Vatican Will No Longer Automatically Accept International Law

by Julian Ku

I guess what surprises me is that the Vatican ever did have a rule of automatically adhering to international law. But as of yesterday, that rule, along with the rule automatically adopting Italian law as part of its internal legal order, is history.  

The Vatican has [] decided to scrutinise international treaties before deciding whether or not to adhere to them.

It has recently refused to approve a United Nations declaration decriminalising homosexuality.

The wording went too far, Vatican officials said, in placing different sexual orientations on the same level.

Some legal observers believe that the Vatican is simply trying to assert its legal independence in cases involving for example, civil unions, divorce, living wills, or euthanasia.

If Italy were to legalise same sex marriages or euthanasia, for example, the Vatican would now be able to refuse to recognise that. 

http://opiniojuris.org/2009/01/02/vatican-will-no-longer-automatically-accept-international-law/

2 Responses

  1. Considering that the thrust of the BBC article you link to is about the automatic acceptance of Italian law by the Vatican, could it be that the somewhat oblique reference to international treaties likewise refers to a decision by the Vatican not to automatically accept all such treaties as Italy may have seen fit to ratify?

    After all, treaties ratified by Italy seem to become part of Italian domestic law (see Art. 80 of the Constitution), so any rule or practice by which the Vatican automatically accepts Italian law would seem to extend to international treaty law adopted by Italy. Once that rule or practice is abolished, it would then make sense to add, if only by way of clarification, that the Vatican’s scrutiny of Italian law before adoption for the Vatican applies also to Italian legislation based on international treaties.

    I tend to think this construction makes a good deal more sense than the understanding according to which the Vatican used to cotton on to just any treaty out there. Like you, I very much doubt it did; no State does. The Vatican and the Holy See – distinct entities – have become parties to international treaties in the past, and are likely to have examined the treaty before doing so. Besides that, there may well have been a rule that the Vatican would, for practical reasons, adopt Italian law, if only to save itself the bother of having a Civil Code etc. That rule may have extended – perhaps without anyone really knowing – to Italian treaties. But that would never have meant that the Vatican would ‘automatically accept’ international law, only that it would ‘automatically accept’ such international law as happens to be Italian law, as well.

    Just two minor points, possibly out of an overabundance of caution:
    (a) there is no question here of the Vatican failing to respect international law in the broadest sense of the word. It simply won’t ratify every treaty, the news being that it won’t accept every treaty ratified by Italy, either;
    (b) no UN declaration has ever decriminalised anything. Mention of that particular declaration by the BBC would seem to be more or less apropos of nothing, particularly because Italy has never voted for the Vatican in the UN General Assembly. Indeed, the Vatican isn’t even a member; the Holy See has observer status.

    Finally, a properly legal question: if the Vatican has until now automatically accepted Italian law, doesn’t this imply that the European Convention of Human Rights applies there? With the odd result that, for instance, the Pope couldn’t dismiss gay soldiers from the Swiss Guards (cf. Smith and Grady v United Kingdom)? Also, given that the Convention establishes rights not of States, but of private citizens, that it constitutes part of the European ordre public (Cyprus v. Turkey, para. 78), and that human rights treaties therefore apparently automatically bind successor States (the buzzword being ‘the well-established rights’ of the populace), can the Pope now take away those rights? Could his measure conceivably constitute a denunciation of the ECHR under Art. 58 ECHR?
    Well, no, no, and no, I would have thought. The Vatican can’t have become a party to the ECHR sub silentio. The ECHR is only open for signature and ratification to members of the Council of Europe (Art. 59(1) ECHR), and membership in the Council is only available upon invitation (Art. 4 of the Statute of the Council of Europe). In any event, acceptance of the Convention or of membership in the Council are both formal matters requiring solemn international action, not merely an act of volition on the part of the prospective party (such as may be replaced by a general will to accept Italian law).

    Come to think of it, how, then, did the automatic acceptance of Italian treaty law work? If the Vatican did not also signify its consent to be bound internationally (through signature or ratification), presumably such law could only have existed domestically, without the Vatican being bound by the treaty as such on the plane of international law? The treaty would then have been a domestic enactment devoid of any immediate congruity with international law. Odd. Is it not better to think, therefore, that even when Italian law was accepted automatically by the Vatican, Italian law based on ratified treaties was not? That, of course, would make a nonsense of the declaration now that the Vatican would henceforth examine treaties before accepting them.

    Pity I can’t find the Vatican statement on which the BBC report is bound. Can anyone help?

  2. There is a short overview of the Vatican City State’s legal system, written by Stephen Young and Alison Shea, on the NYU’s GlobaLex website: “Researching the law of the Vatican City State” (2007), at http://www.nyulawglobal.org/Globalex/Vatican.htm

    As it is clear from the article, even prior to the Vatican statement reported by the BBC, there was a “filter” between the Vatican legal system and Italian legislation: Italian laws were neither automatically accepted, nor applied, in the Vatican City State as a whole, but only as a supplementary source of law, subject to the condition that they did not conflict “with canon law, the rules of the Lateran Treaty (and, later, the 1984 Concordat), or divine law” (point 2.B of the article). See especially point 3.A of the article:

    “Under article 3 of the Law of the Sources of the Law, provision is made for the supplementary application of the “laws promulgated by the Kingdom of Italy.” Article 3 also calls for the application of “the general regulations and local regulations of the province and government of Rome.” Although secondary to the laws of the Supreme Pontiff and the Code of Canon Law, much of the work conducted by the judicial organs of the VCS is done through the application of Italian law. However, the constitutional laws take great care to ensure that Italian law is not applied in instances where it might conflict with pontifical or canon law.”

    Prima facie, I would say that the new “Law of the Sources of Law”, in force as of 1 January 2009, introduces a formal-technical, more than substantial, change to the relationships with the Italian legal system. This is confirmed in an interview by Giuseppe Dalla Torre, President of the Vatican Tribunal, published on the Vatican Radio website (in Italian):
    http://www.radiovaticana.org/it1/Articolo.asp?c=255684

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