Immunity

'The Legal Status of the Holy See' [PDF] by Cedric Ryngaert in 3(3) Goettingen Journal of International Law (2011) comments that -

The Holy See enjoys rights under international law that few, if any, non-State actors (excluding intergovernmental organizations) enjoy: it has joined various intergovernmental organizations, it is a party to a substantial number of bilateral and multilateral treaties, it sends and receives diplomatic representatives, is said to enjoy immunity from jurisdiction, and has been granted permanent observer status at the United Nations. However, unlike the Vatican City State, the Holy See is not to be characterized as a State, given that it has a global spiritual remit and that it can act internationally without a territorial base. Instead, it is a sui generis non-State international legal person which borrows its personality from its ‘spiritual sovereignty' as the center of the Catholic Church.

The article is of most interest for its discussion of immunity issues. Ryngaert comments that -

the diminishing autonomy of the Holy See vis-à-vis States is also exemplified by domestic courts’ reluctance to grant the Holy See immunity from jurisdiction.

Immunity cases do not only arise in Italy, where the Holy See has its seat. In various States, and in particular the United States, sex abuse scandals in the Church have recently given rise to legal proceedings against the Holy See on the basis of the latter’s vicarious liability for the Catholic clergy or its negligence in the face of the abuses.

The immunity of the Holy See in Italy is purportedly regulated by Article 11 of the Lateran Conciliation Treaty (1929), which provides that “[a]ll central bodies of the Catholic Church shall be exempt from any interference on the part of the Italian State (except as provided by Italian law with regard to acquisition of property made by recognized public bodies (corpi morali), and with regard to the conversion of real estate)”. Italian courts have traditionally given this provision a broad interpretation. In a 1987 case, for instance, the Italian Court of Cassation granted immunity from criminal jurisdiction to three high officials of the Vatican Bank accused of complicity in the fraudulent bankruptcy of the Banco Ambrosiano, on the basis of Article 11 of the Conciliation Treaty. Along similarly liberal lines, the Court of Cassation held in 1982 that the Vatican Radio enjoyed immunity from jurisdiction as it was a central body of the Catholic Church.

The liberal interpretation of Article 11 of the Conciliation Treaty was rejected in 2003, however. In the Tucci case, the Court of Cassation, drawing on Article 31 of the VCLT (which lays down the rules of treaty interpretation), held that the Holy See’s immunity from jurisdiction could not be inferred from the obligation of non-interference enshrined in the Lateran Treaty:

The obligation set out in Article 11 of the Lateran Treaty not to interfere with activities of the central bodies of the Catholic Church could not be considered in any way as equivalent to immunity from jurisdiction. Indeed, while the latter would have required the Italian State to waive its jurisdictional authority, no such limitation was implied when abiding by the obligation of non-interference. The obligation in question was not tantamount to a general waiver by Italy of its sovereignty and, in particular, to the exercise of jurisdiction. It only aimed at protecting the independent performance of the activities connected with the Magisterium of the Catholic Church.

The right to invoke immunity from jurisdiction must be stated expressly and could not be inferred from a provision dealing with non- interference. As the immunity imposed heavy limitations on state sovereignty, it had to be provided for by special rules not subject to an extensive interpretation. The fact that immunity from jurisdiction could not be inferred from the obligation of non-interference, was confirmed by Article 31(1) of the Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entered into force 27 January 1980, which considered the textual criterion to be the general rule of interpretation of treaty provisions.

While undertaking the obligation not to interfere, and recognizing the absolute sovereignty and independence of the Catholic Church, the Italian State had, at the same time, maintained its own sovereignty in the temporal order.

Importantly, the Court of Cassation considered the Lateran Treaty as a self-contained régime concerning the relationship between the Italy and the Holy See; only in passing did it note that the Holy See did not enjoy immunity from jurisdiction under customary international law.

As regards the particular facts of the Tucci case, in which private citizens and environmental organizations sought redress from three managers of the Vatican Radio for alleged damage sustained as a consequence of electro-magnetic radiation emanating from plants situated on the territory of the Holy See, the Court’s rejection of the Holy See’s immunity reinstated the full sovereignty of Italy over (environmental) crimes of which the effects were felt in Italian territory:

Italy could fully exercise its competence to punish criminal offences that, although committed on the territory of the Holy See, caused harmful effects within the national territory. The exercise of Italian jurisdiction was subject to the sole condition of a causal link between those harmful effects and the illicit act committed on the territory of the Holy See

It is of note that, in the Court’s view, human rights, constitutional protections, and the individual’s right to an (effective) remedy corroborated the restrictive interpretation of Article 11 of the Lateran Treaty, and the resulting rejection of immunity. It was precisely the Court’s failure to consider such protection in its 1980s case law that led to fierce criticism of the Court’s interpretation of Article 11 at the time.

Regardless of the restrictive interpretation of Article 11 of the Lateran Treaty and the Court’s unwillingness to equate the principle of non- interference with the notion of immunity, also after the Tucci case immunity continues to flow de facto from Article 11 to the extent that harmful acts emanate from a ‘central body’ of the Catholic Church, i.e., a body of the Roman Curia (which the Vatican Radio was not according to the Court). It would indeed be difficult to fathom how a jurisdictional assertion over the Roman Curia on the part of Italian courts could not amount to interference with the (spiritual) activities of the Holy See.

In States that have not entered into a bilateral agreement with the Holy See – indeed the great majority of States – any immunity that could accrue to the Holy See is to be derived from domestic law, international law, or a combination of both. In practice, while States have enacted legislation regulating the affairs of the Catholic Church, they have not enacted legislation addressing the legal status of the Holy See within their territory or before their courts. Nor may there be a clear principle that the Holy See, as a sui generis international legal person that differs from States, is entitled to immunity under general international law in ways similar to the immunity of States.

Still, U.S. courts have treated the Holy See as a sovereign for purposes of applying the U.S. Foreign Sovereign Immunities Act (FSIA), although, technically speaking, the act only applies to foreign States and their political subdivisions, agents, and instrumentalities. This may be explained by the fact that the U.S. and U.S. courts consider the Holy See and the Vatican City State as interchangeable, or the Holy See as representing the Vatican City State.

Plaintiffs suing the Holy See have made the most forceful argument against the characterization of the Holy See as a State for purposes of FSIA application in the case of O’Bryan v. Holy See (2009), which concerned the Holy See’s liability for sex abuses committed by U.S. Catholic clergy in Kentucky. They asked a Kentucky District Court, and on appeal the Court of Appeals for the 6th Circuit, to conceive of the Holy See as two separate entities: one being identifiable with the Vatican as a foreign sovereign recognized as such by the U.S. Government, and another being the ‘unincorporated head of an international religious organization’, namely the Roman Catholic Church, which “has no defined territory and no permanent population, and thus does not satisfy the definition of ‘foreign state’ under the Restatement’s [Third, of U.S. Foreign Relations Law 1987] standard”, and that is “wholly distinct and separate from its role and activities as a sovereign”.

The plaintiffs’ argument in O’Bryan was rejected by the courts, however. The District Court held that the plaintiffs “cite no authority for the proposition that the Holy See may be sued in a separate, non-sovereign function as an unincorporated association and as head of an international religious organization”. The Court of Appeals affirmed, citing other U.S. courts’ case law, and held that the status of the Holy See as a “parallel non-sovereign entity” was “conjured up by the plaintiffs”. This determination did not come as a surprise, as the U.S. Government had intervened as an amicus curiae in the case supporting the position of the Holy See regarding its status as a foreign sovereign for purposes of the FSIA. In our view, however, plaintiffs’ argument was convincing, since, as argued above, the Holy See should not always be considered as representing its territorial base, the Vatican State. When supervising priests, it acts in its capacity as a non-State religious organization rather than as a State.

In any event, since U.S. courts have considered the Holy See as a State for purposes of the FSIA, immunity disputes involving the Holy See have not revolved around the question of whether the FSIA is applicable in the first place, but around the question of whether exceptions to the FSIA were triggered in specific cases pending before the U.S. courts. For instance, in the case of Dale v. Colagiovanni, the latter being an agent of the Holy See who was sued for having participated in an international insurance fraud scheme, the Court ruled that the commercial activity exception did not apply, on the ground that the agent had only acted with ‘apparent’ and not the ‘actual’ authority of the Holy See. In the recent sexual abuse cases of O’Bryan and Doe v. Holy See, the question was whether the tortious and commercial activity exceptions to the FSIA applied. Various courts came to divergent conclusions on the application of these exceptions, and the exceptions to the exceptions, but the U.S. Supreme Court refused to grant certiorari on 28 June 2010. U.S. case law regarding the exceptions to the application of the FSIA is not further discussed here, as it has no particular relevance for the subject of our study (the legal status of the Holy See under international law).

In the author’s view, consistent State practice in favor of granting immunity to the Holy See may be lacking (it may be observed that U.S. courts have conferred immunity on the Holy See under the FSIA, a domestic law instrument, rather than under international law). Furthermore, in light of the increasing importance of individuals’ right to access to a court, immunities ought to be interpreted restrictively, all the more so if the beneficiary of the immunity is not a State but a non-State actor. It is recalled in this respect that international organizations, another category of non-State actors, do not enjoy immunity under general international law, but only on the basis of particular treaties. Even if treaties confer immunity on international organizations, domestic courts, at least in the ECHR area, will only uphold such immunity if it is compatible with the right to access to a court (Article 6(1) ECHR). Finally, as far as the immunity from jurisdiction of functionaries of the Holy See (possibly including every Catholic cleric) is concerned, the immunity ratione personae of the Pope and possibly the Cardinal Secretary of State, representatives of the Vatican City State, appears as self-evident, at least if one accepts the statehood of the Vatican. A more difficult question, however, is whether functionaries of the Catholic Church (or possibly every bishop or Cardinal) enjoy immunity ratione materiae for acts that were committed in sufficient proximity to the culprit’s office, i.e. ‘under color of authority’ or by use of official resources. All charges of abuse, or of covering up cases of abuse, would then be covered by immunity ratione materiae. Against this it may be argued that offences committed in the forum State may not attract immunity. But more importantly, if the view is taken that the Holy See (unlike the Vatican City State) does not enjoy immunity under general international law, then logically its functionaries cannot enjoy immunity either, as in international law, the immunity of officials is derived from the immunity of the entity which they serve.