The Holy See, Human Rights Obligations and the Question of Jurisdiction

[Katarzyna Ważyńska-Finck recently defended a PhD on sexual and reproductive rights of children and adolescent and is lecturer in human rights and comparative law at the Université Libre de Bruxelles. Francois Finck holds a PhD in international law and is a policy officer responsible for International and European affairs at Centre d’Action Laïque.]

The authors have previously published on this topic in the Polish-language publication, Krytyka Polityczna. The article can be accessed here.

Earlier this year, one of the Polish newspapers informed about an instruction addressed to Polish bishops (‘the instruction’), issued by the Holy See (‘the HS’). The instruction prevents Polish bishops (and the superiors of religious orders) from divulging to the Polish authorities the records of canon law proceedings in cases of child sexual abuse, committed by members of Catholic clergy. This was justified by the fact that these proceedings are within ‘an exclusive jurisdiction of the Congregation for the Doctrine of Faith’ and are carried out by the local churches upon its request. From now on, Polish authorities may only try to obtain these documents directly from the Holy See, via the request for international legal cooperation. The instruction will restrain access to evidence against specific perpetrators of sexual abuse and may limit the possibilities to uncover those responsible for their systematic cover-up.

As a result, the instruction may prevent Poland from fully complying with its obligation under the UN Convention on the Rights of the Child (‘the CRC’) to effectively investigate and prosecute sexual offences against children. This is paradoxical, given that the same obligation is binding on the Holy See, which ratified the Convention in 1990.

The instruction for Polish bishops reminds of the ambiguities surrounding the legal status of the Holy See as the subject of international law, the nature of its relations with the local churches, and the scope of its obligations under the human rights treaties it has ratified.

The Holy See and the UN Committee on the Rights of the Child: A Difficult Dialogue

The question of the jurisdiction of the Holy See under the CRC and the implications for the effective protection of children from sexual offences were already the subject of an intensive discussion in 2014, when the Committee on the Rights of the Child (‘the CRC Committee’) published its concluding observations on the Holy See. The Committee relied on the ‘dual nature’ of the Convention’s ratification by the HS: as the government of the Vatican City State (‘the VCS’) and as a sovereign subject of international law, which has supreme power over the entire Catholic Church. As such, it should implement the Convention not only within the territory of Vatican, but also ‘worldwide through individuals and institutions under its authority’.

In this vein, the HS should investigate the allegations of misconduct by members of religious congregations who are under its authority and should cooperate with law enforcement authorities to hold them accountable. The Committee considered that the members of religious congregations are ‘subordinates’ for whom the Holy See is legally responsible. With relation to sexual offences in particular, the Committee urged the Holy See to ‘ensure transparent sharing of all the archives’ and to make priests, religious personnel and individuals ‘working under the authority’ of the Holy See aware of their duty to report cases to law enforcement authorities.

The Holy See claimed that it does not have any authority to enforce the Convention outside the very narrow territory of the VCS. The local Catholic churches and institutions present on the territory of other States must abide by national laws. Accordingly, the offences against children committed by the members of local clergy ‘fall within the jurisdiction of the States in which the Catholic institutions operate’.

The instruction for Polish bishops contradicts the arguments relied upon by Holy See and confirms the importance of the issues raised by the CRC Committee. This post is an attempt to address some of the weaknesses in the Committee’s approach observed back in 2014 and to propose a more solid grounding for the Holy See’s jurisdiction.

In the 2014 concluding observations the CRC Committee did not provide an in-depth analysis of the question of jurisdiction and failed to engage with some of key arguments submitted by the Holy See. The Committee repeatedly referred to the authority of the HS over members of the clergy, seemingly relying on the Holy See’s supreme power in the Church and the duty of obedience of the members of religious orders. We suggest that the Committee’s approach could be strengthened by a reflection on the role of the HS’s as the supreme power and its consequences for the scope of its obligations under the CRC; a better explanation of the ducal nature of the CRC ratification; and engaging with the broader question of extraterritorial jurisdiction in international human rights law.

The Holy See, Supreme Power in the Church

The Holy See consists of the pope or the pope with his dicasteries. According to the Church’s own internal law, the Code of Canon Law, the pope is granted ‘by virtue of his office’, the ‘supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely’ (can 331). Further, ‘the Roman Pontiff not only possesses power over the universal Church but also obtains the primacy of ordinary power over all particular churches and groups of them’. The pope’s power is truly absolute and supreme; ‘no appeal or recourse is permitted against’ his sentences or decree (can 333§3).

The Holy See exercises full hierarchical authority over local clergy. Bishops are bound to obey Holy See instructions, or risk disciplinary proceedings. These can include removal from office, dismissal from the clerical state or even excommunication, as observed by the CRC Committee itself.

Last but not least, the Holy See itself claims that it has jurisdiction upon cases of sexual abuse committed by members of the clergy, as shown by the instruction.

For these reasons, the Holy See cannot assert that it is ‘separate and distinct’ from the Catholic Church or that its role within the Church is purely ‘religious and moral’.

The Dual Character of Convention Ratification by a sui generis Subject of International Law

The CRC applies in principle to States. Even though it is not a State, the Holy See, as a sui generis subject of international law, became a Party to the CRC.

It is worth noting at this stage that the Holy See ratified the CRC, and not the Vatican City State. The VCS is a Party to several international conventions in its own name. Had Church supreme authorities intended the CRC to be only applicable within the VCS, it would have been ratified by the VCS, not the Holy See, i.e. the supreme government of the universal Church. Ratification means that the HS has declared its intention to be bound by the Convention in all its activities. Thus, it has to abide by its obligations under CRC in all its actions, taking into account its peculiar, sui generis character.

According to Article 2.1 CRC, Parties are bound to ‘respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind’. State jurisdiction is often primarily defined as territorial, but not only. It may result from control or authority exercised on persons or entities. While assessing the HS’ jurisdiction, it is necessary to consider its sui generis character. It is a party to the Convention, but the definition of its ‘jurisdiction’ cannot simply be equated to that of a State. Rather, it has to be derived from its own character, as shown by its internal law and practice. As shown above, the HS has supreme authority over Catholic clergy; exercises disciplinary powers, issues instructions. Moreover, the Holy See exercises internal jurisdiction on crimes committed by members of the clergy. Canon law procedures carried out by local clergy (under the responsibility of a bishop) explicitly come under the jurisdiction of the Congregation for the Doctrine of Faith, a Holy See body.

It follows that the Holy See has to abide by its obligations under CRC, in relation to acts of clergy, and canon law procedures. In particular, as reminded by the CRC Committee, ‘the best interests of the child [should be] a primary consideration in every area, including when dealing with cases of child sexual abuse’. This entails an obligation to report suspected cases to law enforcement authorities, protection of children’s rights during procedures, prohibition to withhold evidence or to move priest offenders from parish to parish.

The Concept of Jurisdiction in International Human Rights Law and the Case of HS Authority

In relation to the application of the CRC beyond the VCS, it is important to bear in mind that in international law jurisdiction is not necessarily limited to State territory.

In the meaning of the European Convention of Human Rights, the “term ‘jurisdiction’ is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory” (§91). While bishops are not Holy See authorities, Holy See decisions – such as instructions for local bishops, or declaration of jurisdiction by the Congregation – produce very concrete effects.

Moreover, during canon law proceedings, member of clergy act as agents of the Holy See; thus their acts are attributable to it. Article 8 of the ILC articles on State responsibility, ‘the conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’ As mentioned above, international law norms relating to States apply mutatis mutandis to the Holy See. Acts of local clergy acting on Holy See instructions are attributable to it.

International law has the potential to avoid gaps in the implementation of the CRC such as those resulting from the Holy See’s practice. It remains however difficult for CRC Committee to address these issues when the Holy See treats its reporting obligations lightly: its second report was submitted thirteen years after due date, and the third was due in 2017…