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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?

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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? THE INTERNATIONAL JOURNAL OF CHILDREN’S RIGHTS international journal of children’s rights 25 (2017) 779-816 brill.com/chil 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 con- cluding 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. © koninklijke brill nv, leiden, 2017 | doi 10.1163/15718182-02503011Downloaded from Brill.com09/23/2021 05:21:05PM via free access <UN> 780 Hailu 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 par- ty 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 con- cluding observations (Concluding Observations, 2014) on the second periodic report (State Party Report, 2012) of the Holy See, which received strong opposi- tion 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 in- formation 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 imple- mentation 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 interpreta- tion 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 dis- cussion 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 international journal of children’sDownloaded rights from 25 Brill.com09/23/2021 (2017) 779-816 05:21:05PM via free access <UN> 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 rev- elations 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 le- gal 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 child- hood 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 interna- tional 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 international journal of children’s rights 25 (2017)Downloaded 779-816 from Brill.com09/23/2021 05:21:05PM via free access <UN> 782 Hailu 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 en- sured 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 in- dependence 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.
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