User:Jeff in CA/La Orden de Malta y su Naturaleza Jurídica

"La Orden de Malta y su Naturaleza Jurídica" (English translation) - detailed, expert perspective

Magaly Arocha’s paper is very detailed and nuanced. The author not only includes many arguments in favor of the proposition that SMOM sovereignty is equivalent to other States, but also argues convincingly that a claim of territory is not relevant and that the existence of extraterritoriality cannot be discounted. It pointedly addresses many of the concerns raised on this talk page. (This translation was performed by a human, not a machine.)

 The Order of Malta and Its Legal Nature

http://www.analitica.com/vam/1999.05/sociedad/01.htm

by Magaly Arocha, First Consul of the Consulate General of Venezuela in Naples

Some historical data

The Order of St. John was founded before the conquest of Jerusalem in 1099 by the armies of the First Crusade. It began as a monastic community dedicated to San Juan Bautista, which administered a hospice-infirmary for pilgrims to the Holy Land. In the beginning it was linked to the Benedictines, and under the Blessed Gerard became an independent organization.

With the Bull of 15 February 1113, approved by Pope Paschal II, the foundation of the Hospital of St. John became an Order exempt from the Church.

The political situation after the founding of the Kingdom of Jerusalem by the Crusaders, forced the Order, under its second leader (and the first to be called Master), Friar Raymond du Puy, to assume military duties for the protection of patients, pilgrims and the Christian territories that the Crusaders had recovered from the Muslims. Thus the Order of the Hospital of St. John acquired the character of an Order of Chivalry.

The Knights were all subject to the three religious vows of obedience, chastity and poverty. Thus it became a mixed person, a religious-military Order. It has two fundamental goals: serving the poor and the defense of Christianity (protection of the faith).

In 1291, Acre, the last Christian stronghold in the Holy Land fell, and the Order settled temporarily in Cyprus.

The independence of the Order from any other State, under papal documents, and its right to maintain armed forces and fight wars, formed the basis of international sovereignty. With the occupation of the island of Rhodes, the Order also acquired territorial sovereignty.

Rhodes became a bastion of Christianity in the eastern Mediterranean Sea. The Order was ruled by the Grand Master and Council, minted its own money and maintained diplomatic relations with other States. The Grand Master was Sovereign Prince of Rhodes and then of Malta.

In December, 1522, the Sultan Suleiman the Magnificent attacked Rhodes, and the Knights were forced to capitulate, and in January 1523, they left the island. For the next seven years the Order, even though it retained its international sovereignty, was without territory until, by assignment of the Emperor Charles V (in his capacity as King of Sicily), it obtained the islands of Malta, Gozo and Comino, as well as Tripoli in North Africa, as a sovereign fiefdom.

On 26 October 1530, the Grand Master Friar Philippe de Villiers de l'Isle Adam took possession of Malta with the approval of Pope Clement VII. The Order was to remain neutral in wars between Christian nations.

In 1607 and again in 1620, the title of Prince of the Holy Roman Empire was united with the rank of Grand Master, and in 1630 became equal to the rank of Cardinal of the Roman Catholic Church with the treatment of Eminence.

In 1798, Bonaparte, during his campaign against Egypt, occupied the island of Malta and expelled the Order. The Knights again found themselves without territorial headquarters. There followed what has been called the Russian coup (1798-1803).

The Emperor Paul I of Russia, proclaimed himself Grand Master (de facto, not de jure) through a small group of Knights, in the place of the Grand Master Friar Ferdinand von Hompesch, who had been forced to leave Malta in French hands.

This proclamation was not recognized by the Holy See (a necessary condition for legitimacy). His successor, Alexander I, however, helped the Order to return to a legitimate government in 1803; Friar Giovanni Battista Tommasi was elected Grand Master.

The British had occupied Malta in 1801 and, although the Treaty of Amiens (1802) recognized the sovereign rights of the Order on the island, it was never possible to enforce them.

Having had provisional seats in Messina, Catania and Ferrara, the Order finally in 1834 settled in Rome, where it now enjoys extraterritoriality in the Palace of Malta (at 68 Via Condotti) and the Villa of Aventine.

The Order was ruled by Lieutenants from 1805 until 1879, when Pope Leo XIII restored the Grand Master to the office of Cardinal and associated honors. The hospital work was again the main objective.

Structure of the Order

The Order of Malta, a supranational institution, without abandoning the defense of Christian ideals, their energies and resources devoted to humanitarian and social assistance, is the only religious order of the Catholic Church to be both a Catholic Order and Cavalry.

It is unique in possessing Professed Knights, called Justices, who are direct descendants of the founders of the Order and among whom is elected Grand Master and most members of the Sovereign Council.

The sovereignty of the Order is exercised by the Prince and Grand Master, who is the Chief Justice, and the Councils (the Sovereign Council, the General Chapter and the Complete Council of State).

The General Chapter is the Supreme Assembly of Knights, which normally meets every five years and elects the members of the Sovereign Council, while the Complete Council of State is convened for the purpose of electing a Grand Master or Lieutenant.

Both the General Chapter and the Complete Council of State include representatives of the Grand Priories, Priories, Sub - and National Associations, bodies to which the Order is divided in different countries.

The Grand Master receives the treatment of Eminence and Highness (or Eminent Highness) corresponding by precedence to a Cardinal, and therefore Prince of Royal Blood, as well as for the rank of Prince of the Holy Roman Empire (recognized by Austria and Italy) and still reigning ex-Prince of Rhodes and later Malta, and is also internationally recognized as head of state with corresponding sovereign honors.

The Grand Master governs the Order assisted by the Sovereign Council, chaired by him and consisting of four senior officers (the Grand Commander, Grand Chancellor, the Hospitaller and Receiver of the Common Treasure), four directors and two alternate directors, all elected by the Chapter General among the Professed Knights or on exception among the Knights in Obedience.

The pope appoints as his representative a Cardinal of the Roman Catholic Church, who has title Cardinalis Patronus; the latter is assisted by the Prelate of the Order, also appointed by the Supreme Pontiff.

The life and work of the Order are governed by the Charter, approved by the Holy See and the Code de Rohan, promulgated by the Grand Master Friar Emmanuel de Rohan-Polduc in the eighteenth century.

Legal issues of concern to the Order are considered by an advisory technical body called the Legal Council, appointed by the Grand Master with the consent of the Sovereign Council.

The Order has its own Courts of First Instance and Appeal. Appeals against the judgments of the second degree of the Courts of the Order may be filed with the Court of Appeals of the State of Vatican City, which in such cases acts by delegation of the Order and serves as the Supreme Court.

The Order has diplomatic relations, according to public international law, with the Holy See, which is based on the religious Order but is independent of the chivalric sovereign Order, and with 71 countries in Europe, America, Asia and Africa (data from 1996-97).

The Order accredits Representatives or Delegates in Belgium, France, Luxembourg, Monaco, Germany and Greece and the European Commission. Since 1994, the Order enjoys Permanent Observer status to the United Nations and in that capacity maintains permanent delegations in New York, Geneva, Paris, Rome and Vienna.

THE "STATUS" OF THE ORDER IN INTERNATIONAL LAW

The Order of Malta is presented with full international legal personality. This personality is evidenced by:


 * the existence of a right of active and passive legation, of the jus contrahendi, the right to issue passports, privileges and immunities enjoyed by the Grand Master and external representative bodies,


 * the existence of an internal organization that gives life to legal entities recognized on par with foreign legal entities,


 * the existence of its own legal jurisdiction as an alternative to territorial jurisdiction or membership, and the power of conferring decorations [of diplomatic honor].

The Order occupies its own place in the scope of the international community no differently than other entities, contributing as others do to forming customary rules – States do not have a monopoly over this – although, from a purely quantitative point of view, fewer in number.

The Legal Nature of the Order

The Order in its centuries-long life is presented as independent of any State. It is not an organization or a governmental institution. It has affirmed, in Constitutions that have been produced over time, its own sovereign quality, an affirmation of great importance in assessing its independence.

The international community, through the behavior of States, has recognized the right of active and passive legation. There are few doubts expressed about the period before 1798, when the Order exercised territorial sovereignty in Malta and neighboring islands.

The problem arises in the nineteenth century, the most difficult stage for the international position of the Order, given the vacancy of the Grand Master (1805-1879), a period in which the Order was ruled by Lieutenants General.

However, the study of international relations in this period shows that the loss of possession of the Maltese archipelago did not affect the right of active and passive legation for the Order, which is legally important for checking the absolute continuity of international status regardless of the territorial possession of Malta.

One can say that there is continuity between the Order as currently structured and as recognized by the international community and the Order as it was when exercising powers deriving from territorial sovereignty.

The only differences are obviously the lack of territory and non-institutional citizens, but in this respect it should be reiterated that this condition is not a limitation of the peculiar characteristics of the Entity, as developed over time, because the exercise of territorial sovereignty was not, nor is today, one of the purposes of the Order, nor does it need a territorial basis to exercise its sovereignty. This exercise was a means to achieve its objectives, of a highly spiritual nature.

However, it is undeniable that the absence of territory deprives the Order of unquestioned independence. This peculiar situation may account for the gradualness with which States agree to diplomatic recognition, the same gradualness expressed in relation to States that are recently created or not yet very stable, but it carries no weight in framing the Order's legal nature, unless one wants to conditionally weigh the territorial element that no longer exists or one does not want to acknowledge the importance of recognition by a subset of States.

It is worth asking how one can justify afterward the continuity of international and diplomatic relations (in the nineteenth century) when during that time span, the International Community did not know other sovereign Entities distinct from the States, and moreover, the same international doctrine precluded the existence of regulatory ordinances outside of States’ legal relations.

The independence of the internal organization, always reaffirmed, was precisely the quality that legitimized the persisting international personality of the Order, admittedly with the peculiarities arising from the absence of a sovereign territory, as well as its particular relationship with the Holy See. The Order, in its entirely individual characteristic, anticipated the phenomenon of recognition by non-state Entities.

The number of States with which the Order maintained diplomatic relations increased in the twentieth century. Without doubt other Governments appreciated its work during the two world wars on behalf of war victims as well as their fight against disease and hunger, especially in Africa and Central-South America.

States recognize its sovereignty even in the absence of a territorial base and in spite of the inability [perceived by those States] in some way to set up the existence of a State for its internal organization’s independence, because they understand that full recognition of the international status of the Order and the consequent establishment of normal diplomatic relations is an indispensable tool to fulfill its mission.

The supranational structure of the organization is manifested in the existence of peripheral agencies working in the field of those national territories in which the Knights are present.

Internal sovereignty of the Order of Malta

As sovereign as the Order is in international relations, it is also in its own internal law. If one reviews the manifestations of the internal sovereignty of States, it is evident that, with the necessary adaptations, they are present in the Order of Malta.

The first element is the existence of a governing power that is not derived from any other power (non recognoscens superiorem) and is never imposed by force on its subjects.

The Order has a government constituted by the Grand Master and Sovereign Council that exercises the executive power with full autonomy in relation to members of the Order and the institutions of the latter (Priories, Sub-priories, National Associations, Delegations, Bailiwicks, Parcels).

The second element is the existence of a system of legal rules that has in itself its own justification; a part of legal doctrine that speaks to a "native legal system."

The Order of Malta has a complex legal system represented by its own Constitutional Charter, by the Code, by other laws and regulations governing the internal organization of the Order, the functioning of its institutions, the rights and duties of its members in relation to legal relationships that are constituted as a result of their membership in the Order.

The third element is the existence of a judiciary that decides the application of the rules of law in case of controversy. The Order has a judiciary made up of the existing courts before the Grand Magisterium.

The point is that the sovereignty of the Order of Malta is a historical social and political reality.

The Order maintains political and legal relationships with many of the States, meets and has played a role in the international community with full autonomy and exercises supreme power over its own members.

The legal formulas that explain its existence are:


 * the theory of a native legal system of non-state character,


 * the theory of sovereignty as a tool for religious and humanitarian purposes of the Order,


 * the theory of the existence of an international norm of jus singular that attributes sovereignty to the Order as an international subject sui generis.

Relations of the Italian State with the Order

For the purpose of studying the international position of the Order of Malta, the posture of the Italian State in whose territory, since 1870, the Grand Master of the Order is based, is very important.

Italy would be the state that would have more interest in contesting the sovereignty of the Order, because of inevitable limitations on its recognition arising from Italian sovereignty (the extraterritoriality of the Palace of Via Condotti and the Villa del Aventino in Rome, where the Grand Master and the central functions of the Order have their residence).

The sovereignty of the Order is recognized after the establishment of the Kingdom of Italy (1861) and before its union with Rome (1870). A government commission to study the knightly orders in the various Italian States concluded in 1868 that "the Order of Malta as European public law is concerned, has not ceased to be sovereign."

The question then arose regarding the implementation of the decree of 7 July 1866 (in fact until 1929, when the Concordat with the Holy See was signed) abolishing "orders, corporations and religious congregations." By decision of the State Council of 2 August 1869, application of this decree to the Order of Malta is excluded, in consideration of its particular legal status.

The decree of 28 November 1929, with diplomatic relations between Italy and the Order still not existing, established that "the representatives of the High Magisterium of the Sovereign Order of Malta, regularly accredited and expressly delegated by the Grand Master," were present at public ceremonies immediately after the Diplomatic Corps.

The international character of the Order and its sovereignty are explicitly recognized by the Supreme Court of Appeals in several judgments (from 1913 onwards). In particular the Supreme Court found that:


 * "The Sovereign Military Hospitaller Order of Malta is a sovereign international subject, although deprived of territory, equivalent to a foreign state, with which Italy maintains diplomatic relations, so there is no doubt, as the Court of Appeals has already advised, that it is premised upon the legal treatment relative to foreign States and therefore also the jurisdictional exemption limits already mentioned, i. e., the activity related to the attainment of its public purposes."

In 1948 the Foreign Minister gave provisions to the Prefecture of Rome so that the Grand Master was reserved, in each circumstance, the treatment intended of foreign sovereigns.

After World War II Italian courts have reaffirmed the sovereignty of the Order, extracting all the legal results of this recognition. Thus the Court of Rome, in a June 1947 ruling, held that the Order should be equated with foreign states for the exemption of executive acts.

So, when in 1956, Italy and the Order decided to establish diplomatic relations, it was simply assumed as the logical result of a situation of well-defined and consolidated law and fact.

Relations with the Holy See

As seen, the peculiarity of the position of the Order at the international level is due in part to the absence of territory and non-institutional citizens, and in part, the bond of dependence in relation to the Holy See because of the remaining differences between canonical law and Maltese law.

In fact, special links between Maltese law and canonical law can be demonstrated, because of the decision of the Knights – autonomously organized in the institution – to impose religious rule and to place themselves under the protection of the Pope.

The Apostolic Letters show that S. S. Benedict XIV on 12 March 1753 declared the Order subject to the protection of the Apostolic See, and immune to any other jurisdiction.

Therefore, the Order of Malta has a dual legal personality: in international law and in canonical law.

The Holy See confirmed the most important sources of Law of the Order: the Constitutional Charter and the Maltese Code, to verify the religious orthodoxy, as well as approve or ratify the election of the Grand Master, treating him as an eventual religious Lieutenant Grand Master, as in the past and as provided in the Constitution.

These approvals, however, establish character but no verification nor decrease in the self-determination of the Order, because they conform to the traditional relations that were established with the Church, after the Order assumed the characteristics of a "Religion," and should consider that – until the last century – the Maltese organization being exclusively centered around the professed Knights (First Class), the need for ecclesiastic interventions was clearer.

The sovereignty of the Order led the Holy See to attribute, from the canonical point of view, a very special position of respect for the legal discipline of other religious orders.

The link with the Holy See comes from the fact – mentioned above – that some members belonging to the First Class (inside of the Order the Knights are distinguished by class, based on the nobility of blood, the issuance of religious vows or the promise of obedience (they tend to the perfection of Christian life)). Those in the First Class are Knights of Justice, who profess religious vows and Conventual Chaplains, who are ordained priests.

It is evident that not everything is about a religious profile of assuming vows, and that Maltese law is detached from canonical law, and it is clear that Knights of the First Class only depend on the Holy See within the limits and with respect to the profession of vows.

The Constitution and the Code of the Order include numerous rules of Special Canon Law, which, by repealing Common Canon Law or citing it, discipline the obligations of a canonical nature of the members of the Order, especially those providing religious vows. Under this profile the approval by the Holy See of the Constitution and the Maltese Code was necessary.

The link between the two Entities does not preclude a wide sphere of autonomy of the Order, within which it has the possibility of sovereign self-determination, arising autonomously in its relations with other States, in view of its own institutional purposes.

In international relations, it is ruled out that the Order act in the name and interest of the Holy See, but it is true that the dependent relationship is presented to the outside in the form of "protection" as several historical circumstances demonstrate.

This situation of "dependency," or alleged limitations on the sovereignty of the Order, is not derived from constitutional law or international law, but has its origin in the nature of religious order assumed by the Institution, by the professed vows by the highest ranks of the Order – as noted – and for typically persecuted Christian purposes."

The Grand Master of the Order of Malta is unique among the heads of religious orders in that he has a right to the title of Eminence and to the honors for the Cardinals.

The Order of Malta is the only religious order that has a representative of the Pope, who must be a Cardinal (Cardinalis Patronus), with "the task of promoting the spiritual interests of the Order and its members and to foster relationships between the Holy See and the Order itself."

But in the aspect of religious order, the Order has a particular position, different from that of other religious orders, so much so that even the religious aspect is covered by the Order of Malta in its own legal rules (Constitutional Charter and Code) and, only via an extra channel to establish it, under the Canonical Law.

If we study the issues of a religious nature that the Order has over its sovereignty, it must be noted that such sovereignty has never been put into question by the Holy See and has instead been reaffirmed in the most solemn ways.

The Holy See accepted a diplomatic mission of the Order until 1834 and from 1930 onwards; in the interim period diplomatic relations were suspended simply because, with the Grand Master based in Rome, the existence of a legation in the same city seemed useless.

On 30 October 1921, Cardinal Pietro Gasparri, in his capacity as Secretary of State, declared that:


 * "The Holy See recognizes the Order of Malta as an independent international order with sovereign privileges."

The Order cannot be mistaken for a religious-monastic order, either by the presence of lay members or by the absence of a requirement of common life, which is one of the most typical monastic characteristics.

In this regard, we should recall that in December 1951 a controversy arose that originated in the pretense of the Sacred Religious Convention to monitor and investigate the institution of the Knights of St. John of Jerusalem as a common religious order.

In these circumstances, the Grand Master made use of ancient prerogatives that claimed the privilege of the Order of not recognizing "another bishop as superior that was not the Pope" and filed a request directly to the Pope asking for a trial, which was conducted by a Tribunal of Special Cardinals instituted by Pius XII.

In the judgment of 24 January 1953, relations between the Holy See and the Order were defined and the characteristics of "sovereign" and "religious" determined, as well as respective areas of competence.

About the "Nature of the quality of religious rule of the Order," the statement said that "the Jerosomilitana Order of Malta, as composed by the Knights and Chaplains, is a Religion and more precisely a religious order, approved by the Holy See;" it further stated that "the decorations of the Order and their associations depend on it ..."

On 12 March 1953, the Order informed the Secretary of State, through diplomatic channels, of the acceptance of the judgment "conditioned" on the acceptance of a "specific interpretation" in three points, of which the second affirmed that "the religious nature of the Order is limited to the professed Knights and Chaplains who compose it," and that the judgment precluded any interference by the Secretary of State in the diplomatic activity of the Order. The Holy See communicated as always through diplomatic channels, it "has taken note."

"Taking note," without rejecting or contradicting the proposed interpretation, has meant the improvement "of an international interpretative agreement, reached by the parties concerned, on some controversial points, setting a definite position."

However, the most solemn reaffirmations of the sovereignty of the Order are contained in the Constitutional Charter approved by S.S. John XXIII on 24 June 1961. Article 1 affirms that "the Order is a legal entity formally approved by the Holy See. It has the quality of a subject of international law."

Article 3 states that "the intimate connection existing between the two qualities of a religious order and a sovereign order do not oppose the autonomy of the order in the exercise of its sovereignty and prerogatives inherent to it as a subject of international law in relation to States."

It also provides for a diplomatic mission of the Order to the Holy See and the appointment of the Cardinalis Patronus. It further provides (Article 12) that "the Grand Master is the Supreme Commander of the Order. Incumbent upon him are special prerogatives and sovereign honors under the rules in force."

In short, the current situation is no different – in law – from what has been consolidated historically, so that one cannot assert the non-existence of a sphere of self-determination of the Order in its relations with any State, nor may one assert the right of interference of the Holy See in international affairs of an institutional character, because the protection afforded by the Holy See to the Order does not mean protectorate, nor can one speak of allegiance.

The distinction between Vatican diplomacy and diplomacy of the Order is so clear that in none of the States with which the Order has diplomatic relations, is the representation of the latter entrusted to the Apostolic Diplomatic Missions. The Holy See is not involved in any way in the international conventions of the Order.

From the point of view of internal organization, there is no interference of the Holy See in the elections and appointments to the offices of the Order, unless canonical dispensation (permission) is needed, in some cases, for the appointment of non-professed Knights to offices for which the Constitution of the Order requires them to be professed.

The Prince Grand Master is also head of a religious order and as such, his election ought to be confirmed by the Apostolic See.

The Order of Malta, within the limits that are compatible with its actual position as a subject deprived of territory, is in the international community, a sovereign entity on par with the States, and the Prince Grand Master is comparable, from the point of view of international law, to the Heads of State.

This report is based on the book written by Prof. Aldo Pezzana entitled, Il Fondamento giuridico e storico della sovranita 'dell'Ordine Gerosomilitano di Malta, 37 pages, and the books by Prof. and Attorney Francesco Gazzoni entitled, L'Ordine di Malta , Milan, 1979, 137 pages; A. Pecchioli, Storia dei Cavalieri di Malta , Editalia, Rome, 1978, 125 pages; and in the Annuarie, 1996/1997, Oedre Souverain Militaire Hospitalier de Saint-Jean de Jerusalem de Rhodes et de Malte, Rome , 1996, 142 pages ("Feast of the Patron of the Order, San Juan Bautista," Annuarie, 1996/1997, Oedre Souverain Militaire Hospitalier de Saint-Jean of Jerusalem de Rhodes et de Malte , p.21-23).

It is worth remembering that accredited Maltese representatives to the States enjoy immunities and privileges not as international officials, but rather in their capacity as diplomatic officials, with the rank of Ambassador or Minister plenipotentiary. On the one hand, the clear territorial separation of sovereign areas that exists between the Italian State and the State of Vatican City does not exist between the Order of Malta and the Italian State, but neither can it be said that the treatment given to the headquarters of the Order (Aventine, Via Condotti) is, simply, that reserved for the headquarters of diplomatic missions accredited to the Italian State.

In fact, the headquarters of the Order have diplomatic extraterritoriality (authoritarian acts of any kind – executive, acts of inspection, judicial – cannot take place inside), but in addition, the Italian State recognizes the exercise, in the headquarters, of the prerogatives of sovereignty. This means that Italian sovereignty and Maltese sovereignty coexist without overlapping, because the Order exercises sovereign functions in a wider area than occurs in the diplomatic missions of the States for, although [those diplomatic missions] enjoy extraterritoriality, the guarantees deriving from the privilege of immunity are constrained to a purely administrative area; the Order, instead, makes use of extraterritoriality to meet the very acts of sovereign self-determination that are the same as the States (legislative, judicial, administrative, financial acts).

Jeff in CA (talk) 05:07, 29 September 2015 (UTC)