The Holy See: the Government of the Catholic Church What Is the Nature of the Holy See’S Obligation Under the United Nations Convention on the Rights of the Child?

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The Holy See: The Government of the Catholic Church What is the Nature of the Holy See’s Obligation under the United Nations Convention on the Rights of the Child?

Tseday Gizaw Hailu King’s College London, uk [email protected]

Abstract

The Holy See ratified the United Nations Convention on the Rights of the Child (crc) in its dual personae as the government of the Catholic Church, and as the government of Vatican City State (vcs). The extent of the Holy See’s obligations under the crc in its former capacity is a current international debate, and the focus of this paper. The Committee on the Rights of the Child in its recent review process concluded that by ratifying the crc, the Holy See committed to its implementation, not only within the territory of vcs, but worldwide on behalf of Catholics “under its authority.” Con- versely, the Holy See restricts its duty to that of the transmission of moral principles recognised in the crc to all people. This paper critically reviews the Committee’s concluding observations on the Holy See’s second periodic report, and ends by presenting possible alternatives to the Committee’s recommendations.

Keywords accountability – Catholic Church – children’s rights – crc – Holy See – moral authority

Introduction

The Holy See is a religious institution possessing a legal personality that en- ables it to enter into treaties equivalent to States. It participates in the United

* Dissertation completed as part of ma in International Child Studies at King’s College London.

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Nations (un), as a Non-State Member Permanent Observer. In recent years, its involvement in the un, and the extent of its obligations as a non-State party to treaties, such as the un Convention on the Rights of the Child (crc), have aroused much debate. The complexities of the Holy See’s character are revealed in its recent interactions with the un Committee on the Rights of the Child (the Committee). On 25 February 2014, the Committee published its concluding observations (Concluding Observations, 2014) on the second periodic report (State Party Report, 2012) of the Holy See, which received strong opposition from the Holy See and from pro-religious freedom activists. The Holy See submitted its formal comments in response to the Committee’s observations on 22 September 2014 (Holy See (b)). It was required to provide updating information on its implementation of the Committee’s recommendations by 17 September 2017. Anticipating renewed interest in the Holy See’s nature, and scrutiny of its implementation efforts upon submission of its next report, this paper critically analyses the Committee’s remarks in four parts. The Holy See ratified the crc in its dual personae, as the government of the Catholic Church, and as the government of Vatican City State (vcs). As such, the Committee in its concluding observations proposed that the Holy See was responsible for the implementation of the crc not only within vcs, but also worldwide through members of the Catholic Church “under its authority”. Conversely, the Holy See considers itself to be legally responsible for the implementation of the crc solely within the territories of vcs, as its government. Additionally, it accedes to a moral duty, in its capacity as the government of the Catholic Church, to disseminate moral principles contained in the crc to the Catholic community and the whole of humanity without being responsible for its implementation (State Party Report, 2012). First, this paper investigates the legitimacy of the Committee’s purported, twofold legal accountability frame- work with regard to the Holy See under international law, and under the Holy See’s structure of governance within the Church. The Committee’s recommendations, which ensue from its new interpretation of the Holy See’s dual obligations, include the introduction of policies, international monitoring mechanisms, and changes to the Church’s law as well as its teachings in direct defiance of the reservations the Holy See had entered at the time it ratified the crc. The Holy See perceives some of the Committee’s recommendations an interference with its freedom of religion. Consequently, the second part of the paper is dedicated to examining the compatibility of the Holy See’s position and teachings with the provisions of the crc. The discussion explores the challenging aspects of the Holy See’s understanding of the crc alongside factors that could facilitate better protection of children’s rights in the context of the family. Part three reviews how the Holy See’s moral

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The Holy See: The Government of the Catholic Church 781 authority is applied in practice. Finally, this paper offers fresh perspectives on how the Holy See, in its capacity as the government of the Catholic Church, may protect children’s rights internationally.

1 The Holy See’s Responsibility for the Implementation of the crc

1.1 Background The 2014 review process of the Committee took place amidst extensive revelations of historical cases of sexual abuse of children by Catholic priests and members of religious orders. The revelations that continue today unfold widespread patterns of sexual exploitation of children in different countries, knowledge of the allegations, and even concealment of the abuse by senior figures within the Catholic Church (Doyle and Rubino, 2004; Jones, 2005; Par- kinson, 2014). The scandal provoked international efforts to hold the Holy See legally accountable for the protection of children from sexual abuse. At the same time, advocates of survivors of childhood abuse pressed on with finan- cial claims against the Holy See for the misconduct of Catholic priests and the religious (Neu, 2010). The Holy See has attracted growing criticisms for seemingly evading legal accountability by relying on its self-professed solely “moral authority” notwithstanding its enjoyment of State-like privileges as a party to treaties. Consequently, the Committee received alternative reports from international non-government organisations, and support groups for adult victims of childhood sexual abuse, proposing steps the Holy See should be required to un- dertake to protect children, given its perceived authority over priests, Bishops and institutions linked to the Church (see, for example, crin, 2014). To this end, the Committee adopted a new interpretation of the Holy See’s obligations under the crc. The Committee accepts the Holy See’s dual nature as the government of vcs and as a sovereign subject of international law possessing an original, non- derived legal personality independent of any territorial control or jurisdiction. The sovereign and legal personality of the Holy See derives from its representa- tion of the Catholic Church, and from its membership of the original international community at the beginning of international law, which was made up of Christian States of Europe and the Holy See itself (Kunz, 1952; Murphy, 1987; Jennings and Watts, 1996). The Holy See existed as an international person from the era of the early Christian Church, prior to its territorial ownership. The Ro- man emperor Constantine’s recognition of the Church as an entity, and the authority exercised by the Pope, as the successor of Saint Peter, resulted in the

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Holy See’s acquisition of land after 395 ad (Duursma, 1994; Araujo, 2001). The Pope consequently became the monarch of one of the States of the time, the Papal States. This led to the existence of two independent personalities under international law: the Holy See and the Papal States (Kunz, 1952; Cardinale, 1976). The Holy See lost its territorial ownership, when Italy annexed the Papal States. Nevertheless, it preserved its sovereign international personality in the absence of any territorial control throughout the early 20th century, since its original personality never stemmed from ownership of land or temporal power (Araujo, 2001; Acquaviva, 2005; Crawford, 2007). Following long periods of dis- sonance between the Holy See and Italy over the former’s deprivation of its Papal States, in 1929 the two sovereigns signed the Lateran Treaty, which ensured the Holy See’s gain of the current territory of vcs, and consequently the creation of vcs (Duursma, 1994; Ajauro, 2001; Bathon, 2001). vcs came into existence specifically to assure the Holy See the territorial freedom, and independence necessary to promote its pastoral mission throughout the world (Cumbo, 1948; Cardinale, 1976). The Holy See’s role as the government of vcs and as that of the Catholic Church, and the Pope’s authority in his dual capacity of leadership of both en- tities, should not be confused. In the former scenario the Holy See recognises and executes its legal obligation as a party to the crc. At the centre of the international debate, and the focus of this paper, is the Holy See’s ambiguous responsibilities, as the government of the Catholic Church, and its insistence on a merely “moral duty” owing to its spiritual mission.

1.2 The Committee’s Interpretation of the Holy See’s Obligations The Committee’s concluding observations are silent on how the Holy See’s purported twofold responsibility for the implementation of the crc is con- structed. Noteworthy is the stark contrast in the Committee’s interpretation of the Holy See’s nature in its first and latest concluding observations. In the former, the Committee was arguably in agreement with the Holy See’s depiction of its purely moral obligations. In 1995, upon consideration of the Holy See’s Periodic Report to the Committee, the Chairperson noted:

…while recognizing that it was for States parties themselves to fulfil their obligations under the Convention, all members of the Committee had agreed that the Holy See could use its influence to encourage States to implement the Committee’s recommendations. The Holy See had already played a valuable role in urging States to ratify the Convention and the

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Committee believed it could also help by encouraging States to ensure that the Convention was translated into national languages and included in school curricula. concluding observations, 1995: 3

Further, there was not a suggestion of a dual function expected of the Holy See with regard to its implementation of the crc. Instead, the Committee, recognising the Holy See’s role as promoter and protector of the rights under the crc, recommended that the Holy See intensify its efforts and corroboration with other States to achieve those ends. The intention was for the Holy See to encourage other States by exercising its moral influence. In contrast, the Com- mittee in its recent concluding observations, adopted a fresh interpretive approach to the crc, and international law, to enforce a duty for implementation that transcends the Holy See’s nature. The Committee’s most recent approach has received criticisms for lacking a legal basis under the crc itself (Cismas, 2014(a)). Article 2 of the crc requires States parties’ observance of the crc within their jurisdiction. Jurisdiction is commonly understood as authority exercised by a State over individuals, property, or proceedings within its territory (Wal- lace, 2002; Malanczuk, 1997). As the governing body of the Church – a non- territorial legal entity – the Holy See neither has a population nor a territory. The Holy See’s nature is not bound by territorial restrictions or the nationali- ties of the members of the Church (Cardinale, 1976; Bathon, 2001). The contention that the Holy See is treated as a State in practice, and consequently equally accountable as other States (Cismas, 2014), disregards the Holy See’s unique nature, and the basis of its long-standing involvement on the international plane. Equally misleading is the notion that the Holy See is permitted to enter into treaties because it “resembles” a State (Cismas, 2014). Treaty-making faculties are not reserved to States only (Crawford, 2007).1 Further, unlike vcs, the Catholic Church is not a State (Cardinale, 1976) and, as such, although the Holy See is also recognised as the Church’s government, it does not have a comparable legal obligation for the implementation of the crc on behalf of Cath- olics. Despite the absence of a generally accepted definition for statehood, in practice, States seek an entity’s fulfilment of the criteria prescribed in the Montevideo Convention on the Rights and Duties of States of 1933 to generate

1 The Holy See possesses a legal personality, as a non-state actor that permits it to participate in international events including signing treaties (Acquaviva, 2005; Duursma, 1994; Cumbo, 1948).

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784 Hailu statehood status (Crawford, 2007).2 The Holy See cannot satisfy the Montevi- deo requirements for statehood (Abdullah, 1996). Yet, such stipulations appear to be considered nonessential with regard to assigning State-like requirements to the Holy See. It is, thus, reasonable to deduce that international procedural rules have been discounted to impose statehood status upon the Holy See, and thereby new responsibilities for the implementation of the crc. Furthermore, the principle of territorial sovereignty, which forbids legal activities by one State on the land of another State, without the consent of the State at risk of intrusion (Malanczuk, 1997), would prevent any transnational efforts for the implementation of the crc by the Holy See dressed as a State. Considering States parties have their own agenda for respecting and ensuring children’s rights, the Holy See would not be at liberty to introduce laws and procedures for the implementation of the crc in other States, even if its intrin- sic nature sanctioned such actions, which it is adduced, it does not. Outside vcs, the Holy See enjoys a qualified independence from national laws to carry out its religious activities and programmes notwithstanding the existence of concordats. Some nations, for example China, have laws that restrict the undertakings of the Church (Cumbo, 1948; Valuer, 1971). A direct application of jurisdiction under Article 2 of the crc, therefore, does not establish a legal obligation on the Holy See (except in its other capacity as the government of vcs). Interestingly, the Committee construed the Holy See to possess a non-territorial jurisdiction, because of the Pope’s authority over religious orders under canon law:

…while fully aware that bishops and major superiors of religious insti- tutes do not act as representatives or delegates of the Roman Pontiff, the Committee notes that subordinates in Catholic religious orders are bound by obedience to the Pope, in accordance with Canons 331 and 590 of the Code of canon Law. concluding observations, 2014: 2

There is a fundamental error in the Committee’s interpretation of the relevant provisions of canon law. According to canon 590, ‘religious communities are subject to the Pope and the individual members are to obey him’. However, the theological understandings of jurisdiction and papal supremacy are incompatible with the crc’s and international law’s definition of jurisdiction. This is

2 For example, the significance of the Montevideo principles is illustrated by the un bodies’ inspection of Palestine’s satisfaction of these conditions, when deliberating on its application for full membership of the un organisation as a State (un(b)).

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The Holy See: The Government of the Catholic Church 785 because the Pope’s authority does not denote control, but service (Coriden, 1991). His divinely assigned mission is that of unity of the churches. Hence, his role is ‘not akin to the power of a monarch, dictator, prime minister, or president’ (Coughlin, 2012). Further, obedience under canon law is not a sub- missive response to authority. Rather, it is an expression of the follower’s belief in the message of the law and reasoned decision for compliance (Coughlin, 2012). Even if religious groups owe obedience to the Pope, the Pope cannot change ‘the Christian tradition, the nature and purposes of the Church, the role of the papal office, the collegial relationship with bishops’ (Coriden, 1991: 66). The Pope indeed has jurisdiction over all the members of the Catholic Church around the world, and he exercises supreme power over all the Church’s members irrespective of their nationality and geographical location. Yet, the Pope’s such jurisdiction is exercised exclusively in matters of faith and moral (Cardi- nale, 1976; Coriden, 1991). Therefore, the Pope does not have the authority to require religious institutions or individual Catholics to carry out activities that are not in accordance with the Church’s end, the Church’s teachings and the Holy See’s duty in the service of the Church. In the absence of an explanation by the Committee as to how the Holy See attracts obligations under the crc that transcend territorial restrictions, Cisma (2014(a)) proposes a theory that extends the application of jurisdiction under Article 2 by reading it in conjunction to Articles 19 and 34 of the crc. Ac- cordingly, she interprets the Committee’s approach to impose extraterritorial obligations on the Holy See for the protection of children from sexual abuse anywhere in the world arising from the Papacy’s perceived authority over Catholic priests and institutions. The idea is that Article 34, which requires States to protect children from all forms of sexual abuse by adopting national, bilateral and multilateral measures, and Article 19’s protection requirement through utilising all appropriate methods, including legislative and educational, together confer on the Holy See an extraterritorial obligation (Cismas, 2014; 2014(a)). The Holy See’s invariable contention is that the Pope’s supremacy over Catholics of any State is only on the spiritual and moral sphere (Holy See (b)). Cisma (2014) challenges the Holy See’s such proposition on the basis that it exercises authority over dioceses, parishes, the clergy, schools and other establishments connected to the Catholic Church. However, as the following discussion demonstrates, the Holy See does not enjoy the perceived degree of control over the different bodies of the Church. The Catholic Church is made up of local churches in different countries around the world organised in administrative districts (dioceses). Each dio- cese is presided over by its respective Bishop, who possesses legislative, ex- ecutive and judicial power to govern the church in his care (Coriden, 1991;

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Neu, 2010). Although papal envoys advise individual Bishops, and facilitate the unity of local churches to the Holy See, they do not interfere in the governance of the local churches (Coriden, 1991; Coughlin, 2012). At the local level, Bishops possess the same authority and duty of leadership as the Pope. They are in charge of developing policies and managing activities connected to the churches in their dioceses. The Pope rarely interferes in the Bishops’ administration of their churches not only because of doctrinal norms, but also because it is practically impossible for him to micromanage all the administrative undertakings of the different churches worldwide (Coughlin, 2012). Crucially, where questions of faith, moral and discipline of the Church are not raised, the Pope lacks the mandate to interfere in temporal actions (Cardinale, 1976). With regard to churches that possess their own discipline and doctrine (East- ern churches), the issue of these churches’ independence from the Holy See is more pronounced (Coughlin, 2012). The Holy See’s primary role then is the preservation of the unity of the different churches and attainment of the East- ern Churches’ adherence to the universal truth (Coriden, 1991; Vatican (a)). The Holy See, therefore, cannot legally require Bishops, religious communities and other Catholics to observe the crc, or promulgate laws elevating the crc above canon law. Further arguments to sustain the claim that the Holy See exercises legal authority over members of the Church were also presented in the alternative reports that the Committee received during its review process. One such argument is that the Holy See makes laws for Catholics, which are presumed to create parallel legal systems for Catholics transnationally. The purported im- plication of Church laws is that they obstruct legal provisions of the respective countries for the protection of children from abuse, through requiring concealment or omission to report allegations of sexual abuse within the Church to civil authorities (nss, 2014). Canon law cannot be viewed as an alternative penal system for Catholics. A canonical system is not designed to punish criminals and serve justice to society.3 Canon law has spiritual characteristics to which faithful Catholics ascribe by free choice, and the sanctions imposed for disobedience are of therapeutic or spiritual nature (Neu, 2010; State Party Report, 2012). The Holy See recognises sexual abuse of children within the Church as a criminal offence liable to prosecution by the relevant civil authorities of the respective States (Holy See, 2014). The Holy See’s position is that

3 The penalties are not punishments as thought of in the temporal sense. Due to this grave misunderstanding, there has been a criticism by groups supporting adult victims of clerical sexual abuse that the Church ‘imposes ludicrously feeble penalties on offending priests’ (sv, 2014: 2).

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The Holy See: The Government of the Catholic Church 787 the Church’s teaching actually promotes compliance with civil laws, and that although canon law proceedings are conducted in private, there is no prohibition against reporting allegations of abuse to civil authorities (State Party Report, 2012). Other arguments in favour of legal accountability include the Holy See’s au- thorisation of the relocation of sexual abuser clergy, thereby exposing further children to abuse (sv, 2014), and Church officials’ failure to involve civil authorities, and their alleged cover ups of abuse (iheu, 2013). Whilst these exam- ples illustrate serious deficiencies in the Church’s internal administration that necessitate the introduction of strict child protection procedures to prevent further incidences of child sexual abuse, they do not generate a legal responsibility for the implementation of the crc by the Holy See outside of vcs, nor do they alter the Church’s purpose and make up, or the Holy See’s relationship with it. In relation to the historic defective internal processes for dealing with child sexual abuse, the Church has made changes to Church policies that deal with allegations of sexual abuse (Jones, 2005; Robertson, 2005; Parkinson, 2014). The Holy See has issued guidelines to be adopted by local churches to instigate and monitor appropriate child protection measures in collaboration with local authorities of each State (Holy See, 2014). It has also introduced a Commission for the Protection of Minors to formulate policies for the protection of children, which is intended to receive complaints directly from children (un(h)). A clear understanding of the Holy See’s nature is essential to appreciate why attempts to redefine its essence and objects are problematic and resisted, not least because these elements are believed to be divinely assigned.

1.3 The Holy See’s Inviolable Nature and Authority within the Church Unlike other parties to the crc, the Holy See’s purpose has a supernatural ac- cent. The objective of the Holy See’s interaction with world nations emanates from Christ’s instruction to his apostles to teach God’s commandments to the whole world; his institution of the Church; and papacy with Simon Peter as his successor, and leader of the apostles (Murphy, 1987; Araujo, 2001). Its purpose is the formulation and dissemination of moral guidance consistent with the Christian faith to everyone – Catholics and non-Catholics alike – so that society might be organised in harmony with God’s laws and principles of faith (Cardinale, 1976; Coriden, 1991). The Holy See intervenes in all human concerns, such as peace, environmental issues and sustainable development, motivated by the Church’s role as promotor of the good of all of God’s children. The Holy See regards itself as a representative of all those who seek ‘world peace, humanity, justice, the poor, the disinherited, the suffering; those who long for the dignity of life, freedom, for well-being and progress’ (Pope John

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Paul vi, 1965). Consequently, it likens its mission to that of the un rather than to ordinary States, owing to its commitment to all of humanity (Pope John Paul vi, 1965). There is external support for this view. As one writer posits, the nature of the Holy See’s existence is akin to that of the un or the International Committee of the Red Cross, if either was granted a territory, which was subse- quently recognised as a State like the Vatican City (Crawford, 2007). The Holy See has also been described as an international organisation with a primary objective of influencing international policies, and a focus on global economic and social concerns (Abdullah, 1996). The Holy See’s insistence on a merely moral obligations under the crc is, thus, explained by the spiritual and moral nature of its proper object. Whilst international law is still developing (Wallace, 2002), and the Com- mittee is known to wield extensive powers of interpretation of the crc (Fortin, 2009), the Holy See, as the governing body of the Church, cannot be alien- ated from the spiritual and moral goals for which the Church was founded. The Church employs spiritual means to guide all people to achieve their ultimate end, namely ‘eternal salvation’ (oneness with God) (Cardinal, 1976: 23). As such, the Holy See does not possess the inherent authority to impose upon members of the Church internal laws and codes of behaviour that are not designed for the betterment of the spiritual and moral lives of the people. The Church interests itself solely in the spiritual and moral behaviours of its members (Coriden, 1991), and outside this sphere, individual members of the Church, including religious communities and priests, remain subject to the laws of their respective countries (Cumbo, 1948; Cardinal, 1976). Furthermore, the pro-legal accountability discourse neglects the fact that such a legal responsibility could not be translated into robust internal enforcement mechanics due to the spiritual, rather than legal, nature of the Holy See’s relationship with Catholics, and its consequential incapacity to police compliance with the crc. The structure of the Church community is ‘a matter of “spirituality”, of good sister- and brotherhood, without translation or expression in the law’ (Huizing, 1981: 243). The Church’s followers are free to accept and apply or reject any aspects of the teachings of the Church, or to interpret it in such a way to complement their own perspectives and life-styles. Essen- tially, ‘church leaders have few or no sanctions beyond the persuasive power of their teachings by which to keep the laity in line’ (D’Antonio, 1994: 395). In view of the Church’s spiritual role, it only takes punitive actions with regard to its members’ offences against the faith and discipline of the Church, and its penalties carry merely spiritual implications (Coriden, 1991; Neu, 2010). In the case of Church officials, the sanctions can include dismissal from office,

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The Holy See: The Government of the Catholic Church 789 exclusion from ministry, and in serious cases excommunication (Coriden, 1991; Doyle and Rubino, 2004; Neu, 2010). Yet, the consequences serve as deterrence or punishment only if the individual concerned attaches significance to the spiritual penalties, and their relationship with the Church and with God. This leaves a gap between the Holy See’s proposed legal obligations, and its actual enforcement power to ensure observance of the crc, particularly when there is a desire to take legal actions against the Holy See for non-compliance by its purported subjects. The search for new legal conceptualisation and grounding is influenced by the growing international pressure to hold the Holy See accountable for violations of human rights instruments due to the child sexual abuse scandals within the Catholic Church. However, the present examination of the Holy See’s spiritual essence demonstrates not only the absence of a sound ground in international law to impose on it implementation obligations of a legal nature, but also that its inescapable interconnection with the Church prevents its evo- lution into an entity capable of legal accountability. Whilst responsibilisation of the Holy See in law may be appealing from the perspective of securing justice for victims, who pursue legal actions against the Holy See, for the reasons above, in practice, such a shift would not guarantee better protection of children’s rights generally. This is because of the Holy See’s non-existent faculties for the introduction and enforcement of temporal laws. Still, the Holy See’s moral authority remains a powerful tool for the advancement of children’s rights, as this paper will later highlight.

2 The Holy See and the crc: The Holy See’s Declaration and Reservations

The Holy See ratified the crc subject to a declaration and three reservations. Under Article 51(1) of the crc, the Holy See is entitled to make reservations, providing its reservations are compatible with the object and purpose of the crc, as Article 51(2) requires. The system governing the operation of reservations are found in the 1969 and 1986 Vienna Conventions on the Law of Treaties supplemented by the guide of the International Law Commission (ilc) of 2011 (Pellet, 2013). The crc does not stipulate its object and purpose, however, the ilc defines that:

a reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general

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tenour, in such a way that the reservation impairs the raison d’être of the treaty. ilc, 2011: guideline 3.1.5

The crc’s promotion of the child as a person with rights is its distinctive feature (Quennerstedt, 2009). It is, thus, adopted as the “general tenour” of the crc to assess the compatibility of the Holy See’s reservations. The Holy See’s declaration indicates its understanding that the crc safeguards the rights of the child both before and after birth, and reiterates its de- scriptions of its role and what the crc symbolises to it. The Holy See states, ‘in acceding to this Convention, [it] does not intend to rescind in any way from its specific mission which is of a religious and moral character’ (un(c)). Its three reservations specify:

(1) its interpretation of ‘family planning education and services’ in Article 24(2) to mean morally acceptable natural forms of family planning; (2) its interpretation of the crc in a manner that protects the primary and inalienable rights of parents concerning their children, particularly with reference to education (Articles 13 and 28); religion (Article 14); association with others (Article 15); and privacy (Article 16); (3) that the application of the crc be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law … and, in consideration of its limited extent, with its legislation in the matters of citizenship, access and residence (un(c)).

2.1 The Declaration With regard to the proposed application of the crc to unborn children, Cisma (2014) asserts that a definition of the right to life, which reflects the Holy See’s view that life commences from the moment of conception, was rejected in the crc’s drafting. This suggests that the Holy See’s declaration and first reservation seek to extend rights under the crc further than required. Relying on the 9th preamble of the crc, which endorses the extension of special protection and care to the child before and after birth under the Declaration of the Rights of the Child (drc) as authority, the Holy See asserts that the crc applies to unborn children too (State Party Report, 1994). Still, there is ambiguity in the preambular text of the crc as to whether an unborn child has a right to life from conception (Venzor, 2011; Janoff, 2004). Venzor (2011) correctly applying the Vienna Convention guideline – which states that preambles are relevant to interpretation of treaties – argues that an

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The Holy See: The Government of the Catholic Church 791 inspection of the 9th preamble of the crc validates the argument that the right to life extends to unborn children. Although the history of the crc drafting process illustrates that the reference to the drc was not intended to bind the parties to interpret the crc as applicable to children before birth (un(d): 11),4 there is no explicit exclusion of its application to children pre-birth. Further, the definition of a child under Article 1 of the crc does not specify when a child’s life begins. The Holy See’s declaration simply extends protection to unborn children, and therefore, is compatible with the crc. However, as dis- cussed below, the protection of unborn children’s rights is argued to cause problems when issues arise concerning pregnant girls.

2.2 Examining the First Reservation The Holy See’s first reservation aims to prohibit abortion, and the use of artificial contraception, due to its belief that life starts at conception, and that all sexual encounter must be open to life. In support of access to abortion, Janoff (2004) argues that the right to life of unborn children would affect pregnant girls’ right to health, to life and to promotion of their best interests under the crc in the event that the pregnancy put their mental or physical health at risk. Similarly, the Committee has urged the Holy See to assess its positions ‘on abortion, which places … risks on the life and health of pregnant girls’, and on access to contraception for adolescents to prevent early pregnancy and sexually transmitted illnesses (Concluding Observations, 2014: 12). The Holy See’s invariable position is that “life” is a fundamental human right, which begins at the instant of conception. It regards all lives equally sacred, and its perspective does not permit the subordination of the right to life of unborn children to the right to life of pregnant girls or any other rights no matter how beneficial the outcome of the rights’ prioritisation exercise is perceived to be.

4 Paragraph 43 of the Report of the Working Group on a draft convention on the rights of the child state: ‘Bearing in mind that, as indicated in the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1959, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.’ The same drafting group, in agreeing to this text, urged that the following statement be placed in the travaux préparatoires by the Chairman on behalf of the entire Working Group. ‘In adopting this preambular paragraph, the Working Group does not intend to prejudice the interpretation of article 1 or any other provision of the Convention by States Parties.’(un(d): 11, para. 43).

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It is never lawful, even for the gravest reasons, to do evil that good may come of it – in other words, to intend directly something which of its very nature contradicts the moral order. humane vitae, para. 14

Further, the Holy See considers exposing children, who lack the necessary ex- perience to make an informed choice on the use of contraception, to decision- making can endanger their psychological development (State Party Report, 2012). This debate on sexual health serves as an example of the divide between secular and religious viewpoints on human rights, and interpretations of best interests of children with the latter seeking the protection of the whole human dignity of the child.

The Holy See continues to advocate a holistic approach to the health of women [girls]5 which does not exclusively focus on a single aspect of a woman [girl] but on her overall and comprehensive health care needs (Vatican (e)).

These contradictions raise a wider debate, which is outside the scope of this paper. Yet, the Holy See’s respect for children’s right to life from the moment of conception, and promotion of non-artificial forms of fertility regulation, do not render its first reservation incompatible with the crc. Because the Holy See’s declaration and first reservation are less contentious, greater prominence is given to the remaining reservations in the ensuing analyses.

2.3 Examining the Second Reservation The Holy See’s second reservation seeks to protect parents’ rights in line with Article 5 of its Charter of the Rights of the Family (the Charter): ‘since they have conferred life on their children, parents have the original, primary and inalienable right to educate them…’6 The fundamental opposition lies with what some commentators regard as the Holy See’s excessive focus on the primary and “inalienable” rights of parents, and its potential for undermining children’s rights (Marshall and Parvis, 2004). Cismas (2014) argues that the Holy

5 The references to girl(s) in square brackets are inserted by the author. 6 The Holy See explains that because children are created in the image and likeness of God, their inherent dignity bestows on them natural fundamental rights to life, survival, education and development, which correspond with parents’ natural duties and rights to provide their children love and care, education and coaching for participation in society (State party report, 2012).

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See’s seemingly subjugation of the child’s rights to that of parents – particularly their rights to freedom of expression, religion, education, association and privacy – treats the child as dependent on society or the family thereby weak- ening the tenour of the crc, which seeks the recognition of the child as a person with rights. She, therefore, concludes that the reservation is incompatible with the object and purpose of the crc. However, the following discussions propose that this is incorrect. Support for the Holy See’s perspective on parents’ primary and inalienable rights to educate their children is found in the Universal Declaration of Hu- man Rights of 1948 (udhr) (Adolphe, 2011; Witte and Browning, 2012; Krason, 2013). The broad definition of “education” under Article 26(2) of the udhr el- evates parents’ right for the formation and supervision of their children (Kra- son, 2013). Whilst in contrast to the udhr, the crc represents an advanced recognition of children as rights holders, it is not intended to reverse earlier human rights instruments, such as the udhr, which is the foundation of new human rights treaties (Krason, 2013). Accordingly, the udhr’s understanding of familial relationships, and parental rights, are relevant to interpreting the crc, since its preamble endorses the udhr, and since preambular texts are instrumental to determining the object and purpose of a treaty (see ilc, Guide 3.1.5.1).7 Although Article 28 of the crc, unlike Article 26 of the udhr, makes no reference to parental rights, ‘that parents have undeniable rights in relation to their children is repeatedly recognized in the [crc]’ (Quennerstedt, 2009: 173; Starr and Brilmayer, 2003). The crc respects parents’ primary responsibilities for the upbringing and development of their children;8 for determining their best interests;9 and for providing them with guidance and direction – conditioned upon the child’s evolving capacities.10 Children’s civil rights that the Holy See specifically subjects to parental rights are already qualified by parents’ rights and duties of direction and guidance. Therefore, the Holy See’s promotion of parents’ primary rights to educate their children in itself is not incompatible with the crc.

7 It is argued that Article 16 of the udhr, which implies the family’s existence prior to the State and situation as the natural environment for the education of children, is comple- mented by Article 26, which confers on parents ‘primary and inalienable’ duty and right to educate their children by virtue of their bringing children into the world (Krason, 2013; Adolphe, 2011). 8 Article 18(2). 9 Article 3. 10 Article 5.

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Further, the Holy See considers that children’s rights cannot be isolated from the rights of the family (State Party Report, 2012). This means that it recognises children as subjects of rights in accordance with the tenour of the crc, but understands their rights to possess a social aspect, particularly with regard to the family (see the Charter, preamble A). The Church recognises individuals’ possession of subjective rights; however, such rights are qualified by the requirement for the protection of “the common good” – collaboration for the good of everyone (Coughlin, 2012). Looking first at the Holy See’s agreement with children’s possession of individual rights, it states, ‘the child is the subject of rights, starting from the fundamental right to life from conception’ (Vatican(f)). A further example of its endorsement of the tenour of the crc is its promotion that the crc ‘attributes to the child the fundamental rights of a person; it recognises the child to have the same equality and dignity as any adult person’ (Vatican(g)).11 The notion of attaching a social dimension to children’s rights is supported by the udhr, which intertwines parents’ and children’s rights, and promotes the rights of the family as a whole (Adolphe, 2011; Witte and Browning, 2012; Krason, 2013). The crc is intended to build on the udhr, which explains its incorporation in the preamble of the crc, bearing in mind that preambular texts aid an understanding of a treaty’s object and purpose. Thus, a correct interpretation of the crc taking into account its preamble, which integrates the udhr, recognises children as members of their families, and their rights as possessing a “communitarian” aspect (Krason, 2013; Adolphe, 2006). As such, Adolphe (2006: 380) adds, children’s civil rights must be seen ‘in light of and appropriately balanced with familial relationships and parental rights and responsibilities’. The language of Article 3(1) of the crc also invites the balancing of familial interests by requiring the child’s best interests to be a primary, but not the sole, consideration in decision-making. Further, the crc recognises the family’s existence for the good of all its members, particularly children (preamble 6), thereby placing the child in the context of their family. The Holy See’s insistence on promoting the interests of the family as a whole, of which the child is a member, does not contradict the crc, particularly as the Holy See upholds the principle of best interests of the child in the family context. It states that within the family there should be ‘a great respect and generous concern for their [children’s] rights’ (un(e): 3). In the case of violations of children’s rights within the family, it proclaims that the best interests of the child takes primacy over any interests of the family (un(f)).

11 The Holy See further acknowledges that children should be made aware of their rights, and how to exercise these responsibly (State Party Report, 2012).

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2.3.1 Possible Challenges for the Realisation of Children’s Rights Whilst on the surface the Holy See’s reservation, which seeks to protect parents’ rights to educate their children, and the interests of the family entity, are not incompatible with the crc, in practice, the Holy See’s emphasis on parents’ rights might restrict children’s exercise of their subjective rights. To this end, the Committee has reminded the Holy See that parents’ rights and prerogatives should not jeopardise children’s rights (Concluding Observations, 1995). The Holy See appears to assume that all parents fulfil their parenting duties selflessly. It overlooks possibilities for clashes between children’s and their parents’ interests, and parents’ exercise of their rights in ways that are detri- mental to their children’s realisation of their rights. It depicts a romanticised image of the family (Marshall and Parvis, 2004).12 The Holy See’s defence of parents’ autonomy against State intrusion to ensure parents’ education of their children according to their moral and religious convictions is feared to subordinate children’s rights to freedom from abuse, consequently exposing some children to maltreatment within the home (Mar- shall and Parvis, 2004). Other risks of violations of children’s civil rights, such as freedom of thought, arising from the preservation of parents’ rights to raise their children in their faith, are considered later. Exponents of greater State intervention in the family opine that the protection of the rights and privacy of the family removes the scrutiny of its individual members by the State, and the detection of violence and oppression within families (Starr and Brilmayer, 2003). For similar reasons, the un Human Rights Council Resolution on Pro- tection of the Family 2014 is discredited by human rights advocates (see for example Amnesty International Report, 2015).13 However,

it would be overly simplistic to conclude that, because legal protections of the family have … perpetuated oppression, international (or domestic) law should not seek to protect the family at all. starr and brilmayer, 2003: 233

12 In the Holy See’s defence, it is important to point out the mission of the Church, which is to promote life in Christ. As such, the Church outlines the life of virtue man should live to imitate Christ. 13 ‘By subordinating the human rights of individual members of “the family”, especially women and girls, to the protection of the institution, the resolution, if adopted in its current form, would turn a blind eye to laws, policies and practices that violate or lead to the violation of the human rights of individuals within families …’ (Amnesty International, 2015: 1).

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Not all families are marred with oppression and abuse, and the crc rightly respects the privacy of family life. The crc prohibits children’s separation from their parents, unless proper judicial processes determine that the child’s separation from their family serves their best interests (Article 9(1)) in situations of violations of their rights to freedom from abuse and exploitation (Article 19). So, on the surface, the Holy See’s position that the State can only interfere in parents’ care of their children where there is evidence of child abuse (State Party Reports, 2012; 1994) is not incompatible with the crc. Further, the positive duties imposed on States under Article 19 to protect children and support their carers corresponds with the Holy See’s institution of the family’s right to assistance in the upbringing of children (the Charter). Nevertheless, the Holy See’s insistence on evidence of abuse to justify unsolicited State intrusion could hamper early intervention work with families to safeguard children. The Committee expressed concern that the Holy See’s position threatened ‘international efforts and measures to prevent abuse and neglect of children’ (Con- cluding Observations, 2014: 9). The Holy See, in its response to the Committee’s list of issues on this topic, stated that it was not its place to devise a threshold for intervention, and simply reiterated its objection to State intervention (Holy See(c): 14). Its resistance suggests a limited appreciation of the extent and diverse forms of intrafamilial child abuse that occur, highlighting an important aspect of children’s rights that requires the Holy See’s attention. There is widespread agreement that most child abuse in the home passes unreported (e.g. Gilbert et al., 2009). From a child protection perspective, it is inadequate to simplify intrafamilial child abuse as a rare occurrence found only ‘within a deformed version of the natural family’ (Adolphe, 2006: 375). Considering the reported extent of the problem, and the likelihood of more children’s suffering in silence, the Holy See needs to reconsider its position with a view to balancing respect for family privacy against the need for intervention to safeguard children. Nevertheless, the Committee’s recommendations in this regard (see Concluding Observations, 2014, para. 42), exceed the Holy See’s moral authority, and confuse its obligations with that of the respective States. The Holy See cannot, for example, implement systems to receive reports of violence against children, as the Committee recommended, since it can only guide its followers on issues pertinent to their moral lives and relationship with God. Instead, the Holy See could, in consultation with Bishops of local churches, instruct families on the Church’s vision of parenting, children’s rights, and the meaning of neglectful and abusive parenting. Such an activity would not exceed the confines of the Holy See’s moral competence, since in a similar fash- ion the Church provides extended marriage preparation training for couples

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‘covering all aspects of married life’ (un(f): 2).14 Indeed, children’s rights could be incorporated into the current marriage preparation programme. Also within its competence is the provision of guidance on the types of situations that might legitimise State intervention in the event of suspected abuse or neglect. This could be achieved by way of elaborating on the Church’s teaching, which supports intervention ‘when the child’s fundamental rights are seriously en- dangered’ (The Family and Human Rights, para. 48). With regard to children’s civil rights, the controversy is that the Holy See’s interpretation of parental rights might exceed the conditional parental authority for decision-making intended by Article 5 of the crc.15 Parental guidance that reduces as the child’s capacity and maturity develop was identified by the Committee itself as a ground to support the Holy See’s perspective (Marshall and Parvis, 2004). Hence, the Holy See’s protection of parents’ rights to direct their children is not incompatible with the crc. However, the issue that requires clarification is whether the Holy See presumes children of all ages to exercise their rights only through parents’ identification of their needs. Given the possibility for parents to exploit their parental authority, recognition of children’s individual rights is vital. For instance, non-practising Catholic parents could discourage their child’s receipt of religious formation, and practice of the faith against the child’s wishes. In the Apostolic Exhortation, “Catechesi Tradendae”, Pope John Paul ii, acknowledging a growing number of children’s deprivation of religious formation at home, directs:

…they must be ensured a catechesis attuned to them, so that they will be able to grow in faith…, in spite of the lack of support or even the opposition they meet in their surroundings. (para. 36)

However, in view of the Holy See’s position, it is doubtful how these children could practise Catholicism or access information to support their faith, if they

14 The Holy See’s delegate explained to the Committee during the 1995 review process that it was the Church’s tradition to prepare engaged couples for married life by offering talks (un(f)). 15 Opponents of the crc worry that children’s civil rights will restrict parents’ rights to form their children’s conscience, religion, and beliefs (Witte and Browning, 2012). Similar concerns are repeated in the Holy See’s first periodic report (1994:8). Further, there is fear of the un’s advancement of secular values in children’s education, and separation of children from religion (Marshall and Parvis, 2004), escalating resistance to children’s civil rights, which would require State assistance to enforce, and interference with parents’ organising of their children’s upbringing and family life (Adolphe, 2006(a)).

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798 Hailu only exercised their rights to receive information,16 and religion17 through their parents. On the issue of the child’s right to freedom of thought, conscience and religion, a mature child may refuse their parents’ instruction and decline Catholic education in pursuit of a different religion. ‘If a child is convinced in conscience that it would be morally wrong to obey a particular order, he must not do so’ (ccc, 2217). Further, with regard to the child’s right to seek information and ideas of all kinds, as the child grows older the parents’ influence lessens. Catholic teaching recognises children’s autonomy for decision-making as they become older. ‘Obedience toward parents ceases with the emancipa- tion of the children…’ (ccc, 2217), which corresponds with the crc’s idea of respect for children’s evolving capacities. Pope Francis in his new Apostolic Ex- hortation on love in the family advocates for parenting that is aimed at helping children to ‘grow in freedom, maturity, overall discipline and autonomy’ (Pope Francis, 2016: 196). Yet, how these provisions are enacted in practice requires the Holy See’s promotion of children’s individual rights, and explanation of the Church’s doctrine to help parents regulate their guidance of their children according to their maturity. The other key issue is some parents’ failings in their educational duties, and the risk of consequential violations of children’s rights. According to the Holy See, ‘sex education is a basic right of the parents and must always be carried out under their close supervision’ (The Charter, Article 5(c)). However, respect for parents’ right could leave children unaware of how to protect themselves from early and unwanted pregnancies, and sexually transmitted illnesses. If parents do not fulfil their educational mission of instructing their children on sex and relationships, children are likely to be exposed to risks of harm due to ignorance. It is, therefore, important that the Holy See acknowledges that not all parents’ parenting matches its idealised vision of families and the need for external intervention to fill the void, so that children’s health rights are not undermined. The Committee rightly highlighted children’s plight in this respect, and neglect of their health rights (Concluding Observations, 2014, para. 57). However, its recommendations are unviable, as they disregard the Holy See’s declaration and first reservation, its limitations of power, and spiritual mission through requiring the promotion of contraception and the philosophy of “safe sex”. Con- sequently, the sexual and reproductive health education model recommended by the Committee contradicts the Holy See’s vision. The debate here is not

16 Article 13. 17 Article 14.

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The Holy See: The Government of the Catholic Church 799 whether or not children should receive sex education. Indeed, Pope Francis has a section dedicated to the need for positive sex education in his new Ap- ostolic Exhortation (Pope Francis, 2016: 208–217). The issue is the means of delivery of sexual health education to children in the event of their primary educators’ failings. A viable alternative to the Committee’s recommendation is the Holy See’s formulation of a sex education programme that is delivered through local churches to help parents in their educational role. The Holy See directs that ‘the State and the Church have the obligation to give families all possible aid to enable them to perform their educational role properly’ (Familiaris Consort, para. 40). The Holy See would, therefore, be able to provide education on sex, love, family life, sexuality and parenthood for children, and training for parents on the Church’s teachings through the local churches. Local churches instruct children on church doctrine and the sacraments to prepare them for full com- munion with the Church. Similarly, sex and relationship education could be devised and imparted through local churches. Finally, the Committee has expressed concerns at the Holy See’s ‘restrictive interpretation’ of the child’s right to be heard (Concluding Observations, 2014: 6). ‘The right of all children to be heard and taken seriously constitutes one of the fundamental values of the Convention’ (General Comment No. 12: 3). Consequently, the Holy See’s potential non-recognition of Article 12 could affect the crc’s tenour. However, the Holy See does recognise children’s right to express their views. In both of its concluding observations, the Committee reminded the Holy See to promote within the family children’s right to express their views. Although religious advocates perceive Article 12 contradictory to divinely assigned parental authority (Marshall and Parvis, 2004), the Holy See itself does not deny this right. In the 1995 review process of its initial report to the Committee, it explained that Article 5 of the crc,

…on respect by States for the rights of parents to give direction and guidance, was closely linked with Article 12, on the rights of the child to express its views, and indeed the two articles were complementary. (un(f): 2).18

In its second periodic report, it stated that the child’s rights derived from their creation in the likeness of God, which exceeded in significance the child’s right

18 This view is consistent with the crc, given ‘article 5 helps to understand the reference to maturity in article 12, since maturity increases as well and proportionately the weight to be given to the child’s views becomes heavier’ (Krappmann, 2010: 505).

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800 Hailu to express their views. Yet, it did not reject children’s entitlement to express their views. In its replies to the Committee’s list of issues, it expanded on its vision by stating that it endorsed ‘the freedom of expression, verbal and non- verbal, within the larger context of the character-building of children’ (Holy See(c): 11). Thus, there is evidence that the Holy See does not disagree with children’s right to express their views – maintaining its perspective’s compatibility with the crc. However, the Holy See’s stance suggests a relative resistance to promoting children’s right to express their views within the family. The compatibility of Article 12 with parents’ rights and with Catholic doctrine could encourage the Holy See to soften its stance. Catholic teaching emphasises children’s respect for their parents: ‘filial respect is shown by true docility and obedience’ (ccc, 2216). However, “obedience” to parents is not irreconcilable with a family environment where the child is allowed a voice. The Church teaches ‘parents must regard their children as children of God and respect them as human persons’ (ccc, 2222). Further, Article 12(1) does not restrict parents’ rights, particularly as it does not stipulate any final decision to be founded upon the child’s expressed views. An equally pertinent factor for the Holy See’s consideration is the importance of this right for the protection of children from abuse (see Reading et al., 2009), and to encourage children’s disclosure of abuse (Marshall and Parvis, 2004). To summarise, the Holy See accepts children’s possession of individual rights equal as adults in line with the general tenour of the crc. The Holy See considers parents to be the primary protectors of children’s rights. Its understanding that the realisation of children’s rights requires respect for parental rights correlates with the crc’s qualification of children’s rights by parents’ duties and rights for direction. Possible adverse implications of its approach have been highlighted. There is a need for the Holy See to increase its recognition of children’s individual rights, and to redefine its position on Articles 5 and 12, in the light of the potential tension between parents’ and children’s rights to protect children better. Considering the Holy See’s attestation to the child’s legal personhood, and the existence of support for its perspectives within the crc and within the udhr, it is not possible to conclude that its second reservation damages the general tenour of the crc.

2.4 Examining the Third Reservation The Holy See’s third reservation seeks the crc’s compatibility with the sources of objective law of the vcs, vcs’ unique nature and context regarding citizenship, access and residence. Importantly, according to the ilc, reservations that seek to exclude or modify the legal effects of certain provisions or the entirety

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The Holy See: The Government of the Catholic Church 801 of the treaty to preserve “the integrity of specific rules” of domestic laws may be admissible providing they do not disturb an essential aspect of the treaty or its general tenour (Guideline 3.1.5.5). Under this guideline of the ilc, it would be permissible to preserve certain laws that contradict the crc. However, Cisma (2014) argues that the guideline in question is designed to protect specific fundamental rules of States’ national laws, and that consequently it cannot be applied to preserve as “specific rules” the vcs’ entire collection of legislation; the Holy See’s nature; the Catholic religion; and canon law. Cisma’s argument is built by combining the Holy See’s second and third reservations, and understanding the Holy See to require the crc’s compatibility with the Catholic religion generally. On the contrary, this paper contends that the Holy See’s reservation is permissible under the ilc’s guideline by investigating:

(a) what “specific rules” of its domestic legislation the Holy See intends to preserve, and (b) whether the relevant “specific rules” damage an essential aspect of the crc or its general tenour.

2.4.1 The “Specific Rules” being Preserved The Holy See is not seeking to preserve vcs’ entire body of legislation, but its source of objective law, which is canon law – a law based on objective moral foundation (Coughlin, 2012). The sources of law of vcs are canon law; laws promulgated by the Pope; and national and regional laws of Italy and Rome providing the last two sets of laws are consistent with canon and divine laws (Young and Shea, 2007). vcs’ primary source of law is canon law (State Party Re- port, 2012). Its administration ensures that Italian laws are not applied where there is a conflict with canon or pontifical laws (Young and Shea, 2007). Given the primacy of canon law, any laws promulgated by the Pope are in harmony with it. Thus, the specific rules that the Holy See’s third reservation purports to preserve are the rules of canon law. The Holy See’s additional conditions regarding vcs’ nature should not cause new controversy, as they reassert vcs’ accepted peculiar personality in international law. vcs was created with a particular purpose – to facilitate the Holy See’s religious activities – and is recognised as a unique State (e.g.: Crawford, 2007). It is a small enclave; with a limited number of inhabitants; lacks a permanent population; Vatican citizenship is linked to the proposed citizen’s term of office in the Holy See (e.g.: Abdullah, 1996). Consequently, vcs is not like other States parties to the crc. The Holy See’s insistence on the crc’s compatibility with vcs’ distinctive nature is warranted, particularly since the Holy See

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(as the government of vcs) has ensured that vcs’ laws are compatible with the crc, save for canon law. In this regard, the Committee has commended the Holy See’s modification of vcs’ legislation (Concluding Observations, 2014). Accordingly, the relevant stipulation within the Holy See’s third reservation to which the applicability of the ilc provision should be considered is solely that which refers to vcs’ sources of objective law. The Holy See’s third reservation, therefore, is covered by the ilc’s guideline that provides for the protection of ‘the integrity of specific rules’ of States’ domestic laws providing, as examined below, the rules do not affect an essential aspect of the crc or its general tenour.

2.4.2 The Impact of the Preserved Rules First, it is important to examine the provisions of canon law that the Com- mittee perceived as problematic in its concluding observations. The Commit- tee alleged that prohibition of abortion, under Canon 1398, would endanger pregnant girls’ life and health (para. 54). Yet, neither the crc nor other human rights treaties recognises a right to abortion (Venzor, 2011), and there is no reference to abortion in the crc. Further, the Committee recommended that the Holy See amend canon law to recognise diverse forms of families (para. 49), despite the absence of discriminatory expression of children in canon law based on the make-up of their families. This approach by the un is understood to promote a different meaning of marriage, and the family, and same sex unions, which are considered “new human rights”, and outside the scope of the crc, advanced by the un based on an innovative and non-binding interpretation of current treaties (Adolphe, 2011). Article 2 and the 4th preamble of the crc do not recognise discrimination on the basis of the child’s family type or parental sexual orientation.19 The Committee also targeted Canon 1139 for its discriminatory reference to “illegitimate children” (para. 25). However, the code does not discriminate against non-marital children, and the concept of illegitimacy has remained within canon law to signify ‘the sanctity of marriage’ (Sheehy et al., 1999, p. 641).20 Otherwise, the codes do not require any preferential treatment of

19 Still, the Church does not promote discrimination based on individuals’ sexual orientation, and teaches that ‘every sign of unjust discrimination in their regard should be avoided’ (ccc, 2358). 20 Canon 1139 sets out the process for acquiring legitimate status for children born out of wedlock. For example through the subsequent marriage of the child’s parents.

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The Holy See: The Government of the Catholic Church 803 children born in marriage.21 Indeed, Article 4(e) of the Charter stipulates all children’s right to social protection whether born in or out of wedlock. Additionally, the Committee urged the Holy See to amend canon law to incorporate explicit prohibition of corporal punishment of children (para. 40(b)), even though canon law does not contain provisions that condone children’s physical chastisement. To that end, the Holy See reminded the Commit- tee that the terms “corporal punishment” or “punishment” do not feature in the Church’s teachings to describe parents’ child-rearing obligations (Holy See(c)). Other recommendations with regard to sexual abuse of children include the classification of sexual abuse a ‘crime’ under canon law rather than a ‘delict against the moral’ (paras. 44(d)). Yet, penal canon law and its sanctions are not akin to States’ criminal laws and penalties (Neu, 2010). Canon law has its own classification of offences based on the moral and spiritual implications of the individual’s conduct. Penal canon law is concerned purely with the discipline and order of the ecclesial society, and imposes punishments such as penance and dismissal from ministry. In terms of protecting children from abuse, child protection policies have been implemented by local churches, inter alia, to facilitate the prosecution of offenders (Robertson, 2005; Parkinson, 2014). Despite the extensive recommendations, the Committee has not established any violation of the crc by canon law. Its approach illustrates its misunderstanding of the purpose of canon law. Canon law is a collection of ecclesiastical laws governing the Catholic Church (Coriden, 1991; Coughlin, 2012). It is connected to Catholic theology, and reflects the Church’s beliefs (Young and Shea, 2007; Ombres, 2012). It is, therefore, integral to vcs’ functioning, as the territorial base for the government of the Catholic Church: the Holy See. Its protection, through a reservation, is necessary to enable the Holy See to interpret the crc according to the Catholic Church’s doctrine in executing its obligations for the implementation of the crc. Because of its religious nature, the Holy See’s interpretation of the crc differs from that of the Committee. This is why parties make reservations, so they are not bound to provisions that they do not accept (Schabas, 1996). The ilc guideline permits such reservations that modify the legal effects of the entire treaty. The key question is what impact the reserved law has on the crc. The preservation of canon law is not

21 Rules that previously prevented children born out of wedlock from occupying leadership roles within the hierarchy of the Church, such as Cardinal positions, have been removed from the new Codes of canon law to eliminate any sign of discrimination (Sheehy et al., 1999: 641).

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804 Hailu incompatible with an essential aspect of the crc or its general tenour, even if the compatibility of religion-based reservations is at times questionable. Reservations that purport to interpret the crc in such a way that preserves States’ internal laws for religious reasons (e.g. Muslim States’ reservations)22 are generally conceived too vague, and incompatible with the object and purpose of the crc, as they could affect the application of all the provisions of the crc (Schabas, 1996). This means that it could affect an essential aspect of the crc as well as its general tenour. The Committee has questioned the compatibility of the religion-based reservations of some of the Muslim States, such as Tunisia, and the general Shariah-based reservations with the object and purpose of the crc (Hashemi, 2007).23 Some writers stress the Holy See’s third reservation is similar to the Muslim States’ religious reservations (Schabas, 1996; Cisma, 2014). Although the formulation of the Holy See’s reservation was motivated by religious values, it cannot be likened to Muslim States’ religious reservations, because contrary to the Islamic form, the Holy See’s reservation does not have direct consequences for children. Canon law is not comparable with Shariah law, which is a compulsory legal system affecting the lives of people in the Muslim States that entered religion- based reservations to the crc. Further, unlike Shariah law, penalties under canon law are spiritual by nature (Neu, 2010). Conversely, Shariah law’s direct conflict with many Articles of the crc including Articles 2, 3, 16, 37 is noted (Hashemi, 2007; Rajabi-Ardeshiri, 2009). For instance, in some Islamic States attainment of majority is determined based on the child’s level of maturity – with lower age limits applying for girls – which results in the institution of a younger age of criminal responsibility; penalising of sexual conducts of children outside of marriage; exposure to execution and life imprisonment; and early marriage (Hashemi, 2007). Furthermore, children born out of wedlock are denied any ‘claim of maintenance, custody, guardianship, or inheritance rights whatsoever as regards [their] father’ (Hashemi, 2007: 208).

22 For example, the reservation entered by Iran states: ‘The Islamic Republic of Iran is making reservation to the articles and provisions which may be contrary to the Islamic Shariah …’ Similarly, Saudi Arabia’s reservation reads: ‘[The Government of Saudi Arabia enters] reservations with respect to all such articles as are in conflict with the provisions of Islamic law’. (un(c)). 23 Moreover, a concern raised by the Committee as well as member States, that objected to the religious reservations entered by some Muslim States, is a lack of precision with regard to the meaning of the Islamic reservations (Hashemi, 2007), not least because of the different interpretations of Islam applied by member States with Islamic legal systems (Schabas, 1996).

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Noteworthy is also the absence of objection by other Member States to the crc in response to the Holy See’s reservations at the time it ratified the crc (Schabas, 1996). Most objections were raised in response to the Muslim States’ reservations (Leblanc, 1996). Cisma (2014), maintaining her argument that the Holy See’s third reservation is the Catholic form of the Islamic reservations, perceives the other Member States’ silence with regard to the Holy See a possible bias against Muslim States. On the contrary, it is adduced that the other States’ inaction with regard to the Holy See’s reservations explains the States’ satisfaction that the Holy See’s perspectives, including its preservation of canon law, would not impair the object and purpose of the crc. As the monitoring body for the crc, the Committee has the competence to assess the permissibility of States’ reservations (see ilc, 2011: Guideline 3.2). Although it has urged the Holy See to review and withdraw its reservations, it has not labelled any of the Holy See’s reservations incompatible with the object and purpose of the crc. The Committee’s appeal for withdrawal does not imply a stronger message to the Holy See, since it is its practice to urge States parties to withdraw their reservations to the crc (see Concluding Observa- tions of the Committee in relation to Netherlands, 2015; Kuwait, 2013; Australia, 2012). In sum, the Holy See’s third reservation is permissible under the ilc’s guideline, because it does not affect an essential element of the crc or its general tenour. The Committee’s recommendations for the amendment of canon law suggest its incorrect perception that canon law and Shariah law are alike, because in the Shariah law context, amendments to its relevant sections are deemed necessary for child protection (Rajabi-Ardeshiri, 2009). Overall, the Holy See’s perspectives and canon law are not incompatible with the crc. The Committee’s approach suggests that the object and purpose of the crc were not read in good faith.

3 The Holy See’s Moral Authority in Practice

Having established the Holy See’s lack of authority for the implementation of the crc, and its fitting duty as that of disseminating moral guidance consistent with the crc, how, then, might the Holy See promote children’s rights? Where the Holy See’s moral jurisdiction, as the government of the Catholic Church is concerned, the powerful instruments for the promotion of children’s rights are ecclesiastical documents. Even though the Committee’s concluding observations concentrated on the Holy See’s amendment of canon law to bring it in line with the crc, its focus is misplaced. ‘For official Church teaching one

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806 Hailu consults the teachings documents, not the Code of Canon Law’ (Coriden, 1991: 4). Canon law is irrelevant and unfamiliar to a majority of Catholics including the clergy.

Most Catholic laypeople today have little contact with canon law. If a lay- person does have contact with canon law, it will most likely have to do with annulments. robertson, 2005: 165

Furthermore, the Holy See influences its followers through its teachings rather than through imposition of laws. Its relationship with the Church community is not defined in legal terms (Huizing, 1981). The community of believers may be open to the Church’s teachings, even if they choose not to observe the in- structions, because of their belief in the Church’s moral authority. The Holy See accepts that the Church is ‘regarded by its followers as the moral conscience of communities and even of countries’, although ‘each individual was free to interpret the Church’s message in his own way’ (un(i): 2). The important question, therefore, is whether the Holy See’s current teaching documents adequately promote children as rights holders in line with the tenour of the crc. The Holy See relies heavily on the Apostolic Exhortation “Familiaris Consortio” 1981; the Charter of the Rights of the Family 1983 (the Charter); The Family and Human Rights 2000 (the fhr); and the Compendium of the Social Doctrine of the Church 2004 (the Compendium) to explain its perspectives. Nonetheless, an inspection of these documents reveals the absence of children’s depiction as subjects of rights, as envisaged by the crc. Article 4 of the Charter describes children’s rights in the context of a right to social protection. It identifies children’s rights as: ‘Children, both before and after birth, have the right to special protection and assistance’ (Article 4(d)). In Familiaris Consortio, under the title “The Rights of Children”, the rights of the child are expressed as the duties of the family and society (para. 26). Similarly, in the fhr, the entitlements of the child after birth are expressed as duties of the parents towards their children (para. 47). Interestingly, the fhr has a section devoted to the rights of the unborn child, which acknowledges the crc by assigning to the unborn child the provisions contained within the crc. Yet, there is not a section dedicated to the rights of the child after birth. Instead, the duties of parents to their children in general terms are stated under the title, “Duties of the Family and the State Toward the Unborn Child” in Section 4.4. The Compendium also focuses on the right and duty of parents to educate their children (e.g. paras. 238–244). Under the title, “Dignity and Rights of

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The Holy See: The Government of the Catholic Church 807

Children”, the child’s rights reads: ‘…The first right of the child is to be born in a real family’ (para. 244). According to the Holy See, its Pontifical Council for the Family (pcf)24 re- viewed the Charter in 2013 and found that many of the principles, rights and duties therein were consistent with the crc (Holy See(c)). However, neither the Charter nor the other documents considered herein promote the child as a rights bearer, save for rights to protection and care, and birth in a family. In contrast, the main themes that run through these documents are parents’ educational rights and duties towards their children. A number of possibilities exist for the absence of an adequate manifestation of children’s rights, as recognised by the crc, in the said documents. Familiaris Consortio and the Charter precede the crc. Although the fhr, and the Compendium are more recent documents from the era of children’s rights, they endorse the udhr. The fhr highlights ‘the great convergence between [the udhr] and Christian anthropology and ethics’ (para. 2 of the Introduction).25 Yet, the udhr is only concerned with the child’s receipt of care and protection. The decisive difference between the crc and the udhr is the crc’s description of children as individuals with rights (Quennerstedt, 2009). This necessitates the promulgation of new ecclesiastical documents that represent modern thoughts on children’s rights.

4 The Way Forward

Attempts to assign a State-like legal responsibility for the implementation of the crc to the Holy See are in vain. The emphasis should instead be on the issu- ance of papal documents to promote children’s rights. As the supreme teacher and Shepherd of the people, documents addressed by the Pope himself rank higher in the hierarchy of the Holy See’s ecclesiastical publications (Krason, 2013; un(f)). The weight attached to a Papal document depends on the type and purpose of the document. The relevant types of documents in descending order of solemnity are Encyclicals, which convey the Pope’s thoughts on questions of faith and morals; Apostolic Letters, which look at doctrinal matters, papal announcements etc.; and Apostolic Exhortations, which are usually used

24 Pontifical Council for the Family (pcf) – an organ of the Holy See entrusted with over- sight of the implementation of the crc. 25 See Adolphe (2006) for the Holy See’s perspective on the udhr.

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808 Hailu to convey decisions of a Synod of Bishops. An Apostolic Letter is considered appropriate to ensure wide dissemination of the crc. It is high time for the Holy See to issue an amended version of the Charter of the Rights of the Family with a section devoted to children’s rights, as recognised by the crc, whilst simultaneously maintaining its own perspectives on children’s rights, that is, rights possessing a communitarian aspect, and qualified by parental rights. This paper has established that these aspects of the Holy See’s interpretation of the crc do not automatically contradict it. Fur- thermore, the Holy See cannot change the Church’s teachings on the family, since doctrinal developments emerge from fresh understandings of scripture, natural law, of the human person in modern times, and international human rights (Coughlin, 2012). Thus, the recommendation is not for changes to the Church’s doctrine, but for a fresh interpretation of the crc that is less suspi- cious of its perceived adverse impact on the family, and that recognises violations of children’s rights within the family context. The main themes recommended for insertion are increased promotion of children’s individual rights; children’s right to be protected from abuse and neglect; their right to express their views and contribute to decisions concerning their upbringing – subject to their age and maturity – and to be allowed increasing independence for decision-making according to their evolving capacities. Secondly, it is essential that an Apostolic Letter is promulgated clarifying children’s rights and expectations of parents in their exercise of their rights and duties towards their children, whilst reinforcing God’s plan for the family. It would be a disservice to children and families for such a document simply to reiterate the Church’s teaching on parental rights, and adjust the crc’s concept of children’s rights into the Holy See’s terms. McCrudden (2011: 350) makes a similar observation that new documents ‘should not be concerned with platitudes’. The Holy See’s message should be concerned with identify- ing contemporary dilemmas in children’s lives and the modern family, and with providing practical solutions to situations of parents’ exploitation of their rights. The Holy See is not unaware that children are being brought up in families that do not conform to its understanding of the family. The Church has acknowledged children’s trauma and becoming an “object” of contention in situations of parental separation (Synod of Bishops, 2014). A fresh approach to the needs and rights of children in the context of the modern family is needed. The aim is to raise awareness of children’s abuse in the family; to encourage families where the child is allowed a voice; and to assist in reconciling the potential tension between parental rights and children’s rights. The proposed documents would need to be disseminated in national languages through the local churches to ensure their accessibility by all people,

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The Holy See: The Government of the Catholic Church 809 including children. Further, church leaders’ willingness would be required to raise awareness of the messages therein, and to promote the crc at the local level in a meaningful way. The availability of these documents would formalise the Church’s position on the crc. However, to influence people’s perception of children as rights holders, attitudes towards children must change. One way to achieve this is through the Church’s active encouragement of families, where children are heard and their views are valued. Thirdly, despite the recent findings of the pcf, the Holy See must not assume that a Charter formulated in 1981, before the crc came into force, will fit children’s needs, and “rights” debates of today. It is interesting how the ex- pert advisers involved in the pcf’s review of the Charter formed the opinion that the document in its current form was consistent with the crc. This paper has attempted to identify some correlation between the Church’s doctrine and the crc to support an understanding of children’s rights that is more ame- nable to the crc. There is a need for academics in the fields of children’s rights and Catholic theology to research further such commonalities, and present credible arguments that recognise children’s lived realities, and the Church’s vision. McCrudden (2011) advocates for academic rigour and the Church’s en- gagement of experts that can appeal to the legal and academic communities outside the Church. Otherwise,

…the Catholic Church risks losing the intellectual high ground; …There is an enormous amount of activity at present on the religion and human rights front, and the Catholic Church could make a real contribution; that contribution, however, should not be other than highly sophisticated and well considered if it is to work. mccrudden, 2011: 350

Finally, a dedicated Papal document and an amended Charter would assist in eradicating ongoing ambiguities with regard to the Holy See’s position on the concept of children’s rights in the light of the crc. At present, it is necessary to piece together the Holy See’s submissions in its periodic reports; its dialogues with the Committee; and addresses at un meetings to form a picture of its position on the crc. The institution of authoritative documents that articulate the Church’s thinking on children’s rights would simplify this process; improve the understanding of any interested party, particularly academics and theolo- gians; and set the foundation for further research. In terms of clerical sexual abuse, which was the driving force behind the Committee’s remarks, the current obstacle for child protection is not the absence of Church protective procedures today. Rather, the challenge is

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810 Hailu the Church’s lost credibility due to its mishandling of abuse cases in the past, and resultant mistrust of Church leaders (Jones, 2005; Robertson, 2005). In the circumstances, global efforts must be directed at monitoring the development of strong child protection and reporting procedures, and effective collaboration with civil authorities to ensure the accountability of offending clergy or religious.

Conclusion

The practical solutions and final recommendations herein are sensitive to the Holy See’s limited authority, as the government of the Catholic Church, and present alternatives to the most contentious observations of the Committee. The intention is to provide feasible proposals that offer fresh perspectives, encourage constructive dialogues with the Holy See, and opportunities for further research into the convergence between Catholic theology and children’s rights. To date, the Holy See has done a great deal of work in protecting the rights of children, including the right to life of unborn children. The Holy See is considered generally committed to human rights, and a supporter of the crc. Its promotion of children’s rights and earlier efforts to attain widespread ratifi- cation of the crc have been acknowledged by the Committee itself. The Holy See should be encouraged to continue its important work without distractions that attempt to redefine its nature and very essence.

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Vatican (e): Vatican Website: Intervention by the Holy See at the third Commission of the 60th General Assembly of the United Nations on Item 65: Implementation of the outcome of the fourth world conference on women and the special session of the General Assembly entitled “Women 2000: Gender Equality, Development and Peace in the twenty-first century”, H.E. Mons Celestino Migliore, Thursday, 13 October 2005: http://www.vatican.va/roman_curia/secretariat_state/2005/ documents/rc_seg-st_20051013_women-un_en.html. Vatican (f): Vatican Website: Special Session of the United Nations on Children. In- tervention by Card. Alfonso Lopez Trujillo. Thursday, 9 May 2002: http://www.vati can.va/roman_curia/secretariat_state/documents/rc_seg-st_doc_20020509_trujillo -onu_en.html. Vatican (g): Vatican Website: Intervention of the Holy See at the Ordinary Session of the United Nations Convention on the Rights of the Child. Address of H.E. Msgr. Silvano M. Tomasi. Geneva, 23 March 2007: http://www.vatican.va/roman_curia/ secretariat_state/2007/documents/rc_seg-st_20070323_children_en.html. Vatican (h): Vatican Website: Intervention by the Holy See at the 3rd Committee of the 58th General Assembly of the United Nations on the Promotion and Protec- tion of the Rights of Children. Address of H.E. Msgr. Celestino Migilore. Monday, 20 October 2003: http://www.vatican.va/roman_curia/secretariat_state/2003/ documents/rc_seg-st_20031020_migliore-children_en.html. Venzor, T., “Protecting the unborn child”, Nebraska Law Review 2011 (89), 1132–1170. Wallace, R., International Law (London: Sweet & Maxwell, 2002). Witte, J. and Browning, D., “Christianity’s mixed contributions to children’s rights: Traditional teachings, modern doubts”, Emory Law Journal 2012 (61), 991–1014. Young, S. and Shea, A., “Separating State from Church: A Research Guide to the Law of the Vatican City State”, Law Library Journal 2007 (99(3)), 589–610.

international journal of children’sDownloaded rights from 25 Brill.com09/23/2021 (2017) 779-816 05:21:05PM via free access