Wednesday

Section 10
Case Study: The Legal Status of the Holy See

- The State: Montevideo Convention 1933

● Westphalia only established the territorial aspect of the state
● The state is a political and legal entity which fulfills four major criteria, three of which
are factual and the fourth is legal
1. Defined territory over which the state exercises sovereignty (administrative or
governmental control)
2. Permanent population
▪ the entirety of all citizens living within a certain territory, separated from
other territories, which are subordinate to the government and have an
established relationship with the state through legal connection-
citizenship
▪ no criteria related to the size
3. Government
▪ the existence of a government capable of exercising independent and
effective authority over the population and the territory.
▪ Independence must be formal (powers to govern a
▪ territory are vested in the separate authorities of the State) and
functional (minimum level of real authority and control)
▪ Legislative branch: concerned with making and enacting laws (house of
representatives ‫)مجلس النواب‬
▪ Executive branch: concerned with implementation of laws and
legislation
▪ Judicial branch: concerned with settlement of disputes
4. Recognition: the decision of states to confer the international legal personality
to a new state
▪ Without which, the state will not have the ability to conclude
international treaties
▪ According to the “Constitutive theory”, an entity may only become a
State by virtue of recognition. Once the three previously mentioned
factual (classic) criteria of a territory, a population and a government are
met, this “factuality” must then be confirmed by the existing States, only
then - after being “constituted”- may it enjoy rights inherent in States
under international law
▪ Explicit recognition: When a state declares publicly the existence of a
new political entity, the new state, and its desire to deal with the new
state as an international subject
▪ Implicit recognition: when a state starts establishing relationships with
the new state without public declaration. This could take different forms,
diplomatic exchanges and conclusion of international treaties
 ● According to the “Declaratory theory”, recognition of a state is
nothing more than expressing the willingness to enter into
relations with that State.
- Case Study: The Legal Status of Vatican The Holy See in International Law
● Geographic (Vatican City, Italy) population (800 residents, 400 citizens), size (0.44 Km)
● Does it fulfill the four criteria set by the Montevideo Convention?
1. Territory
▪ It is, by definition, a non-territorial religious entity
▪ The state of the Vatican City remained under the “sovereignty of the
Supreme Pontiff – the Pope”
2. Permanent Population
▪ Because the Holy See is the supreme organ of government for Catholics
worldwide, it cannot be said to have a permanent population
▪ 800 residents, 400 citizens, primarily constituted of Church officials who
are there on a non-permanent basis
3. Government
▪ Unlike any other modern nation, the Vatican City does not exist to
support its citizen
▪ It is to provide a base for the central administration of the Roman
Catholic Church
▪ Italy carries out a number of official functions by supplying police force,
punishment of crimes, maintaining the waterways and railways…etc.
4. Recognition/Capacity to enter into relations
▪ Implicit recognition: membership in international organizations +
diplomatic relations
▪ The Holy See maintained diplomatic relations with fifty-three countries
▪ Maintained delegates at agencies such as the International Atomic
Energy Agency and the Council for Cultural Cooperation of the Council of
Europe
▪ Observer in the UN – The Papal delegation in the UN is known as the Holy
see
● Regarded as a “non-member state” permanent observer
● Because the UN treats the Holy See as a state, the Roman Catholic
Church is able to participate fully and to vote in most conferences

▪ The Holy See is party to international treaties, and it, rather than the
Vatican City, receives foreign envoys.
▪ Yet, at the same time, the Vatican City is a party to some international
and bilateral agreements but it does not have direct diplomatic relations
with other states