify at its discretion both general and particular norms, whether issued by previous Pontiffs or by lower ecclesiastical hierarchies, and grant privileges and dispensations in particular cases (cann. 36 § 1, 81). A determined form is prescribed for their enactment and publication, but the Holy See as such (apart from its individual Dicasteries) is not truly bound to observe it and may even completely disregard it (can. 9), so that the famous principle «quod principi placuit, legis habet vigorem» may be applied to it in all its extent.
b) As supreme administrator. – As such, the Holy See holds the representation of the universal Church, which it personifies both in its internal activity and in its external relations with civil authorities (cann. 3, 163, 255, 265, 267); it oversees the maintenance of ecclesiastical discipline, the observance of dogmas and canonical laws, divine worship, and the Sacraments (cann. 1145, 1256, 1257, 1259, etc.), the functioning of secular and regular ecclesiastical offices and entities, exercising constant control over the entire Church, either directly through its legates (can. 267) or by means of lower ecclesiastical authorities, from which it receives written and oral reports on the state of the territories entrusted to them (cann. 340-42); it establishes, modifies, and suppresses ecclesiastical offices and benefices (cann. 1414, 1422, 1425, etc.), religious orders and associations (cann. 488, 492-94, 497, 498), and Catholic universities and faculties (can. 1276); it is the supremus collator of all ecclesiastical offices and benefices (can. 1431), and to it alone is reserved the appointment, transfer, and deposition of the highest officials of the Church’s hierarchy, such as cardinals (can. 232 § 1), bishops and auxiliary bishops (can. 329 § 2), major officials of the Roman Curia, pontifical legates, and capitular dignitaries (cann. 396 § 1, 1435 § 1), etc., as well as the conferral of their respective benefices (can. 1435); it is the supremus superior of all religious (can. 499) and it falls to it to grant permission for transfer from one religious order to another (can. 632) and the indult of exclaustration and secularization (can. 638); it convenes, presides over, suspends, and dissolves the Ecumenical Council and confirms its deliberations (can. 222); it grants permission for the convocation of plenary councils (can. 281); it oversees the organization of missions (can. 1350 § 2); finally, it is the supremus administrator et dispensator of the entire patrimony of the universal Church (can. 1518) and, as such, may dispose of the temporal goods of extinct secular and regular entities (cann. 493, 674), alienate directly and authorize owners to alienate ecclesiastical goods without any limits, whether by onerous or gratuitous title (cann. 534 § 1, 1532 § 1, 1541 § 1); regulate, commute, and reduce burdens and last will dispositions for foundations ad pias causas (can. 1517 § 1, 1551 § 1); impose and remove taxes on ecclesiastical entities and the faithful (cann. 1056, 1507), and remit debts in part or in whole.
c) As Supreme Judge (can. 1597). – In this capacity, the direct cognizance from the first instance of the so-called causae maiores (can. 220) is reserved to it, that is, those disputes which either ex ipsa sua natura can pertain only to the Pontiff (e.g., causes concerning the faith), or which ex positiva lege the Pontiff has reserved for his direct examination and judgment, excluding any competence of inferior judges either due to the peculiar difficulties of their treatment or the dignity of the persons constituting the parties in the case. Thus, he reserves for his personal examination all causes concerning heads of State and their children, as well as penal causes against bishops, even titular ones (cann. 1557 § 1, 2227 § 1); and he maintains the exclusive competence of his tribunals both to judge bishops in non-patrimonial civil causes and ecclesiastical moral persons immediately dependent on the Holy See, such as exempt religious orders and monastic congregations (can. 1557 § 2); and to conduct investigations de matrimonio rato et non consummato to obtain its dissolution (can. 1962), as well as processes of beatification and canonization (can. 1999); and finally, to inflict certain censures (can. 2245). In the degree of appeal, moreover, or in the last instance, it always pertains to the Holy See to examine and define all civil and penal causes without distinction (cann. 1597, 1599 § 1). Lastly, it possesses in every case a full and unquestionable right of avocation, by virtue of which it may always refer to itself personally or to its own tribunals any dispute either ab initio or at any stage and degree of judgment, regardless of the authority before which it is pending (cann. 1557 § 3, 1569, 1599 § 2). Naturally, then, based on the well-known dogmatic principle, now confirmed in can. 1556, that prima sedes a nemine iudicatur, no sort of challenge is admitted against its decisions before any other authority, and in particular, appeal is formally forbidden and severely punished, whether to the Ecumenical Council (cann. 228 § 2, 2332) or to the secular power (appellatio ab abusu).
d) As Supreme Teacher and Doctor. – In this capacity, it establishes the dogmatic principles concerning the Catholic faith throughout the entire world (can. 218), and in this quality the Pontiff is infallible, meaning that the definitions he issues by virtue of this supreme apostolic authority on a given dogmatic point cannot be the object of any doubt or discussion, bind the faithful perpetually, and are irreformable ex sese, non ex consensu Ecclesiae (can. 1323; cf. INFALLIBILITÀ).
6. The Hierocratic Essence of Sovereignty in the Church. – These summary observations are more than sufficient to conclude that the constitutional order of the Church, in its forma regiminis, that is, in the type of government by which it is ruled, must be considered the classic order of an absolute monarchical regime in its most pronounced and symptomatic form, namely, as an order in which supreme authority, in all its various functions and manifestations, resides in its fullness in a single subject, the Holy See, which constitutes the principle and center of all social unity, caput et fundamentum totius Ecclesiae, and to which all other subjects of the order itself are completely subordinate and dependent. Indeed, in this order, such suprema auctoritas of the Holy See, deriving its source directly from the divinity and grounding its title and exercise in the same positive divine law, remains inherent and connatural to the existence of the order itself and is thus endowed by its nature with the most complete and absolute inalienability, imprescriptibility, and immutability. To all this, it must be added that, independently of this theological basis, the very dogmatic principle of infallibility already seals with divine approval this universalis primatus in all its functioning and in all its principal manifestations, insofar as, apart from the elasticity of its limits, it certainly comes to protect and safeguard those dogmatic definitions and declarations that reflect Catholic faith and morals and, given the nature of the Church’s order, precisely all that legislative activity of the Holy See which pertains to the foundation and very bases of its legal system.
Under such conditions, it is easily understood the most just observation of ecclesiastical public jurists, who note that in the constitutional order of the Church, not only is there absolutely no semblance, according to its current positive law, of a division of powers in the exercise of sovereignty (at least in the proper technical meaning of this concept), but even the possibility, de iure condendo, of a future realization of such a forma regiminis is excluded, as contrary to the very nature of the public order of the Church, as instituted by Christ. If, in fact, a certain distribution of powers, more or less accentuated, is found in its constitution from past times (cf. cann. 106, 242-64, 1553, etc.), it has in reality no other basis or reason than the will of the Pontiff himself, who remains fully free to revoke, restrict, or modify it at his absolute discretion and non obstantibus quibusvis iuribus a tertiis quaesitis; while the various organs, subjects, and dicasteries that thus participate in sovereignty exercise their functions and attributions always by communication from the Holy See itself and as its mere representatives and delegates.
It is, therefore, only in the line of mere fact that the research and determination of the powers and functions of government proper to the Holy See, carried out thus far, may have had value. In the line of law, it would suffice to observe with the canonists that haec iura specificis primatialia singillatim recensere superfluum est, nam, cum R. Pontifex universis, extensive et intensive, ecclesiastica auctoritate polleat, cum ipse super ius canonicum sit, brevius dicimus quid facere non valeat, quam quid valeat. Limites enim ei signati non sunt nisi a iure naturali, a iure divino positivo, a fine societatis religiosae et spiritualis cui praeest, quoad validum; a prudentia et obligatione utendi in aedificationem et non in destructionem, quoad licitum exercitium suae potestatis. Apart from these limits, marked either by the fundamental norm from which the Church’s order derives its constitution and juridical value, or by its very nature, intrinsic and proper, the Holy See holds the true plenitudo iurium ad regendam Ecclesiam necessaria, that is, the fullest, most absolute, and unlimited sovereignty over all its members and hierarchies without distinction, so as to embody in its office all the authority and sovereign powers of government of the societas itself over which it presides.
II. THE HOLY SEE IN THE ITALIAN LEGAL SYSTEM
1. The regime of the Lateran Accords. — The political-juridical problem of the Holy See’s position of freedom and independence in Italy, which for a long time was the subject of a grave and irreconcilable conflict between State and Church (v. QUESTIONE ROMANA) and was previously regulated Law of Guarantees (v.), unilaterally enacted by the Italian State and never accepted by the Holy See, was Lateran Pacts (v.). In these Accords, and particularly in the Treaty, the Holy See was assured within the Italian legal system, through a series of political and juridical guarantees—among which foremost was the creation of a true temporal State—a stable condition of fact and law, which guarantees it absolute independence for the fulfillment of its high mission in the world (preamble, clause 1), that is, all that is necessary to provide, with due freedom and independence, for the pastoral governance of the diocese of Rome and of the Catholic Church in Italy and throughout the world (art. 26, clause 1).These agreements present two essential characteristics: a) the formal one, of determining the juridical position of the Holy See in the Italian legal system no longer through a unilateral regulation, sovereignly imposed and sovereignly modifiable by the Italian State through the enactment of an internal law, but through a bilateral discipline, conventionally agreed upon between the State and the Holy See and modifiable only by mutual consent through the stipulation of an international agreement; b) the substantive one, of grounding this position no longer on mere personal sovereignty, but also on temporal sovereignty, and no longer on a set of simple juridical guarantees, but also and primarily on a territorial guarantee, supplementing the personal prerogatives already conferred upon it by the Law of Guarantees with the attribution and recognition of a full and exclusive sovereign jurisdiction over a determined autonomous territory, thereby once again placing it at the head of a true State, as it was before 1870.
At present, therefore, the position of freedom and independence of the Holy See in the Italian legal system is conventionally assured by a fundamental guarantee of a political-territorial order (the State of Vatican City) and by a set of complementary guarantees of a juridical-personal order (v. PATTI LATERANENSI; VATICANO). Among these complementary guarantees, special mention is deserved by the juridical qualification of Italy as a Catholic State.
Similarly to the Law of Guarantees, which in Title II established a further guarantee of the independence and freedom of the Holy See precisely in the voluntary assumption by the Italian State of a determined political and juridical attitude and conduct toward religion and the Church, but contrary to its guiding principle—which saw such guarantee in the proclamation of the separation of Church and State and in the profession of agnosticism, indifferentism, and non-confessionalism on the part of the latter in religious matters—in art. 1 of the Treaty, Italy recognizes and reaffirms the principle enshrined in art. 1 of the Statute of the Kingdom of 4 March 1848, according to which the Catholic, Apostolic, and Roman religion is the sole religion of the State. For the content, effects, and limits of this solemn profession of faith by the Italian State, see the entry ITALIA, IV. Condizione giuridica della Chiesa.
2. The position of the Holy See in the Italian legal system. — Despite this new and altered regulatory regime, the juridical position of the Holy See in the Italian legal system has nonetheless remained, more or less, the same as it already substantially possessed under the Law of Guarantees, both in public and in private law.
Indeed, with regard to its public-law position, just as in the previous regime, the Holy See today presents itself in the Italian legal system as an entirely autonomous and independent entity, absolutely exempt from the sovereignty of the Italian State and from the authority of its laws, not only with respect to its temporal and political activity as head of the State of Vatican City and thus as sovereign of a foreign State, but also with regard to all its spiritual and religious activity as supreme governor of the Church, both in relation to the entire Catholic world and specifically within the territory of Italy. In this regard, the difference from the previous regime lies solely in this: whereas in the past the Italian State offered no formal recognition of this autonomy and independence of the Holy See, and such autonomy and independence derived only as a logical consequence from the substantive content of its actual position in the Italian legal system, currently, in art. 2 of the Treaty, the State, formally recognizing the sovereignty of the Holy See in the international sphere as an attribute inherent to its nature, in accordance with its tradition and the exigencies of its mission in the world, officially and solemnly acknowledges this qualification and position in its own regard, as a presupposition of the convention itself stipulated with it, and specifically recognizes it as supreme religious governor of the Church, and thus as a qualification clearly distinct and autonomous from that pertaining to it as temporal sovereign of the State of Vatican City. Furthermore, whereas in the previous regime the existence or otherwise of this juridical position was in any case subordinate to the persistence of the actual condition accorded to it in the Italian legal system and was based on an internal law of the Italian State, revocable at its sovereign and unilateral discretion, currently it is independent of its substantive actual condition and based on an international agreement, and thus on a bilateral discipline conventionally agreed upon between the Holy See and the Italian State, modifiable or revocable only by mutual consent.
As for its private-law position, by virtue of art. 29, lett. 2 of the Concordat, the Holy See still retains unchanged that juridical personality which had already been recognized to it by pre-Concordat Italian laws, and for this purpose it is governed by the civil norms concerning the condition, activity, and acquisitions of ecclesiastical moral bodies (cf. Treaty, art. 11; Concordat, arts. 27, clause 1; 30, clause 2; law 27 May 1929, no. 848, arts. 9-11); thus, today the past dispute regarding the capacity of the Holy See to acquire property and the necessity of prior authorization by the Italian State can be considered definitively resolved. Likewise, the well-known question regarding the beneficial nature of its juridical personality can be considered resolved in the affirmative. Indeed, since the Holy See is recognized not only as sovereign but also as full owner of the territory of the State of Vatican City (Treaty, art. 3), and since a patrimonial endowment has thus been reconstituted for it, and given that it is indisputable that the Holy See possesses such a nature in canon law, constituting in fact the supreme beneficial entity of the Church; and since, moreover, it is a fundamental principle of Italian legislation in ecclesiastical matters that the State generally recognizes in Church entities the same nature and characteristics that canon law has conferred upon them, there seems to be no valid reason to deny the Holy See the juridical figure of a true beneficial entity, albeit sui generis.
III. THE HOLY SEE IN THE INTERNATIONAL ORDER.
1. International Legal Personality
As is well known, the Holy See asserts itself as a subject of international law not only by virtue of its temporal power, as sovereign of the Vatican City State like all other temporal princes (v. VATICANO), but also, and primarily and independently, by virtue of its universalis primatus spiritualis, as the supreme institution of the Church. Limiting ourselves to current canon law, the CIC, after recognizing in can. 100 § 1 that it possesses iure divino the nature of a moral person, provides in subsequent canons that the Holy See enters into relations with the subjects of the international community, regulating the organs (Congregation for Extraordinary Ecclesiastical Affairs; Secretariat of State) that, in its name, deal with matters quae cum legibus civilibus coniunctum aliquid habent et ad pacta conventa cum variis nationibus referuntur, or that facient secundum normas a Sancta Sede receptas, relationes inter Sedem Apostolicam et civilia gubernia apud quae legatione nubili funguntur (legates, nuncios, internuncios: cf. cann. 3, 163, 255, 265, 267). Moreover, in art. 2 of the Lateran Treaty, the Holy See formally secured from Italy the recognition of sovereignty in the international sphere as an attribute inherent to its nature, in accordance with its tradition and the demands of its mission in the world, thus demonstrating unequivocally its claim to and vindication of such a status within the international community.At present, the issue may be considered entirely resolved, and international legal doctrine is nearly unanimous in accepting what was already evident from the reality of facts and the will of States: namely, in recognizing—albeit through the most divergent and varied theories and with greater or lesser limitations—the existence of an effective legal personality of the Holy See in the sphere of international relations.
2. Duality of Such Personality
Conversely, the question of the title by which it currently enjoys such subjectivity remains debated: whether solely as head of the Church and religious sovereign, or rather exclusively as head of the Vatican City State and temporal sovereign, or even in both capacities simultaneously; and, consequently, whether such title is single or dual, and whether its legal personality in this sphere is therefore single or dual.One point, however, is certain: namely, that the two legal systems—the one of the Church and the other of the Vatican City State—from which the Holy See derives its existence and legal capacity, and thus also its possible qualification and rights as a subject of the international community according to its own subjective self-determination, are both decisively informed and dominated, in their fundamental principles as well as in their individual positive provisions, by the precise dualistic presupposition—that is, by the clear distinction between the two legal systems, the Church and the Vatican City State, and between the two correlative sovereignties personified in the Holy See, both within their respective internal spheres and in the external sphere of their reciprocal relations, as well as, and above all, in their relations and activities with other external legal systems. Indeed, it is precisely in the international legal sphere that both legal systems strive, in their positive law, to emphasize and even accentuate the dualism of the two subjects personified in the Holy See, and to maintain a clear distinction between the title, scope, and limits of their respective capacity to act and their concrete action. Specifically and especially in this field, they exclude any idea of representation of one entity by the other, as well as any possibility of interpenetration or fusion of any kind between the two organisms into a single subject of both spiritual and temporal nature, destined to safeguard the interests of the Church and those of the Vatican City State vis-à-vis the other members of the international community. This dualistic presupposition is most clearly evident in the individual legislative provisions of both canon law and Vatican law. Even without delving into an analysis of such individual norms of positive law of the two legal systems, this presupposition finds its necessary confirmation in the very theoretical canonistic principle, according to which the possibility of the existence of a primary legal system that is not, by definition, a true subiectus iuris in both the internal and international order cannot be conceived. It is evident, indeed, that on such a basis, the adoption of any monistic hypothesis of fusion or interpenetration of one organism into the other, even solely for the scope of their international capacity and activity, would necessarily imply that either one or the other would be deemed devoid of such nature; and thus, either that the Church would no longer be a societas iuridice perfecta, contrary to the express prescriptions of divine and canon law; or that the Vatican City State would no longer be a true State, in contradiction to the quasi-dogmatic juridical principle of the necessity of an effective State for the spiritual independence of the Holy See.
Equally certain is that this same dualistic presupposition of the two distinct sovereignties and international personalities has been formally reclaimed by the Holy See and accepted by the Italian State in the stipulation of the Lateran Accords, and has come to constitute the informing spirit, the foundation, the object, and the true keystone of the Treaty (it suffices, in this regard, to recall arts. 2, 3, 23, 24, and 26 of the same, which reveal in an unequivocal manner the distinction and opposition between the two organisms that the Treaty has accepted and implemented, recognizing both as endowed with their own distinct international personality). Now, undoubtedly, the fact that canon law and Vatican law establish this specific relationship between the two entities, and that in the sphere of international relations it has been accepted by one of its members, the Italian State, does not in itself imply that other States, and thus the international community as a whole, must necessarily adopt it in their dealings, as they could well determine themselves in a completely different and even contrasting manner. However, the fact that, in entering into relations with the Holy See, they have not specified—either expressly or tacitly—such a different determination of theirs, seems to be a necessary and sufficient element to deduce their will to take note of this subjective self-determination of the Holy See, to conform their behavior accordingly, so as to be able to rightly conclude that in the international sphere and community, the Holy See must be recognized, in accordance with the qualification and nature it itself claims, as a dual and distinct subject: one that represents and safeguards the interests of the Church, the other those of the Vatican City State.
3. Relationship Between the Two Personalities. – Having established this fundamental dualistic presupposition, it remains to determine what the relationship is between these two distinct subjectivities that converge in the Holy See. The issue has been among the most debated and controversial in international legal doctrine, and thus merits, as such, a brief mention.
Certainly to be excluded, first of all, is that this relationship can be reduced to a type of mere personal union—that is, a union characterized by an occasional and contingent conjunction of the sovereign person of the two legal orders, due to purely accidental reasons and liable to cease. Both in its creation and in its subsistence, the State of Vatican City is justified solely as a State that is the necessary object of the sovereignty of the Holy See and has the specific purpose of ensuring its freedom and independence as the supreme institution of the Church. Thus, the bond that ties it to the latter, making the latter its sovereign, presents itself by its very nature as indissoluble, immutable, and perpetual, and therefore entirely different from that which characterizes any personal union.
Equally to be excluded, on the other hand, is the hypothesis of a real union, as this would indeed reflect and safeguard the necessary and indissoluble conjunction between the two sovereignties and international legal personalities of the Holy See. However, it would not reconcile with the natural and necessary subordination that exists and must exist between the state organism and the extra-state organism, nor between the international personality of the Holy See as the supreme representative of the former and as the supreme institution of the latter. As is well known, the primary reason for the existence and the ultimate condition of the life of papal temporal sovereignty is precisely and solely that of being and having to be a mere means of protection and defense of its spiritual sovereignty, thus constituting in essence a mere accessorium of the latter.
The figure of an improper and non-parity union remains, such as that existing between the inzeram State and the vassal State, or between the protecting State and the protected State. However, apart from any other divergence, when one considers that this bond of union and subordination is found to exist between two organisms of essentially different natures—that is, between a religious organization and a State—and thus between two organisms and two subjects that, by definition, each exercise their activity in an absolutely distinct sphere of relations, it is easily understood how even this figure is in itself as unusable as the other two examined above.
It is precisely this last observation that precludes any possibility of identifying or assimilating the juridical relationship between these two organisms and subjects into any of the classical doctrinal figures of unions between States. It leads to the conclusion that this is a truly unique and singular union, based on three essentially concurrent and, in a certain respect, contradictory factors: a) a complete and perfect sovereignty and international personality of the two subjects, distinct and autonomous both in their juridical title and in their concrete exercise; b) a very close bond of stable, necessary, and inviolable union between the one and the other, such as to keep them indissolubly united in the future; c) an intimate and immutable subordination of the state entity to the extra-state entity, such as to make the former, first and foremost, a mere means and defense for the attainment of the latter’s ends.
4. International Legal Capacity. — Whatever solution may be given to all these questions, it is certain in any case that today the Holy See presents itself in the international order as a subject endowed with that personality and full legal capacity which derive from the general norms of that legal system. If not by virtue of its universal religious qualification as head of Catholicism, then at least under the mantle of its politico-territorial qualification as head of a State, it must be recognized as the holder of all those rights and duties that commonly belong to its other members. The only limit of positive law that it encounters is constituted by the provision of Article 2, paragraph 1 of the Treaty, according to which the Holy See, in relation to the sovereignty that belongs to it also in the international field, declares that it wishes to remain and will remain extraneous to temporal competitions among States and to international congresses convened for such purpose, unless the contending parties make a concordant appeal to its mission of peace, reserving in any case the right to assert its moral and spiritual power. This commitment, integrated by the wording of paragraph 2 of the same article, according to which as a consequence the Vatican City shall always and in every case be considered neutral and inviolable territory, has as its ultimate result the preclusion of the Holy See—both as supreme governor of the Church and as sovereign of the State of Vatican City—from the right to intervene and to develop any juridical activity in all international competitions among States in which purely temporal and political matters or interests are at stake. It should be noted, however, that at least according to official canonistic doctrine, the limits set by this norm on the international activity of the Holy See would be much narrower and more modest than one might initially think. This is because, especially in the order of international relations, there is very little matter that can be considered of a purely temporal and political nature and that does not fall, at least indirectly, within the scope of res spirituales or of res connected or pertaining to them. For such matters, therefore, the Holy See already possesses, iure proprio ac nativo ex ipsa ordinatione divina, the right of intervention and participation, indeed of true and proper supremacy. As canonists observe, in essence, negotia communia vel respiciunt ipsam religionem, vel communem pacem et concordiam, quod est negotium fere spirituale, ad normas iustitiae et communis utilitatis definiendum, cuius iustitiae custos et iudex supremus et ipse Pontifex.
5. Superinternationality. — A final question worthy of at least a mention is that of the so-called superinternationality of the Holy See. As is well known, it is a fundamental principle of internationalist doctrine that the present international community is in its essence a societas inter pares, constituted by subjects all placed in a position of reciprocal equality, with identical rights and duties and without any superiority or preeminence of one over the other. This principle, accepted by canonists with regard to relations among States, is rejected instead with regard to the relations of the Holy See with States. On the basis, in fact, of the general theory of the relations between the two powers, they naturally arrive at the conclusion that the Holy See, insofar as and because it is the supreme governor of the Catholic Church, has the right ex ipsa sua natura, and therefore ex ipsa ordinatione divina, to occupy a juridical position in the international community that is preeminent and superior to that of the other members, so as to rise to a truly superinternational entity and thus to assume, iure proprio ac nativo, indeed even iure divino positivo, not a simple juridical personality, but a true and proper sovereignty in the field of international law. Article 2 of the Lateran Treaty, in which the Holy See had Italy recognize not merely a personality but a vera sovranità nel campo del diritto internazionale come attributo inerente alla sua natura, constitutes the best proof of this requirement.
Undoubtedly, de iure this requirement finds no acceptance whatsoever in the current international legal order, which is informed by the fundamental principle of the autonomous and equal position of its individual members. However, this does not exclude that de facto it still retains a certain positive relevance, in the sense that in the conscience of peoples and governments, the Holy See occupies a true position of preeminence within the international community and practically exercises an effective moderating function in the assembly of States. This is the natural result of its supreme moral authority, its role as head of Catholicism, its universal religious mission, and its position above temporal political interests and disputes. It is indeed true that this super-internationality generally presents a nature and content more moral and political than truly juridical, and that it would be quite difficult, if not impossible, to define and frame it within the field of law, at least on the basis of the current cornerstones of international law. Nevertheless, it must not be forgotten that, especially in this legal order and particularly at the present moment, the line of demarcation between morality, politics, and law is anything but certain and defined. In any case, this undoubted moral and political preeminence cannot fail to automatically and necessarily reverberate in the juridical field itself and to have an effective positive relevance therein as well.