Cox, Noel --- "The Continuing question of sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of" [2006] ALRS 10; (2006) 13 Australian International Law Journal 211-232
Last Updated: 16 August 2010
The Continuing Question of Sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of Malta
NOEL COX*
Abstract
The Sovereign Military Order of Malta is the only organisation currently recognised, albeit by a minority of States, as quasi-sovereign. The article begins with a brief look at the concepts of sovereignty and statehood as traditionally understood. The case of the Order of Malta is then examined in its historical context, and the basis for its claimed sovereignty assessed. Recent reconsideration of the concept of State sovereignty, and challenges to the State, are then considered. The lessons from the example of the Order of Malta for the relationship of territory and statehood are evaluated.
Introduction
The Sovereign Military Order of St John of Jerusalem, of Rhodes and of Malta,
also known as the Order of Malta, the Order of St John
of Jerusalem, or simply
the Knights Hospitallers or Hospitallers, is a unique international
confraternity. It is the only organisation
currently recognised, albeit
controversially, by a minority of States, as sovereign or quasi-sovereign. In
view of the claims to
‘sovereignty’ which have been made from time
to time by other Orders of chivalry – or more recently by various
pretended Orders – to such status, it is worthwhile looking more closely
at the claims made by or on behalf of the Order of
Malta. In so doing we may
help to locate the origin and nature of this so-called sovereignty, and answer
the question of which Orders
of chivalry are likewise ‘sovereign’,
or, indeed, whether the Order of Malta itself is truly sovereign.
The
article begins with a brief look at the concepts of sovereignty and statehood as
traditionally understood. A survey is then made
of the origins of what might be
called anomalous entities – bodies which have some status at international
law, but which are
not traditional States. The case of the Order of Malta is
then examined in its historical context, and the basis for its claimed
sovereignty assessed. The position of branches of the Order, and of other
ancient religious Orders is looked at. Recent reconsideration
of the concept of
State sovereignty, and challenges to the State, are then considered. The lessons
from the example of the Order
of Malta for the relationship of territory and
statehood are evaluated.
1. Sovereignty and Statehood
The notions of sovereignty and statehood were once among the most important
aspects of public international law. Their heyday was
perhaps in the late
nineteenth century, when sovereign States enjoyed almost unfettered independence
of action. These were subject
only to the regulation of their diplomatic and
military action, principally by the Law of Armed Conflict, or the Laws of
War.[1]
But to have
sovereignty, a State must have a permanent population, it must have a defined
territory, it must have a government, and
it must have the capacity to enter
into diplomatic
relations.[2] No other
entity could be regarded as a sovereign State, whatever its de facto power. The
Order of Malta at one time met all these
criteria for statehood, but does not do
so now.
This article is the latest in a long series of attempts to explain
the somewhat anomalous situation of the
Order.[3] That this is
an on-going controversy is the result of what Breycha-Vauthier and Potulicki
called ‘a somewhat regrettable confusion
of the Order’s permanent
position as an international organisation and its role as a territorial
Power’.[4] The
character of the Order did not originate simultaneously with its territorial
sovereignty, and therefore did not disappear with
the
latter.[5] We must,
therefore, be on guard against attaching too much significance to the
characterisation of a particular entity as a
‘State’.[6]
The Order may be sovereign in a limited sense, but not necessarily a State. It
may also be true that recent debate surrounding the
nature of State sovereignty
has gone some way to tempering the hitherto rigid adherence to nineteenth
century notions of State sovereignty.
2. The existence of anomalous entities having personality at international law
Traditionally only territorial States were regarded as international persons,
capable of having rights and duties under international
law.[7] That was simply
a corollary of public international law, which was nothing less than – and
originally little more than –
the rules governing the relations of States.
But that understanding of statehood has passed through several phases. In one
model
1648 and the Peace of Westphalia have stood out as seminal, but there have
been other important historical moments. That entities
other than States can be
subjects of international law is not even now a universally accepted idea, and
exactly which entities do
have this status is an even more controversial topic.
The status of organisations in international law is less controversial than
the assumption of rights and duties by individuals or
groups of individuals. In
1949 the International Court of Justice recognised the United Nations
(‘UN’) as an international
person,[8] thereby
beginning the process whereby an ever increasing number of modern international
organisations are recognised as having personality
at international law. That is
not the same thing as saying that the UN is a State, which it certainly is not,
or that its legal personality
and rights and duties are the same as those of a
State.[9]
There are
now many international organisations, though not all of these are necessarily
subjects of international
law.[10] Whilst many
such organisations, such as the European Union, or the UN, receive ambassadors
from member countries, the Sovereign Military
Order of Malta (known as SMOM for
short – but here referred to as ‘the Order’ for convenience)
almost alone among
international organisations claims the right to send
representatives to other States for the purpose of carrying on diplomatic
negotiations,
as well as to receive representatives from other States for the
same purpose.[11] Most
importantly, the Sovereign Military Order of Malta claims, and is sometimes
acknowledged to be, a sovereign State in its own
right.[12] This status
has been claimed since at least the fourteenth century, well before
international law began to accord legal personality
to international
organisations.[13] But
the Order is not unique in such claims. Its own parent body, the Holy See, has
for long been regarded as sovereign, apparently
even when the papacy was without
territorial possessions.
The twentieth century, and particularly in the
second half of the century, saw the growth of international organisations and
other
bodies now accorded general if not unanimous recognition as subjects in
international law. With the growth in both the (horizontal)
extent and
(vertical) reach of international agreements, treaties, conventions and codes,
national independence is arguably becoming
less relevant. This tendency is
becoming more noticeable in the modern commercial environment, and especially in
regards to the internet.
Non-countries have increasingly become subjects of
international law, most noticeably, the
UN.[14] It was perhaps
inevitable that as the traditional sovereign State lost ground in the face of
economic globalisation, newer types
of international entities, enjoying powers
and privileges recognised by the international community, should emerge. Yet it
is ironic
that the first of these international organisations should date, not
from the twentieth century, but from the
twelfth.[15]
3. The Sovereign Military Order of Malta
The major features of the long history of the Order are well known. In the
early eleventh century a hospice, served by a lay fraternity,
was founded or
restored in the city of Jerusalem. Its staff were bound by oath to serve the
poor of the Holy Land, whatever their
religion. The hospital was later dedicated
to St John the Baptist. On 5 February 1113 the hospital was recognised by the
Bull Pie Postulatio Voluntatis by Pope Paschal II as an autonomous
religious Order, dedicated to serve the poor and
sick.[16] Thereafter
the Order spread outwards from Jerusalem, particularly to western Europe, where
the Order’s estates provided funds
to operate the expensive and extensive
medical facilities in the Holy Land, and new recruits for the Order. Eventually
there were
hospitals, or houses of the Order, throughout
Europe.[17] The Order
had one convent[18]
(initially and until the fall of the Crusaders States, in the Holy
Land[19]), but they
erected a hospital wherever they went. It is scarcely an exaggeration to say
that it is to the Order of Malta that we
owe the survival of a public hospital
service through the middle ages in
Europe.[20]
In its
early years the Order remained purely eleemosynary in character. But due to the
exigencies of the times, between 1126 and 1140
it assumed an additional,
military, function, ‘to defend the Holy Sepulchre to the last drop of
blood and fight the unfaithful
wherever they
be’.[21] In 1137
the Hospitallers accepted the custody of the newly fortified castle of Bait
Jibrin, and the Order’s military role in
the Holy Lands steadily grew
under the leadership of the second grand master, Raymond du Pay.
The
military Orders gradually replaced the Frankish feudal aristocracy as the
landlords in Syria. On the death of Baldwin II, King
of Jerusalem, in 1185, the
castles of the kingdom were placed in the custody of the two military Orders.
But unlike the Order of
the Temple (the Templars), the Hospitallers were never a
purely military body, and they also allowed women to become affiliated members.
They maintained the fight against the forces of evil on two fronts, against the
seen and unseen enemy. One they fought in hospitals
and on their estates in
Europe, the other from their castles and fastnesses in Palestine, and later on
Rhodes and
Malta.[22]
The
Order of St John withdrew from the Holy Land in 1291, when they established
their convent on Cyprus. In 1309 they moved to Rhodes
(which they seized from
the Byzantine empire), which was to remain their home until 1523. After a time
on the Venetian island of
Crete and elsewhere, in 1530 they reformed on
Malta,[23] their home
till their power was finally broken with the arrival of the French in
1798.[24] On Rhodes
and later on Malta – though not, apparently, on Crete – the Order
had acquired and exercised sovereign authority,
ruling the islands – at
least in the early centuries – with an efficiency and vigour which was
much to the advantage
of the native inhabitants. Not the least of the
Order’s responsibilities was maintaining a small fleet for the suppression
of piracy in the Mediterranean.
Attempts were occasionally made after 1798 to
regain territory for the
Order,[25] but none
succeeded. Although lacking a territorial base, the Order continued to maintain
hospitals, as it still does. For a few years
it also retained its public status
in Germany as a member of the Holy Roman Empire, with voting rights in the
College of Princes[26]
and retained a vote in the College of Princes of the
Empire,[27] until
those bodies in their turn fell under the wheels of the advancing French
juggernaut, and the Holy Roman Empire collapsed with
the abdication of Francis
II in 1806.
Due to its grievously weakened condition, the Order remained for
some time in danger of dissolution, despite its ongoing hospitaller
function. As
a sign of its weakness it lacked a permanent head for nearly a century, and it
was governed by Lieutenant Grand Masters
until 1871. Only in 1879 did the Holy
See authorise the election of a new Grand
Master.[28] But
throughout this time the Order maintained diplomatic relations with a number of
countries, and, at least to some extent, preserved
its sovereign
status.[2] While the
loss of territory extinguishes a State, temporary loss due to the occupation of
one’s territory does not. However,
given the voluntary cession to Great
Britain of the island of Malta by its inhabitants in 1800, it cannot be claimed
that this is
a temporary loss of territory. However, unlike other sovereign
entities the Order was peripatetic, and has shifted its territorial
base more
than once, while apparently preserving its sovereign character. Membership, with
voting rights, in the College of Princes,
reinforced this impression, though it
could well be that the sovereignty was due to possession of Malta, and that the
principality
was effectively mediatised after the loss of that territory.
The
Order of Malta is still recognised by many countries – though by no means
all – as a sovereign entity in international
law.[30] The Order is
not a country, but it exhibits some aspects of a sovereign
State.[31] How did
this ambiguous situation arise? The key is in its long history, and in the dual
nature of the Order, as both Order of chivalry
and religious Order.
4. The legal basis for the sovereignty of the Order
The Order of St John is generally held to have become a State in
international law possibly as early as
1291,[32] when it
settled in Cyprus,[33]
and certainly by 1313, in its possession of the islands of
Rhodes.[34] In 1523
the Order lost possession of the island of Rhodes, but not its sovereign
territorial character, as it shortly thereafter
acquired Malta, in the
possession of which it was accorded recognition by the majority of the princes
of western Christendom. Perpetual
sovereignty over Malta was granted (or
confirmed) in 1530 by the Emperor Charles V, in his capacity as King of Sicily,
as a perpetual
fief cum imperio of the Kingdom of
Sicily.[35] By the
late eighteenth century this grant was to cause problems for the Order, since it
implied that the Order might not, as the
possessor of a fiefdom of the kingdom,
be sovereign in its own right. The conquest of the island by Napoleonic armies
and the end
of that century brought that problem to an
end,[36] and the Order
found itself homeless once again. Hopes that Great Britain would restore the
island to the Order proved unjustified,
and attempts to acquire other islands
proved
unsuccessful.[37]
Since 1834 the Order has been domiciled in Rome, where its headquarters, the
Palazzo Malta, covers three acres, which has exterritorial
status but is not
sovereign
territory.[38]
As
the rulers of Malta, the Order was regarded by contemporaries as a sovereign
power. But did the loss of territory extinguish the
independence, the
sovereignty of the Order? Although sovereignty is not affected by loss of
territory, complete loss would extinguish
the
State.[39] The
principal question to be asked then is this: was it the Order which was an
international person, or was it Malta? Thus, was the
Grand Master a sovereign
qua head of the Order, or qua head of the Maltese
State?[40] If the
Order itself was the international person, then this status should continue
undiminished despite the loss of Malta. Cansacchi
thought that it was arguable
that there was a personal union akin to that of the Pope, as occupant of the
Holy See and sovereign
of Vatican City
State,[41] but as the
Grand Master was ruler of Malta solely as head of the
Order,[42] and not
separately as prince or duke of Malta, this argument appears weak. But in 1446
Pope Nicholas V had recognised the Grand Master
of the Order as sovereign prince
of Rhodes,[43] and
this suggests that, at least with respect to Rhodes, the Grand Master was a
sovereign prince qua head of the Rhodean State rather than qua
head of the Order. It may well be that the situation with respect to Malta was
no different.
But while neither alternative (the Order itself or Malta being
sovereign) is entirely satisfactory to explain the post-1798 history
of the
Order, the most likely explanation was that it was only the possession of
territory that gave the Order sovereign status –
though that does not,
necessarily, mean that that status was lost with the loss of Malta. The reality
– and early international
law was nothing if not realistic – was
that the Order was an international person only because it possessed territory
as a
vassal of the Holy Roman
Empire[44] and later
of the Kingdom of
Sicily.[45] This can
be seen in the lack of similar status being accorded the
Templars[46] or the
Iberian Orders, and, in contrast with these, of it being conferred upon the
Teutonic Order, masters of
Prussia.[47]
As,
until the twentieth century, only a sovereign State could be a subject of
international law, it would seem that the Order could
not have been such a
subject in its own right. But the possession of Rhodes, and later Malta, gave it
this status. The Grand Master
of the Order was a sovereign prince as holder of a
perpetual fief cum imperio of the Kingdom of Sicily, in the same way that
the Archbishops of Mainz, Trier and Cologne were regarded as sovereign princes
as
feudatories of the
Empire.[48] The
Archbishops – and most other hitherto sovereign princes of the empire
– lost their sovereignty when the empire was
dissolved and they were
integrated into the various successor States. It was only those which retained
territory of their own that
preserved their sovereign status, though in some
(honorific) respects the former sovereign princes retained their personal
status.
What complicates the picture is the fact that after 1798 the Order
still seems to have been widely believed to still possess an international
legal
personality, despite the loss of territory, a personality that was apparently
independent of specific territorial
sovereignty.[49] It
would seem that the Order continued to be recognised as possessing something
akin to sovereign status after 1798 for two major
reasons. Firstly – in
the earlier years at least – there was the distinct possibility that the
Order might have recovered
territory, and so its sovereignty, as it had done in
1530.[50] In this
respect it might more appropriately be recognised as being equivalent to an
exiled Government. Some of these, such as those
of Poland and the Baltic States,
were recognised by some countries for many years after they lost control of
their territory.[51]
But this is an unsatisfactory basis for continued claims to sovereign status in
the twenty-first century, particularly given that
the Order does not maintain a
claim to the island of Malta, or indeed to any territory (its convent in Rome
excepted).
The second reason is that, due to its unique history and
humanitarian function the Order acquired the then unique status of international
legal personality after
1798.[52] This did not
equal the sovereignty which they possessed as masters of Malta, and which they
must have lost some time after 1798 –
though the distinction between the
two sources of authority soon became blurred. It may be that at this time there
was uncertainty
as to the origin and nature of the sovereignty of the Order, and
that the Order benefited from this uncertainty. This personality
was based on
the role of the Order as one of the few international humanitarian organisation
of its time, and upon its unique
history.[53]
Since
the twelfth century the Order of Malta had been an international religious Order
or brotherhood.[54] It
only gradually became an Order of chivalry, as that term was later to be
understood,[55] and
the possession of sovereign powers over island territories also came
comparatively late in its
history.[56] The term
ecclesiastical Orders of knighthood describes those knightly Orders which, in
one way or another, were connected with the
Roman Catholic Church. At the
present time there are two different groups of ecclesiastical Orders of
knighthood: the pontifical
Orders of knighthood in the strict sense and a group
of chivalric Orders which derive from mediæval military Orders and
continue
to come under ecclesiastical
jurisdiction.[57] A
third category are the Eastern Orthodox and Uniate (in communion with the See of
St Peter) Eastern Rite Churches Orders, which
share similarities with both the
other
groups.[58]
The
pontifical or papal Orders of knighthood are conferred directly by the pope.
They include the Supreme Order of
Christ,[59] the Order
of the Golden
Spur,[60] the Order of
Pius IX,[61] the Order
of Saint Gregory the
Great,[62] and the
Order of Saint
Sylvester.[63] The
religious military Orders include the Order of St John of Jerusalem, the
Teutonic Order,[64]
and the Order of the Holy
Sepulchre.[65] There
are also various Spanish
Orders.[66] Most of
the other ancient religious military Orders are now extinct or have become
purely secular Orders of knighthood. Although
it once possessed land in its own
right, the Order of Malta was, and remains, essentially a religious
Order.[67] While the
Templars were suppressed, due largely to jealousy of their wealth and perceived
privileges (and lack of peacetime function,
since they were exclusively military
in nature), the Hospitallers, always preserving an essential charitable
function,
survived.[68]
The
legal status of the Order of Malta within the Roman Catholic Church was defined
with greater precision in 1951. Pope Pius XII,
on 10 December of that year,
appointed a special tribunal of five cardinals, presided over by the Dean of the
Sacred College,[69]
Eugène Cardinal
Tisserant,[70] in
order to determine the nature of the Order and the extent of its competence both
as a sovereign and as a religious institution,
as well as its relationship to
the Holy See. After long discussions the commission of cardinals on 24 January
1953 gave the following
unanimous
verdict:[71]
The Order of Malta is a sovereign Order, inasmuch as it enjoys certain prerogatives which, according to the principles of international law, are proper to sovereignty. These rights have been recognized by the Holy See and a number of States. However, these rights do not comprise all the powers and prerogatives that belong to sovereign States in full sense of the word.[72]
The cardinalitial tribunal made clear in its decision released 19 February
1953 that the Order’s sovereignty was ‘functional’,
in that it
was based on its international activities and not on the possession of
territory. But, what does this ‘sovereignty’
mean? By
‘functional sovereignty’, the cardinalitial tribunal seems to have
meant little more than de facto and de jure
independence from the Church, and
recognition by a number of States. In other words, this was personality in
international law, not
sovereignty, and justified by the international work of
the religious Order.
In 1961 the Sovereign Military Order of Malta
promulgated a new Constitutional Charter and Code. This was revised by an
Extraordinary
Chapter-General 28-30 April
1997.[73] Inter
alia, this provides:
The Order is a subject of international law and exercises sovereign functions.[74]
The religious nature of the Order does not prejudice the exercise of sovereign prerogatives pertaining to the Order in so far as it is recognized by States as a subject of International law.[75]
However, internal rules cannot of themselves make an otherwise non-sovereign
body sovereign; though States can recognise only what
the Order claims for
itself. If the Order of Malta is sovereign, it is so only because of the
recognition of international law. Such
recognition is not generally accorded,
but the Order is widely accepted as an international entity with unusually wide
privileges.
So far as canon law is concerned the Order remains sovereign. But
canon law does not overrule the municipal laws of States. Sovereignty
recognised
by the papacy has canonical
validity.[76] But it
will lack validity in international law, since canon law is not universally
accepted as a norm of international law.
The international personality of
the Order of Malta was however upheld by the Italian Court of Cassation in 1935:
Sovereignty is a complex notion, which international law, from the external standpoint, contemplates, so to speak, negatively, having only in view independence viz-à-viz other States ... It is impossible to deny to other international collective units a limited capacity of acting internationally within the ambit and the actual exercise of their own functions, with the resulting international juridical personality and capacity which is its necessary and natural corollary.[77]
Although it too uses the term sovereignty, the Court of Cassation seems to
have meant merely that the Order had ‘international
juridical
personality’[78]
– though even this concession has been rejected by a majority of
international lawyers. Neither the cardinalitial tribunal
in 1953, nor the Court
of Cassation in 1935 accorded recognition to the Order of Malta as a State. Both
seem rather to be recognising
a precocious development of international
personality.
In 1959 the Office of the Legal Adviser of the US Government
asserted that:
[t]he United States, on its part, does not recognize the Order as a State.[79]
The Office of the Legal Adviser of the US Government is right to assert that
the Order is not a State. Although sovereignty is not
affected by loss of
territory, complete loss would extinguish the State. Many countries accord it
diplomatic recognition, but, as
with the UN, this does not amount to recognition
of full sovereign status. The view of the Office of the Legal Adviser of the US
Government did however appear to agree with the majority opinion of scholars in
the 1950s and 1960s, if not more recently also.
For examples of what might
be termed the mainstream international lawyers view of that time, Paul
Guggenheim stated that ‘[c]ontrary
to a commonly defended opinion,
these Orders do not have in general international law any legal status other
than “charitable
societies”.’[80]
Roberto Quadri states: ‘it seems obvious to us that one must reject
the international personality of the
Order.’[81]
Debez similarly states that ‘we must, along with the majority of the
doctrine, refuse [the Order] the status of subject of
international
law.’[82]
Alexander Hold-Ferneck says that the Order’s international status is
‘merely an outward form, which has been preserved
for a variety of
reasons, not an actual
personality’.[83]
More
recently, Dominique Larger and Marcel Monin have concluded that ‘the
thesis of the international personality of the Order
seems to us to rest on too
tenuous evidence to be
accepted.’[84]
Ian Brownlie observed that:
Even in the sphere of recognition and bilateral relations, the legal capacities of institutions like the Sovereign Order of Jerusalem and Malta must be limited simply because they lack the territorial and demographic characteristics of States. In the law of war the status of the Order mentioned is merely that of a “relief society” within the meaning of the Prisoner of War Convention, 1949, article 125.[85]
At the other end of the continuum between recognition and non-recognition lie
writers such as Berthold Waldstein-Wartenberg, who wrote
that the sovereignty of
the Order and its personality in international law is ‘generally
recognised by international law
doctrine’.[86]
More significantly, Georg Dahm suggests that the Order is a
‘[v]ölkerrechtsubjekt ohne Gebiet’ (a subject of international
law without
territory).[87]
There
are signs that greater flexibility may slowly be prevailing. James Crawford says
that its international personality is recognised
by particular States, but is
not an objective international personality like the
UN.[88] Gerhard von
Glahn concluded that ‘the Order can be classified as a non-State
subject of international law, although of a somewhat
peculiar
nature.’[89]
Helmut Steinberger noted that ‘[w]ith the historical exception of the
Holy See, which maintains diplomatic relations with more
than 100 States, in
contemporary international law only States as distinguished from international
organisations or other subjects
of international law are accorded
sovereignty.’[90]
Since the Order itself maintains diplomatic relations with approximately half
the recognised sovereign States in existence today,
it may be questioned whether
Steinberger’s own argument might be used to defend claims for the
sovereignty of the Order. Wilhlem
Wengler rejects the notion that recognition of
the Order by some States can make it a subject of international law, which
argument
would also be applied to the Holy See, where this to lack
territory.[91]
It
can be recognised as a non-State entity subject to international law, even if it
is not a State, which is what the Constitutional
Charter and Code of the Order
appears to indicate. The privileges actually claimed or exercised by the Order
appear to confirm this.
It exercises, to some extent, the privilege of
treaty-making.[92] It
issues passports,[93]
but these also are not universally recognised. They do not, for instance, fall
within the ambit of the New Zealand Passport Act 1992 (NZ), as such a
document could not establish the nationality of the
holder.[94] Its right
to mint coins and issue stamps is confined to an ornamental
level.[95] From 2005
the Order has issued stamps with the Euro as the unit of postage, while Scudo
(pl. Scudi) remains the Order’s official currency. The scudo was a
unit of currency in Malta under the rule of the Order of Malta.
The
denominations of the currency were 1, 2, 5, 10, and 20 Scudi. The 1 and 2 scudo
coins were made of silver while the 5, 10, 20
scudi coins were made of gold. It
was subdivided into 12 tari, each of 20 grani. Amateur radio
operators consider the Order to be a separate ‘country’, but
stations transmitting from there use an entirely
unofficial call-sign starting
with the prefix ‘1A0’.The Grand Master of the Order is however
entitled to sovereign immunity,
as is his
residence,[96] and is
accorded appropriate status on official visits to some
countries.[97]
The
Order is represented on international
bodies.[98] The Order
is a signatory to, though not a member of, the Universal Postal
Union,[99] although
other non-sovereign entities are also members or associate
members.[100] The
Order has observers at UN bodies in Paris (the United Nations Educational
Scientific and Cultural Organization), Rome (the Food
and Agriculture
Organization), Geneva (the World Health Organization, and the UN High
Commissioner for Refugees) and
Vienna.[101] It also
has member status at the International Maritime Organization,
London.[102]
The
UN does not classify it as a ‘non-member State’ but as one of the
‘entities and intergovernmental organizations
having received a standing
invitation to participate as observers’. For instance, while the
International Telecommunication
Union has granted radio identification prefixes
to such quasi-sovereign jurisdictions as the UN and the Palestinian Authority,
the
Order has never received one. The UN regards the Order as an entity having
received a standing invitation to participate as an observer
in the sessions and
the work of the General Assembly and maintaining a permanent office at UN
Headquarters.[103]
The International Committee of the Red Cross and the International Federation of
Red Cross and Red Crescent Societies are two other
bodies listed under this
classification.[104]
Delegates are sent by the Order to the Council of Europe, and to the European
Commission.[105] The
Order is represented at the Organizacion de Estados Centro-Americanos, the
Institut International de Droit Humanitaire, the Institut
International Pour
l’Unification de Droit Prive, and the Comite International de Medecine et
de Pharmacie
Militaires.[106]
The right to accredit diplomatic missions is known as the right of legation,
or ius legationis. The only comparable non-territorial body claiming a
similar right is the Holy See, and that is now a territorial State as well as
a
world-wide religious
body,[107] though it
was without territory between 1870 and 1929. The status of the Order’s
diplomats was confirmed in a wartime Hungarian
case.[108] But even
the right of legation is not conclusive evidence that an entity is sovereign, as
any international organisation can accredit
representatives to other
organisations or to States. What is unusual is the antiquity and continuity of
the Order, and its existence
in age in which the Church itself was the only
truly international organisation.
Although the Sovereign Military Order of
Malta maintains diplomatic relations with many countries, and has maintained
such relations
for centuries, this, of itself is no guarantee of sovereign
status. Today many international organisations are recognised as personalities
in international law, though they do not claim sovereign status. The Order of
Malta is equivalent to such bodies. While the Order
was ruling on Rhodes and
Malta it was a sovereign Order because it possessed territory over which it
exercised at least de facto
sovereignty. After 1798 it became the first of the
organisations recognised by international law as having a separate legal
personality.
The Order itself is not however a State, nor can it be said to be
sovereign, at least as that term is understood in traditional,
nineteenth
century, terms. Peculiarities of status can be explained by the ancient origins
of the Order.[109]
Any immunity enjoyed by the Grand Master of the Order, and by his diplomats, is
akin to that now widely enjoyed by representatives
of international
organisations, rather than that of the princes of sovereign States.
5. The branches of the Order of Malta and other religious military Orders
A Convention[110] of Alliance in 1961 linked the Sovereign and Military Order of Malta, the Most Venerable Order of the Hospital of St John of Jerusalem,[111] the Johanniterorden,[112] and the Swedish and Dutch Orders of St John.[113] His Royal Highness The Duke of Gloucester, Grand Prior of the Most Venerable Order of the Hospital of St John of Jerusalem, is President of the Alliance Orders of St John. Each member of the Alliance recognises each other as historic successors of the ancient Order. As such, they must be considered the sole possessors to historic continuity, though only the Sovereign and Military Order of Malta can claim sovereignty in any sense by which that term may be used. Although the daughter Orders too operate beyond the territory of any one country, they do not, unlike the Order of Malta, enjoy the status at international law of being a legal person, or international organisation. Neither the Templars, nor less well-known Orders, such as the St Lazarus, ever achieved sovereign status, as they never obtained control of territory.[114] The Teutonic Order lost its sovereign status – which it acquired through the control of territories in Prussia – in when it ceased to rule territory in Germany after 1525.[115]
6. Reconsideration of State sovereignty in the late twentieth century
Since the development of the modern nation-state the concept of the State has
dominated international law, but it has always been
present, in one form or
another, since the development of the first city-states, tribal federations and
complex social alliances
of this
nature.[116]
The
modern State as generally understood today evolved in Europe in the wake of the
decline of the classical world and later especially
under the impetus of the
crusades against Islamic aggression in Europe and to recover the Holy Land of
Palestine and its contiguous
regions.[117] It
gained encouragement from the growth of trade and commerce, and from the
rediscovery of Roman laws and classical learning, in
the years after the final
long-drawn out and painful collapse of the Eastern Empire based on
Constantinople.[118]
Following the advent of the modern nation-State in the later middle ages
political and legal theory tended to exalt the State as
the pinnacle of
authority – though this was disputed both by the
Church[119] and, at
times, by mesne feudal lords, burghers and other communities.
During what
might be terms the classical period of
statehood[120]
– from the Treaty of Westphalia 1648 to the Treaty of Versailles 1919
– the study of politics tendered to centre on the
State. But for much of
the twentieth century it had focused on political behaviour and policy-making,
with governmental decisions
explained as a response to social forces. In part
this has been due to a growth in awareness of the limitations of studies based
on political events which might themselves be the product of underlying stresses
and dynamics. It also suited the increased emphasis
in western debate upon
countries outside Europe and North America and those countries within their
direct and indirect spheres of
influence.
The traditional understanding of
public law (and more especially the more narrowly defined constitutional law)
emphasised particular
ideas of power that are associated with territory,
sovereignty, and law, all concept about which there is often uncertainty –
though some legal systems tend to imply a form of permanence, even akin to
Platonic forms. The ideas of State, and State power expressed
through law,
however remain central to understanding
government.[121]
International law is more fluid and less certain than the domestic legal
systems of most if not all States, as is perhaps inevitable
for a system which
has evolved largely through State practice over a considerable period of years
– and which has lacked a
truly effective enforcement or sanction system
such as was almost indispensable for domestic State legal systems. It is derived
from
written and unwritten rules, treaties, agreements, and customary law.
Custom is general State practice accepted as law. The elements
of custom are a
generalised repetition of similar acts by competent State authorities and a
sentiment that such acts are juridically
necessary to maintain and develop
international
relations.[122] The
existence of custom, unlike treaty-law, depends upon general agreement, not
deliberate
consent.[123] This
requires time to develop, and is often uncertain.
The development of public
international law, and indeed of law in general, never truly ceases; like all
living things, it evolves.
There are times when important, indeed profound,
changes occur, or milestones are reached – such as the establishment of
the
League of Nations, or of the Nuremberg and Tokyo war crimes
tribunals.[124]
These events may be important in themselves, or because of the example which
they present for the future – though this latter
may not always be
perceived at the time as being especially significant. At other times there may
appear to be little or no progress,
neither improvements nor retrograde
changes.[125] But,
as Foucault would maintain, formal stasis – if such a thing can be found
in international law – does not mean that
the discourse has ceased or the
power relations unchanging.
Change there may well be, for international law
is intensely political and dynamic, as any law must be which is the distillation
of
the hope, needs and desires of almost 200 sovereign
States.[126] Nor is
it immutable by nature, though international laws may evolve more slowly than
the domestic laws of some, though not necessarily
all,
countries.[127] Law
itself, as a human artefact, is also inseparable from history and from
culture.[128] This
is especially true of public international law, which is formed and developed
through the interactions of numerous sovereign
States, but dominated by concepts
derived from Roman law and the laws and practices of European States,
principally during the period
of European commercial and later colonial
expansion.
The sovereign State seems to be one of the relatively few abiding
constants in international
law[129] –
though sovereignty is not a necessary feature of a domestic legal
system.[130]
But
the concept of the sovereign State, though one of comparatively ancient
origin,[131] has not
continued completely unquestioned – nor has it continued
unchanged.[132] Its
place in the global political and legal system is not absolute, for the
sovereign State belongs in a world in which interdependence
(whether
acknowledged or not) is
inescapable.[133]
Governmentality would recognise that it is in the discourse, rather than the
formal structure (though this informs the discourse),
that the real power may be
seen.
Those geo-political developments which have also encouraged a
re-evaluation of the nature and role of the State have been the recent
use of
force by great powers and a
superpower,[134] in
Yugoslavia in the name of humanitarian
intervention,[135]
and in Iraq on the basis of pre-emptive
self-defence,[136]
and the attitudes and assumptions which these actions reflect. The Iraq war in
particular has served to highlight structural weaknesses
in the fabric of the
international security
framework,[137]
since it was widely condemned as illegal, yet little could be done to prevent
it, even if this were desirable. But at the same time
it is possible to be
cautiously optimistic. At the forefront of much of the discourse from the allies
in both wars was the perceived
need for their actions to be justified in
international
law.[138] These
cases illustrate the dynamic effect of both power projection and technology
– of a military sort – upon the relationships
between States. Formal
political equality may exist, but that is relatively meaningless when the
political will exists to ignore
or disregard that equality and impose (or
attempt to impose) the will of one nation – or a coalition of States
– on another.
These recent wars, small though they may have been in
historical terms, have served to draw both popular and academic attention to
the
evolution of, and recent challenges to, the laws of armed conflict – or
laws of war as they were commonly
known.[139] These
laws have long had the effect of imposing limitations upon the freedom of States
to levy war without the support of the international
community and without
‘just’ or lawful
cause.[140] Just
what constituted a just cause (or just war) was never entirely certain, but,
like the equally vague concept of the rule of law,
it served to impose some
limitations on freedom of State action – by operating in a form of
Foucaultian discourse among the
politicians and rulers who decided national
policy. But such limitations on State sovereignty have been challenged by these
wars,
which were conducted despite lacking clear justification in public
international law.
Regretfully, it would appear that the precise legal limits
upon the levying of war, perhaps the most ancient and fundamental of a
State’s responsibilities towards its
people,[141] are now
more uncertain than they have been for 50 years. Both these wars have also
raised important questions about the legal justification
for State or
international intervention in another State’s internal affairs, on
humanitarian grounds, or to depose a tyrannical
regime.[142]
The
geo-political environment is concerned with the strategic balance, and relations
between States. This is affected by the law of
armed conflict, and other formal
legal limitations which are imposed upon State sovereignty. These can be, and
often are, challenged
by the strategic balance, by wars and by the threat of the
use of force by States. It is also affected by changes of an ostensibly
more
benign – or less obviously malignant – form, such as
telecommunications, transportation, agricultural improvements,
and so on.
The
late twentieth century and early twenty-first century is an appropriate time to
re-evaluate the concept of sovereignty. The sovereign
State must evolve, or at
least have its nature reassessed, as its environment changes. The world is very
different today to what
it was in what may be regarded as the zenith of State
sovereignty, in the nineteenth
century.[143] The
notion that all States are legally
equal,[144] whilst
perhaps laudable in theory, has also been shown more than once to be subject to
important practical
qualifications.[145]
Nor indeed is the notion of equality of particularly great
antiquity.[146] The
freedom of action of States can at times be severely restricted, both legally,
and
practically,[147] by
strategic considerations, by international law, and by economic factors. The
increasingly pivotal role of international economic
law is also having a
significant
effect.[148]
As a
consequence of these developments, and others, the relationship between national
law and international law, and the concept of
2tate sovereignty, are arguably
more uncertain today than they were 100 years ago. It is therefore an opportune
time for investigation
and exploration, albeit one which is narrowly focused,
and at times tentative in its conclusions. It may also cast light on the
apparent
anomaly of the Sovereign Military Order of Malta.
Conclusion – Territory and Statehood
The Order of Malta owes it peculiar status to having been possessor of the
fiefdom of Malta for 200 years, and of Rhodes even earlier.
But it, after it
ceased to rule Malta, it retained certain attributes of sovereignty, at a time
when international law was slowly
developing new concepts of statehood. This was
due in part to the circumstances of the time (just as the continued recognition
of
the Baltic States by the USA was a consequence of the Cold War), but also
because the Order was the oldest and most prestigious of
the hospitaller
religious Orders of the Roman Catholic Church. These two factors, which quickly
became intermingled, preserved for
the Order a marked degree of independence,
and placed it amongst the first of the international organisations to be
recognised by
international law. Not, indeed, as a sovereign State, but as a
subject of international law with some powers and duties akin to those
enjoyed
by States.
To have sovereignty, a State must have a permanent population, it
must have a defined territory, it must have a government, and it
must have the
capacity to enter into diplomatic
relations.[149] No
other entity could be regarded as a sovereign State, whatever its de facto
power. Yet, this definition is increasingly meaningless.
The notions
of sovereignty and statehood are not easily defined or explained. To a large
degree this is because they are principally
political concepts, rather than
merely legal principles. With the growth in both the (horizontal) extent and
(vertical) reach of
international agreements, treaties, conventions and codes,
national independence is becoming less relevant. This tendency is becoming
more
noticeable in the modern commercial environment, and especially the
internet.
As the concept of State sovereignty declines in relevance, so
notions of racial sovereignty have grown. The idea that a given population
group
is, or ought to be, sovereign within a larger country is not confined to New
Zealand.[150] Yet,
sovereign States have clung tenaciously to their rights, rights which have
become more precious as they become rarer.
It was perhaps inevitable that as
the traditional sovereign State lost ground, so newer types of international
entities, enjoying
powers and privileges recognised by the international
community, should emerge. Yet it is ironic that the first of these international
organisations should date, not from the twentieth century, but from the
twelfth.
∗ LLB LLM(Hons) MTheol(Hons) MA LTh PhD,
Professor of Law &&#[1]Chair of Department of
Law, Auckland University of Technology.
1
International law has been called ‘the sum of the rules or usages which
civilized states have agreed shall be binding upon
them in their dealings with
one another’; West Rand Central Gold Mining Co v The King [1905] 2
KB 391 quoting Lord Russell of Killowen in his address at Saratoga in 1876. See
also Sir Michael Howard, George Andreopoulos & Mark
R Shulman (eds), The
Laws of War – Constraints on Warfare in the Western World (1994); John
Gillingham & J C Holt (eds), War and Government in the Middle Ages
(1984).
[2] The
Montevideo Convention on the Rights and Duties of States, signed on 26
December [1936] LNTSer 9; 1933, 165 LNTS 19 (entered into force 26 December 1934) (‘The
Montevideo Convention’); Manley Hudson (ed), International
Legislation (vol VI) (1931-50) at 620. Although the application of the
Convention is confined to Latin America, it is regarded as declaratory
of
customary international
law.
[3] See, for
example, Giorgio Cansacchi, La personalitá di diritto internazionale
del S.M.V Gerosolimitano detto di Malta (nd) at 8; Arthur Breycha-Vauthier
& Michael Potulicki, ‘The Order of St John in International Law: A
forerunner of the
Red Cross’ (1954) 48 American Journal of
International Law 554; Charles D’Olivier Farran, ‘The Sovereign
Order of Malta in international law’ (1954) 3 International and
Comparative Law Quarterly 222; Carlos Pasini-Costadoat, ‘La
personalidad internacional de la S.M.O. de Malta’
(September-December 1948) Revista Peruana de Derecho Internacional
231; Giorgio Cansacchi, Il diritto di legazione attivo e passivo
dell’Ordine de Malta (1940) at 65; A Astraudo, ‘Saint-marin et
l’Ordre de Malta’ (1935) La Revue Diplomatique
7.
[4]
Breycha-Vauthier & Potulicki, ibid at
555.
[5] Id at
557.
[6] Oliver J
Lissitzyn, ‘Territorial Entities in the Law of Treaties, (1968-III) 125
Recueil des Cours Academie de Droit International 5 at 9-15 (1968-III).
See also James Crawford, The Creation of States in International Law
(1979).
[7]
Public International Law regulates the relations between nations. The basic
sources of international law are written and unwritten
rules, treaties,
agreements, and customary law. Custom is general state practice accepted as law.
The elements of custom are a generalised
repetition of similar acts by competent
state authorities and a sentiment that such acts are juridically necessary to
maintain and
develop international relations. The existence of custom, unlike
treaty-law, depends upon general agreement, not unanimous agreement;
Gerhard von
Glahn, Law Among Nations: An Introduction to Public International Law
(6th ed)
(1992).
[8]
Reparation for Injuries Suffered in the Service of the United Nations (Advisory
Opinion) (1949) 4 ICJ Rep
179.
[9] Ibid,
‘[The United Nations Organisation] is a subject of international law and
capable of possessing international rights and
duties, and ... it has capacity
to maintain its rights by bringing international claims.’
[10] They may
become subjects of international law by operation of municipal law, as for
example, the International Organisations Act 1968 (UK), and
SI1968, No 442, which recognises the representative of the Council of Europe in
the United
Kingdom.
[11]The
Order was also involved in the Geneva Conventions, and is a member of the
International Red Cross; Arthur Breycha-Vauthier, Der Malteser-Orden im
Völkerrecht (1950) at 401-413. The European Communities also accredit
some
ambassadors.
[12]
For example, the Republic of San Marino acknowledged the Order as a sovereign
state in a treaty of amity in 1935; Astraudo, above
n3; Cansacchi, above n3 at
65.
[13] Though the
canon law of the Church accorded recognition to certain
organisations.
[14]
Reparation for Injuries Suffered in the Service of the United Nations, above
n8.
[15] Strictly
perhaps, it is the nineteenth century – or late eighteenth century –
since the Order of St John owed its sovereignty
to possession of the island of
Rhodes. However, its sovereignty survived the migration of the Order from Rhodes
to Malta, and may
be said to have attached more to the Order than to the
particular territory which it occupied. The same may be said of the Teutonic
Order, in the Prussian
lands.
[16] Johann
Christian Lünig, Codex Italiae Diplomaticus (vol IV) (1725-35) at
1451. It had previously been admitted as such by the King of Jerusalem;
Breycha-Vauthier & Potulicki, above
n3 at
554.
[17] In 1130
the Order was granted freedom from tolls (Lünig, ibid at 1451); in 1144 it
was placed under the protection of the Holy
See (Magn. Bull. (vol II) at
471); and 1190 placed under the protection of the Emperor (Lünig, ibid at
1455).
[18] The
name for the monastery that was their home. Contrary to popular belief convents
were not necessarily the homes of
nuns.
[19] The
Order withdrew to Cyprus in 1291 when the jewel in the crown of the Latin
principalities in Palestine, the Kingdom of Jerusalem,
fell to the infidel.
[20] In England,
the old Order was effectively disbanded in 1540. It was revived by letters
patent on 2 April 1557, and never subsequently
abolished. Titular grand priors
were appointed from the 1560s till 1815 by the Grand Master or (later)
Lieutenant Grand Master in
Malta (and after 1798, wherever they were temporarily
based). A new grand priory was established in 1994. The revival of the Order
in
England in the early nineteenth century was not recognised as a branch of the
Order. This revival was led initially by French
Knights of Malta, as part of an
abortive plan to raise military and naval forces to aid the oppressed Greeks
gain their freedom from
the Ottoman empire. Today relations between the
Sovereign Military Order of Malta, and what eventually became the Most Venerable
Order of St John of Jerusalem, are amicable. For the history of the Order in
England, see Edwin King, The Knights of St John in the British Realm
(1967); Edwin King, The Grand Priory of the Hospital of St John of Jerusalem
in England
(1924).
[21]
Guy Stair Sainty, “The Sovereign Military Hospitaller Order of Malta: The
Crusades”
<http://www.chivalricorders.org/orders/smom/crusades.htm>
accessed 29 May
2008.
[22] See
Jonathan Riley-Smith, The Military-Religious Orders: Their History and
Continuing Relevance
(2005).
[23] On
24 March 1530 Emperor Charles V granted the Order the island in his capacity as
King of Sicily, ‘in feudum perpetuum, nobile, liberum et
francum’. This was confirmed by Papal Bull of 1 May 1530 (Magn.
Bull. (vol VI) at
140).
[24] This was
implemented by convention of 12 June 1798, in which the Order renounced in
favour of the French Republic its rights of property
and sovereignty in and over
the islands of Malta, Gozo and Comino; G F Martens, Recueil de traits
(vol VI) (2nd ed) (1817-35) at 322,
324.
[25] In 1806
Gustav IV, King of Sweden (or, as he was properly known, of the Swedes, Goths
and Vends) offered the dispossessed Order Gothland.
This offer was however
rejected, nor can we know whether it would have proved a congenial home for the
Order; A Visconti, La sovranitá dell’Ordine di Malta nel diritto
italiano (vol II) (1936) at 195,
205.
[26] Many
formerly sovereign principalities were mediatised, or accorded equality of
status with the surviving independent states of the
former empire; this of
itself does not amount to recognition of continuing
sovereignty.
[27]
Martens, Recueil de traits, (vol VII) (2nd
ed) (1817-35) § 32, sub 59.
[28] Since 1630
the Grand Master has ranked as a cardinal in the Roman Catholic Church –
though not actually holding office as such
– since 1607 he has been a
Prince of the Holy Roman Empire, and he has been an Austrian Prince (with the
style ‘Serene
Highness’) since 1880. Since the early seventeenth
century the Grand Master have been styled ‘Most Eminent Highness’,
and this was recognised by Italian royal decree in 1927; Almanach de Gotha
(184th ed) (2000). The former requirement that the
election of a new Grand Master be approved by the Holy See has disappeared
(Constitutional Charter and Code, art 13).
This can be interpreted as
a sign that the Holy See does not wish to have a role in the governance of the
Order that can be seen as
infringing its sovereignty
[2] even if that sovereignty is only
‘functional’.
29 Although the United
Kingdom does not now recognise the Order, Sir Alexander Ball, when Governor of
Malta, was Minister to the Order
in the late eighteenth century. This was,
however, at a time when the future of the Order was uncertain – and its
loss of territory
arguably only temporary.
[30] In the 1950s
only five countries accorded it diplomatic recognition. But the numbers have
increased since. In 1962 it was 30, in
1999 82 with full diplomatic relations
and seven others with special status. Commonwealth countries which recognise the
Order include
Malta, the Cameroons, Mauritius, Guyana, the Seychelles, St
Vincent and the Grenadines, and Mozambique; Letter to the author from
Jose
Antonio Linati-Bosch, Ambassador of the Order of Malta to the United Nations, 20
May 1999. Of the 82, 13 are new states (Belarus,
Bosnia-Herzegovina, Croatia,
Czech Republic, Latvia, Lithuania, Macedonia, Slovak Republic, Slovenia,
Armenia, Georgia, Kazakhstan,
Micronesia); Ordine di
Malta,
<http://www.smominfo.org/attdiplomatica.asp?idlingua=5>
accessed
18 June 2002. In 2006 the figure had risen to 96 with formal diplomatic
relations and 6 others with official relations;
Order of Malta,
<http://www.Orderofmalta.org/attdiplomatica.asp?idlingua=5>
accessed 31
December 2006.
[31]
The Officers of the Order include a Secretary of Foreign Affairs, and a system
of courts. Cases falling within the jurisdiction of
the ecclesiastical forum are
submitted to the ordinary ecclesiastical tribunals, in accordance with canon
law; Constitutional Charter
of the Sovereign Military Hospitaller Order of St
John of Jerusalem of Rhodes and of Malta (art 26 Bollettino Ufficiale
(1998)). There is no military or police force, as there is no territory, or
population, to defend or
police.
[32] It may
previously have held certain rights within the Latin Kingdom of Jerusalem which
were analogous to those of sovereign states,
but this is not certain;
Breycha-Vauthier & Potulicki, above n3 at 555.
[33] The true
nature of the authority exercised by the knights during their brief occupation
of Cyprus should be regarded as less than
true sovereignty, in that they
acknowledged the suzerainty of Henry II, titular King of Jerusalem, as King of
Cyprus. This could
be seen as being the counterpart of the suzerainty of the
Kings of Sicily admitted by the Order in Malta after 1530.
[34] In 1446 Pope
Nicholas V recognised the Grand Master of the Order as sovereign prince of
Rhodes; Pasini-Costadoat, above
n3.
[35] Tripoli
was also granted, though this was lost the following year; Adolfo Silenzi de
Stagni, ‘La S.O.M. de Malta’ (1948)
Revista Peruana de Derecho
Internacional 110 at 10n. Malta had previously belonged to the Kingdom of
Aragon, which became part of the Kingdom of Spain, of which the Emperor
was
King.
[36] Martens,
above n24.
[37]
Visconti, above
n25.
[38] The
Palazzo Malta is located at 68 Via Condotti 00187, Rome. The Palazzo Malta and
the Villa Malta in Rome are regarded as exterritorial
property by the Italian
Government. But the exterritorial status of the Order’s property in Rome
does not however amount to
possession of sovereign
territory.
[39]
This is illustrated by the loss of the territory of the Holy See 20 September
1870, and its partial restoration 11 February 1929
by the Lateran Treaties. Nor
does a state cease to be a state because it is occupied by a foreign power. An
example is the survival
as de jure states, later to become de facto states
again, of the Baltic
republics.
[40]
D’Olivier Farran, above
n3.
[41] Cansacchi,
La personalitá di diritto internazionale del S.M.V Gerosolimitano
detto di Malta, above
n3.
[42]
D’Olivier Farran, above
n3.
[43]
Pasini-Costadoat, above
n3.
[44] As
suzerain of Rhodes – though actually the empire held little real power,
and the Genoese and other Italian city states (and
the Ottoman Turks) were the
real masters of the Aegean Sea. In 1446 Pope Nicholas V recognised the Grand
Master of the Order as sovereign
prince of Rhodes; Pasini-Costadoat, above n3 at
231.
[45] After
1530, for
Malta.
[46] Jan
Hendrik Willem Verzijl, International Law in Historical Perspective (vol
II) (1969) at
35-36.
[47] C. H.
Alexandrowicz, ‘Paulus Vladimiri and the Development of the Doctrine of
Coexistence of Christian and non-Christian countries’
(1963) 39 British
Yearbook of International Law at
441-448.
[48] They
were of course recognized as de jure sovereign after the Diet of Worms
1648.
[49]
Breycha-Vauthier & Potulicki, above n3 at
556.
[50] And
possibly in 1313
also.
[51]
Foreign Policy Bulletin (No 2) (1991) at
33.
[52] The Order
as such was prohibited by its rules from fighting on any side in conflicts
between Christian Powers; Breycha-Vauthier &
Potulicki, above n3 at
555.
[53] It might
also be worth noting that the Order’s surviving military potential was not
entirely forgotten either. In the Reichsdeputations-Hauptschluss of 25
February 1803 (Martens, Recueil de traits, (vol VII)
(2nd ed) (1817-35) at 435, 443) it was agreed
that the Order should be exempted from secularisation ‘en
considération des services
militaires de ses membres’ (§ 26 at
485).
[54] A
brotherhood (or sisterhood) might be described as a body, usually of one sex,
though sometimes mixed, dedicated to some religious
object and subject to a rule
of conduct and (usually) a communal life. The Knights of Justice of the Order
are friars, committed,
like other monks, by solemn vows of poverty, chastity and
obedience.
[55] An
Order of chivalry is a group of individuals, grouped for a primarily secular
rather than a religious purpose, usually honorific.
Sometimes a residual
religious object survives, but the great majority of Orders are purely secular.
Most are now what are usually
called Orders of
merit.
[56]
Although the Order had been recognised by the King of Jerusalem as a distinct
religious Order even before the papacy approved it,
it would be inappropriate to
see this as recognition of ‘sovereignty’; Breycha-Vauthier &
Potulicki, above n3 at
554.
[57] James Van
der Veldt, The Ecclesiastical Orders of Knighthood (1956) at
1.
[58] Such as the
Patriarchal Order of the Holy Cross of Jerusalem of the Greek Melkite Patriarchy
of Antioch.
[59]
1319, secularised 1499. In one class
only.
[60] 1539,
though claiming a much more ancient origin. In one class
only.
[61]
1847.
[62]
1831.
[63] 1559,
reformed 1841.
[64]
1199.
[65] Founded
1099, re-organised 1496, revived
1868.
[66] The
Order of Alcantara (founded 1156, approved 1177), Order of Calatrava
(founded 1158, recognised by the papacy 1164), Order of Santiago (or St
James of Compostella) (founded 1170, canonically approved
1175), and the Order
of Our Lady of Montesa (1317). The latter Order succeeded to the assets of the
Templars in Spain, as well as
to those of the Knights of Valencia. Each remains
at least some religious attributes, though they were secularised from
1546.
[67] Though
the great majority of members are laymen. In some respects these members rather
resembles the lay brothers of a monastery,
or perhaps rather the corrodians, who
obtained lodgings in a monastery in return for the payment of a suitable sum.
Probably the
most apposite comparisons however, is that of the lay abbots and
similar creations of the post-Reformation
Church.
[68] To
some extent, the Order of St John exercised powers akin to sovereignty prior to
obtaining territory. But, as international law
was somewhat fluid at that time,
it cannot be regarded, on its own, as a sufficient basis for present-day
aspirations of sovereignty
by the
Order.
[69] The
Dean of the Sacred College is President of the College of Cardinals, and is
responsible for convening a Conclave to elect a new
Pope.
[70] Prefect of
the Sacred Congregation of Ceremonies, Titular Bishop of Porto e Santa
Rufina.
[71]
Acta Apostolicae Sedis (vol XX) (1953) at
765-767.
[72] Van
der Veldt, above n57 at 1,
22-3.
[73] Letter
to the author from Jose Antonio Linati-Bosch, Ambassador of the Order of Malta
to the United Nations, 20 May
1999.
[74]
Constitutional Charter and Code, art
3.
[75] Ibid, art
4.
[76] Hyginus
Eugene Cardinale, Orders of Knighthood Awards and the Holy See – A
historical, juridical and practical Compendium (1983) at
26.
[77] Nanni
and Others v Pace and the Sovereign Order of Malta [1935-1937] Ann Dig 2 [No
2] (Cassation Court of Italy, 13 March 1935) at
4-6.
[78] The
Tribunal of the Republic, in Rome 26 July 1947 confirmed earlier decisions,
especially that of the Court of Cassation 25 June
1945, which established the
Order’s position in international law, as independent from Italian law;
Michael Pillotti &
Arthur Breycha-Vauthier, trans in Oesterreichische
Zeitschrift Für Öffentliches Recht (1951) at
392-394.
[79]
Cardinale, above n76 at
84.
[80] Paul
Guggenheim, Traité de Droit International Public (1954) at
339n.
[81] Roberto
Quadri, ‘Droit International Public’ (1964) 113 Recueil des Cours
de l’Académie de Droit International at
422.
[82] Debez,
(1964) at 129, cited at Hendrik Dijkhof, “The Legitimacy of Orders of St
John: A historical and legal analysis and case
study of a para-religious
phenomenon” (2006) Universiteit Leiden PhD thesis
244.
[83] Alexander
Hold-Ferneck, Lehrbuch des Völkerrechts (1930) at
246.
[84] Dominique
Larger & Marcel Monin ‘A propos du protocole d'accord du 5 septembre
1983 entre les services gouvernementaux
français et la
représentation officielle en France de l'Ordre de Malte: quelques
observations sur la nature juridique
de l'Ordre de Malte’ (1983)
Annuaire Français de Droit International
228.
[85] Ian
Brownlie, Principles of Public International Law (5th ed) (1998) at 64.
See also Costas M. Constantinou, ‘Irregular States or the
Semiotics of Knight-Errantry’ (2004) 17 International Journal for the
Semiotics of Law
229.
[86] Berthold
Waldstein-Wartenberg, Rechtsgeschichte des Malteserordens (1969) at
264.
[87] Georg
Dahm, Völkerrecht (1958) at
182.
[88] Crawford,
above n6 at
29.
[89] Gerhard
von Glahn, Law among nations: an introduction to public international
law (5th ed) (1986) at
67.
[90] Helmut
Steinberger, ‘Sovereignty’ in Rudolf Bernhardt (ed) Encyclopaedia
of Public International Law (vol IV) (2000) at
512.
[91] Wilhlem
Wengler, Völkerrecht (1964) at
165-6.
[92] As with
San Marino in 1935; Astraudo above n3. A treaty is an agreement between
entities, both or all of which are subjects of international
law possessed of
international personality and treaty-making capacity. All sovereign states enjoy
the right to make treaties. Some
self-governing colonies, protectorates, and
international organisations have the capacity to enter into agreements, though
their
right to do so is usually
limited.
[93] As to
His late Majesty King Umberto II of Italy and His Imperial and Royal Highness
Archduke Otto of Austria. Pasini-Costadoat, above
n3 at
234.
[94] Letter to
the author from Gill George, Ministry of Foreign Affairs and Trade, New Zealand
(27 May 1999). The definition of a passport
in section two states that passport
means ‘a document that is issued by or on behalf of the Government of any
country, and
that purports to establish the identity and nationality of the
holder...’.
[95]
Though it has postal agreements with 48
countries.
[96]
Arthur Breycha-Vauthier, Der Malteser-Orden im Völkerrecht (1950) at
401-413.
[97]
Notably Malta in June 1968; Verzijl, above n46 at
31.
[98]
Membership of international bodies, even of the UN, is not regarded as ipso
facto evidence of sovereignty, though full membership
of the latter organisation
would be
compelling.
[99]
Letter to the author from Naguib Nermine, Universal Postal Union (17 May
1999).
[100] The
Netherlands Antilles, and United Kingdom Overseas Territories. The former
Byelorussian Soviet Socialist Republic, and the Ukrainian
Soviet Socialist
Republic, while members of the Soviet Union, were also members of both the
Universal Postal Union and of the UN,
though their actual political independence
was strictly
prescribed.
[101]
Letter to the author from José Antonio Linati-Bosch, Ambassador of the
Order of Malta to the United Nations (20 May
1999).
[102]
Letter to the author from George, above
n94.
[103] A
status conferred 1994; Letter to the author from Linati-Bosch, above n101.
[104] Letter to
the author from Juan Carlos Brandt, Director, United Nations Information Centre
in Australia (12 May 1999). The Order’s
Ambassador and Permanent Observer
is José Antonio Linati-Bosch; Executive Office of the Secretary-General
Protocol and Liaison
Service, Permanent Missions to the United Nations No 281
February 1998 (1998) at 290. The style of ‘Ambassador’ does not
indicate in itself entitlement to diplomatic privileges and
immunities.
[105]
He was listed as an observer (Count Ottino Caracciolo di Forino), along with
those of the non-independent states of Hong Kong and
Macao, and the
international organisations such as the United Nations Children’s Fund
(UNICEF). The small Principality of Andorra
(Mme Meritxell Mateu I Pi), and the
Principality of Liechtenstein (HSH Prince Nicholas of Liechtenstein) had
ambassadors to the European
Commission in 1997; Corps Diplomatique
(European Union, Brussels,
1997).
[106]
Letter to the author from Linati-Bosch, above
n101.
[107] The
Apostolic Pro-Nuncios and Nuncios (originally only for Roman Catholic countries
where they are accorded precedence over all ambassadors)
represent the Holy See,
not Vatican City State, which does not have separate diplomatic representatives
as such. It is however the
City State, and not the Holy See, which possesses
territoriality and is therefore a traditional sovereign state. The unique
history
of the papacy affords it this special privilege of ius legationis
dissociated from direct territoriality. The nuncios represents the papacy to
the local Church was well as to the sovereign of the
country. If only appointed
to the local Church, he is styled Apostolic Delegate.
[108] Case No
798 (1949) 43 American JIL 537 (12 May 1943). Italy recognised the
Order’s right of legation in 1884; Nanni and Others v Pace and the
Sovereign Order of Malta, above
n77.
[109] The
Jesuits, though similarly a world-wide religious Order was never recognised as
sovereign, though it established and controlled
an almost independent theocratic
state of its own under the nominal sovereignty of Spain in Paraguay 1609-1766;
Verzijl, above n46
at
36-37.
[110] A
convention is a pact or agreement between several states in the nature of a
treaty. The term is usually applied to agreements for
the regulation of matters
of common interest, particularly of a technical
nature.
[111] The
branch of the Order descended from that in England, and revived in the United
Kingdom in 1831.
[112] The German
branch, also called the Venerable Order of St John in Prussia, established 1812
and recognised
1852.
[113] The
Venerable Order of St John in the Netherlands was established in 1909, and
recognised in 1946. The Venerable Order of St John
in Sweden was established in
1920.
[114] Upon
its recovery from Muslim occupation during the Third Crusade, Cyprus was sold by
King Richard I of England (on behalf of the
crusade’s leaders) to the
Knights Templars in 1192. However, unwilling to hold the territory, in the
following year they sold
it to Guy de Lusignan, who became King of Cyprus.
[115] Verzijl,
above n46 at
32-35.
[116]
Moses Finley, Authority and legitimacy in the classical city-state
(1982); Mason Hammond, City-State and world state in Greek and Roman
political theory until Augustus (1951). See also Charles Keith,
‘The origins of settlement, agriculture and the city-state in
Mesopotamia’ (1984) University of Edinburgh PhD thesis
(unpublished).
[117]
Depending upon definitions – which have been fluid over the past three
millennia – this includes parts of Syria, Lebanon,
the Gaza strip, the
West Bank (Judea and Samaria), the Sinai Peninsula, and Jordan. Attempts were
also made to recover, or protect,
parts of North Africa and the Mediterranean
Sea (such as Egypt and Libya, Cyprus and Rhodes); Daniel H Weiss & Lisa
Mahoney (eds), France and the Holy Land: Frankish culture at the end of the
crusades (2004).
[118] Cecil
Stewart, Byzantine legacy (1947).
[119] See
Hyginus Eugene Cardinale, The Holy See and the international Order
(1976); Walter Ullmann, The growth of papal government in the Middle
Ages: a study in the ideological relation of clerical to lay power
(2nd ed) (1965).
[120] Though
there is no generally accepted and satisfactory modern legal definition of
statehood; Crawford, above n6 at
31.
[121] John
Morison, ‘Modernising Government and the E-Government Revolution:
Technologies of Government and Technologies of Democracy’
in Nicholas
Bamford & Peter Leyland (eds), Public Law in a Multilayered Constitution
(2003) at 157–8.
[122] Lotus
Case (France v Turkey) 1927 PCIJ ser A No 10; Asylum Case (Colombia v
Peru) 1950 ICJ 266 at 276; Delimitation of the Maritime Boundary in the
Gulf of Maine Area (Canada v United States) 1950 ICJ 266 at 299–300;
Fisheries Case (UK v Norway) 1951 ICJ 116; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v United States), 1969 ICJ 3
at 97–98. See also North Sea Continental Shelf Cases (Federal Republic
of Germany v Denmark; Federal Republic of Germany v The Netherlands) 1969
ICJ 3 at 43–45 in which the International Court of Justice emphasised the
importance of opinio juris even in the face of inconsistent state
practice in Nicaragua v United States. Opinio juris may be
determined from resolutions of international organisations, notably the General
Assembly.
[123]
Gerhard von Glahn, Law Among Nations: An Introduction to Public International
Law (7th edn)
(1996).
[124] See
Charles Howard-Ellis, The origin structure and working of the League of
Nations (2003); Geoffrey Best, Nuremberg and after: the continuing
history of war crimes and crimes against humanity
(1984).
[125]
What may be perceived initially as a retrograde step may, of course, ultimately
prove beneficial for the future development of public
international law, by
proving an example or lesson for others to learn
from.
[126] The
UN has 191 members; and the United States, for example, recognises 192 countries
– including the Vatican City State, or
Holy See, which is not a member of
the UN; ‘Basics facts about the UN’, DPI (2000); Office of
The Geographer and Global Issues, Bureau of Intelligence and Research, United
States Department of State, Washington,
DC, Fact Sheet (7 February 2003).
There are a number of other territories which meet most if not all of the
requirements for recognition as a sovereign
state, such as Taiwan. There are
also dozens of dependencies, territories and colonies, many of which are
self-governing, and some
of which have a significant international profile; see
Harvey W Armstrong & Robert Read, ‘Comparing the economic performance
of dependent territories and sovereign microstates’, (2000) 48 Economic
Development and Cultural Change at
285.
[127]
Principally through the absence of a single law-making body, the large number of
participants involved, the bi-lateral and multi-lateral
negotiations, and the
gradual evolution of customary law through state
practice.
[128]
Ali Khan, The Extinction of Nation-States at 1.
[129] Though
often dated from 1648, the modern state system is very much older. See Benno
Teschke, The myth of 1648: class, geopolitics, and the making of modern
international relations
(2003).
[130]
Norman Barry, ‘Sovereignty, the Rule of Recognition and constitutional
stability in Britain’ in Hume Institute, In search of new
constitutions: Hume Papers on Pubic Policy (vol II) (1994) at
10-27.
[131] An
international system of sovereign states such as we would recognise today did
not exist in mediæval times, which were characterised
by a system based on
strongly hierarchical and parallel religious or secular concepts of
subordination and dependence; see, for example,
Christopher Schreuer, ‘The
Waning of the Sovereign State: Towards a New Paradigm for International
Law’ (1993) 4 European Journal of International Law at 447.
Non-European states were not so influential in the development of the
international
system.
[132] As
Schreuer has said, ‘[a] look at history .... tells us that conceptions of
world Order have by no means always been shaped
by the model of sovereign
co-equal actors with a territorial basis’;
Ibid.
[133] One
might even say of the state, as did the English poet John Donne of the
individual, that ‘No man is an island, entire of
itself’.
[134]
The collapse of the Soviet block, and the dismemberment of the eastern European
Communist empire, have left the United States as
the sole superpower. Though it
has been predicted that China will one day reach a similar strategic level to
that enjoyed alone today
by the United States, there are a number of counties
whose military, economic or political influence and capabilities qualify them
for the lesser, though nonetheless exalted style, of great power. This term,
which had been somewhat neglected, has enjoyed a resurgence,
though the term
major power still seems more prevalent; See David Shambaugh (ed), Greater
China: the next superpower?
(1995).
[135]
See Noel Cox, ‘Developments in the Laws of War: NATO attacks on Yugoslavia
and the use of force to achieve humanitarian objectives’
(2002) New
Zealand Armed Forces Law Review at 13.
[136] See Noel
Cox, ‘The Consequences for the World Legal Order of the War on Iraq’
(2003) New Zealand Armed Forces Law Review at 11.
[137] For a view
of the inherent weakness in the international security system, see Joseph P.
Lorenz, Peace, power, and the United Nations: a security system for the
twenty-first century
(1999).
[138]
For example, for an attempt to justify the 2003 war against Iraq, see ‘War
and law: Attorney General statement’, The Times (London), 17 March
2003.
[139]
Strictly, the laws of war might be said to cover a narrower field than the laws
of armed conflict.
[140] See
Michael Walzer, Just and Unjust Wars (3rd ed)
(2000).
[141]
Whether there is a duty to levy offensive war might be questioned, though
sometimes attack is the best form of
defence.
[142]
Both grounds were used, at times, along with self-defence, to justify the United
States-led invasion of Iraq in 2003; see Cox, above
n137.
[143] See
Hayward R Alker, Thomas J Biersteker & Takashi Inoguchi, ‘From
Imperial Power Balancing to People’s Wars: Searching
for Order in the
Twentieth Century’, in James Der Derian & Michael Shapiro (ed)
International/Intertextual Relations: Postmodern Readings of World
Politics (1989) at
135–62.
[144]
Schreuer, above n132.
[145] For the
origins of state sovereignty, the peace of 1648 was influential, see Leo Gross,
‘The Peace of Westphalia, 1648–1948’,
(1948) 42 American
Journal of International Law at 20. See also Teschke, above
n130.
[146] 1648
is also usually given as the decisive date for the transition from the vertical
imperial to the horizontal inter-state model;
see Richard Falk, ‘The
Interplay of Westphalia and Charter Conceptions of International Legal
Order’, in Cyril E Black
& Richard Falk (eds), The Future of the
International Legal Order (vol I) (1969) at 32, 43.
[147] Not all
states follow the same model, either. It was observed (before the collapse of
organised Communism) that at least five world
Orders – Soviet Socialism,
Capitalist Power Balancing, Authoritarian Corporatism, Maoist agrarian
Communalism and Islamic Transnationalism
– could be found within all world
regions; Hayward R Alker, ‘Dialectical Foundations of Global
Disparities’, (1981)
25 International Studies Quarterly 69 at
81–5.
[148] See Joost
Pauwelyn, Conflict of norms in public international law: how WTO law relates
to other rules of international law (2003); Robert W Cox, Production,
Power, and World Order: Social Forces in the Making of History (1987) at
107.
[149] The
Montevideo Convention, above n2; Hudson, above n2 at 620. Although the
application of the Convention is confined to Latin America, it is regarded as
declaratory
of customary international
law.
[150]
Richard Conley, ‘Sovereignty or the Status Quo? The 1998 pre-referendum
debate in Quebec’ (1997) 35 Journal of Canadian and Comparative
Politics 67; Paul Howe, ‘Nationality and Sovereignty Support in
Quebec’ (1998) 31 Canadian Journal of Political Science 31; Stephen
Krasner, ‘Sovereignty: an institutional perspective’ (1988) 21
Comparative Political Studies 66.