Freemasons in the "Church"

THE ORDER OF MALTA, SOVEREIGNTY, AND INTERNATIONAL LAW[1]

The name Sovereign Military Order of Saint John of Jerusalem, of Rhodes and Malta was incorporated into the Order's 1936 Constitution; the word "Hospitaller" was adopted in the 19th century and added to the present Code. The word "Sovereign" was first assumed after the loss of Malta in 1800 to reflect its autonomous extra-territorial Sovereignty; the words "Military" and "of Malta" do not reflect the present-day character of the Order but its historical and chivalric traditions. Several National Associations, however, maintain Ambulance Brigades organized on military lines and the Order has a special relationship with the Italian Army.

Historically the Order was founded as a Religious Military Order of the Roman Catholic Church. Its independent constitution gave it certain privileges that effectively exempted it from interference by the States in which it owned benefices or commanderies. By 1312 it had obtained territorial possession of the Island of Rhodes, enjoying absolute Sovereignty over this island. The S.M.H.O.M. has enjoyed the right of conducting its own relations with other States since its occupation of the Island of Rhodes. It ruled this Island and its dependencies as an aristocratic Republic, comparable to Venice and Genoa, with only the members of the Order enjoying any political rights that were denied the ordinary population. Already possessing a population, a territory, and jurisdictional authority, by the time Pope Nicholas V acknowledged the Grand Master as "Sovereign prince" in 1446, the Order had become an independent State and subject to the rules of International Law as then understood (largely applicable to maritime matters). By virtue of its possession of an Army and a Navy it was able to enforce its territorial independence, until 1523 when it lost it to the powerful forces of the Turkish Sultan. Nonetheless, even after that date (and before its acquisition of Malta and Gozo) it still maintained its military might, and its many commanderies and properties enjoyed freedom from local legal jurisdiction. The loss of Rhodes did not affect its juridical status, or the treatment it received from other Sovereigns or States.

The Islands of Malta and Gozo before 1530 were part of the Kingdom of Sicily; they enjoyed no freedom of self-government and none of the characteristics of statehood. The grant of the Islands to the Order, as a vassal of the King of Sicily (requiring an annual tribute of a falcon), did not confer Sovereignty on the Islands themselves, but gave the Order Sovereignty over them.[2] The lack of political rights on the part of the population of the Islands demonstrates that the Orders Sovereign status was independent of either the territory or people of Malta and Gozo. It was by virtue of that independent, Sovereign status that other States treated the Order as an equal, not because of its possession of territory. The Knights themselves composed the Order, even though they were also subjects of other States, and were able to maintain the Orders independence by force of arms.

Although the King of Sicily was Malta and Gozos feudal overlord, the Orders status as the islands' ruler was essentially no different to that of those sovereigns of vassal States in Italy who owed fealty to the Emperor or Pope for their possession. These included Parma, Tuscany, Piombino, Modena, Ferrara, Guastalla, Mantua, etc, each of which were treated by the Powers as Sovereign States before 1797. The Italian States of the Empire were not entitled to representation in the Imperial Diet, unlike the German vassal States, but enjoyed far greater autonomy. The Orders situation was arguably superior to that of the Sovereigns of the immediate German vassal States, whose authority over the peoples of their territories was more limited than the Grand Masters authority in Malta. Further evidence that it was the Order that was inherently Sovereign, rather than Sovereignty reposing in the islands it governed, rests with Louis XIVs cession in 1653 of sovereignty over the West Indian islands of St Christophe, St Bartholomé, St Martin and Ste Croix to the Order, and not to the Islands of Malta and Gozo. After 1798, when the Order lost possession of Malta and Gozo they once again reverted to their status as colonial possessions of the occupying power, until eventually achieving independence in 1964.

THE LOSS OF MALTA

In 1798 the Order lost both its territorial Sovereignty and governance of a population following the French invasion. The surrender agreement with the French commander, Bonaparte, was not signed by the Grand Master himself, however, but by his appointed representatives. It is questionable whether this action was legal under the constitution of the Order or the conditions attached to the concession of the Island by Charles V in 1530. The King of the Two Sicilies, as feudal overlord, strongly protested the surrender and refused to consider it legally binding. First France and then Great Britain acquired de facto Sovereignty over Malta, without the assent of the King of Sicily. Later both France and Great Britain, as signatories to the Treaty of Amiens of 1802, recognized the Orders claim to territorial Sovereignty. Furthermore Great Britain undertook to return the Islands of Malta and Gozo to the rule of the Knights.[3] The Treaty provided that the Order should continue to be treated as a neutral Power (article 7), and furthermore imposed certain restrictions on the recruitment of members from France and Great Britain.

The negotiations that followed the end of the Napoleonic Wars at the Congress of Vienna 1815-19 did not deal with the status of the Order. Great Britains possession and Sovereignty over Malta was acknowledged by agreement among the major European States, including the Two Sicilies, and the Orders claims ignored. The Order also had owned extensive extra-territorial properties across Europe; while it lost much of these in the years immediately following the French revolution, it continued to enjoy possession of those situated in Austria, Bohemia, and much of Italy. While the status of those situated in Austria and Bohemia changed following the events of 1938-1945, it remains one of the largest landowners in Italy and its properties are exempted from certain Italian fiscal jurisdiction. The Orders palaces in Rome, on the Aventine Hill and in the Via Condotti, enjoy extra-territorial status, along with certain other properties in Italy. Furthermore, the Orders palaces in Vienna and Prague have been restored to their former extra-territorial status.

THE RIGHT OF DIPLOMATIC LEGATION

The active and passive right to establish and exchange diplomatic relations is a prerogative enjoyed only by Sovereign States. The principal relevant international conventions refer solely to States. [3a] In more recent times, however, such privileges have also been exercised by bodies such as the European Union which has not only accorded diplomatic privileges to the representatives of member States, but has established diplomatic delegations to non-member States. The essential difference between the protocols established by international organizations is that they are not governed by International Law, as are those between States, but by the specific legislation pertaining to those organizations, and agreements between the organization and the State (as with the European Union and non-member States).

The Orders diplomatic representatives were consistently treated as the Representatives of a Sovereign State, before and after the loss of Rhodes in 1523, and before and after the loss of Malta in 1798. Thus it is clear that the ability of the Order to treat equally with other States was unaffected by its autonomous governance of a territory. When in 1653 the Ambassador of the Emperor presented his credentials at the court of the King of Spain at the Escorial, the Envoy of the Grand Duke of Tuscany disputed the precedence of the Orders Ambassador. The dispute was settled in the Orders favor, it being provided that in future the Orders Envoys would take precedence after those of Kings, but before those of lesser Sovereigns.[4] In 1747 the Order had Ambassadors or Envoys Plenipotentiary accredited to Rome, Vienna, Paris, and Madrid, and each were accorded precedence according to the 1653 settlement. By the end of the century the Order exchanged Ambassadors or Ministers with the Holy Roman Emperor, the Kings of France, Spain, Portugal, Prussia, and Sardinia, and the Emperor of Russia, the Republic of Venice, the United Provinces of the Netherlands, and the Elector of Bavaria.

Hompesch, Grand Master when the Order lost Malta in 1798, was treated as a Sovereign by Austria when in exile, and his eventual successor as Grand Master, Tommasi, was likewise treated as a Sovereign by several of the Powers. The following States treated with the representatives of the Order as the representatives of a Sovereign State after 1798, despite the Orders lack of any territorial Sovereignty. France (the Order was represented as Envoy Extraordinary and Plenipotentiary by the Bailiff de Ferretta from 1803-1808, when it was considered to have lapsed although the Order's Legation was included in the Imperial Almanachs of 1808, 1809 and 1810, and again from 1815 until 1831 when Ferretta was accredited to Louis XVIII in a somewhat uncertain position); Austria (a Legation was continuously maintained in Vienna, although briefly interrupted during the period following the fall of the Monarchy in 1918 and 1921, and 1938-1957 when Austrian independence was re-established); Russia from 1803-1810; the Two Sicilies and Bavaria intermittently; and Great Britain in its dealings with the Order's representatives between 1798 and 1803. The Order also sent a delegation to the Congress of Vienna in 1814, and on 1 August 1815 Commander Miarai was appointed Minister Plenipotentiary to the European sovereigns participating, and was himself included in the preliminary conference.

Aside from the period of the French occupation of Rome, the Order's Legation in Rome continued to function until 1834, when the Order established its headquarters there and it was no longer necessary. Following the Lateran Treaty, the Order's Legation was re-established in 1930. After 1815 diplomatic relations were initiated with the Duchy of Modena and Reggio (in 1844), and the Duchy of Parma and Piacenza (in 1845), and also San Marino, with none of which it had enjoyed relations before 1798. In 1823 the S.M.H.O.M. signed an agreement with the newly established Greek government, then fighting for independence from the Order's old enemy, Turkey. Relations with the Kingdom of Italy were agreed by treaties dated 20 Feb 1884, 23 Dec 1915, and 4 Jan 1938 (in which the words "due Stati" were used to define the two parties). Relations with the Italian republic were agreed in 1956.[5]

The Crown of Sweden treated the representatives of the Order as those of a Sovereign State when it proffered possession of the Island of Gottland in 1806 as Sovereign territory, an offer that the Order declined. During the course of the 19th century various proposals were made to enable the Order to recover territorial Sovereignty, but none came to fruition. A treaty is pending with the Republic of Malta (which had enjoyed full reciprocal diplomatic relations with the Order since 1964), under the terms of which the Castle of San Angelo, previously held on a lease as extra-territorial property, would be acquired by the Order as Sovereign territory.[6]

In determining the status of the Order in International Law today, it is necessary to examine the historic development of concepts of Sovereignty in International Law. In doing so it is evident that the practical recognition of what Sovereignty and statehood mean has been continually developing. In determining whether or not a State is considered to be Sovereign, the world community has historically determined such status by practical means, rather than relying exclusively on historic theoretical interpretations. It has recognized the existence or otherwise of such Sovereignty and statehood in international agreements and treaties, and in the decisions of competent courts. Such determinations have frequently advanced legal definitions and have been criticized by International Law specialists for so doing. Nonetheless, International Law is the creation of Sovereign and non-Sovereign subjects of International Law, and not of legal theorists. In determining what is the actual interpretation of Sovereignty, it is necessary to examine past legal precedents and their present application, rather than rely on restrictive theories that impose a narrower interpretation. In establishing these precedents and the current State of International Law in relation to Sovereignty and Statehood, it is worthwhile tracing its development and examining the commentaries of eminent authorities on the subject.

EARLY DEFINITIONS OF SOVEREIGNTY

"That Nation is free which is not subject to any government of any other Nation." [7] The word Sovereignty did not exist in ancient Greece or Rome, but was understood to be the equivalent of "liber" and libertatis", which together combined to encompass Proculuss doctrine. Hugo Grotius, in De Jure Belli ac Pacis, supported this concept.[8] Jean Bodin,[9] however, argued that "Sovereignty" was subject to the limitations of Divine Law and Natural Law, and by those obligations contracted on the basis of Sovereign Will to other Sovereigns or individuals.

This may be further defined in two ways: (1) Sovereignty is the essence of a State, and conditions its creation and existence; (2) Sovereign is he who has supreme power over a territory and its inhabitants, unrestrained by any law or rule made by any other power on earth. This supreme power is limited by (a) the Laws of God, and (b) obligations to other States or individuals.[10] A further classic definition of Sovereignty is expressed as the State exercising sole authority on its territory; having monopoly of legislation; monopoly of constraint on its nationals; and monopoly of jurisdiction. These latter definitions, however, suggest that States necessarily possess territory and populations, despite the fact that International Law has conceded the qualities of Sovereignty and statehood to entities that possess neither. A more recent writer has stated that "while the emergence of the State as a form of rule is a necessary condition of the concept of Sovereignty it is not a sufficient condition of it."[11]

P. Isoart has defined three essential characteristics for the birth of a State: (a) population, (b) territory, (c) juridical, without acknowledging the broader interpretations recognized in International law. [12] Again, by limiting statehood to entities that enjoy all of these three aspects of Sovereignty, Isoart ignores the practical interpretation of International Law in determining the qualities of a State.

SOVEREIGNTY AND THE HOLY SEE

The lack of any Sovereign territory is not an impediment to full recognition. Under the 1871 Law of Guarantees the Italian State unilaterally declared the Holy See[13] to be "a subject of international law" and the Vatican as Italian territory. From 1870 until the Lateran treaty of 1929, the Holy See was without territory under Italian law, occupying the Vatican Palaces de facto but without Sovereign authority.[14] The Kingdom of Italy considered the Vatican to be part of Italy, and this position was unchallenged by many of the Powers. Nonetheless, a number of Sovereign States, including Austria-Hungary, Prussia, Bavaria, Belgium, Bolivia, Brazil, France, Ecuador, Nicaragua, Guatemala, Monaco, Peru, Portugal, and San Salvador (and later Chile, Spain, Argentina. Colombia, Costa Rica, Dominican Republic, Haiti, Russia and Uruguay) recognized the Holy See as Sovereign, albeit with no territorial Imperium, exchanging reciprocal relations. In the period between 1870 and the signing of the Lateran Treaty, the Holy See signed thirteen Concordats, being treated by each contracting State as a Sovereign State in International Law. Great Britain had accredited ministerial representatives to the Pope until 1874, and the United States ministerial representatives until 1867 and consular until 1872, after the loss of territorial Sovereignty.

The Lateran treaty established the basis for exchanging reciprocal diplomatic relations between Italy and the Holy See. It also established the existence of the "City of the Vatican" as the "Sovereign Territory" of the Holy See. The treaty made special provision for those customarily resident in the Vatican, acknowledging that even while they retained other citizenship, they were subject to the Sovereign authority of the Holy See while on the territory of the Vatican City. The Treaty was intended to solve the "Roman Question", whose existence the Holy See did not acknowledge until the signature of the Treaty on 11 February 1929. This apparent change in the status of the Holy See did not lead to any "upgrading" of relations with those States that were already accredited to the Supreme Pontiff. Thus, the status of the Holy See as a Sovereign Power was apparently unaffected by its loss of territory and population in 1870, and by its subsequent acquisition of both in 1929. Great Britain and the United States subsequently accredited diplomatic representatives at a Ministerial rather than Ambassadorial level, accepting Apostolic delegates whose responsibilities were limited solely to ecclesiastical, and not State matters. Full reciprocal relations were delayed until the 1980s, when (Pro-) Nuncios were accredited from the Holy See and Ambassadors sent to the Vatican. The decision to institute full reciprocal relations, after some internal political controversy, may be attributed more to a wish to improve relations with the Head of the Catholic Church than any perception of a change in status of the Holy See.

That the Holy See does not exchange diplomatic relations on the basis of its possession of the Vatican City State, but by virtue of its historic status, was argued successfully by the US State Department when the decision of the United States to exchange full diplomatic relations was challenged.[15] The establishment of the "City of the Vatican" in the Lateran Treaty did not create a new Sovereign subject of International Law, since the new territory was subordinated to the Sovereignty of the Holy See, which already existed as a Sovereign State before the signing of the Treaty. The Holy See is a member of the international postal union, unlike the S.M.O.M. (which nonetheless has signed many international postal agreements) and both use Italian currency. Thus the same principles that are applied in recognizing the Sovereignty of the Holy See may be applied to the S.M.H.O.M., whether or not the latter actually possesses "Sovereign territory".

"Sovereignty implies independence of the State of the Will of any other Power and the sole right of Sovereign decisions in all matters concerning the State."[16] "Sovereignty means independence and independence means Sovereignty."[17] "Sovereignty, meaning supreme power, may only exist with independent States inside but not outside the State, and therefore may not be "external" (which is the definition of "independence").[18] But Sovereignty is "not a basic element of the State rather an autonomy of the State" and the needs of the international community are today placed above those of individual States.[19] "Sovereignty in International Law is defined as the Supreme Power of the State over its territory and inhabitants, and independent of any external authority. As such it constitutes a criterion of the State as a subject of International Law".[20]

These forthright definitions, each found in the work of a recent scholar,[21] are nonetheless limited by the decisions of bodies competent to determine such matters. They are also incompatible with the recognition of the attributions of Sovereignty recognized by States in their dealings with the Holy See from 1870-1929, and in subsequent agreements between the Holy See and other States when establishing diplomatic relations. Decisions by the International Court of Justice and its predecessor, and by other competent bodies, allow for a more extensive definition of Sovereignty and statehood, one which may be expressly limited in some way, or which may not enjoy the more visible aspects of statehood: territory and population. "The concept of absolute Sovereignty is condemned and definitively rejected as inconsistent with the existence of International Law as a legal discipline".[22]