Holy

See
Gerd Westdickenberg
Content type:
Encyclopedia Entries
Article last updated: June
2006

Product: Max Planck

Encyclopedia of Public
International Law [MPEPIL]

Subject(s):
Sovereignty
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rdiger Wolfrum.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

A. Notion and Terminology

1. Terminology
1 The term Holy See derives from the Latin expression sancta sedes and refers to the chair of St
Peter. According to the codex iuris canonici of the Catholic Church the term describes both the
Pope as well as the offices of the Roman Curia through which the Pope governs the Catholic
Church. The codex uses the term Apostolic See as a synonym for the Holy See. Colloquially, the
term Vatican is also sometimes used synonymously, but should rather refer to the State of the
Vatican City or in short the Vatican State (State).

2. Legal Status
(a) Holy See
2 The Holy See is by tradition a subject of international law dating back to the Middle Ages
(Subjects of International Law), independently of the former Papal State and of todays State of the
Vatican City. The international legal personality of the Holy See is and always has been generally
recognized, by States as well as by legal writing (Recognition). For example, in the period after
1870 when the Papal State had ceased to exist and before 1929 when the State of the Vatican
City had not yet been established the number of States that entertained diplomatic relations with the
Holy See even increased and the Holy See continued to sign treaties on the basis of equality with
States (Diplomacy; Diplomatic Relations, Establishment and Severance; see also States, Sovereign
Equality).
3 However, due to the peculiarities of the Holy See the exact legal nature of its personality has
been the subject of many discussions. The Holy See is neither a State nor only an abstract entity
like an international organization (International Organizations or Institutions, General Aspects), but
both the government of the Catholic Church and the person of the Pope. The international
personality the Holy See enjoys as a unique entity and the sovereignty it exercises are different
from those of other subjects of international law, be it States, international organizations like the
International Committee of the Red Cross (ICRC), or another subject of international law by tradition,
the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta
(Sovereign Military Order of Malta; Malta, Order of). Thus its international legal personality can
best be defined as being sui generis.
4 The offices of the Holy See through which the Pope governs the Catholic Church include the
Secretariat of State, which under the Cardinal Secretary of State most closely assists the Pope in
the execution of his powers, but also the dicasteries, eg the Congregations and Pontifical Councils
within the Roman Curia which deal with specific matters of competencesuch as conservation of
the faith, religious orders, liturgy, Christian Unityas well as courts of the Church such as the well
known Rota Romana, but also offices administering the financial assets or other property of the
Holy See.
(b) The State of the Vatican City
5 The State of the Vatican City is a separate entity, like the Holy See a subject of international
law, and was established only in 1929 by the Lateran Treaties. The Vatican State comprises its
own legislation, its own civil, penal, and administrative courts and under its own governor deals
mainly with technical, commercial, and cultural matters such as police, fire services, the Vatican
Museums, the Vatican Mint, the Vatican Bank, etc. The Vatican State is made up of 108
acres, plus extraterritorial real estate property in Castel Gandolfo and in the city of Rome. Fewer
than 500 personsmainly due to their function with the Roman Curiahave the citizenship of the
Vatican State (see also Nationality).

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

(c) The Relationship between the Holy See and the Vatican State
6 The relationship between the two distinct legal entities can be defined in such a way that the
sovereign of both the Vatican State and the Holy See is the Pope and that the Vatican State
constitutes the territorial basis for the Holy See, which has unimpeded sovereign powers and
jurisdiction over the Vatican State (Jurisdiction of States). The latter is represented by the
Secretariat of State of the Holy See in its relations with States and other subjects of public
international law as well as regards the conclusion of treaties (Representatives of States in
International Relations; Treaties, Conclusion and Entry into Force).

3. History
7 At the latest with the donations of land by King Pippin the Younger in 754 the Papal State was
established and thus the Pope also as a sovereign temporal ruler. The papacy reached the zenith
of its powers when in 1077 Pope Gregory VII gained the upper hand over Emperor Henry IV
concerning the investiture of bishops and established the Pope as reigning above the worldly
sovereigns (Holy Roman Empire). The ensuing Concordat of Worms in 1122 then became a
determining moment in the development of the separation of religious and temporal powers. Later
on, the temporal power gradually waned, the low point being the loss of the Papal State in 1870,
without putting in doubt the international law personality of the Holy See.

B. The Holy See as an Actor in the International Community

1. Bilateral Diplomatic Relations with States
8 The Holy See entertains diplomatic relations with 172 States, among them many where Catholics
are only a tiny minority, such as Iran, Israel, Japan, or Pakistan. About 70 of these States have
proper ambassadors resident in Rome (see also Heads of Diplomatic Missions; Premises of
Diplomatic Missions). Since the Holy See, however, does not accept double accreditation to the
Holy See and to the Italian Republic, the ambassadors of States that have chosen multiple
accreditation reside in other European countries. Notable among the few exceptions of States
without diplomatic relations with the Holy See are the Peoples Republic of Chinahowever,
diplomatic relations exist with Taiwan under the name of Republic of ChinaMalaysia, Vietnam,
and Saudi Arabia. In addition, the Holy See has diplomatic relations with the Sovereign Military
Order of Malta and with the European Union (European Community and Union, Actor in International
Relations; European [Economic] Community) as well as relations of special nature with the
Russian Federation (Russia) and with the Palestine Liberation Organization (PLO) (Palestine).

2. Relations with International Intergovernmental Organizations

9 The Holy See is a member of orin most casesan observer at certain international
organizations (International Organizations or Institutions, Membership; International Organizations
or Institutions, Observer Status). It has enjoyed observer status at the United Nations (UN) since
1964. In 2004 the UN General Assembly agreed to significantly enlarge the rights of the Holy See as
an observer to enable it to sit and speak in the plenary, to circulate documents, to bring forward
motions of order, and to table together with other members draft resolutions (International
Organizations or Institutions, Secondary Law; United Nations, General Assembly). However, the
Holy See has no right to participate in elections for elected offices within the UN or to nominate
candidates in such cases. It also has observer status in international organizations such as the
International Organization for Migration (IOM), World Meteorological Organization (WMO), United
Nations Environment Programme (UNEP), United Nations Human Settlements Programme (UN
HABITAT), World Health Organization (WHO), United Nations Educational, Scientific and Cultural
Organization (UNESCO), World Tourism Organization (UNWTO), Food and Agriculture Organization
of the United Nations (FAO), World Trade Organization (WTO), International Labour Organization

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

(ILO), as well as regional organizations such as the Council of Europe (COE), the Organization of
American States (OAS), the League of Arab States (LAS), and the African Union (AU).
10 The Holy See is a fully fledged member, for example, of the Organization for Security and Cooperation in Europe (OSCE), the United Nations High Commissioner for Refugees (Refugees, United
Nations High Commissioner for [UNHCR]), United Nations Conference on Trade and Development
(UNCTAD), World Intellectual Property Organization (WIPO), International Atomic Energy Agency
(IAEA), and the Comprehensive Nuclear-Test-Ban Treaty Organization (Non-Proliferation Treaty
[1968]). The Vatican State is a member of the International Telecommunication Union (ITU),
Universal Postal Union (UPU), International Telecommunications Satellite Organization, formerly
INTELSAT, EUTELSAT, UNIDROIT, WIPO, and the International Grain Council (Commodities,
International Regulation of Production and Trade).
11 There seems to be no clear systematic reason as to when the Holy See or the Vatican State
will sign an international agreement and become a party thereto. The opinion that the Holy See
signs and becomes a party in those cases where the spiritual mandate of the Catholic Church
comes into play does not readily fit cases such as those where, for example, the Holy See is a
member of the Preparatory Commission for the Comprehensive Test Ban Treaty or of the
Organisation for the Prohibition of Chemical Weapons (Chemical Weapons and Warfare). The
spiritual mandate of the Catholic Church in these treaties can at best, if at all, be seen under the
very broad assumption that the aim of preserving and fostering international peace is part of the
spiritual mandate of the Holy See (Peace, Proposals for the Preservation of; see also Peace, Breach
of; Peace, Threat to). Looking at the nature of agreements to which the Vatican State is party,
does not clearly solve the matter either. Though most of these concern matters of a technical
nature that territorial governments usually deal witheg ITUUPU and membership of the WIPO
would not qualify in that respect. The Holy See itself does not expressly address the question, but
lists on its homepage only the Holy See as acting subject to international law, though adding
examples that in the case of some international organizations the Holy See is a member also in the
name and on behalf of the Vatican State.

3. The Holy See as a Party to International Conventions

12 The Holy See has, among others, signed and ratified the Vienna Convention on Consular
Relations (1963) and the Vienna Convention on Diplomatic Relations (1961) (VCDR), the Geneva
Conventions IIV (1949) and the Convention relating to the Status of Refugees (Refugees). Of the
six most important human rights conventions the Holy See has signed and ratified three: the
International Convention on the Elimination of All Forms of Racial Discrimination (Racial and
Religious Discrimination), the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, (Torture, Prohibition of) and the Convention on the Rights of the Child
(Children, International Protection). The Convention on Political Rights of Women (Women, Rights of,
International Protection), the International Covenant on Civil and Political Rights (1966), and the
International Covenant on Economic, Social and Cultural Rights (1966) have neither been ratified
nor signed by it. It is understood that it endorses the aims of these international conventions in
principle, but that they either do not suit the specific status of the Holy See in international law or
that these conventions do not allow for reservations (Treaties, Multilateral, Reservations to) which
would have to be made, for example, in view of the fact that the Catholic Church does not allow
women into the priesthood noron grounds of faithdivorce or abortion.

4. The Exercise of the Right of Legation

13 Historically, the system of papal envoys, the Apostolic Nuncios, contributed prominently to the
development of international diplomacy. After the end of the Middle Ages in the 16th century the
Pontiff was the first sovereign to send permanent envoys to other courts, in contrast to envoys with
a specific task, a solution mainly preferred in earlier times. The first ones were sent to the Emperor

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

of the Holy Roman Empire and the Kings of Spain and France. In turn, these sovereign princes sent
permanent envoys to the Holy See. A minority of States recognize the envoy of the Pope as dean
of the diplomatic corps, a principle of old tradition, affirmed by the Vienna Congress (1815) and
reaffirmed by the VCDR.
14 The Holy See maintains a small diplomatic service of about 250 diplomats in its more than 120
bilateral and 15 multilateral missions, trained in its own diplomatic academy. In the bilateral relations
with States, the more than 120 nunciatures focus of attention is directed not so much towards the
field of diplomatic relations with the host country and, where applicable, even less to that of dean of
the Diplomatic Corps, but rather to internal matters of the Catholic Church, in particular to the
situation within the church of the host countryits legal status, especially its freedomor its
relations with the Holy See. In multilateral relations the diplomats of the, in total, 15 representations
to international organizations concentrate on issues such as human rights, economic and social
justice, and efforts to maintain and further international peace.

5. The Pope as Mediator or Arbitrator

15 The Holy See was one of the first, if not the first permanent mediator in history (Mediation). The
activities of the Pontiff as regards the peaceful settlement of international disputes stretch from the
first successful intervention of Pope Leo the Great to save Rome from the troops of Attila the Hun in
452 throughout the Middle Ages well into modern times. One of the first mediations by the Holy See,
with its effects still relevant today, was the Treaty of Tordesillas of 1494, brokered by the Pope and
dividing the spheres of influence between Spain and Portugal on the South American subcontinent.
Altogether, such cases were numerous, close to 100 until the end of the 19th century, possibly
even more. Especially in the last 50 years before World War I countries world-wide made use of the
Popes services, among them also some with a Catholic minority, such as for example the German
Empire, the United Kingdom (UK), and the United States of America (US).
16 It started with the arbitration requested by the German Empire in its dispute with Spain
concerning the Caroline Islands in the Pacific in 1885 and many followed, eg the arbitrations
between the UK and Portugal (1890); Haiti and Santo Domingo (1895); Argentina and Chile (1900;
see also ArgentinaChile Frontier Cases); Columbia and Peru (1905); Columbia and Ecuador
(1906); Brazil and Bolivia (1909) respectively Peru (1910); Argentina, Brazil, and Chile (1914); or
the mediation between Peru and Ecuador (1893); the UK and Guyana (1894); the Abyssinian
Emperor Menelik and Italy (1896); Cuba and the US (1898). In connection with the Franco-Prussian
War 1870 and World War I one witnesses the efforts of Pope Pius IX in 1870 and Pope Pius X in
1914 respectively to prevent their outbreak and of Pope Benedict XV in 1917 to end the latter.
17 After that period mediation by the Holy See was not sought for many years. In 1979 both Chile
and Argentina approached the Pontiff to mediate their conflict over the Beagle Channel (Beagle
Channel Dispute). Pope John Paul II personally received the delegations of the two countries and in
1980 the Holy See came forward with a proposal. After four more years of negotiations between the
parties the dispute was settled in a peace treaty (peace treaties). In 2003 Pope John Paul II, without
being asked to intervene, sent personal envoys to both President Bush and the then Iraqi President
Saddam Hussein to try to prevent the outbreak of an armed conflict (Iraq, Invasion of [2003]).

C. The Lateran Treaties

18 Three separate, though closely intertwined treaties between the Italian State and the Holy See,
are called the Lateran Treaties after the site where they were signed in 1929, the Lateran Palace,
traditional seat of the Bishop of Rome, ie the Pope.
19 The first of these treaties, the principal one because of its eminent political nature and far
reaching consequences, ended the so called Roman Question, ie the non-relationship between the

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

Holy See and the Italian State after the latters seizure of the Papal State. This treaty formally states
the mutual recognition of each other and established the Vatican State to secure the visible
independence of the Holy See and to guarantee the latters indisputable sovereignty in the
international realm (Territorial Integrity and Political Independence). It stipulates for example in its
Art. 24 that the Vatican State is a permanently neutral State (Neutrality, Concept and General
Rules) and that the Holy See does not engage in disputes between third States nor in international
conferences (Conferences and Congresses, International) to deal with such disputes unless the
parties involved call unanimously upon the Holy See in its mission of peace.
20 The Financial Agreement settled demands of the Holy See in view of the loss of the Papal State
to the Kingdom of Italy by stipulating that Italy is obliged to pay the sum of 750 million lira and that
the Holy See accepts this amount as a final settlement of all its demands in connection with the
events of 1870, ie the seizure of the Papal State.
21 The third treaty is a concordat (Concordats) between the Holy See and Italy dealing with the
usual subject-matters of a concordat.

D. Vacancy of the Holy See and Election of a New Pope

22 Matters of Vacancy of the Holy See and the election of the new Pope are exclusively dealt with
by the Apostolic Constitution Universi Dominici Gregis promulgated in 1996.

1. Vacancy
23 With the death of the Pope the rules emanating from that Apostolic Constitution are applied: all
heads of dicasteries and of other institutions of the Roman Curia step down, except for a few
exceptions. The normal business is then conducted by their deputies, all being responsible to the
College of Cardinals (College).
24 The leadership of the Catholic Church and its executive powers are transferred to the College,
limited however to those matters which need to be dealt with in the normal order of business and
cannot be postponed, and to all matters concerning the preparation of the election of a new Pope.
25 Two bodies are constituted: the Special Congregation and the General Congregation. The
Special Congregation is made up of the Chamberlain and three cardinals who only deal with
ordinary matters concerning usual business. Matters of greater importance have to be submitted to
the General Congregation, all members of which are cardinals. The General Congregation will also
decide upon the organization of the funeral mass, the burialbetween the fourth and the sixth day
after the deathand the beginning of the election of the new Pope.
26 The governing authority for the Vatican State during the time of vacancy lies with the
College. However, the College can only publish decrees in urgent matters, which are valid solely
during the vacancy and need confirmation by the new Pope in order to stay in force.

2. Election of a New Pope

27 The election of a new Pope takes place in the Conclave which is convened by the General
Congregation no sooner than 15 days and no later than 20 days after the death of the Pope.
Cardinals that have not yet completed 80 years of age on the day of the death of the Pope are
obliged to participate in the elections unless they are specifically excused by the College.
28 The Conclave takes place within the territory of the Vatican , traditionally in the Sistine
Chapel. In order to be elected, a candidate must obtain a 2/3 majority of those present (para. 62,
Chapter V of the Apostolic Constitution Universi Dominici Gregis by Pope John Paul II, 22 February
1996). In para. 75 of that Constitution, however, the rule was modified as follows: after 33 ballots

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

without arriving at that majority, the College could decide with an absolute majority of those present
that in future ballots an absolute majority would suffice or that there must be a decisive vote
between the two candidates with the largest numbers of votes. An absolute majority is necessary
for the election of the new Pope. After many requests to return to the previous absolute principle of
a 2/3 majority, Pope Benedict XVI agreed, and on 21 June 2007 para. 75 was abrogated and
substituted as follows: after 33 ballots without arriving at the 2/3 majority the cardinals should take
a recess of one day for prayers and dialogue. In the following ballots only those two cardinals are
eligible who have received the highest number of votes in the previous ballot. Also in those ballots
a 2/3 majority of those present is necessary to be elected. The two cardinals with the highest
number of votes are prohibited from casting a vote themselves.

3. Taking Office by the Newly Elected Pope

29 From the very moment of accepting the election, the successful candidate is Bishop of Rome
and thus Pope with full and supreme powers within the universal Catholic Church, on condition that
he is already consecrated as a bishop. Should this not be the case, he will be consecrated
immediately as a bishop by the highest ranking cardinal present.

E. Assessment
30 In the foreseeable future the Holy See will keep its status as a subject of public international
law. It is challenged by no one and the importance of the Holy See as a player on the international
scene might even increase. Over the last 17 years since the fall of the Iron Curtain (see also Cold
War [194791]) and the emergence of new democracies in the former communist countries of
Central and Eastern Europe (see also New States and International Law) we have seen that almost
all of these countries have established diplomatic relations with the Holy See. Prospects are that
even more countries will follow suit. However, the question which country and when and under
what conditions is difficult to assess. Both China and Vietnam are in discreet and regular contact
with the Holy See; nevertheless, it would be mere speculation to say when they will formalize their
relations and whether these would be regular diplomatic ones in the technical sense.
31 Also the Holy See itself has clearly no intention of giving up the status it enjoys internationally.
That status is a platform to ascertain the positions of the Catholic Churchoften and in many
respects also the positions of Christian churches in general, sometimes perhaps even those of
other religious beliefson issues of human rights in general and of religious freedom in particular.
32 Its international standing might in addition offer the Holy See in the future a special task to
perform: the dialogue with the Muslim World, apart from that entertained by States. In this respect
the Holy See would not engage in an inter-religious dialogue in the strict sense between religious
beliefs, but rather in an inter-cultural dialogue as a partner especially suited for the task by its
simultaneous capacity as a church and a subject of public international law, as an institution that is
recognized as a partner for dialogue both by governments of Muslim States as well as by religious
Muslim institutions.

Select Bibliography
J Mller (ed) Das Friedenswerk der Kirche in den letzten drei Jahrhunderten: Die Diplomatie
des Vatikans im Dienste des Weltfriedens seit dem Kongress von Vervins 1598 (Deutsche
Verlagsgesellschaft fr Politik und Geschichte Berlin 1927) vol 1, Die Friedensvermittlungen
und Schiedssprche des Vatikans bis zum Weltkriege 1917: Sammlung ausgewhlter
Aktenstcke ber die Friedensttigkeit des Heiligen Stuhls.
HF Kck Die vlkerrechtliche Stellung des Heiligen Stuhls: Dargestellt an seinen
Beziehungen zu Staaten und internationalen Organisationen (Duncker & Humblot Berlin

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014

1975).
HE Cardinale The Holy See and the International Order (Smythe Gerrards Cross 1976).
P Blet Histoire de la reprsentation diplomatique du Saint Sige des origines laube du
XIXe Sicle (Archivio Vaticano Citt del Vaticano 1982).
A Verdross and B Simma Universelles Vlkerrecht: Theorie und Praxis (3rd ed Duncker &
Humblot Berlin 1984) 24749.
RJ Araujo The International Personality and Sovereignty of the Holy See (2001) 50
CathULRev 291360.
G Dahm, J Delbrck, and R Wolfrum Vlkerrecht (2nd ed de Gruyter Berlin 2002) vol I/2, Der
Staat und andere Vlkerrechtssubjekte: Rume unter internationaler Verwaltung 31723.
I Brownlie Principles of Public International Law (6th ed OUP Oxford 2003) 6364.
V Buonomo The Holy See in the Contemporary International Community: A Juridical Approach
According to the International Law and Practice (2004) 2 Civitas et Justitia 740.
W Vitzthum (ed) Vlkerrecht (3rd ed Berlin 2004) 166.

Select Documents
Beagle Channel Arbitration (Argentina v Chile) (18 February 1977) 52 ILR 93.
Code of Canon Law: Latin-English Edition: Translation: Prepared under the Auspices of the
Canon Law Society of America (Canon Law Society of America Washington DC 1983).
John Paul II Universi Dominici Gregis: Apostolic Constitution on the Vacancy of the
Apostolic See and the Election of the Roman Pontiff (Libreria Editrice Vaticana Citt del
Vaticano 1996).
Treaty between Italy and the Holy See (signed 11 February 1929), in HE Cardinale, The Holy
See and the International Order (Smythe Gerrards Cross 1976) 319.
UNGA, Participation of the Holy See in the Work of the United Nation: Note by the SecretaryGeneral (16 August 2004) UN Doc A/58/871.

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2013. All Rights Reserved. Subscriber:
OUP - Marketing; date: 27 November 2014