THE ORDER OF MALTA, SOVEREIGNTY, AND INTERNATIONAL LAW[1]
© Guy Stair Sainty
The name Sovereign Military Order of Saint John of Jerusalem, of Rhodes and Malta was incorporated into the Order's 1936 Constitution; the word "Hospitaller" was adopted in the 19th century and added to the present Code. The word "Sovereign" was first assumed after the loss of Malta in 1800 to reflect its autonomous extra-territorial Sovereignty; the words "Military" and "of Malta" do not reflect the present-day character of the Order but its historical and chivalric traditions. Several National Associations, however, maintain Ambulance Brigades organized on military lines and the Order has a special relationship with the Italian Army.
Historically the Order was founded as a Religious Military Order of the Roman Catholic Church. Its independent constitution gave it certain privileges that effectively exempted it from interference by the States in which it owned benefices or commanderies. By 1312 it had obtained territorial possession of the Island of Rhodes, enjoying absolute Sovereignty over this island. The S.M.H.O.M. has enjoyed the right of conducting its own relations with other States since its occupation of the Island of Rhodes. It ruled this Island and its dependencies as an aristocratic Republic, comparable to Venice and Genoa, with only the members of the Order enjoying any political rights that were denied the ordinary population. Already possessing a population, a territory, and jurisdictional authority, by the time Pope Nicholas V acknowledged the Grand Master as "Sovereign prince" in 1446, the Order had become an independent State and subject to the rules of International Law as then understood (largely applicable to maritime matters). By virtue of its possession of an Army and a Navy it was able to enforce its territorial independence, until 1523 when it lost it to the powerful forces of the Turkish Sultan. Nonetheless, even after that date (and before its acquisition of Malta and Gozo) it still maintained its military might, and its many commanderies and properties enjoyed freedom from local legal jurisdiction. The loss of Rhodes did not affect its juridical status, or the treatment it received from other Sovereigns or States.
The Islands of Malta and Gozo before 1530 were part of the Kingdom of Sicily; they enjoyed no freedom of self-government and none of the characteristics of statehood. The grant of the Islands to the Order, as a vassal of the King of Sicily (requiring an annual tribute of a falcon), did not confer Sovereignty on the Islands themselves, but gave the Order Sovereignty over them.[2] The lack of political rights on the part of the population of the Islands demonstrates that the Order’s Sovereign status was independent of either the territory or people of Malta and Gozo. It was by virtue of that independent, Sovereign status that other States treated the Order as an equal, not because of its possession of territory. The Knights themselves composed the Order, even though they were also subjects of other States, and were able to maintain the Order’s independence by force of arms.
Although the King of Sicily was Malta and Gozo’s feudal overlord, the Order’s status as the islands' ruler was essentially no different to that of those sovereigns of vassal States in Italy who owed fealty to the Emperor or Pope for their possession. These included Parma, Tuscany, Piombino, Modena, Ferrara, Guastalla, Mantua, etc, each of which were treated by the Powers as Sovereign States before 1797. The Italian States of the Empire were not entitled to representation in the Imperial Diet, unlike the German vassal States, but enjoyed far greater autonomy. The Order’s situation was arguably superior to that of the Sovereigns of the immediate German vassal States, whose authority over the peoples of their territories was more limited than the Grand Master’s authority in Malta. Further evidence that it was the Order that was inherently Sovereign, rather than Sovereignty reposing in the islands it governed, rests with Louis XIV’s cession in 1653 of sovereignty over the West Indian islands of St Christophe, St Bartholomé, St Martin and Ste Croix to the Order, and not to the Islands of Malta and Gozo. After 1798, when the Order lost possession of Malta and Gozo they once again reverted to their status as colonial possessions of the occupying power, until eventually achieving independence in 1964.
In 1798 the Order lost both its territorial Sovereignty and governance of a population following the French invasion. The surrender agreement with the French commander, Bonaparte, was not signed by the Grand Master himself, however, but by his appointed representatives. It is questionable whether this action was legal under the constitution of the Order or the conditions attached to the concession of the Island by Charles V in 1530. The King of the Two Sicilies, as feudal overlord, strongly protested the surrender and refused to consider it legally binding. First France and then Great Britain acquired de facto Sovereignty over Malta, without the assent of the King of Sicily. Later both France and Great Britain, as signatories to the Treaty of Amiens of 1802, recognized the Order’s claim to territorial Sovereignty. Furthermore Great Britain undertook to return the Islands of Malta and Gozo to the rule of the Knights.[3] The Treaty provided that the Order should continue to be treated as a neutral Power (article 7), and furthermore imposed certain restrictions on the recruitment of members from France and Great Britain.
The negotiations that followed the end of the Napoleonic Wars at the Congress of Vienna 1815-19 did not deal with the status of the Order. Great Britain’s possession and Sovereignty over Malta was acknowledged by agreement among the major European States, including the Two Sicilies, and the Order’s claims ignored. The Order also had owned extensive extra-territorial properties across Europe; while it lost much of these in the years immediately following the French revolution, it continued to enjoy possession of those situated in Austria, Bohemia, and much of Italy. While the status of those situated in Austria and Bohemia changed following the events of 1938-1945, it remains one of the largest landowners in Italy and its properties are exempted from certain Italian fiscal jurisdiction. The Order’s palaces in Rome, on the Aventine Hill and in the Via Condotti, enjoy extra-territorial status, along with certain other properties in Italy. Furthermore, the Order’s palaces in Vienna and Prague have been restored to their former extra-territorial status.
The active and passive right to establish and exchange diplomatic relations is a prerogative enjoyed only by Sovereign States. The principal relevant international conventions refer solely to States. [3a] In more recent times, however, such privileges have also been exercised by bodies such as the European Union which has not only accorded diplomatic privileges to the representatives of member States, but has established diplomatic delegations to non-member States. The essential difference between the protocols established by international organizations is that they are not governed by International Law, as are those between States, but by the specific legislation pertaining to those organizations, and agreements between the organization and the State (as with the European Union and non-member States).
The Order’s diplomatic representatives were consistently treated as the Representatives of a Sovereign State, before and after the loss of Rhodes in 1523, and before and after the loss of Malta in 1798. Thus it is clear that the ability of the Order to treat equally with other States was unaffected by its autonomous governance of a territory. When in 1653 the Ambassador of the Emperor presented his credentials at the court of the King of Spain at the Escorial, the Envoy of the Grand Duke of Tuscany disputed the precedence of the Order’s Ambassador. The dispute was settled in the Order’s favor, it being provided that in future the Order’s Envoys would take precedence after those of Kings, but before those of lesser Sovereigns.[4] In 1747 the Order had Ambassadors or Envoys Plenipotentiary accredited to Rome, Vienna, Paris, and Madrid, and each were accorded precedence according to the 1653 settlement. By the end of the century the Order exchanged Ambassadors or Ministers with the Holy Roman Emperor, the Kings of France, Spain, Portugal, Prussia, and Sardinia, and the Emperor of Russia, the Republic of Venice, the United Provinces of the Netherlands, and the Elector of Bavaria.
Hompesch, Grand Master when the Order lost Malta in 1798, was treated as a Sovereign by Austria when in exile, and his eventual successor as Grand Master, Tommasi, was likewise treated as a Sovereign by several of the Powers. The following States treated with the representatives of the Order as the representatives of a Sovereign State after 1798, despite the Order’s lack of any territorial Sovereignty. France (the Order was represented as Envoy Extraordinary and Plenipotentiary by the Bailiff de Ferretta from 1803-1808, when it was considered to have lapsed although the Order's Legation was included in the Imperial Almanachs of 1808, 1809 and 1810, and again from 1815 until 1831 when Ferretta was accredited to Louis XVIII in a somewhat uncertain position); Austria (a Legation was continuously maintained in Vienna, although briefly interrupted during the period following the fall of the Monarchy in 1918 and 1921, and 1938-1957 when Austrian independence was re-established); Russia from 1803-1810; the Two Sicilies and Bavaria intermittently; and Great Britain in its dealings with the Order's representatives between 1798 and 1803. The Order also sent a delegation to the Congress of Vienna in 1814, and on 1 August 1815 Commander Miarai was appointed Minister Plenipotentiary to the European sovereigns participating, and was himself included in the preliminary conference.
Aside from the period of the French occupation of Rome, the Order's Legation in Rome continued to function until 1834, when the Order established its headquarters there and it was no longer necessary. Following the Lateran Treaty, the Order's Legation was re-established in 1930. After 1815 diplomatic relations were initiated with the Duchy of Modena and Reggio (in 1844), and the Duchy of Parma and Piacenza (in 1845), and also San Marino, with none of which it had enjoyed relations before 1798. In 1823 the S.M.H.O.M. signed an agreement with the newly established Greek government, then fighting for independence from the Order's old enemy, Turkey. Relations with the Kingdom of Italy were agreed by treaties dated 20 Feb 1884, 23 Dec 1915, and 4 Jan 1938 (in which the words "due Stati" were used to define the two parties). Relations with the Italian republic were agreed in 1956.[5]
The Crown of Sweden treated the representatives of the Order as those of a Sovereign State when it proffered possession of the Island of Gottland in 1806 as Sovereign territory, an offer that the Order declined. During the course of the 19th century various proposals were made to enable the Order to recover territorial Sovereignty, but none came to fruition. A treaty is pending with the Republic of Malta (which had enjoyed full reciprocal diplomatic relations with the Order since 1964), under the terms of which the Castle of San Angelo, previously held on a lease as extra-territorial property, would be acquired by the Order as Sovereign territory.[6]
In determining the status of the Order in International Law today, it is necessary to examine the historic development of concepts of Sovereignty in International Law. In doing so it is evident that the practical recognition of what Sovereignty and statehood mean has been continually developing. In determining whether or not a State is considered to be Sovereign, the world community has historically determined such status by practical means, rather than relying exclusively on historic theoretical interpretations. It has recognized the existence or otherwise of such Sovereignty and statehood in international agreements and treaties, and in the decisions of competent courts. Such determinations have frequently advanced legal definitions and have been criticized by International Law specialists for so doing. Nonetheless, International Law is the creation of Sovereign and non-Sovereign subjects of International Law, and not of legal theorists. In determining what is the actual interpretation of Sovereignty, it is necessary to examine past legal precedents and their present application, rather than rely on restrictive theories that impose a narrower interpretation. In establishing these precedents and the current State of International Law in relation to Sovereignty and Statehood, it is worthwhile tracing its development and examining the commentaries of eminent authorities on the subject.
EARLY DEFINITIONS OF SOVEREIGNTY
"That Nation is free which is not subject to any government of any other Nation." [7] The word Sovereignty did not exist in ancient Greece or Rome, but was understood to be the equivalent of "liber" and libertatis", which together combined to encompass Proculus’s doctrine. Hugo Grotius, in De Jure Belli ac Pacis, supported this concept.[8] Jean Bodin,[9] however, argued that "Sovereignty" was subject to the limitations of Divine Law and Natural Law, and by those obligations contracted on the basis of Sovereign Will to other Sovereigns or individuals.
This may be further defined in two ways: (1) Sovereignty is the essence of a State, and conditions its creation and existence; (2) Sovereign is he who has supreme power over a territory and its inhabitants, unrestrained by any law or rule made by any other power on earth. This supreme power is limited by (a) the Laws of God, and (b) obligations to other States or individuals.[10] A further classic definition of Sovereignty is expressed as the State exercising sole authority on its territory; having monopoly of legislation; monopoly of constraint on its nationals; and monopoly of jurisdiction. These latter definitions, however, suggest that States necessarily possess territory and populations, despite the fact that International Law has conceded the qualities of Sovereignty and statehood to entities that possess neither. A more recent writer has stated that "while the emergence of the State as a form of rule is a necessary condition of the concept of Sovereignty it is not a sufficient condition of it."[11]
P. Isoart has defined three essential characteristics for the birth of a State: (a) population, (b) territory, (c) juridical, without acknowledging the broader interpretations recognized in International law. [12] Again, by limiting statehood to entities that enjoy all of these three aspects of Sovereignty, Isoart ignores the practical interpretation of International Law in determining the qualities of a State.
SOVEREIGNTY AND THE HOLY SEE
The lack of any Sovereign territory is not an impediment to full recognition. Under the 1871 Law of Guarantees the Italian State unilaterally declared the Holy See[13] to be "a subject of international law" and the Vatican as Italian territory. From 1870 until the Lateran treaty of 1929, the Holy See was without territory under Italian law, occupying the Vatican Palaces de facto but without Sovereign authority.[14] The Kingdom of Italy considered the Vatican to be part of Italy, and this position was unchallenged by many of the Powers. Nonetheless, a number of Sovereign States, including Austria-Hungary, Prussia, Bavaria, Belgium, Bolivia, Brazil, France, Ecuador, Nicaragua, Guatemala, Monaco, Peru, Portugal, and San Salvador (and later Chile, Spain, Argentina. Colombia, Costa Rica, Dominican Republic, Haiti, Russia and Uruguay) recognized the Holy See as Sovereign, albeit with no territorial Imperium, exchanging reciprocal relations. In the period between 1870 and the signing of the Lateran Treaty, the Holy See signed thirteen Concordats, being treated by each contracting State as a Sovereign State in International Law. Great Britain had accredited ministerial representatives to the Pope until 1874, and the United States ministerial representatives until 1867 and consular until 1872, after the loss of territorial Sovereignty.
The Lateran treaty established the basis for exchanging reciprocal diplomatic relations between Italy and the Holy See. It also established the existence of the "City of the Vatican" as the "Sovereign Territory" of the Holy See. The treaty made special provision for those customarily resident in the Vatican, acknowledging that even while they retained other citizenship, they were subject to the Sovereign authority of the Holy See while on the territory of the Vatican City. The Treaty was intended to solve the "Roman Question", whose existence the Holy See did not acknowledge until the signature of the Treaty on 11 February 1929. This apparent change in the status of the Holy See did not lead to any "upgrading" of relations with those States that were already accredited to the Supreme Pontiff. Thus, the status of the Holy See as a Sovereign Power was apparently unaffected by its loss of territory and population in 1870, and by its subsequent acquisition of both in 1929. Great Britain and the United States subsequently accredited diplomatic representatives at a Ministerial rather than Ambassadorial level, accepting Apostolic delegates whose responsibilities were limited solely to ecclesiastical, and not State matters. Full reciprocal relations were delayed until the 1980s, when (Pro-) Nuncios were accredited from the Holy See and Ambassadors sent to the Vatican. The decision to institute full reciprocal relations, after some internal political controversy, may be attributed more to a wish to improve relations with the Head of the Catholic Church than any perception of a change in status of the Holy See.
That the Holy See does not exchange diplomatic relations on the basis of its possession of the Vatican City State, but by virtue of its historic status, was argued successfully by the US State Department when the decision of the United States to exchange full diplomatic relations was challenged.[15] The establishment of the "City of the Vatican" in the Lateran Treaty did not create a new Sovereign subject of International Law, since the new territory was subordinated to the Sovereignty of the Holy See, which already existed as a Sovereign State before the signing of the Treaty. The Holy See is a member of the international postal union, unlike the S.M.O.M. (which nonetheless has signed many international postal agreements) and both use Italian currency. Thus the same principles that are applied in recognizing the Sovereignty of the Holy See may be applied to the S.M.H.O.M., whether or not the latter actually possesses "Sovereign territory".
"Sovereignty implies independence of the State of the Will of any other Power and the sole right of Sovereign decisions in all matters concerning the State."[16] "Sovereignty means independence and independence means Sovereignty…."[17] "Sovereignty, meaning supreme power, may only exist with independent States inside but not outside the State, and therefore may not be "external" (which is the definition of "independence").[18] But Sovereignty is "not a basic element of the State … rather an autonomy of the State" and the needs of the international community are today placed above those of individual States.[19] "Sovereignty in International Law is defined as the Supreme Power of the State over its territory and inhabitants, and independent of any external authority. As such it constitutes a criterion of the State as a subject of International Law".[20]
These forthright definitions, each found in the work of a recent scholar,[21] are nonetheless limited by the decisions of bodies competent to determine such matters. They are also incompatible with the recognition of the attributions of Sovereignty recognized by States in their dealings with the Holy See from 1870-1929, and in subsequent agreements between the Holy See and other States when establishing diplomatic relations. Decisions by the International Court of Justice and its predecessor, and by other competent bodies, allow for a more extensive definition of Sovereignty and statehood, one which may be expressly limited in some way, or which may not enjoy the more visible aspects of statehood: territory and population. "The concept of absolute Sovereignty is condemned and definitively rejected as inconsistent with the existence of International Law as a legal discipline".[22]
DEFINITIONS OF SOVEREIGNTY IN THE MODERN ERA
The narrow historic definitions of Sovereignty given above, if applied to many of the States, both large and small, which compose the membership of the United Nations, would surely lead to the conclusion that many had to some degree forfeited the qualities necessary for true Sovereignty. "If the concept of Sovereignty is only a restatement of the permanent problem of deciding the basis of government and obligations within a political community, it is also nothing more – but is nothing less – than the restatement of that problem which is made where the political community and its governance judged to be necessary to each other and sufficient unto themselves…". [23]
This presents us with a basis for determining a broader definition of what comprises Sovereignty, and what may limit it without the status of Sovereignty being forfeited altogether. The most common limitation of the exercise of Sovereignty is imposed by world economic interdependence. "Economic independence is irrelevant to the legal issue of Sovereignty, since economic interdependence is an overriding fact."[24] The S.M.H.O.M. is not a trading nation, but is self-supporting, enjoying considerable revenues from its estates in Italy (where it is the largest individual landowner), and has further revenues in freely given contributions from its members, which it employs in its worldwide charitable mission. Thus it is not subject to the restrictions of the exercise of Sovereignty imposed by the various international agreements on trade.
Legal dependence in International law may of itself limit Sovereignty, but not destroy it, as is demonstrated by the dependency of certain States within the European Union on financial subsidies from the other member States through the medium of the Brussels commission. If a treaty stipulates that a State is economically and politically dependent on another State, however, a legal dependence is established, which could quantitatively diminish Sovereignty to such a degree that independence was directly threatened. There is no such thing, according to Kozowicz, as a "limitation of Sovereignty", only a "limitation of the exercise of Sovereignty… Sovereignty may be limited in a quantitative sense, but not a qualitative one".[25] The State remains independent as long as it has not abandoned its independence to any other State; a body "which is subjected to International Law through the intermediary of a foreign State is not a Sovereign State under International Law".[26] The S.M.H.O.M. is a direct subject of International Law, and has neither abandoned its independence to another State, nor is it subject to the intermediary of any State, nor dependent economically on another State.
Sovereignty can be limited by practical necessity and by treaty. The National or Municipal (internal) law of States can be limited by International law, e.g. Diplomats (the representatives of foreign States) enjoy diplomatic immunity, which is freedom of communication, and jurisdictional immunity from internal law. It is also generally considered that treaties which are properly ratified and approved are superior authority to national law (i.e. as provided in Article 55, of the French Constitution, 4 Oct 1958). Diplomats in the service of the S.M.H.O.M. are given the same privileges of freedom of communication and diplomatic immunity as the representatives of other Sovereign States, and it concedes similar privileges to those representatives of foreign States accredited to it. The Order has been party to numerous international agreements and treaties, and in treating with other powers (for example, in negotiating the initiation of diplomatic relations or the status of its Hospitaller entities within those States), is treated as an equal, in accordance with international practice.
"A State which renounces its absolute equality of rights in individual relations faces – depending on the extent of these renunciations – its own annihilation as a State under International Law."[27] International Law,[28] however, has twice provided that the right of a State to so limit its Sovereignty by entering into certain treaty obligations may be prohibited. The Peace of Saint Germain of 10 Sep 1919, Article 88, declared that Austria’s independence would be violated if there was any limitation of its right of decision in all matters economic, political, financial or other as "different aspects of Independence being in practice one and indivisible".[29] This article specifically declared, furthermore, that the independence of that country was inalienable, unless consent to the contrary was obtained from the Council of the League of Nations. On 4 Oct 1922, Austria, Great Britain, France, Italy and Czechoslovakia signed a joined declaration under which Austria pledged not to alienate its independence (breached by the Anschluss in 1938).
The second occasion also concerned Austria. The State Treaty for the Re-Establishment of an Independent, Democratic Austria (Vienna, 15 May 1955, in force 27 July, 1955), between the U.S.S.R., the U.K., the U.S.A., France and Austria, prohibited political or economic union between Austria and Germany and no treaty was permitted between Austria and Germany which could "impair its territorial integrity or political or economic independence." [30] Thus International Law imposed an obligation on Austria (to prevent its union with Germany) which, while designed to prevent the de facto loss of Austrian Sovereignty, at the same time limited its practical exercise of that Sovereignty by prohibiting it from doing something which other States could do with freedom. Nonetheless, Austria was not considered to have forfeited its independence or Sovereign status (which had been temporarily impeded by the Allied occupation from 1945-55), by virtue of being subjected to such a restriction of Sovereignty. Such a limitation is self-evidently at odds with the effects of the various treaties that have brought into existence the European Union, and various other international free trade associations. The S.M.H.O.M. has never been now or in the past subject to any such limitation on its enjoyment of Sovereign rights.
It has been asserted that International Law permits the existence of semi-Sovereign or non-fully Sovereign States.[31] It would be preferable, however, to recognize that historic narrow definitions of "Sovereignty" and "statehood" have been replaced in practice by broader definitions which permit the existence of both concepts, even when seemingly limited to some degree in the exercise of Sovereignty. This problem arose towards the end of the colonial era, when certain States which evidently manifested many of the characteristics of Sovereignty, had nonetheless ceded, to a more powerful State, control over some seemingly essential elements of statehood – such as external relations. "It is obvious that for Sovereignty there must be certain amount of independence, but it is not in the least necessary that for Sovereignty there should be complete independence. It is quite consistent with Sovereignty that the Sovereign may in certain respects be dependent upon another Power; the control, for instance, of foreign affairs, may be completely in the hands of a Protecting Power,[32] and there may be agreements or treaties, which limit the powers of the Sovereign even in internal affairs without entailing a loss of the position of a Sovereign Power".[33]
It is interesting to compare here the positions of those dependencies of the British crown which, however, despite enjoying Sovereignty over their own territory, control of their population, judicial administration, and fiscal independence, are not considered "Sovereign" States. The Channel Islands - Jersey, Guernesey, Alderney and Sark, are each united in a personal union with the British Monarch, and each enjoy their own individual jurisdictions entirely free of the control of the British Parliament.[34] The only attributes of Sovereignty they do not enjoy, however, are the faculty to make international agreements, and to enjoy any right of legation. Hence they are not considered "Sovereign subjects" of International Law.
The case of the German Protectorates of Bohemia and Moravia has also been cited in this regard. These had been parts of the Czech Republic, which had first lost the Sudeten Land[35] to Germany and later a large part of Slovakia to Hungary, before these two provinces, returned to ancient names although not their ancient boundaries, were subsumed by the German Reich. Article 6, of the German Decree of 16 March 1939 provided that these provinces remained subjects of International Law, despite the loss of the right of maintaining relations with other States, and their virtually total subordination to German rule. To admit that these provinces could claim statehood would be mistaken, however. Following the end of the War substantial claims were made against Germany for the conduct of the governments of these so-called Protectorates, and not against the successor State, the re-established independent Czechoslovakia. Nonetheless, even if a State has partially cut off its competence by conferring certain powers either on international organs, or even on a foreign State, and if for all other matters it maintains the competence to act in an autonomous way, "international politics will admit that Sovereignty exists".[36]
Korowicz, has argued that a mere claim to Sovereignty cannot of itself be considered to be evidence of Sovereignty, even if that claim represents the continuation of once existing Sovereignty over the territory in question.[37] The Sultan of Turkey’s claim to Sovereignty over the island of Crete, entirely lost de facto in 1899, was considered by theorists to be the "ghost of a hollow Sovereignty" which could not obscure the realities. That argument is not universally sustainable, however, since the majority of the members of the United Nations have determined that the Republic of (Mainland) China is Sovereign of the Island of Taiwan, although in fact it has no control over the Island's territory, or population, and no internal jurisdiction. Nonetheless, on the basis that Taiwan was historically part of Mainland China, the Republic of China (Taiwan) was expelled from membership of the United Nations. The latter Republic clearly fully exercises those elements of Sovereignty defined above by Isoart and others, but is not considered the equal of other Sovereign States by the world community. The S.M.H.O.M. has never based its prerogative of Sovereignty or statehood on the basis of claimed Sovereignty over the islands of Malta or Gozo, and has made no claim to their recovery since 1819. It has consistently maintained its Sovereign status, however, and this has always been acknowledged by at least one major Sovereign State.
Recognition of Sovereign rights, without actual exercise of Sovereign jurisdiction over territory or population, was a feature of relations between certain States during the Second World War, from 1939-1945. The German invasions of Poland, Latvia, Estonia, Lithuania, Luxembourg, and the Netherlands in 1939, and of Norway, Greece and Yugoslavia in 1940, led to the establishment of governments-in-exile and of puppet regimes in the occupied States. In each of these cases both Great Britain and the United States continued to exchange mutual diplomatic relations with these governments-in-exile, despite the latter’s loss of the exercise of Sovereignty over both territory and populations, and that their claims to Sovereignty were mere "ghosts of a hollow Sovereignty." The United States, nonetheless, maintained diplomatic relations with Germany until 1941, but without recognizing the legitimacy of the occupations of neighboring States, nor their incorporation into the Reich. In continuing recognition of the governments-in-exile, a position followed not only by Great Britain and the United States but by many other States which had accredited representatives to the occupied countries before 1939, their lack of territory, population, and jurisdiction was not considered any impediment to recognition. A number of States have also accorded recognition to the Palestinian Authority as if it was a State, and in some cases this recognition was accorded when the Palestinian Liberation Organization was an exile group claiming legal authority over the Palestinian population governed de facto from 1967 by the government of Israel.
The UN is founded on the principle of "equal Sovereignty of all its members" (art 2, para 1, of UN Charter). Hence, there must be a presumption that all States that have been admitted to full membership of the United Nations General Assembly enjoy the attributes of Statehood and Sovereignty in equal measure. A Sovereign State has "the fundamental right to demand that other States treat it on a perpetually equal footing."[38] This must be so even if it may appear that their Sovereignty is limited in a way which classic definitions of Sovereignty would consider sufficient to impeach their claims to Sovereignty or independent status. The initial draft of the Charter defined the basis of membership as "Sovereign equality." This was in turn defined in the US State Department Report on the Charter, 1944, as "(1) all States are juridically equal; (2) each State enjoys the rights inherent in full Sovereignty; (3) the personality of the State is respected as well as its territorial integrity and political independence; and (4) that each State should under International Law comply faithfully with its international duties and obligations".
In defining Sovereignty, and statehood, it is necessary therefore to determine "how far the limitations of Sovereignty of a State may go without the abolition of its character as a State under International Law."[39] States can voluntarily surrender their Sovereignty, for example, by joining a Federation, but recent precedent suggests that such an act does not automatically forfeit Statehood. Article 13 of the Constitution of the Soviet Union of 1936, as amended in 1944 and 1947, provided that the Soviet Union was a Federal State. Nonetheless, by Article 18 (a), of 1 Feb 1944, "each Union Republic has the right to enter into direct relations with foreign States, and to contract agreements, and exchange diplomatic and consular representation with them." By virtue of this latter article, Beyelorussia and the Ukraine, before the breakup of the Soviet Union, were both admitted to full membership of the United Nations. Despite the fact that in no other regard did these States enjoy the elements considered historically necessary to comprise Sovereignty, they were admitted as Sovereign States purely on the basis of the right of legation and to commit to international agreements as independent subjects of International Law. That this was accepted by the other member States in practice as a matter of political expediency,[40] to insure Soviet co-operation, does not negate the fact that the other members of the United Nations, in accordance with the Charter, treated these two States as equals. Another example of a federated State enjoying the prerogatives of Sovereignty, including the right of legation, was the Kingdom of Bavaria between 1870 and 1918, which was part of the German Empire but maintained, and accredited, an international diplomatic corps. The S.M.H.O.M. certainly enjoys greater factual independence than either Beyelorussia or Ukraine before the breakup of the Soviet Union.
A further example may be found in a case concerning France and its Protectorate, Morocco.[41] The General Act of Algeciras of 7 April 1907 governed relations between France and Morocco. This guaranteed three essential principles: "the Sovereignty and the Independence of His Majesty the Sultan, the Integrity of his Domains, and economic liberty without inequality". Morocco had surrendered to France the right to institute administrative, juridical, educational, economic, financial and military reforms. France could occupy the country militarily without permission, approve or not approve any decree of the Sultan, and the Sultan could not conclude any international agreement or treaty without the consent of the French government, nor contract any public or private loans or grants. There was no time limit on these restrictions, nor any possibility of their denunciation by the Sultan. Korowicz argued that Morocco had clearly surrendered the qualities of Sovereignty, and statehood, to France, despite the guarantee of the three principles stated above.[42] Nonetheless, the Treaty of Fez of 1912 was considered an agreement between States, and the Public Court of International Justice stated "it is not disputed by the French Government that Morocco, even under Protectorate, has retained its Personality as a State in International Law….." In finding that Morocco remained a Sovereign State, the Court maintained that it had voluntarily made an arrangement of a contractual character whereby France undertook to exercise certain Sovereign powers in the name and on behalf of the Sultan, in regard to both internal and external affairs, but that these arrangements did not deprive the Sultan nor his country of their sovereign rank or status.
An issue that arose in the post-World War II era, and which finds parallels elsewhere, is the "satellization" of States. This has been interpreted as "the subjection by a State, using its overwhelming power and military pressure, of a weaker State, the organization and separate personality of which are maintained".[43] Korowicz stated that where satellization has led to inequality and subordination, the lesser State might not be considered Sovereign, defining this here as "independence, equality, and co-ordination with other Sovereignties".[44] In order to maintain the nominal independence of satellite States, care was taken (by the U.S.S.R.) to eliminate from its relations with the satellite States anything which could be interpreted as legal dependence, inequality, subordination, and thus lack of Sovereignty, even if this was in fact a fiction (as the events before and after the invasions of Hungary in 1956, and Czechoslovakia in 1968, amply demonstrated). Jurists will make a clear distinction between "factual" and "legal" satellization, as a "Jurist looks to at the legal rules governing the intercourse of States, and if he finds nothing in them which indicate a legal dependency of a State on another’s will and control, he can assume Sovereignty".[45]
The Principality of Monaco is in practical terms a satellite of the Republic of France. When it became clear after World War One that the eventual heir to the Principality was a German national, France stated that unless the succession law was changed, France would absorb Monaco and the latter lose its independence. The Principality consequently changed its law, and the Prince adopted as his heir a French national who would not have been able to succeed under the historic succession laws of Monaco. Although relations between Monaco and France are governed by a series of agreements between States, the terms of these agreements impose various limitations on the Principality's exercise of Sovereignty which would be considered by many jurists to so diminish its Sovereign status as to destroy it altogether. Nonetheless, the essential agreement is the treatment of Monaco as a State, just as Italy in its various agreements with the S.M.H.O.M. likewise treats it as an equal State. These limitations have not impeded Monaco’s election to membership of the United Nations and tis possession of a seat in the General Assembly.
"Subjects of International Law may be defined as legal or physical persons upon whom International Law directly imposes duties and confers rights. Sovereign subjects of International Law are Sovereign States. They may also be called original subjects, Sovereignty being inherent in them, stemming from them, and unconditionally applying to them".[46] Here then we may find a definition that may be applied without qualification to the Sovereign Military Hospitaller Order of Malta. The latter is not limited by Korowicz’s definitions of a "non-Sovereign subject of International Law." Such entities are defined by him as created by and dependent on the will of Sovereign (original) subjects, and may, like the latter, create International Law, but are mere recipients of rights and duties under International Law whose international personality, in its scope and duration, depends on the will of Sovereign subjects or of non-Sovereign law-creating subjects.[47] International persons "may be divided into Sovereign and non-Sovereign …. There is no Sovereignty of a subject of International Law whose international personality may be abolished at any time whenever these Sovereign States which have created it decide that it should be abolished".[48] Clearly the S.M.H.O.M. does not fall into this category, and even when it lost possession of Sovereign territory in 1523, regained it in 1530, lost it in 1798, and and regained it in a fashion in Malta 1998, it was not the possession of such territory which conferred upon the Order its Sovereign status, nor was it conferred by Papal Bull nor concession by any other Sovereign State.
Although Sovereign, the Order does not have (a) have sovereign territory,[49] nor (b) a population, both of which have been usually characterized as essential attributes of Sovereignty. The lack of these attributes has been held by some States to be an obstacle to according the Order full diplomatic recognition. Similarly, since it is not a member of the International Postal Union (unlike the Vatican), its postage stamps are not valid for actual use except to countries with which it has established postal agreements. These limitations, however, are common to the position of the Holy See between 1870 and 1929, and indeed the latter, while possessing a territory (the Vatican City), is not accorded international recognition by virtue of that territory. The Holy See does not have a population in the ordinary sense, nor citizens, even though it accords passports to some of those resident in the Vatican or employed in its service and Italy guarantees the Holy See's control of those persons ordinarily resident on its territory. These Vatican personnel, with the sole exception of the Pope himself, who is not a citizen of any State, are citizens of a variety of States and as such potentially subjects to the laws of other States. In a similar fashion, the members of the Order, including the members of the Sovereign Council, are likewise citizens of other States. They may be entitled to S.M.H.O.M. passports, however, usually accorded to members of the Sovereign Council, to members of the Order’s diplomatic service and, on occasion, to members and non-members of the Order. States with which the Order enjoys reciprocal relations and other States with which it has no relations at all have accepted these passports. The lack of population or territory has not proved to be an impediment to the Order’s recognition by other States as a Sovereign State nor to it treating with other States as an equal.
THE RELATIONSHIP OF THE ORDER OF MALTA WITH THE HOLY SEE
The Order enjoys a special relationship with the Holy See, whose confirmation of its privileges in a Bull of Pope Paschal II of 1113 makes it one of the oldest Religious Orders of the Roman Catholic Church. Since then it has received numerous marks of Papal favor, including the Apostolic Letter Inter illustria of 12 March 1753 which declared the Order to be subject to the sole protection of the Holy See and immune from other jurisdiction. This was further defined in the Bull "Pastoralium nobis" of 1779 which dispensed the Order of all ordinary and extraordinary jurisdiction of the Holy See.[50] It has been argued that the Order may be considered juridically a persona mixta, both an autonomous Sovereign entity in International Law and a religious Order of the Roman Catholic Church dependent in its religious aspect on the Holy See. It is true that it incorporates these dual features, but they are enjoyed in unequal measure and there is some debate as to what their implications are on the status of the Order. The Sovereign status inherent in its legal personality is entirely distinct from its status as a Religious Order, and the latter does not in any way impinge on its autonomy. Neither does the authority enjoyed by the Holy See over the professed members of the Order, in regard to their status as Religious, affect the exercise by the Order of the attributes of Sovereignty. The Constitution of the Order, Title I, Article 3, States that the "intimate connection existing between the two qualities of Religious Order and of Sovereign Order do not limit the autonomy of the Order in the exercise of its Sovereignty and of the prerogatives inherent in it as a subject of International Law in dealings with States." [51]
Before the 1997 reforms to the Constitution and Code the Holy See’s authority over the SMHOM principally extended to (a) to regulation of the religious, (b) to approval of changes in the Statutes, and (c) to confirmation of the election of the Grand Master, or Lieutenants of the Grand Master. Title III, Article 13 (3) of the Constitution stated: "In every case the elected person (as Grand Master) can only exercise his powers after having obtained the approval of the Supreme Pontiff…. "., and in Article 14 of the old Statutes: "After receiving the approval of the Supreme Pontiff the person elected to the dignity of Grand Master must make the following promise before the Cardinal Patron in solemn session of the Complete Council of State…", but this requirement has now been eliminated.[52]. Its authority regarding (a), being concerned with the religious requirements and duties of the professed members, does not affect the Order’s control of its destiny nor its ability to exercise Sovereignty. The second requirement has been eliminated, except in regard to changes in those articles concerned with the religious, and the third requirement (confirmation of the election of the Grand Master) has now been removed altogether. The new Constitution and Code requires only that (Article 13, Para 3): "Before the assumption of the office, the election of the Grand Master is to be communicated by letter to the Holy Father by the Person elected". The Statutes of the Order are the modern equivalent of the ancient Rule confirmed by Pope Paschal II in 1113, but the authority of the Holy See did not affect or impinge upon the validity of the Order’s rule of either Rhodes (from 1310 to 1523) or Malta (from 1530-1798). Nor did it affect the Order’s right of legation, nor limit any other aspect of Sovereignty. Should the Holy See decline to approve future changes in the Statutes, the existing Statutes continue in full vigor.
The Holy See's view of the Order’s status was defined by a declaration of the Commission of (five) Cardinals promulgated on 24 January 1953, which limited the status of the Order to that of an “entity” in International law, while stating that the Order's Sovereignty "consists in the enjoyment of certain prerogatives inherent ...as a subject of international law. The said prerogatives are proper to Sovereignty, in conformity with international law, and have been recognized by a number of States, following the example of the Holy See."[53] Any limitations of powers resulting from its status as a religious Order, however, do not impede in any way the exercise of those attributes of Sovereignty that it enjoys under international law. Therefore the Order’s Sovereign status in international law is neither subject to the Holy See, nor limited thereby, whatever the view of the Commission of Cardinals.
Before the dissolution of the Holy Roman Empire in 1806, the status of the Ecclesiastical States as Electors of the Empire or members of the Imperial Diet was no different to that of the secular States. In fact, the Ecclesiastical Electors ranked in precedence before the lay Electors.[54] Thus, although as Archbishops the three Ecclesiastical Electors were subject to Papal authority, they were immune from this authority in the exercise of their functions as temporal Sovereigns of their Electoral States. Today the Bishop of Urgel is co-Sovereign with the President of France of the Principality of Andorra, but his ecclesiastical rank has no effect on the Sovereignty of Andorra.[55] In the event of the Bishop’s death, resignation or removal from office (by the Holy See), his duties are carried out by the Vicar-General of the Diocese without any diminution of the Sovereignty of Andorra. In a parallel fashion, the consent of the Vatican that was required before 1997 for an elected Grand Master to enjoy full powers, did not affect the Order’s inherent Sovereignty, since the Order’s Sovereignty does not repose in the person of the Grand Master.
The S.M.H.O.M. is not included among other Religious Orders listed in the official annual publication of the Holy See, the Annuario Pontificio. Instead it is listed among those States which have accredited diplomatic missions to the Holy See. The Supreme Pontiff appoints a Cardinal Patron as his Representative to the Order; in its ordinary dealings with the Holy See the Order’s Grand Chancellor in practice treats directly with the Cardinal Secretary of State, like other Sovereign States that have direct diplomatic relations with the Papacy. Article 4, Para 4, of the new Constitution and Code states: “The Order has diplomatic relations to the Holy See, according to the norms of International law;” and Para 6 of the same: “The religious nature of the Order does not prejudice the exercise of sovereign prerogatives pertaining to the Order in so far as it is recognized by States as a subject of international law.” Sovereignty, however, is inherent in the Order itself, and supreme power is not limited by its relationship with the Holy See.[56] The Order was governed by a Lieutenant of the Grand Magistery (defined in the present Code by Title III, Chapters II-III, Articles 164-167) from 1805-1879 when the then Lieutenant was accorded the title of Grand Master by Papal Bull; during this period the Order lost none of its privileges nor prerogatives and continued in its right of legation and to be treated as "Sovereign" by various of the Powers.
During the illness of Grand Master Thun und Hohenstein from 1929-31, his duties were assumed by a Lieutenant of the Grand Master (defined in the present Code under Title III, Chapter IV, Article 168), without any affect on the Order’s recognition. Following the death of Grand Master Chigi in 1951, a Lieutenant of the Grand Magistery served ad interim, until the election of a Lieutenant of the Grand Master in 1955, who governed the Order until 1962.[57] In this period none of the States with which the Order has diplomatic relations withdrew recognition, and permanent reciprocal relations were initiated or renewed with eighteen other Sovereign States. Furthermore, from 1799-1801 the de facto Grand Master was the Czar Paul I of Russia, who never received Papal recognition of his title since he was neither a Roman Catholic, nor celibate. Nonetheless, Czar Paul was able to exercise the functions of Grand Master without restraint, enjoying authority over the majority of members of the Order. Only those actions that conflicted with Canon Law were legally ineffective. Thus it is clear that whether or not the Order is governed by a canonically elected and confirmed Grand Master, its Sovereign status is unaffected.
THE STATUS OF THE ORDER AS A SOVEREIGN ENTITY IN INTERNATIONAL LAW
Although it has been described as a Sovereign State, it has also been characterized as a Sovereign persona, since it does not possess any territorial imperium.[58] It has been proposed that the Order is "a public international organization, non-Governmental in nature, recognized in International Law as having a personality in which inhere a number of rights and privileges, distinctive in character...... The international personality of the Order is firmly established in International Law by its recognition on the part of States, superimposed upon an earlier recognition under the jus gentium of mediaeval Christendom before the emergence of the national, territorial, secular State of the post-Reformation".[59] This definition, however, is surely overly restrictive, as the lack of a territorial imperium has not impeded its treatment as a State in the past, nor that of other Sovereign States (i.e. the Holy See from 1870-1929). The United Nations itself enjoys all the privileges of Sovereignty as a Sovereign subject of International Law, but has neither territory, nor population, as a supra-national body created by agreements between Sovereign States. The European Union has also acquired a similar status, without having territory or population, and has established its own diplomatic corps that enjoys the privileges of immunity and freedom of communication accorded to the Representatives of States. Laws of the European Union are now superior in several regards to the Laws of States that are themselves members of the Union.
The SMHOM issues its own passports, which have been accepted even by States with which it does not exchange full diplomatic relations (including France, Germany, Greece, Cyprus, Jordan and the United States). It also has its own postal service and stamps and has signed numerous postal agreements, having agreements with several States with which it does not exchange diplomatic relations (i.e. Canada).[60] The Order enjoys full, mutual diplomatic relations with more than eighty States and lesser relations with five other States.[61] It has been accorded the status of Observer at the United Nations since 1994, enjoying the same privileges as the Red Cross which include the right to address the Assembly, although not to vote in its proceedings.[62]
The Order also enjoys the right to make "international agreements" which may be characterized as treaties. The strictest definition of "treaty" is an agreement between States, whereas an "international agreement" is made between entities subject to International Law and a State, or other such entities (UNO Commission for International Law, 18 July 1966). Earlier (1962), the same body had included any convention between a State and another entity subject to International Law under the definition "treaty".[63] The Order has concluded many such agreements and conventions, not only in relation to the establishment of diplomatic relations, but also concerning its welfare and Hospitaller activities. It has also concluded several agreements with Italy concerning the residence of the Grand Master in Italy, and the status of the Order in relation to Italian taxation. Agreements between Italy and the Italian Association of Knights concerning the Corpo Militare of the Order (whose functions are the provision of relief services, similar to those of the Italian Red Cross), may be characterized as quasi-international agreements, as they are concluded between a State and the territorial organization of another international entity. [64] Marchese Pezzana, in his study cited below (pp.18-19), stated that those agreements "concluded by the Order with States, constitute juridical instruments pursuant to International Law", for the following reasons: (1) the parties treat on terms of parity; (2) the Order is almost always referred to as "sovereign"; (3) not all the States had previously explicitly recognized the sovereignty of, and established diplomatic relations with the Order; (4) the form of these conventions follows the customary form of international agreements between States; and (5) there is no clause in any of the conventions which excludes the application of International Law.
The Relationship between Italy and the Order are fundamental in determining its international juridical status, since the Order’s Grand Magistery is situated in the heart of the Italian capital. Italy’s recognition of the Order inevitably entails limitations of its own territorial sovereignty. The Order had been excluded (in a subsequent decision of the Italian Council of State) from the provisions of the Royal Decree of 7 July 1866 that suppressed "religious Orders" etc. Since 1921 the Grand Master and Grand Chancellor both enjoyed the same freedoms from customs duties given other Heads of State and of Government. On 28 November 1929 a Royal Decree declared that the duly accredited representation of the Grand Magistery should take precedence immediately following the foreign diplomatic corps. Since the establishment of full diplomatic relations in 1956, the Order's Ambassador ranks among the other diplomats accredited to Italy, according to his date of appointment. The Italian Supreme Court of Cassation has ruled (6 June 1974) that the Order "constitutes a sovereign international entity, equivalent in all respects, even though without territory, to a foreign State, and with which Italy has normal diplomatic relations, so that it is beyond doubt, as this Supreme Court has already pointed out, that it is entitled to the juridical treatment accorded to foreign States and thus also to the jurisdictional exemption within the aforementioned limits and with regard to the activity concerning the performance of its public objectives". On 29 June 1947 the Rome Court of Cassation ruled that the Order should be accorded equal treatment with foreign States regarding the exemption from executive proceedings. The employees of the both the Grand Magistery and the Italian Association of Knights are not included under the provisions of Italian employment law.[65]
The precise state of relation between Italy and the Order is defined in a Note, dated 11 January 1969, and delivered to the Italian Minister for Foreign Affairs by the Order’s Ambassador to Italy. The Italian government, on the same day, notified the Order that the Italian government concurred with the contents of the Note. This outlines seven terms which provide that the Order enjoys (1) the fiscal concessions relating to charitable, welfare, and educational activity conferred under Italian law; (2) the sovereign prerogatives for the Grand Master of a foreign Head of State; (3) diplomatic immunity, with the consequent exemption from taxation and administrative constraints on those of its properties in which it presently exercises the prerogatives of sovereignty; (4) exemption from customs duty for the Grand Master and Grand Chancellor; (5) recognition of the juridical personality of its institutions (Bailiwicks, Commanderies, Foundations, etc), and that the Order’s regulations are the sole instruments governing the deeds of foundation of such institutions and their titulars; (6) application of existing regulations concerning enforceability of instruments of sequestration and distraint and judgment on the property of foreign states; (7) equivalence of the decorations and insignia with those of the Italian State. The statement provided that postal and telegraphic communications of the SMHOM would be dealt with in a future agreement.
The non-existence of full diplomatic relations between the Order and certain States does not imply that those State do not recognize the Order’s sovereign status.[66] Relations between the Order and Germany have existed at a formal level since 1956. The Order sends a Minister Plenipotentiary as "Delegate" and this appointee is accepted officially as such by the Federal German Republic. Since 1956 the German Ambassador to the Holy See has conducted relations with the Order, and on the appointment of a new Ambassador officially informs the Grand Chancellor. Several German heads of State have accepted officially the Collar of the Order Pro Merito Melitense, which is reserved for Heads of State. The present Delegate of the Order in Germany was appointed on 10 March 1993.
Relations with France have followed a more complex path. Until his death in 1831 the Order’s Minister continued to be resident in Paris, and while not given the same treatment as other Ambassadors, he continued to be given diplomatic privileges. On 10 July 1853 an Imperial Decree stated that authorization would no longer be given to accept the Order of Malta, although the Empress Eugènie subsequently accepted membership. An official delegation to France was established following negotiations with the Republic led by the Order’s Plenipotentiary, Count Thierry Michel de Pierredon, on 14 July 1924, and from 28 August of the same year French citizens were once again authorized to wear the Order’s decorations. [67] The present Delegate, Count Géraud Michel de Pierredon, was appointed in 1982.
Representatives are also appointed to Belgium, and Monaco, and a Delegate to Switzerland, who have similar status to the Apostolic Delegations appointed by the Holy See to those States with which it does not have diplomatic relations, but where it is permitted by the host country to have an official representation. Furthermore, the Order has an Official Representative to the European Community Commission in Brussels, Observers to the Council of Europe, the Organization of American States, the International Organizations in Vienna, and the International Institute for the Unification of Private Law, a Representative to the International Institute of Human Rights, Permanent Observers to the United Nations, to the International Organizations in Geneva, to UNESCO, and the FAO.
In conclusion it may be stated that there are historical precedents for asserting that
recognition of Sovereignty is not dependent on a State enjoying possession of supreme
power over a territory, or supreme authority over a population. In the case of the
S.M.H.O.M. its Sovereign status in international law derives from long historical
precedent, its exercise of self-government, its possession of a Chief of State,[68] its independent powers of legation, its issuance of internationally
accepted passports, its equality with other States in the exercise of the power to make
treaties and other international agreements, its historic independent personality in
maritime matters (more recently exercised by its maintenance of a fleet of hospital
aircraft carrying its flag), its independence from other powers and jurisdictions (except
in its religious character), in the recognition by States of the decorations awarded by
the Order, international recognition of its neutral status, its participation in various
international bodies and recognition by an increasing number of independent States.
These are together
grounds for its acceptance into membership of the United Nations as a voting
member of the General Assembly.
______________
FOOTNOTES
1 For studies of the Order's Sovereignty see Count Charles Zeininger de Borja, "Quelques Considerations sur la Souveraineté de l'Ordre de Saint-Jean dit de Malte", in the Rivista Araldica, Year XLIX, 1951, pp.171-176; Charles d’Eszlary, "La Situation Juridique Internationale de l’Ordre Souverian de Malte," in the Annuaire de l’Académie Catholique Hongroise, Rome, 1958; Professor Colonel Gerald I. Draper, "Functional Sovereignty and the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Malta", in the Annales de l'Ordre Souverain Militaire de Malte, 1974, pp.78-86. The latter may be found at http://www.smom.org/sover.htm; Prof. Aldo Pezzana, The Juridical and Historical Foundations of the Sovereignty of the Military Hospitaller Order of St. John of Jerusalem, of Rhodes and of Malta.
2 "De même, au moment de la domination de l’Ordre de Malte, on ne peut considerer que, par suite de la possession du territoire maltais, l’Ordre avait une souveraineté, car il était déja souverain à cette époque. Le territoire maltais sous la domination des chevaliers était seulement une élement de l’Ordre de Malte, comme État". Eszlary, op. cit., p. 134.
3 Great Britain subsequently refused to do so on the grounds that the population elected to remain under British rule, and because France did not adhere to certain terms of the Treaty. Thus the restrictions imposed on the Order concerning the admission of French and British Knights, could not bind it.
3a Annexe XVIII, 19 March 1815, to the final text of the proceedings of the Congress of Vienna of 9 June 1815; the Aix-la-Chapelle protocol of 21 November 1918, and the Vienna convention of 18 April 1961. See Pezzana, op. cit. p. 3.
4 This tradition has since been superseded by the modern convention of according precedence by the date of the letters of credence, the only exception being the Apostolic Nuncio who, in Catholic States, is given the position of doyen automatically.
5 Details to be elaborated.
6 Details of this treaty and its implications to be added.
7 Proculus, Digest, LIX, 157.
8 1625, I. I. C.2., para 21.
9 Les six livres de la République" of 1576.
10 M. S. Korowicz, in Some Present Aspects of Sovereignty in International Law, Leyden, 1961.
11 F. H. Hinsley, Sovereignty, London, 1966, p. 21.
12 For the State to exist he argues that it is necessary that the "comportment de la population sur une territorie soit déterminer ou ordonner par une puissance indiscutée …. La Souveraineté est donc l’expression juridique de cette puissance. Le Souveraineté est alors un pouvoir automne et superérieur, reconnu dans un cadre territorial, determiné à un appareil d’État de donner du direction et des ordres à une population et d’en assurer l’exécution par la contrainte. ..La definition proposée fait apparaitre une première distinction entre les gouvernments qui donnent des ordres et les gouvernés que les exécutent." Le Souveraineté en XXieme siècle, Paris, 1971, p. 14.
13 The Holy See is those persons and bodies which comprise together the governance of the Roman Catholic Church.
14 Indeed, the Law of Guarantees of 13 May 1871, established by the newly united Italy to provide a framework for a solution to the Roman Question, was never accepted by the Holy See. This law, while recognizing the qualities of a Sovereign in the person of the Supreme Pontiff, merely permitted him the occupation of the Apostolic Palaces, rather than recognizing either his proprietorship, or his ownership.
15 The State of Israel had claimed that its agreement to exchange diplomatic relations with the Holy See was, in fact, an exchange with the Vatican City State, and that it did not recognize the Roman Catholic Church. The Holy See does not accept this position. Consequently relations between the Holy See and Israel have now been renegotiated, and as of November 1997, Israel has accorded full recognition to the Roman Catholic Church and to the authority that the Holy See enjoys over its institutions and priests.
16 Korowicz, op. cit., 9-10.
17 Korowicz, op. cit., p. 12.
18 Korowicz, op. cit., p. 15.
19 Korowicz, op. cit., p. 17.
20 Korowicz, op. cit., p. 108.
21 Korowicz, op. cit.
22 Korowicz, op. cit., p. 108.
23 Hinsley, op. cit., p. 26.
24 Korowicz, op. cit., p. 15.
25 Korowicz, op. cit., p. 108.
26 Korowicz, op. cit., p. 108.
27 Korowicz, op. cit., p. 35.
28 International Law means, "international rules accepted by Sovereign States." Korowicz, op. cit. p. 18. It is created by Sovereign States, by Treaties and International agreements.
29 Public Court of International Justice, decision of the advisory committee on the "Customs Regime between Germany and Austria" 5 Sep 1931.
30 Article 4, "Prohibition of Anschluss".
31 L. G. Starke, An Introduction to International Law, London, 1954, p. 86.
32 As was the case until recently of the Principality of Liechtenstein, which had ceded to Switzerland control of its relations with States.
33 Duff Development Co. v. Government of Kelantan, Viscount Finlay, House of Lords 1924.
34 They are outside the European Union, for example, and are therefore not subject to the jurisdiction of Brussels, like the United Kingdom.
35 The former Duchy of Teschen that had opted for union with Germany in 1919 but had been forcibly united with the new Czech Republic.
36 Henri Rolin, Les Principes de Droit International Public, Hague Rec, vol 77, 1950, p. 326, cited in Korowicz, op. cit., p. 89.
37 Korowicz, op. cit., p. 90.
38 Korowicz, op. cit., p. 35.
39 Korowicz, op. cit., p. 86
40 It was considered that the U.S.S.R. needed two extra votes to balance the majority, who were thought to be associated with the "Western" block.
41 The Rights of Nationals of the U.S.A. in Morocco, in France v. U.S.A., 1952, International Court of Justice, Rep, 1952, p. 183, Judgement of 27 Aug, 1952.
42 Op. cit., p. 92-93.
43 Korowicz, op. cit., p. 94.
44 Korowicz, op. cit., p. 95.
45 Korowicz, op. cit., pp. 96-97.
46 Korowicz, op. cit., p. 102.
47 Korowicz, op. cit., p. 102.
48 Korowicz, op. cit., p. 103.
49 Sovereign possession of the Castel San Angelo, on Malta, by draft Treaty with the Republic of Malta.
50 This latter Bull was repealed, in accordance with the revisions of Canon Law, in 1955.
51 Constitution of the Order, approved by the Holy See 24 June 1961.
55 This promise is: "Io N… solennemente prometto e giuro per questo Sagratissimo Legno della Croce e per i Santi Evangeli di Dio, di osservare la Costituzione, il Codice, la Regola e le lodevoli Consuetudini dell’Ordine nostro, e di reggere coscienziosamente i negozii dell’Ordine. Così mi aiuti Iddio, ese contraffarò s’intenda essere in pericolo di perpetua dannazione l’anima mia."
53 The Commission also stated "However, they do not constitute in the Order the full powers and prerogatives which belong to Sovereign bodies in the full sense of the word." The Commission sought to suggest that as a Religious Order of the Roman Catholic Church, and therefore subject to Papal authority in its religious aspects, it does not have full control of every aspect of its existence. In making this definition, the Commission appears to have ignored the history of other States historically ruled by Ecclesiastics.
54 The King of Bohemia sat on the Ecclesiastical bench to insure that, as a King, he would take precedence ahead even of the Ecclesiastical Electors, who enjoyed precedence before the Lay Electors.
55 The "Pareatges" were signed on the 8th of September 1278. This is Andorra's first constitutional document and sets out the economic, judicial and military right of the rulers, or co-Princes. It also stipulates that the Andorrans must pay a tribute called the "Qüestia" to the rulers on alternate years. Ten years later, a new set of "Pareatges" was signed to settle some points that were not clear in the first. Both documents definitively resolved the dissension between the rulers and the declarations of the "Pareatges" are still in vigor today, thus establishing the institutional balance of the Principality of Andorra. By a decree dated 15 January 1981, the co-Princes, at the request of the Andorrans themselves, granted the setting up of the Andorran Government.
56 Article 15, "Poteri del Gran Maestro. 1) In conformità con la presente Carta Costituzionale e con il Codice, il Gran Maestro, assistito dal Sovrano Consiglio provvede all’esercizio della suprema sua autorità, alla rappresentanza attiva e passiva, al conferimento delle cariche e degli uffici e al governo generale dell’Ordine". 2) Spetta in particolare al Gran Maestro, sempre e norma del Codice: a) promulgare le disposizioni del governo supremo dell’Ordine; b) ammettere nell’Ordine, con il voto deliberativo del Sovrano Consiglio, i membri delle tre classi; c) ricevere "motu proprio" nelle classe terza dell’Ordine; d) amministrare con l’assistenza del Sovrano Consiglio i beni del Gran Magistero e Comun Tesoro e vigilare su tutti i beni dell’Ordine; e) portare a conoscenza dell’Ordine, e ad esecuzione quando occorra, i Documenti della Santa Sede che riguardano l’Ordine stesso e informare la medesima Santa Sede sullo stato e le necessità dell’Ordine; f) ratificare gli accordi internazionali."
57 The authority of the Lieutenant of the Grand Magistery is limited under the Code, but that of the Lieutenant of the Grand Master is identical in all regards to that of the Grand Master, except that he personally is not due the privileges of honor due to Sovereignty.
58 See Draper, op. cit., pp. 78-83.
59 Draper. op. cit., p. 85.
60 The Order has postal agreements with forty-six States: Argentina, Austria, Benin, Burkina Faso, Cameroon, Canada, Cape Verde Islands, Central African Republic, Chad, Chile, Comores, Congo, Congo Democratic Republic, Costa Rica, Croatia, Cuba, Czech Republic, Ecuador, El Salvador, Gabon, Guatemala, Guinea, Guinea Bissau, Honduras, Hungary, Ivory Coast, Lebanon, Liberia, Macao, Madagascar, Nicaragua, Niger, Panama, Paraguay, Philippines, Poland, Portugal, San Marino, Sao Tomè & Principe, Senegal, Sierra Leone, Slovenia, Somalia, Togo, Uruguay, and Venezuela.
61 The Order exchanges mutual diplomatic relations with the following States (the last date following each name is the dates since when continual relations have been maintained at Ambassadorial level): Europe: Albania (1994), Austria (1806/1918/1957), Belarus (1996), Bosnia (1997), Bulgaria (1994), Croatia (1992), Czech Republic (1990), Holy See (time immemorial/1930), Hungary (1923/1990), Italy (1935/1956), Latvia (1995), Liechtenstein (1994), Lithuania (1992), Macedonia (1996), Malta (1966), Poland (1990), Portugal (1951), Romania (1992), Russian Federation (1992), San Marino (1969), Slovakia (1990), Slovenia (1992), Spain (1937); Central and South America: Argentine (1949), Bolivia (1962), Brazil (1952), Chile (1956), Colombia (1957), Costa Rica (1958), Cuba (1960), Dominican Republic (1957), El Salvador (1951), Equador (1954), Equatorial Guinea (1996), Guatemala (1959), Guinea (1986), Haiti (1947), Honduras (1959), Nicaragua (1953), Panama (1948), Paraguay (1952), Peru (1954), Saint Vincent and the Grenadines (1997), Uruguay (1965), Venezuela (1970); Africa: Benin (1972), Burkina Faso (1973), Cameroon (1961), Cape Verde (1996), Central African Republic (1981), Chad (1989), Comores (1981), Congo (1992), Congo Democratic Republic (formerly Zaire, 1984), Egypt (1980), Ethiopia (1970), Gabon (1963), Guinea-Bissau (1997), Ivory Coast (1972), Liberia (1959), Madagascar (1990), Mali (1986), Mauritius (1977), Mauritania (1977), Morocco (1986), Mozambique (1997), Niger (1970), Sao Tome and Principe (1997), Senegal (1965), Seychelles (1992), Somalia (1961), Sudan (1993), Togo (1973); Asia: Cambodia (1993), Lebanon (1954), Micronesia (1997), Philippines (1965), and Thailand (1984). It sends officially accredited delegations or representatives to Belgium, France, Germany, Monaco, and Switzerland, as well as accredited delegations to Geneva to the U.N. High Commission for Refugees, the International Committee of the Red Cross, the World Health Organization, and the International Organization for Population Movements, and accredited delegations to the U.N. Organizations in Vienna, the Council of Europe, the European Community Commission, U.N.E.S.C.O., the F.A.O., the International Committee of Medicine and Military Pharmaceuticals, the Organization of the Central American States and the International Institute for the Unification of Private Law.
62 By Resolution of the UN General Assembly, no 48/265, 24 August 1994. "Observer Status for the Sovereign Military Order of Malta in the General Assembly: The General Assembly, Considering the long-standing dedication of the Sovereign Military Order of Malta in providing humanitarian assistance and its special role in international humanitarian relations, Desirous of enhancing cooperation between the United Nations and the Sovereign Military Order of Malta, (1) Decides to invite the Sovereign Military Order of Malta to participate in the sessions and the work of the General Assembly in the capacity of observer; (2) Requests the Secretary-General to take the necessary action to implement the present resolution". (48th session, Agenda item 180, published 30 August 1994). Unlike the Red Cross, the SMHOM was not founded by an International Agreement and the Order existed as a Sovereign Entity, possessing the character of a State, long before the Red Cross was founded.
63 See Pezzana, op.cit., p. 16.
64 See Pezzana, op.cit., p.18
65 See Pezzana, op.cit., pp. 20-22.
66 See Pezzana, op.cit., p.11.
67 On 16 January 1928 the President of the French Republic, Gaston Doumergue, was invested by Count Michel de Pierredon with the decorations of a Bailiff Grand Cross of Honor and Devotion. In 1932 the then Grand Master paid an "official" visit to the President of the Republic, and an exchange of decorations took place, the Grand Master being given the Grand Cross of the Legion of Honor on 27 June 1932, and President Albert LeBrun received that of a Bailiff Grand Cross of Honor and Devotion from the hands of the Grand Master on 14 July following. On 27 April 1948 President Auriol of France was invested in the Salon des Ambassadeurs of the Élysée Palace with the decorations of a Bailiff Grand Cross of Honor and Devotion, by Baron de Barcza, on behalf of the Grand Master. Several subsequent Presidents have also received the dignity of Bailiff Grand cross, or more recently, the Collar Pro Merito Melitense.
68 Whose title and privileges are recognized not only by the seventy-five States with which the Order enjoys reciprocal relations, but also by France, Belgium, and Germany.