HOLY SEE. - The Catholic Church is a societas iuridice perfecta, that is, a primary juridical order, and as such it naturally has inherent in itself 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 of his, is assisted by certain organs of government, which together with him go under the name of the Holy See.
Its notion is given 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 one, which is in fact its usual meaning, it comprises, besides the Pontiff, the organs that assist him in the government of the Church, that is, the so-called Roman Curia. In the second, narrower meaning, however, which is its exceptional meaning, to be adopted only when it is required ex rei natura vel sermonis contextu, it comprises only the Pontiff, to the exclusion of all auxiliary organs, but also he considered in the abstractness of his supreme office, that is, as the Primatus Petri eiusque successorum a Jesu Christo constitutus, non iam singulae personae RR. Pontificum.
I. THE HOLY SEE IN THE CANONICAL ORDER
1. Juridical personality
By positive divine right the Holy See is not a simple office, but a true juridical person (cf. can. 100 § 1). The juridical personality of the Holy See is therefore founded, like that of the Church, on divine right itself.
There is no doubt that the juridical personality of the Holy See is not to be confused with that of the Church and that it constitutes a subject of law, existing indeed and operating within the societas Ecclesiae, but with a personality of its own and distinct from that of the order itself; no doubt likewise that this personality of its is a true and proper subjectivity of public law and that the Holy See must indeed be considered a public juridical person par excellence; and no doubt again, notwithstanding some isolated opinion to the contrary, that, analogously to that of all the other ecclesiastical offices and dignities, this personality has an essentially institutional and not corporate nature.
Controvertible and controverted, on the other hand, is whether this personality belongs to the Holy See in its broadest meaning or rather in its restricted one. That the Holy See understood in the restricted sense, that is, the officium R. Pontificis, possesses the character of a moral person is incontestable, both because by divine right it is the Roman Pontificate that exists, without which the ecclesiastical Dicasteries that assist it would have no meaning, and furthermore because the officium ecclesiasticum in general is almost always considered in the CIC as a true subject of law; and because it has, if nothing else, the nature and characters of a true episcopal office (Sedes episcopalis Romana) and to the Sedes episcopales juridical personality is explicitly recognized, independently and distinctly from the correlative episcopal mensas (cf. can. 350 § 2). Equally incontestable is then that the Roman Curia, as a complex organism consisting of the Sacred Congregations, the Tribunals and the Offices (can. 242), possesses a juridical personality of its own, just as the diocesan Curia does, and that, in any case, the individual Congregations, Tribunals and Offices that compose it have such personality. The whole problem, therefore, is reduced to establishing whether these different moral entities, besides constituting a set of distinct subjects, also present themselves at times as a single subject of law standing by itself, constituted by the individual entities, but with a juridical personality and capacity of its own, distinct from that of the various members that are its components (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 is to be understood precisely the unitary organism embracing the individual entities. And therefore can. 100 § 1 would refer to the Holy See both understood in the broad sense and in the restricted sense, that is, as a general rule in the first sense and as an exception in the second.
2. Juridical capacity
As regards the juridical capacity of this entity, it may be observed in the first place that it, as a subiectus iuris, is naturally the holder in the canonical order of that same juridical capacity of public and private law that is proper to all the other ecclesiastical moral entities and that, like these, it enjoys on that title all those rights and privileges that the canonical legislator attributes to them. A great part of such rights find an explicit consecration in specific provisions of positive law. Thus, as regards in particular its capacity of private law, the CIC itself comes to recognize in the Holy See the right to stand in judgment and the ius acquirendi, retinendi et administrandi bona temporalia ad fines sibi proprios prosequendos (can. 1495 § 1).
Independently, however, also of every express prescription, this capacity of its, representing in substance nothing but the concrete manifestation of its juridical personality, already constitutes in itself a true and proper ius nativum bound to its very nature, indeed a right belonging to it, precisely like its personality, ex ipsa ordinatione divina and therefore intangible, immutable and imprescriptible in an absolute manner, both in its title and in its exercise.
3. Sovereignty (primacy) in the Church
The Holy See deserves above all to be taken into consideration in the very special position that it occupies in the juridical order of the Church according to the so-called ius publicum ecclesiasticum. Under this public-law profile the Holy See presents itself: a) as the supreme spiritual ruler of the universal Church, that is, as the universalis Ecclesiae primatus; b) as temporal sovereign of the State of Vatican City (v.); c) as patriarch of the West, primate of Italy, metropolitan of the Roman ecclesiastical province, bishop of Rome.
Limiting the examination only to the first of these aspects, that is, to its position, prerogatives and rights as supreme universal power of the Church, and referring for the examination of its position and attributes under the other aspects to the specific relevant entries (v. PAPA; PATRIARCHI; PRIMATO; VATICANO), the general juridical principles relating to it are found 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 but 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; whence the canonical order presents in this regard the singular and exclusive characteristic that this supreme primatial power proper to the Holy See finds its first roots, its pre-eminent protection and its ultimate justification in theology more than in law, that is, in dogma even before juridical norms (v. PRIMATO).
4. Its nature and characters
On the basis of these theological-juridical norms it is clearly determined what is the nature and what are the content and the limits of the primatial authority belonging to the Holy See in the Church.
As regards indeed 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, or of inspection, or of execution, or of appeal; and, as such, as a power superior to and distinct from all the others, embracing the plenitudo iurium necessary and sufficient to govern the Church both in its universal unity and in its particular circumscriptions and even in the individual relations of the faithful, and both as regards matters of faith and morals and also as regards ecclesiastical discipline and administration; b) potestas ordinaria et immediata: ordinary, that is, insofar as it is inherent in and proper to the office of the Holy See itself; and immediate (that is, original), insofar as it is conferred immediately and directly upon its office by Christ himself and not by a delegation of the Church. Hence two necessary consequences: 1) that the Holy See comes to be the holder of this primatial power not by the will of the Church and upon its conferral, but by the will of the Godhead, upon its direct and immediate attribution, and therefore not as the representative of a right of the canonical order, but rather as the bearer of a proper and personal right, of which it is itself the subiectus, thus rising from a mere organ of the sovereignty of the Church to the true holder of the sovereignty of the Church itself; 2) that for this very reason the enjoyment and exercise of these primatial powers of its remain naturally and necessarily independent of and autonomous from the will and consent of the Church, since these are not rights that belong to it even originally, even potentially and abstractly, and they therefore remain absolutely incapable of any modification, change or revocation on the part of the Church and are endowed with the fullest and most complete inalienability, imprescriptibility and immutability; c) potestas vere episcopalis, that is, as a power that has within itself the full possibility and juridical capacity to substitute itself for the jurisdiction that the various bishops exercise within the bounds of their diocesan circumscription, thus coming to constitute 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 reserve to itself the governance in its entirety, or in which it could, for individual matters, issue provisions in their place and stead.
5. Its content
a) The Pontiff as supreme legislator. - As for the content of this universal primatial power, it comes to embrace the sum of all the supreme powers of governance, conferring upon the Pontiff the juridical figure 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 of universal canonical legislation, but it is the Pontiff who convokes and presides over the Council, whose canons do not acquire legislative force except after his confirmation and ratification has intervened (can. 227). By virtue of this supreme legislative power, the Holy See declares and interprets divine natural and positive law and issues universal and particular canonical laws: to the former it naturally remains bound and subject, over the latter it is instead absolutely superior, so that it may be said to be praeter, contra et supra legem and may therefore abrogate, derogate from and modify at its discretion the norms, both general and particular, whether issued by previous Pontiffs or by the lower ecclesiastical hierarchies, and grant privileges and dispensations in particular cases (cann. 36 § 1, 81). For their issuance and publication a determined form is fixed, but the Holy See as such (and setting aside the individual Dicasteries) is not truly bound to its observance and may even dispense with it entirely (can. 9), so that the famous principle "quod principi placuit, legis habet vigorem" may be applied to it in its full extent.
b) As supreme administrator. - As such, the Holy See has the representation of the universal Church, which it personifies both in its internal activity and in its external relations with the civil authorities (cann. 3, 163, 255, 265, 267); it watches over the maintenance of ecclesiastical discipline, over the observance of dogmas and canonical laws, of divine worship, of the Sacraments (cann. 1145, 1256, 1257, 1259, etc.), over the functioning of ecclesiastical offices and bodies, both secular and regular, exercising a constant control over the whole Church, whether directly, through its legates (can. 267), or by means of the lower ecclesiastical authorities, from which it receives written and oral reports on the state of the territories entrusted to them (cann. 340-42); it institutes, modifies and suppresses ecclesiastical offices and benefices (cann. 1414, 1422, 1425, etc.), religious orders and associations (cann. 488, 492-94, 497, 498), 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 major officials of the hierarchy of the Church, such as the cardinals (can. 232 § 1), the bishops and auxiliary bishops (can. 329 § 2), the major Officials of the Roman Curia, the pontifical legates, the capitular dignities (cann. 396 § 1, 1435 § 1), etc., as well as the conferral of the respective benefices (can. 1435); it is the supremus superior of all religious (can. 499) and it is for it to grant permission to pass from one religious order to another (can. 632) and the indult of exclaustration and secularization (can. 638); it convokes, 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 presides over the organization of the missions (can. 1350 § 2); it is finally 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 regular and secular bodies (cann. 493, 674), alienate directly and authorize owners to alienate, whether for valuable consideration or gratuitously, ecclesiastical goods without any limits of any kind (cann. 534 § 1, 1532 § 1, 1541 § 1); regulate, commute and reduce the burdens and dispositions of last will for foundations ad pias causas (can. 1517 § 1, 1551 § 1); impose and remove taxes on ecclesiastical bodies and on the faithful (cann. 1056, 1507), and remit debts in part or in whole.
c) As supreme judge (can. 1597). — As such, the cognizance from the very first instance of the so-called causae maiores (can. 220) is directly reserved to it, that is, of those controversies which either ex ipsa sua natura cannot belong to anyone but the Pontiff (for example, causes relating to the faith), or which ex positiva lege the Pontiff has reserved to his direct examination and judgment, excluding any competence of lower judges, whether because of the peculiar difficulties of their treatment or because of the dignity of the persons who are the parties to the cause. Thus he reserves to his personal examination all causes relating to heads of state and their children, and penal causes concerning bishops, even titular ones only (cans. 1557 § 1, 2227 § 1); and he preserves to the exclusive competence of his tribunals both the judging of bishops in civil causes that are not patrimonial and of ecclesiastical moral persons immediately dependent on the Holy See, such as exempt religious orders and monastic congregations (can. 1557 § 2); and the carrying out of the investigations de matrimonio rato et non consummato in order to obtain its dissolution (can. 1962), and the processes of beatification and canonization (can. 1999); and finally the inflicting of certain censures (can. 2245). In the degree of appeal, moreover, or in the last instance, it always belongs to the Holy See to examine and define all civil and penal causes without distinction (cans. 1597, 1599 § 1). Finally, it has in every case a full and unquestionable right of avocation, by virtue of which it can always defer to itself personally or to its own tribunals any controversy, whether ab initio or at any stage and degree of the trial, whatever the authority before which it is pending (cans. 1557 § 3, 1569, 1599 § 2). Naturally, moreover, on the basis of the well-known dogmatic principle, now confirmed in can. 1556, that prima sedes a nemine iudicatur, against its decisions no challenge of any sort is admitted before any other authority, and in particular the appeal both to an ecumenical council (cans. 228 § 2, 2332) and to the lay power (appellatio ab abusu) is formally forbidden and severely punished.
d) As supreme teacher and doctor. — As such it fixes the dogmatic principles relating to the Catholic faith throughout the entire universe (can. 218), and in this capacity the Pontiff is infallible, that is to say, the definitions issued by him by virtue of this his supreme apostolic power on a determined dogmatic point cannot be the object of doubt or of discussion of any sort, perpetually bind the faithful, and are irreformable ex sese, non ex consensu Ecclesiae (can. 1323; cf. INFALLIBILITÀ).
6. Autocratic 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 as the classic order under an absolute monarchical regime and in its most pronounced and symptomatic form, that is to say, as an order in which the 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 the whole social unity, caput et fundamentum totius Ecclesiae, and to which all the other subjects of the order itself are completely subordinate and dependent. In it, indeed, this suprema auctoritas of the Holy See, deriving its source directly from the divinity and founding its title and exercise on positive divine right itself, remains inherent in and connatural to the existence of the order itself, and thus proves by its very nature to be endowed with the most complete and absolute inalienability, imprescriptibility and immutability. To all this let it be added that, even independently of this theological basis, the dogmatic principle of infallibility itself already comes to seal with the divine stamp this universalis primatus in all its functioning and in all its principal manifestations, inasmuch as, apart from the elasticity of its limits, it certainly comes in any case to protect and safeguard those dogmatic definitions and declarations that reflect the Catholic faith and morals and therefore, given the nature of the Church's order, precisely all that legislative activity of the Holy See which relates to the foundation and the very bases of its system of law.
In such conditions one easily understands the most just observation of ecclesiastical publicists, who point out that in the constitutional order of the Church there is not only absolutely lacking, according to its positive law in force, any semblance of a division of powers in the exercise of sovereignty (at least in the proper technical meaning of that concept), but there is excluded even the possibility, de iure condendo, of any eventual future realization of such a forma regiminis, as contrary to the very nature of the public order of the Church as instituted by Christ. If in fact in its constitution there is found, from past times onward, a certain more or less pronounced distribution of powers (cf. cans. 106, 242-64, 1553, etc.), it has in reality no basis and reason for being other than in the will of the Pontiff himself, who remains fully free to revoke, restrict and modify it at his absolute discretion and non obstantibus quibusvis iuribus a tertiis quaesitis; while the various organs, subjects and dicasteries that thus in fact participate in sovereignty always exercise their functions and attributions by communication from the Holy See itself and as its simple representatives and delegates.
It is therefore only on a purely factual level that the inquiry and determination made thus far of the powers and functions of government proper to the Holy See can have had any value. On the level 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 valet, quam quid valeat. Limites enim ei signati non sunt nisi a iure naturali, a iure divino positivo, a fine societatis religiosae et spiritualis cui praest, 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 basic norm from which the order of the Church derives its constitution and juridical value, or by its own proper and intrinsic nature, there belongs to the Holy See 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, in such a way as to sum up 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 ORDER
1. The regime of the Lateran Agreements
The political and legal problem of the position of liberty and independence of the Holy See in Italy, which was for a long time the object of a grave and irreconcilable conflict between State and Church (v. QUESTIONE ROMANA) and was already regulated by the so-called Law of Guarantees (v.), issued unilaterally by the Italian State and never accepted by the Holy See, has finally found its solution in the Lateran Pacts (v.). In these Agreements, and in particular in the Treaty, it came to assure to the Holy See within the Italian legal order, through a series of guarantees of a diverse political and legal nature — among which first the creation of a true and proper temporal State — in a stable manner a condition of fact and of law, which guarantees to it absolute independence for the fulfillment of its high mission in the world (preamble, paragraph 1), that is, whatever it needs in order to provide, with the due liberty and independence, for the pastoral government of the diocese of Rome and of the Catholic Church in Italy and in the world (art. 26, paragraph 1).
Such agreements present two essential characteristics: a) the formal one, of determining the juridical position of the Holy See within the Italian legal order no longer by a unilateral regulation, sovereignly imposed and sovereignly modifiable by the Italian State through the issuance of an internal law, but by 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 substantial one, of founding such a position no longer on a merely personal sovereignty, but also on a temporal sovereignty, and no longer on a complex of simple juridical guarantees, but also and in the first place on a territorial guarantee, integrating the personal prerogatives already conferred upon it by the Law of Guarantees with the attribution and recognition of a full and exclusive sovereign jurisdiction of its own over a determined autonomous territory, and thus placing it once again at the head of a true and proper State, as it was before 1870.
At present, therefore, the position of liberty and independence of the Holy See within the Italian legal order is conventionally assured by a fundamental guarantee of a political-territorial order (the State of Vatican City) and by a complex of complementary guarantees of a juridical-personal order (v. PATTI LATERANENSI; VATICANO). Among these complementary guarantees, a special mention is deserved by the juridical qualification of Italy as a Catholic State.
Similarly to the Law of Guarantees, which under title II placed a further guarantee of the independence and liberty of the Holy See precisely in the voluntary assumption by the Italian State of a determined political and juridical attitude and conduct before religion and the Church, but contrary to its informing principle which saw such a guarantee in the proclamation of the separation of Church and State and in the profession of agnosticism, indifferentism and non-confessionalism of the latter in religious matters, in art. 1 of the Treaty Italy recognizes and reaffirms the principle consecrated in art. 1 of the Statute of the Kingdom of 4 March 1848, by which the Catholic, Apostolic and Roman religion is the sole religion of the State. On the content, the effects and the limits of this solemn profession of faith of the Italian State, see the entry ITALIA, IV. Condizione giuridica della Chiesa.
2. The position of the Holy See in the Italian legal order
Even with this new and changed regulatory regime, the juridical position of the Holy See within the Italian legal order has nevertheless remained, more or less, the same one that it already substantially possessed under the Law of Guarantees, both in public and in private law.
As regards in fact its public-law position, as already in the previous regime, the Holy See presents itself today within the Italian legal order as a completely autonomous and independent organism, absolutely withdrawn from the sovereignty of the Italian State and from the dominion of its laws, not only as regards its temporal and political activity as head of the State of Vatican City and therefore as sovereign of a foreign State, but also as regards all without distinction of its spiritual and religious activity as supreme governor of the Church, both in relation to the entire Catholic world and specifically within the ambit of Italian territory. In this regard the difference from the previous regime lies only in this: that whereas in the past there was lacking on the part of the Italian State any formal recognition of this autonomy and independence of the Holy See, and it was only from the substantial content of its effective position within the Italian legal order that the same descended as a logical consequence, at present instead, in art. 2 of the Treaty, the State, formally recognizing the sovereignty of the Holy See in the international field as an attribute inherent in its nature, in conformity with its tradition and the exigencies of its mission in the world, comes to recognize officially and solemnly such a qualification and position with respect to itself, as the presupposition of the convention itself stipulated with it, and comes to recognize it specifically as supreme religious governor of the Church, and therefore as a qualification clearly distinct and autonomous from that belonging to it as temporal sovereign of the State of Vatican City. Whereas, moreover, in the earlier regime the subsistence or otherwise of this juridical position of its was in any case subordinate to the persistence of the effective condition made for it within the Italian legal order and was at the same time founded on an internal law of the Italian State, sovereignly and unilaterally revocable by the latter at its own discretion; at present, instead, it proves to be independent of its effective substantial condition and founded on an international agreement and therefore on a bilateral discipline conventionally agreed upon between the Holy See and the Italian State and modifiable or revocable only by mutual agreement.
As regards then its private-law juridical position, by virtue of art. 29 lett. 2 of the Concordat, the Holy See still preserves unchanged that juridical personality of its which had already been recognized to it by the Italian laws prior to the Concordat, and is governed in this regard by the civil norms relating to the condition, the activity and the acquisitions of ecclesiastical moral bodies (cf. Treaty, art. 11; Concordat, arts. 27 paragraph 1; 30 paragraph 2; law of 27 May 1929, no. 848, arts. 9-11); whence today it may be held that the past dispute concerning the capacity of the Holy See to acquire goods and concerning the necessity of prior authorization on the part of the Italian State is legislatively resolved in a definitive manner. Equally resolved in the affirmative sense may be considered the well-known question concerning the beneficiary nature of its juridical personality. Recognized, in fact, to the Holy See not only is sovereignty, but also full ownership over the territory of the State of Vatican City (Treaty, art. 3) and thus reconstituted for it is a patrimonial endowment, since it is indisputable that the Holy See has such a nature within the canonical order, constituting indeed within it the greatest beneficiary entity of the Church; and since on the other hand it is a basic principle of Italian legislation in ecclesiastical matters that the State recognizes as a rule to the entities of the Church that same nature and those same characteristics which the canon law has conferred upon them, it does not seem that there is any reason to deny with any foundation to the Holy See the juridical figure of a true beneficiary entity, albeit of a peculiaris 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 State of Vatican City like all other principes temporales (v. VATICANO), but also, and prior to and independently of that, by virtue of its universalis primatus spirituale, as the supreme institution of the Church. To limit ourselves to the canon law in force, the CIC, after having recognized in can. 100 § 1 its iure divino moralis personae rationem, provides in the subsequent canons that the Holy See enter into relations with the subjects of the international community, regulating the organs (Congregation for Extraordinary Affairs; Secretariat of State) which in its name attend to affairs quae cum legibus civilibus coniunctum aliquid habent et ad pacta conventa cum variis nationibus referuntur, or which conduct, secundum normas a Sancta Sede receptas, relationes inter Sedem Apostolicam et civilia gubernia apud quae legatione nubili funguntur (pontifical legates, nuncios, internuncios: cf. cann. 3, 163, 255, 265, 267). On the other hand, in art. 2 of the Lateran Treaty, the Holy See had Italy formally recognize its sovereignty in the international field as an attribute inherent in its nature, in conformity with its tradition and the requirements of its mission in the world, thus demonstrating unequivocally that it claims and asserts such a status in the international community.
At present, moreover, the problem may be considered completely overcome, and internationalist doctrine is almost unanimous in accepting what was already evident from the reality of the facts and from the will of States, that is, in recognizing, even through the most opposed and diverse theories and with greater or lesser limitations, the existence of an effective legal personality of the Holy See in the order of international relations.
2. Duality of this personality
Still discussed and debated, on the other hand, is the question of the title by which it currently enjoys such subjectivity, that is, whether only as head of the Church and religious sovereign, or rather solely as head of the State of Vatican City and temporal sovereign, or even in both capacities at once, and whether consequently such title is today single or twofold, and therefore whether its legal personality in this sphere of relations is single or twofold.
One point at any rate is certain, namely that the two orders, that of the Church and that of the State of Vatican City, from which the Holy See respectively derives its existence and legal capacity and therefore also its possible status and rights as a subject of the international community according to its own subjective self-determination, are both decisively informed and dominated, both in their fundamental hinges and in their individual positive provisions, by the precise dualistic presupposition, that is, by the clear distinction between the two orders, the Church and the State of Vatican City, and between the two correlative sovereignties personified in the Holy See, whether in their respective internal sphere, or in the external sphere of their mutual relations, or also and above all in their relations and activity with other outside orders. Indeed, it is precisely in the international legal sphere that both orders strive in their positive law to highlight and even accentuate the dualism of the two subjects personified in the Holy See and to keep clearly distinct the title, the scope and the limits of their respective capacity to act and of their concrete action. Precisely and especially in that field, in fact, they exclude any idea of representation of one entity in the other and any possibility of interpenetration and fusion of any kind whatsoever of the two organisms into a single subject of spiritual and temporal nature at the same time, destined to attend to the interests of the Church and those of the State of Vatican City in relation to the other members of the international community. This dualistic presupposition is revealed most clearly in the individual legislative provisions, whether of canon law or of Vatican law. Even without needing to delve into an analysis of such individual norms of positive law of the two orders, however, it finds its necessary confirmation in the theoretical canonistic principle itself, according to which the possibility of existence of a primary order is not conceived, unless it be by definition a true subiectus iuris both in the internal and in the international order. It is evident, in fact, on such a basis that the acceptance of any monistic hypothesis of fusion and interpenetration of one organism in the other, even for the sole sphere of their international capacity and activity, would necessarily imply that either the one or the other of them would have to be considered devoid of such a nature and therefore either that the Church would no longer be a societas invidice perfecta, contrary to the express prescriptions of divine and canon law; or that the State of Vatican City would no longer be a true State, in antithesis to the almost dogmatic legal principle of the necessity of the existence of an effective State for the spiritual independence of the Holy See.
Equally certain is then that this same dualistic presupposition of the two distinct sovereignties and international personalities was formally asserted by the Holy See and accepted by the Italian State in the stipulation of the Lateran Accords and that it ended up constituting the informing spirit, the basis, the object and the true keystone of the Treaty (it will suffice in this regard to recall arts. 2, 3, 23, 24, 26 of the same, which reveal unequivocally the distinction and opposition accepted and implemented by it between the two organisms, recognizing both as endowed with their own distinct international personality). Now, undoubtedly, the fact that canon law and Vatican law establish this determined relation between the two entities and that in the sphere of international relations it was accepted by one of its members, the Italian State, does not yet of itself imply that the other States too, and therefore the international community as a whole, must necessarily adopt it in their relations with them, since it may well be that they determine themselves instead in a wholly different and perhaps contrasting manner. Yet the fact that they, in entering into relations with the Holy See, have not come to specify either expressly or tacitly such a different determination of theirs, seems to be a necessary and sufficient element for deducing their will to take note of this subjective self-determination of its, to conform their conduct to it without further ado, so that one may rightly conclude that in the international sphere and community the Holy See must be recognized, according to the status and nature claimed by itself, as a twofold and distinct subject: the one representing and protecting the interests of the Church, the other those of the State of Vatican City.
3. Relationship between the two personalities
Having established this fundamental dualistic presupposition, it remains now to determine what the relationship is that exists between these two distinct subjectivities, which are combined in the Holy See. The problem has been among the most discussed and controversial in internationalist doctrine, and therefore merits, as such, a brief mention.
Certainly to be excluded first of all is the possibility that this relationship can be traced back to a type of simple personal union, that is, a union characterized by a merely occasional and contingent conjunction of the person of the sovereign of the two orders, due to purely accidental reasons and susceptible of ceasing. Both in its creation, in fact, and in its subsistence, the State of Vatican City justifies itself only as a State that is a necessary object of the sovereignty of the Holy See and having the specific purpose of ensuring its freedom and independence as the supreme institution of the Church, whereby the bond that binds it to the latter and that makes 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 one that would indeed serve to reflect and perfectly safeguard the necessary and indissoluble conjunction between the two sovereignties and international subjectivities of the Holy See, but that on the other hand would not be reconciled with the natural and necessary subordination that exists and must exist between the state organism and the extra-state organism, and between the international personality of the Holy See as supreme representative of the former and as supreme institution of the latter. As is well known, in fact, the primary reason for the existence and the ultimate condition of life of the pontifical temporal sovereignty is precisely and solely that of being and having to be a simple means of protection and safeguard of its spiritual sovereignty, such as to constitute in substance a simple accessorium of the latter.
There remains the figure of the improper and non-equal union, such as that existing between the inzeram State and the vassal State, or between the protecting State and the protected State. But, apart from any other divergence, when one bears in mind that this bond of union and subordination is found to exist between two organisms of essentially different nature, that is, between a religious organization and a State, and therefore between two organisms and two subjects each by definition carrying out their activity in an absolutely distinct sphere of relationships, it is easily understood how even such a figure is in itself just as unusable as the other two examined above.
It is precisely this last observation, indeed, that precludes any possibility of identifying or assimilating the juridical relationship existing between these two organisms and subjects with any of the classic doctrinal figures of unions between States, and leads to the conclusion that it is a truly unique and most singular union, resting on three different factors that are essentially concurrent and in a certain respect contradictory: 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 bound together also in the future; c) a subordination, finally, intimate and immutable, of the state entity to the extra-state one, such as to make of the former, first and foremost, a simple means and safeguard for the attainment of the ends of the latter.
4. International juridical capacity
Whatever the solution one may wish to give 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 that full juridical capacity which derives from the general norms of that order and which, if not by virtue of its universal religious qualification as head of Catholicism, at least under the cloak of its political-territorial qualification as head of a State, must be recognized as the holder of all those rights and duties without distinction that belong commonly to the other members. The only limit of positive law that it encounters is constituted by the provision of art. 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 between States and to international congresses convened for such a purpose, unless the contending parties make a concordant appeal to its mission of peace, reserving in every case the right to assert its moral and spiritual power. This commitment, which, integrated by the provision of paragraph 2 of that article, according to which consequently Vatican City will always and in every case be considered neutral and inviolable territory, has as its ultimate result that of precluding 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 carry out any juridical activity in all international competitions between States in which merely temporal and political negotiations or interests were at stake. It should be noted, however, that, at least according to official canonistic doctrine, the limits set by this norm to the international activity of the Holy See would remain much more restricted and modest than one might at first think, inasmuch as, especially in the order of international relations, the matter that can be considered of purely temporal and political nature is quite scant and does not fall, at least indirectly, within the ambit of res spirituales or of res connected or pertaining to them, and for which therefore the Holy See does not already possess iure proprio ac nativo ex ipsa ordinatione divina a right of interference and participation, indeed of true and proper supremacy. As the canonists warn, in substance 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 last question deserving 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 today's international community is in its essence a societas inter pares, constituted by subjects all placed in a position of mutual equality, with identical rights and duties and without any superiority or pre-eminence of one over another. This principle, accepted by the canonists as regards relations between States, is rejected instead as regards 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 in the international community a juridical position pre-eminent and superior to that of the other members, such as to rise to a true supernational entity and therefore 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. Art. 2 of the Lateran Treaty, in which the Holy See had Italy recognize not merely a simple personality but a true sovereignty in the field of international law as an attribute inherent in its nature, constitutes the best proof of this claim of its.
Undoubtedly de iure such a claim finds no acceptance at all in the present international legal order, which is informed by the basic principle of the autonomous and equal position of its individual members; but this does not exclude that de facto it still has a certain positive relevance, in the sense that in the conscience of peoples and governments the Holy See occupies in the international community a true position of pre-eminence and in practice exercises an effective moderating function in the assembly of States, as the natural result of its very high moral authority, of its role as head of Catholicism, of its universal religious mission, of its position above temporal political interests and disputes. It is indeed true that this supernationality of its generally presents a nature and content more moral and political than truly juridical, and that it would be very difficult, if not impossible, to wish to define it and fit it into the field of law, at least on the basis of the present cornerstones of international law; but on the other hand one must not forget that, especially in such a legal order and particularly at the present moment, the line of demarcation between morality, politics and law is anything but certain and defined, and that in any case this undoubted moral and political pre-eminence of its cannot fail to be reflected automatically and necessarily in the juridical field itself and to have an effective positive relevance there as well.