Chapter Three: (Volume I)
EXAMPLES OF DE JURE NON-TERRITORIAL SOVEREIGNTY
Chapter Table of Contents
Having laid the theoretical foundations in the first chapter for the elements necessary to prove that a given society is a perfect society and the general impact of prescription under natural law, this study will now examine the rights of four entities claiming sovereignty to see whether they possess the essential elements for the establishment of a sovereign position.
In examining these elements, we will of necessity delve into the historical background surrounding them, as the historical background will often be decisive for showing the existence, or lack thereof, of the requisite elements for sovereignty. The entities that will be examined are: the Holy See; the Sovereign Order of Malta; the “The Central Tibetan Administration as a Sovereign Entity” (CTA); and the sovereignty claim of the native Hawaiian people whose kingdom was illegally overthrown and confiscated. Three of these political entities have one element in common: a lack of territorial status. This element alone separates them from the territorial sovereigns. The first, the Holy See, now has recognized territorial sovereignty, but, for a period of about 60 years, did not have any land to rule over; yet, in spite of this, the Holy See was considered to be a sovereign entity during this period. The second demonstrates international recognition of a deposed monarchy. The third example is about how the CTA is considered to be a government-in-exile and therefore, under international law, has internal, de jure, non-territorial sovereign rights or a valid and authentic claim to such. The last also shows how the principles of prescription apply to real-life situations in modern times under current international law, which law is built on what is morally and ethically right. The first two examples will be given in great historical detail. The last two will focus more on the legal principles involved rather than giving a great deal of historic background.
A traditional republic legitimately established under the natural law has the same moral and legal right to de jure sovereignty as that possessed by a sovereign royal house.
There are not different kinds of sovereignty. A sovereign . . . is not a particular form . . . such as a monarchy or republic or democracy. . . . Their ruling authority will have the same basic characteristics. . . .
To reiterate, “There is no essential difference between the sovereignty of the king and the sovereignty of the people.” Trying to make a difference when there is no basic difference is problematic. It only muddies the water. “The principle of monarchical [dynastic] sovereignty and the principle of popular [that is, republican] sovereignty are really only . . . differences in the form of government.” “Popular sovereignty [is actually] . . . royal sovereignty [it is just another] form of the sacred. [It] is essentially [basically, and fundamentally] the same. . . .” There is little difference between the two in terms of sovereignty itself; although, obviously, it is organized differently.
In other words, the same basic principles apply. In terms of prescription, the rules are the same for a kingdom or principality as they are for any of the other kind of ousted governments. The same basic principles apply to both deposed hereditary monarchies and legitimate republican governments-in-exile. The criteria are interchangeable. The following examples were chosen in order to demonstrate international law as it applies to and supports non-territorial sovereignty.
The Holy See
After the despoliation of the Papal States in 1870, and before the signature of the Lateran Treaty in 1929 creating the 107.8 acre Vatican City State, there was great debate about the position of the Pope and the treaties signed in his name, the Concordats, under international law. It was the prime article of the positivist faith that the Pope had absolutely no standing in international law; that he was merely a private person, an Italian subject; and that Concordats made with him had no validity in international law and could thus be regarded by the state as an internal matter. The natural law school believed that the Pope, the executive authority of the Roman Catholic Church (the Holy See), and the Church itself possessed the elements of sovereignty (perfect society) and was entitled to international recognition. Concordats made with the Holy See were valid international agreements entitled to the full protection of international law.
Before all the territory was taken away during the unification of Italy, sovereignty over the Papal States was full and complete:
The Popes succeeded in getting a legitimate and valid title to the city and Duchy of Rome, and the Exarchate of Ravenna . . . [and] to the additions made to them in the 11th and 16th centuries. . . . The long prescription which has run upon their possession, and the implied consent of many successive generations of their subjects, would be quite sufficient to establish their title, and to show that the Popes have a right to their temporal sovereignty at least equal to that which can be pleaded in behalf of that of any of the Royal families of Europe.
[In other words, their title “. . . has rested upon grounds as valid and legitimate as those which can be pleaded in behalf of any of the other temporal princes of Europe. . . .”
For almost one thousand years, since the days of Charlemagne, the Roman Pontiffs have ruled as secular sovereigns over a strip of land known as the . . . Papal States. By immemorial prescription the Popes had acquired the rights of [secular] rulers. No dynasty of Europe today can present claims of sovereignty in any way equaling those which the Popes possessed [de facto at that time].
The following was written in 1862 to show that the Pope had supreme rights and as such he had the same rights as any other sovereign to rule his lands without interference or meddling of others.
We can plead in his behalf, prescription, and the “best of title” – as the Protestant historian Gibbon is force to admit; and we can show from history and form international Treaties of European nations, that the Pope is a legitimately a Sovereign Prince, as is Queen Victoria or the King of Prussia. Why then should the Pope, the representative of the most ancient and the most legitimate dynasty in Europe, be called upon to unbind the regal diadem from his brow, to descend from his throne, and to swear allegiance to a parvenu [a relatively unknown upstart, who has recently gained notoriety – the author was referring to The Kingdom of Sardinia (Piedmont)]? The Pope is in possession, and has been in possession ever since the greater part of Europe emerged from barbarism. . . .
Why then should the Pope be called upon to abdicate? Is it because there are abuses in the Papal Government? But are there not abuses in the Turkish Government? – and yet the Sultan is not called upon to abdicate in favor of the Emperor of Russia. Is it because there are discontents and revolutionary movements amongst some of his subjects? But is there not discontent in Ireland, and are there not in that country abuses compared with which the worst evils which have been urged against Papal rule sink into insignificance? Is it because the Pope is a tyrant, and by cruel oppression has forfeited his right to the allegiance of his subjects? But even his enemies and revilers cannot speak of him except as the “benevolent and the good.” It is because – but we waste our time in these enquiries. No cause, can be shown why the Sovereign of the Papal States should be called upon to abdicate, which would not be conclusive also against the rule of Queen Victoria in Ireland and in India, and against authority everywhere. . . .
To argue with such men is impossible. For argument presupposes the mutual recognition of certain universal, immutable, inflexible principles. We cannot argue with men who in one breath assert that any people discontented with its rulers has the right to depose them; and who in the next assert that the discontented people of India are bound to yield true allegiance to the alien rulers whom the fortune of war has placed over them, and that the Catholics of Ireland have no right to take up arms for Irish national independence, and an Irish Republic. With such men we cannot argue; but we may contradict some of their misstatements. . . . The Temporal Power of the Popes should be upheld by all honest statesmen, because it is eminently conducive both to the temporal and eternal, the material and moral, interests of the human race: because in short, it is the key stone of our existing social system, and of Christian civilization.
Although completely dethroned, the Popes still possess the right to rule the Papal States, because they have maintained their rights by the rules and principles of prescriptive law, which law will be examined in depth throughout both volumes of this book. Prescription is one of the most profound rules in existence in regard to dispossessed sovereignty.
About 60 years after the forced loss of the Papal States in 1870, after the 1929 Lateran Treaty, erecting the Pope as temporal sovereign of a lO7.acre Vatican City State, the surface debate on the non-territorial sovereignty of the Holy See was ended: the Pope now possessed a minute piece of territory over which he could claim sovereignty and which even the most positivist sovereign could recognize.
However, the creation of the Vatican City State has really eclipsed the far more important question of the status of the Pope, the Holy See, under international law apart from any secondary status he might enjoy as either the de jure and rightful sovereign of the old Papal States or de facto sovereign of the Vatican City State. This is not an unimportant question, as it goes to the true dignity of the Pope and other de jure, non-territorial sovereigns. Is he recognized internationally merely as the sovereign of the 107.8 acre Vatican City State, one-sixth the size of Monaco, or is he recognized as the spiritual sovereign of a perfect society known as the Roman Catholic Church? The important point to consider is that, during the 60-year period in which the Pontiffs held no territorial rule, the Popes who reigned during this time were not only de jure non-territorial sovereigns, but they were treated and had the full status of de facto rulers of sovereign states as though they were actual heads of state.
It is not inconceivable that the question of legal sovereignty rise again; for example, the Pope was again separated from his temporal sovereignty. This might occur if Italy was to go Communist, and the Pope’s position and freedom of action were to become untenable. If he were to escape to the United States due to the strength of the Church in America, the Government of the United States (or any other state he might flee to) would be presented with some interesting and vexing problems that were presented in the past to Papal rights and with other governments who have been dispossessed.
An examination of the sovereignty of the Holy See will inevitably lead to the question of “Who is the Pope?” That is, from whence does he derive his powers and what is his position in the Roman Catholic Church? The following is given not as an endorsement but as part of the explanation of how the idea of sovereignty became attached to the Papacy.
The Pope’s titles give an initial hint as to who he is: His Holiness, Benedict XVI; Successor of Peter; Prince of the Apostles; Vicar of Christ; Patriarch of the West; Primate of Italy; Metropolitan of the Moran Province; Bishop of Rome; Servant of the Servants of God; and Sovereign of the Vatican City State. His Holiness Benedict XVI is the 265th pope in a direct line of succession from the Apostle Peter, the first Pope. The most direct affirmation as to who the Pope is and his position in the Church was made by Paul VI on the occasion of his June 1969 visit to the headquarters of the World Council of Churches in Geneva, when he introduced himself to the Council with the words, “I am Peter.”
The primacy of the Apostle Peter over the Roman Catholic Church, or the theoretical and philosophical underpinnings of this appellation, are predicated on what is known as the Petrine Texts, Matthew 16:17-19; Luke 22:31-32; and John 21:15-17, in which Christ promises and grants to Peter the primacy among the Apostles. Matthew 16:17-19 reads:
Jesus replied, “Simon son of Jonah, you are a happy man! Because it was not flesh and blood that revealed this to you but my Father in Heaven. So I now say to you: you are Peter and on this rock I will build my Church and the Gates of the underworld can never hold out against you. I will give you the Keys to the Kingdom of Heaven: Whatever you bind on earth shall be considered bound in Heaven; whatever you loose on earth shall be considered loosed in Heaven.”
From the fact that St. Paul regularly refers to St. Peter as Cephas (i.e., Galatians 2:9,11,14) it is certain that the Aramaic word here translated “Peter” was the common noun kepa, meaning rock, which was heretofore completely unknown as a man’s name. The sense of the text is, therefore, “thou are ‘the rock’ and on this rock I will build my Church.” The point of this image is clearly seen in the parable of the man building a house (Luke 6:48), “Who dug deep and laid a foundation upon rock. And when a flood came, the stream broke against the house and could not shake it, because it was founded on a rock.” Thus, the bedrock gives stability to the structure founded on it. Christ, therefore, promises to build his Church in such a way that the whole structure will depend on Peter for its stability. The rest of the verse is a promise that the Church, firmly founded on a rock, will not fall before the onslaughts of the nether world. This promise appears to have been kept in the 2,000 year history of the Catholic Church.
The other promises, to give the keys of the Kingdom of Heaven and the power of binding and loosening, seem to indicate how Jesus intended that Peter should give stability to His Church. Both of these images signify the granting of vicarious authority over the community. In Isaiah 22:19-22, the image of giving the key of the House of David expresses the idea of the authority to be conferred in Eliacim, chosen to be the master of the royal palace. In rabbinic literature, the same images consistently mean the granting of authority, as to a steward placed over his master’s household.
The same idea is contained in the promise concerning binding and loosening. According to rabbinic usage, the expression bind and loose most frequently describes the act of declaring something forbidden or allowed by the law. It was used infrequently to refer to the exclusion of a person from the community or his admittance. The two terms basically refer to the act of passing judgment, whether of condemnation or pardon. According to this text, Peter is to exercise this power on earth, and his acts will be ratified in Heaven. Roman Catholics believe that this text gives primacy of authority over the whole Church to Peter and, through him, to his successors. Christ declared:
Simon, Simon! Satan you must know, has got his wish to sift you all like wheat; but I have prayed for you, Simon, that your faith may not fail, and once you have recovered you in your turn must strengthen your brothers. (Luke 22:31-32)
While Satan had obtained permission to try the faith of all the Apostles, Jesus promised to pray not for all, but for Peter alone – choosing to strengthen the faith of the others through the mediation of one whom he had called the rock on which he would build his Church. The role of Peter in confirming the faith of the other Apostles is an application of his function as rock. This is part of the abiding function that Peter and his successors have in keeping the Church true in matters of faith and morals.
After the meal Jesus said to Simon Peter, “Simon son of John, do you love me more than these others do? He answered, “Yes, Lord, you know I love you.” Jesus said to him, “Feed my lambs.” A second time, He said to him, “Simon son of John, do you love me?” He replied, “Yes, Lord, you know I love you.” Jesus said to him, “Look after my sheep.” Then He said to him a third time, “Simon son of John, do you love me?” Peter was upset that he asked him the third time, “Do you love me?” and said, “Lord, you know everything; you know I love you.” Jesus said to him, “Feed my sheep.” (John 21:15-17)
This triple confession of love probably refers to Peter’s triple denial. In Christ’s reply, “Feed my lambs . . . feed my sheep,” the word “feed” does not give the full sense of the Greek verb, which means to shepherd to tend, lead, and guard the sheep. Jesus had already described His Disciples, the Church, as a flock (Luke 12:32) and Himself as their shepherd (Matthew 26:31; John 10:11-16). Now, when He was about to ascend to the Father, He appoints Peter in His place. With these words, Jesus conferred on Peter the jurisdiction of Supreme Pastor of His whole flock.
Thus, Jesus appointed Peter as his representative (the Vicar of Christ). The significance and status of a special representative of the Founder is to be eponymus, that is, the embodiment or personification of the whole community of the faithful. This will be discussed in detail in the section of this study treating de jure sovereigns in exile. Suffice it to say, as implied by his titles, Roman Catholics regard the Pope as the visible representative of Christ, the Founder of the Church, holding jurisdiction over the Church in the same manner that Christ held it. In the popular terms of power-politics, the Pope could be rightly said to be an absolute monarch. Spiritually – which is the plane on which he actually functions – he is to exercise this power as a loving father (as likewise kings do in the Christian concept of a monarchy) rather than as a dictator or bureaucratic official.
From the above, it can be seen that Peter was the supreme head of a divinely-founded institution endowed with powers and jurisdiction by its Founder. Based on its divine foundation and the position of the Pope as the representative of its Founder, the Church is ipso facto a perfect society with the Pope as its sovereign (to use legal language to describe a spiritual and paternal relationship), and the Pope is thereby entitled to international recognition as a sovereign without further discussion. On this basis, the Pope has diplomatic relations and is recognized as a sovereign by all predominantly Roman Catholic nations.
Suffice it to say that a Protestant or other non-Catholic country could not recognize the Pope on this basis without necessarily abjuring its Protestantism. Therefore, it is essential to prove the Pope’s right to sovereignty on a non-religious basis. This is of great importance to even the Church; for if the sovereignty of the Holy See can be established on a purely secular basis, then there would be no doubt as to its full entitlement to the recognition of all countries and its right to full representation in the various international bodies and organizations.
An excellent grasp on the secular establishment of the sovereignty of the Holy See can be obtained from the British parliamentary debates over the international position of the Holy See at the time of revolutionary troubles in Italy. With respect to the position of a non-Catholic power towards the sovereignty and independence of the Holy See, the Earl of Ellenborough, First Lord of the Admiralty (the British Secretary of the Navy) and former Governor General of India, stated the position of the Government in the House of Lords on 12 June 1849 as follows:
It was quite true England was not a Catholic State, and might not, therefore feel that personal interest in the position of the Pope which was felt by Catholic Powers: but we had eight millions of Roman Catholic subjects, and it was as much an object of interest to us, as it would be to anyone of the Catholic Powers of Europe, that the Pope should be in a position of independence; that he should not be so situated as to be dependent upon the bounty, or upon the power of anyone, or of any combination of the Powers of Europe. That was surely of as deep an interest to us as it would be to either Austria or Naples. The question was, not whether the Pope, as Sovereign of Rome, should or should not reside or rule there: but whether the person who happened to be at the head of the Roman Catholic Religion should maintain a position of independence; and that appeared to him to be a matter of the deepest importance. (emphasis added)
The British Protestant Government viewed the independence of the Holy See as an urgent matter of pragmatic power-politics based on the spiritual authority of the Pope in the Roman Catholic Church. In this connection, the views of the British Government are of particular importance to the establishment of the sovereignty of the Holy See on purely secular criteria. The position taken by the British Government relative to the sovereignty of the Pope is first-class evidence as to the position of the Pope under international law.
In the summer of 1849, the Prime Minister, Lord Pa1merston, wrote to the Marquess of Normandy, British Ambassador to France:
That it is without doubt to be desired that a person, who in his spiritual character exercises vast influence in the internal affairs of the greater part of the nations of Europe, should be so independent as not to become, in the hands of any European power a means of embarrassing others.
Thus, the non-territorial sovereignty of the Pope, due to his spiritual character and influence, was viewed as an important matter of European public policy in an era when the Pope was in the process of losing his temporal sovereignty. In the eyes of the British Protestant Prime Minister, who might ordinarily be expected to oppose anything that might appear to advance the spiritual claims of the Pope, the independence and, thus, the sovereignty of the Pope, was imperative in order that he might exercise his spiritual authority independently.
The crux of the debate over the existence of the Pope’s sovereignty and the exact nature of it was well-summarized by the Third Marquess of Lansdowne, Knight of the Garter and Lord President of the Council, in the House of Lords on July 1849, as follows:
He had no hesitation in stating that he quite agreed with the views of his noble and learned friend on the subject; but he assured him they were by no means peculiar, inasmuch as they were precisely those laid down in Lord Palmerston’s dispatch to Lord Normanby, where he distinctly declared that the Sovereignty of the Pope was something quite peculiar, and having a relation with all the Roman Catholic States of the world, quite different from that of any other authority. The condition of the Pope’s Sovereignty was quite peculiar. As a Temporal Sovereign the Pope was of a fourth or fifth rate order; as a Spiritual Sovereign he was not only of the first honour, but enjoyed a Sovereignty unparalleled in the world, being capable of exercising over, not one, but every country in Europe an authority and an influence with which nothing could compare. (emphasis added)
Lord Lansdowne takes what might be termed a historical approach to the issue of Papal Sovereignty: as a Protestant, he obviously does not recognize the spiritual claims of the Church and the Papacy to divine foundation. Yet, as his statement indicates, he recognizes that the Pope has, in fact, enjoyed an unparalleled spiritual sovereignty from time immemorial. This is a factual approach to the question that even a positivist could appreciate: Irrespective of the precise origin of his authority, the Pope, through the Holy See exercises a spiritual sovereignty throughout the world, especially over the Catholic nations. The de facto historical existence (in non-Catholic eyes) of such authority and actual exercise thereof, coupled with compliance and recognition thereto by all of the Christian powers during the Age of the Unity of the Faith and by all Catholic powers thereafter, gives the Pope his title to non-territorial sovereignty. This will be elaborated on to show how to identify sovereignty from the lack thereof.
Although Lord Lansdwone was not a student of the scholastic philosophy of St. Thomas Aquinas, he is, in essence, saying that viewed historically, the Holy See possesses in his spiritual capacity all of the elements of a perfect society. And the rules of prescription confirm the Popes rights as legal sovereigns with all the important entitlements and privileges that go with this status. Historically, the Holy See is well able to demonstrate all of the elements of a perfect society from its spiritua1 character alone. In addition, these same elements can be identified on a secular basis as well.
The Quality of Independence in Non-Territorial Sovereignty: The Holy See
As a review, before the Independence of the Holy See is examined, note the characteristics and traits of a perfect society regarding Independence:
(1) Independent from any other juridical entity – powers are self-derived and not delegated.
(2) Self-sufficient – has the right to take independent action in the name of the whole society with other societies on an equal basis.
(3) Supreme and independent in its own sphere.
(4) External and visible society in its own right – bearing normal engines and attributes of sovereignty, or it possesses the inherent sovereign legal right thereof.
(5) Moral right to an independent existence.
(6) Actual independence and liberty within its sphere vis-à-vis other sovereigns.
(7) Diplomatic relations with other sovereigns on the basis of equality or it possesses the de jure moral and ethical right or legal entitlement thereof.
We will first examine the Independence of the Holy See, then its Authority, and, afterwards, its Jurisdictional rights and practices:
(1) The independence of the Holy See from any other juridical entity, or states, is historically self-evident. An excellent formulation of the Church’s independence, asserting its self-derived power, is to be found in the Encyclical Immorta1e Dei by Pope Leo XIII on 1 November 1886 in which he states that the Church is a society, just like the state, but differing in its end which is religious:
Although this society is made up of men, just as the civil community is, yet it is supernatural and spiritual, on account of the end for which it was founded, and of the means by which it aims at attaining that end. Hence it is distinguished from and differs from civil society and, what is of great importance, it is a society perfect in its nature and in its title since it possesses in itself and by itself, through the will and loving kindness of its Founder, all needful provision for its well-being and its operation. And just as the end at which the church aims is by far the noblest of ends, so is its authority the most exalted of all authority, nor can it be looked upon as inferior to the civil power or in any manner dependent upon it.
Princes and all those invested with the power to rule have themselves acknowledged this, in theory as well as in practice. In the making of treaties, in the transaction of business matters, in sending and receiving ambassadors and in the conduct of other kinds of official dealings, they have been wont to treat [interact] with the Church as with a supreme and legitimate power.
The Church has in respect to its spiritual mission the same authority claimed by the territorial sovereigns in the temporal domain. Temporal sovereigns recognize this fact when they deal with the Holy See as a sovereign, especially in exchanging diplomatic agents. The act of exchanging diplomats is an “essential attribute of sovereignty.” “Legation consists in sending diplomatic agents to other states, and in receiving such as are sent by them.” “. . . Treaty-making power is an admitted attribute of sovereignty.”
Sovereignty is also specifically recognized in the contemporary Concordats, such as with Spain and the Dominican Republic in 1953 and 1954, where both states specifically, “recognize in the Catholic Church the character of perfect society and guarantee it the free and full exercise of its spiritual power and of its Jurisdiction.” This echoes the understanding of the Anglican Marquess of Lansdowne, quoted above, a hundred years previous.
(2) The issue of the self-sufficiency of the Holy See – its right to take independent action in the name of the Church with other sovereigns on an equal basis – came to a head five years after Italy had usurped the Pope’s temporal domains. The German Chancellor, Bismarck, took umbrage when Pope Pius IX had declared invalid certain German anti-clerical laws known as the “May Laws.” Bismarck complained to the Italian Ambassador that he did not consider Italy friendly for allowing the Pope to make such a pronouncement. Bismarck said that before the usurpation of the Papal States, he could have sent a fleet or an army to take reprisal, but now that the Pope had no territory of his own, it was Italy’s responsibility to keep the Pope under control.
Visconti-Venosta, the Foreign Minister of the then anti-clerical Italian Government, immediately responded that, completely apart from his former temporal possession, the Pope was a spiritual sovereign and that Italy could not assume responsibility for his actions without ipso facto violating that sovereignty. The Foreign Minister cogently observed that it would be a violation of international law for Italy to interfere in any way with the Pope’s essential sovereignty:
Even supposing that we had had the intention of doing so, would it have been in our power to, or is it now in our power, to abolish the public law character of the papacy? Would one of our laws have been sufficient to forbid him to receive ambassadors or ministers, or to dispatch nuncios to foreign courts? Long after the publication of the Law of Guarantees His Highness Prince Bismarck kept in the budget of the German ministry of foreign affairs an allocation for the embassy at the Holy See. It is evident that the Pope, who receives and sends ambassadors, cannot be at the same time subject to the Italian law. It is evident that the Pope, who receives and sends ambassadors, cannot be at the same time subject to the Italian law. Inviolability the most complete is the only guarantee, the very essence of sovereignty without territory. (emphasis added)
The position of the anti-clerical Italian Government, responsible for despoiling the Holy Father of his temporal sovereignty, is most impressive evidence of the existence of his non-territorial sovereignty. Bismarck accepted the Italian position without further protest.
(3) The claim of the Church to be supreme and independent in its own sphere is well-established through the above-quoted Encyclical Immortale Dei, recognized in the Concordats with Spain and the Dominican Republic, and by virtue of sovereign treaties and diplomatic exchanges.
(4) Between 1870 and the 1929 Lateran Pact, the Pope as spiritual sovereign conducted himself as a sovereign and was accepted as such by the civilized nations, Protestant and Catholic alike. The loss of his temporal sovereignty caused no change in the conduct of other sovereigns towards him as evidenced by the 11 September 1882 address of Cardinal Jacobini to the Diplomatic Corps accredited to the Holy See:
It would be a great mistake to compare the political status of the Pope with that of a dispossessed prince. The Holy Father has remained a sovereign not only de jure but also de facto, by reason of his divine mission and in virtue of his Apostolic Office which he exercises with supreme authority in the entire world, even after the loss of the temporal power. This status of real sovereignty is recognized by all the powers which have accredited to him extraordinary legations and permanent embassies, endowed with diplomatic privileges, which publicly render to him those acts of respect and homage which are accorded only to reigning princes.
As the Pope had lost his temporal power, it must be concluded that the external and visible attributes of sovereignty exercised by him and accepted by other sovereigns must result from his spiritual, non-territorial sovereignty. It may also be mentioned that during this time the Popes bestowed titles of nobility and knighthood that were recognized by the temporal monarchical sovereigns of their recipients, Catholic and Protestant alike. Indeed, Bismarck, once he had submitted to the Holy See, was awarded the Supreme Order of Christ, the highest papal order of knighthood.[xx]
(5) With respect to purely temporal political reasons for the right of the Holy See to an independent existence, we can do no better than to turn to the Anglican Lord Lansdowne (commenting on Palmerston’s dispatch to Lord Normandy):
There was, therefore, in respect of other States, a ground for interfering and maintaining his authority, which did not exist in any other case; and being a sort of compound interest, the necessity was imposed on the Catholic Powers of watching, in order to see that the joint object of preserving the spiritual head of their religion was not made the means of promoting temporal ambition. But when he said that, he was not prepared to say, that we, as a Protestant state, had not to a certain extent a similar interest: there was not a country with Catholic subjects, and Catholic possessions, which had not a deep interest in the Pope being so placed as to be able to exercise his authority unfettered and unshackled by any temporal influence which might affect his Spiritual authority. (emphasis added)
In essence, all states, Protestant and Catholic alike, would suffer grave political difficulties if the complete and total independence of the Pope as a spiritual sovereign were in any way compromised. This fact of practical international politics, alone, provides the grounds necessary for the establishment of the non-territorial sovereignty of the Holy See in a completely secularist regime of international law.
The moral right of the Holy See to an independent existence as a recognized sovereign stems from its necessity to prevent temporal sovereigns from infringing on its freedom in matters of faith and morals and to maintain the jurisdiction and unity of its ecclesiastical authority. Pope Pius IX summarized this moral necessity:
In his allocutions Multis gravibusque delivered before the cardinals in consistory on December 17, 1860, Plus IX challenged the right of the government to repudiate its agreements in this unilateral fashion. The Church, he argued, was a true and perfect society and had the right to enter into agreements with governments and to expect their observation, not a unilateral arbitrary disavowal of them. He complained that the governments treated the Church on the Protestant principle that the Church is a collegium, without any inherent independence.
The Pontiff returned to the same theme less than two years later in his allocution Maxima quidem of June 9, 1862. He condemned the theory that lithe church is not a true and perfect society entirely free and does not possess its own proper and permanent rights given to it by its Divine Founder, but that it belongs to the civil authority to decide what are the rights of the church and the limits within which it can exercise those rights. From this false premise, the Pontiff went on, it is contended that the civil authority can interfere in those things which appertain to religion, morals, and spiritual discipline. The false doctrine, said the Pope, leads its proponents so far that they even prevent the bishops and faithful from communicating freely with their spiritual head, thus shattering the unity that should exist between the members of the Mystical Body and their Head. (emphasis added)
(6) The actual independence and liberty of the Holy See within its sphere was explicitly recognized in the cited diplomatic note to the German Chancellor Bismarck from the Foreign Minister of the anti-clerical Italian Government. In the eyes of the Church, it is supreme in its own dominion and is, in fact, a state . . . but a state of a radically different nature, having jurisdiction not in the temporal sphere (“render unto Caesar the things that are Caesar’s”) but rather in the spiritual sphere (“render unto God the things that are God’s”) and, in proper perspective, there should be no conflict between the two:
But the competence of the civil power is one thing and that of the ecclesiastical power is another, each having its own certain and definite kind, in which it is supreme. The one looks after the advantage of the citizens and the civil authority, the other concerns itself with things sacred and divine. There is no contradiction and no confusion and there is no status in statu, as the Protestants say, but each is a state of a distinct kind and each has its own province, which it may not transgress. And in this lies the true and precise distinction between the ecclesiastical and the civil power: one belongs to the natural order while the other belongs to the supernatural: one is ordained to civil matters and the temporal happiness of men while the other presides over things sacred and divine and has the charge of those things which appertain to eternal happiness.
(7) Diplomacy itself carries with it the connotations of sovereignty. It is the normal method by which sovereigns transact business with each other. Likewise, the maintenance of a diplomatic corps (passive litigation) and the accreditation of one’s own diplomatic agents (active litigation) is a valid symbol understood by all who have sovereignty. Private organizations, no matter how distinguished, do not maintain a foreign service or receive a diplomatic corps:
For this reason, when the Catholic Church systematically engages in diplomatic activity it by that very fact manifests that it shares in some way the independence and autonomy symbolized by this prerogative. When the states for their part exchange representatives with the Holy See they necessarily indicate in this manner their recognition of the special independence of the Church. This independence is assimilated to that which one state acknowledges in another state with which it has diplomatic relations. Or, to put this in another way, as the states claim a territorial sovereignty, the universal Church claims its own kind of sovereignty, of a spiritual nature, it is true, but one possessing the same essential characteristics as the civil sovereignty of the states. (emphasis added)
Indeed, the territorial sovereigns themselves recognize the peculiar non-territorial sovereignty of the Holy See and the Pope’s very real jurisdiction over his spiritual subjects, the clergy and laity of the Roman Catholic Church:
Implicitly, the civil governments, who recognize the Holy See diplomatically, realize they are dealing with a permanent institution exercising supreme authority in an independent legal system. It is commonly said that governments recognize the Holy See because the Pope is a great ‘moral authority.’ Sometimes that phrase is employed for the purpose of glossing over the fact that he is primarily the head of the Catholic Church. But governments do not have official relations with a mere ‘moral leader,’ such as a philosopher or a prophet. A religious leader whose leadership is but honorary and who exercises upon his adherent’s mere moral persuasion but no real jurisdiction cannot interest a government because negotiations with him can lead to no abiding and definite results. The governments, it is safe to say, are not interested in the Roman Pontiff merely because of his moral prestige in the affairs of men, however important that may be, but basically because he is the supreme head of a perfect society.
All governments, even Shintoist Japan, accredit diplomatic agents to the Holy See There are now 178 nations who accept diplomats of the Vatican. And it should be pointed out that it is “. . . a sign of sovereignty of a State to send diplomatic agents to another sovereign State.”
Thus there is paradox, but no contradiction in the fact that our modern age, which prides itself upon the secularization of its national and international legal systems, has worked itself to a point where most governments entertain diplomatic relations with the head of the Catholic Church. In separating the two legal systems, they have made all the more challenging the problem of coordinating them. By disengaging Church law from the structure of the State’s own law, the governments have given stimulus to the Church to develop its own juridicia1 organization more systematically. As a result, the divorce of the canonical from the civil law has only multiplied occasions for negotiations between the temporal and the spiritual power. Doubtless this outcome was not foreseen by those governments which thought to end discussion by passing a law. But having voluntarily broken with the past alliance of throne and altar at home, the governments find themselves confronted with the Holy See, a sovereign authority, external to themselves, with whom they have to come to some kind of terms.
With respect to the last sentence of the quotation, one might observe that the great hostility shown to monarchy in Catholic countries by positivists, secularists, masons, and similar veins of men is not due so much to opposition to it as a form of government (that accommodates them very nicely in the northern European countries) but because Catholic monarchy, anointed, crowned, and enthroned by the Church, served as the Church’s first line of defense against her enemies. It was only by getting rid of the crown that men of this type could get at their real object: the Church. Monarchy faithfully served the Church well in the past, and, together, they built that magnificent edifice that we know as Christian Europe. However, the mission of the Church is to souls, and, to this noble end, she is willing to negotiate with the secularist republics – even though her true heart may lie elsewhere. The pragmatic attitude of the Holy See in this respect is well-summarized by the 14 May 1929 address of Pope Pius XI to the seminarians of Mondragone College: “When there is a question of saving souls, or preventing greater harm to souls, we feel the courage to treat with the Devil in person.”
The Quality of Authority in Non-Territorial Sovereignty: the Holy See
The characteristics and traits necessary to qualify for a perfect society in the area of Authority are as follows:
(1) Unshared and total authority in its own dominion.
(2) Legislates in its own name in the fields within its jurisdiction.
(3) Not subject to any other authority in the execution of its mission.
(4) Sovereign and complete within itself.
(5) Subordinate to no higher society and enjoys independence and autonomy – full judicial existence.
(6) Fully perfect and sovereign within its own sphere, which is determined by the ends of the society, royal family or order of chivalry.
(1 & 2) The authority of the Pope over the entire Church is absolute. As the Vicar of Christ (as a representative of its Founder) in the eyes of all faithful Catholics throughout the world, he possesses the same authority as Christ himself would have. Suffice it to say, he exercises this authority in the capacity of a trustee for Christ for the benefit of the faithful rather than for himself:
The Vatican Council of 1870 spelled out the prerogatives of the Roman Pontiff in terms beyond cavil, thereby dealing a death blow to various opinions which had tended to minimize the authority of the papacy in the Universal Church. The Pope is the highest authority in the Catholic Church. Even the decrees of ecumenical councils require his sanction. In virtue of his succession to the See of Peter, the Roman Pontiff exercises a primacy of jurisdiction over the bishops and over the faithful. He is not therefore merely primus inter pares (first among equals), a presiding chairman without authority over his fellow bishops. Furthermore, his jurisdiction extends not only to matters affecting faith and morals but also to all those matters which appertain to the discipline and the law of the Church throughout the world. He has the power not merely to alter individual canons but even to codify and reform the whole of canon law. When pronouncing ex cathedra, or from the plentitude of his apostolic powers, on-matters of faith and morals, the judgment of the Pope is infallible.
These prerogatives are far-reaching, but they are based upon the nature of the Church herself. Pontifical diplomacy, like other prerogatives of the Popes, has its roots in the constitution and mission of the Catholic Church. The Popes are but organs of an institution founded by Christ.
In his person the Pope possesses the full plentitude of power, legislative, executive, and judicial, over the Church and the faithful. For the exercise of these powers, the Pope is alone responsible to God.
(3) From the time that Jesus said “render unto Caesar the things that are Caesar’s and to God the things that are God’s,” it has been axiomatic that the Church is no more subject to the state in the spiritual realm than the state is to the Church in purely temporal matters. Modern conflict between Church and state has centered around what is termed “mixed questions” concerning education, marriage and family life, as well as with direct moral issues such as the legalization of abortion and artificial birth control.
In public ecclesiastical law (the branch of canon law dealing with the constitutional nature of the Church as a perfect society) the juridical nature of the authority of the Church is akin to that of a state:
As late as 1863 the Roman canonist Guglielmo Audisio wrote in his treatise on public Church law, “We affirm, therefore, that the church should be defined a government and a state, for it is a true society, subsisting by itself and ordained to one end, by means of laws and shepherds proper to it whence it draws its essence and its form.” (5) In 1840 the canonist Giovanni Soglia wrote in like manner. “We affirm that the church is a state and there are many arguments to prove it.”(6) Much earlier, similar language has been used. Giovanni Devoti, a Roman canonist whose textbook was widely used (published in 1803), described the Church variously as a “state” or “republic” (. . . Non collegii sed reipublicae rationem habeat a civili distinctae et ideo proprio, eoque summo regatur imperio.)(7) Zallinger zum Thurm, even earlier, termed the Church in the same connection variously as a “sacred state” (status sacer), an “ecclesiastical state,”(8) and a “hierarchical state.”(8) Obviously, the canonists were groping for terminology, but for lack of a better one they did not hesitate even to apply the word state to the universal Church. What they were driving at, however, was clear. The Church was organized on juridical principles like a state, enjoyed the same rights to its independent existence, and was not subject to any civil authority in the execution of its mission.
In particular, the Holy See is not subject to any temporal authority in the performance of its divine mission.
(4 & 5) By the analysis of canon law lawyers, the Church is a perfect society, complete within itself, and independent of the state for either its existence or its powers. This is in contrast to non-Catholic views of their own denominations as corporations or institutions at civil law charted by the local government. In continental Europe, such institutions were often known as collegium. When an attempt was made, in an historical controversy known as “Febronianism,” to compare the status of the Catholic Church to that of the non-Catholic denominations, the canon law lawyers repulsed this attempt with great vigor, asserting that the Church was the juridical equivalent of the civil state:
The Dominican Thomas Mamachi exclaimed in his Epistolae ad Justinum Febronium (1776): “You call it a college. You will soon call it merely a college; for as you know the college has no authority in the state except that which it derives from the prince or the nobility or the people.” Furthermore (argued Mamachi) the college or corporation can have no intercourse or dealings with foreigners without the consent of the civil rulers. The Church therefore is cut off from free intercourse with the highest superiors, the Pope in Rome. In addition, a Church which has no more legal existence than that of a collegium can be dissolved by decree of the prince. More, since no kingdom is dependent upon another, then neither can one Church be linked with another in another realm, since any authority of the corporations’ proceeds from the civil power. Thus also the universality and unity of the Church is destroyed. Such consequences are inadmissible for the Church of Christ. The Roman controversialist concluded: “The Church is not therefore just a corporation, but a republic as has already been abundantly shown, a state or a civitas.”
The argument employed by Mamachi is a negative one. The Church cannot be subject to the civil power and therefore is not a collegium or corporation. Therefore the Church itself is a state. Other polemicists developed the positive doctrine of the constitution of the Church. In his Anti-Febronius Vindicatus (1771) Francesco Maria Zaccaria, another Roman canonist, took this line: “The Church is a society, 1, external and visible; 2, endowed with supreme power, in a way that in it not all are equal but there are those who rule and others who must obey or be punished if they rebel; 3, and is not subject to any other power however great, in those things which are within its domain. The Church is therefore a state.”
This view that the authority of the Church is equivalent to the authority of the state is implicitly, if not explicitly recognized, by temporal sovereigns when they have diplomatic relations with the Holy See and enter into treaties (Concordats) with it.
(6) In the eyes of canon law, the Church is fully perfect and sovereign in its own sphere, which is spiritual and vertical to the temporal sphere of the territorial sovereigns. In its spiritual sphere, the Church possesses the same authority and jurisdiction that the state has in its temporal sphere. It is upon this fully sovereign and perfect nature that the Church bases its claim to be a perfect society:
In the eyes of the canonists the universal Church is, in fact, very much like a state. It is sovereignty independent of any other juridical entity, including the State. In its own domain its authority is unshared and total. The power which it exercises over its members is jurisdiction in the proper sense and not merely moral influence or persuasion. The Church enacts legislation in its own name in the fields within its spiritual jurisdiction. It claims and exercises the right to pass judgment upon transgressors and to assign sanctions. To use the language of the canonists, the universal Church is a perfect society, supreme and independent in its own sphere, like that other perfect society which is the State. (emphasis added)
The Quality of Jurisdiction in Non-Territorial Sovereignty: the Holy See
Before the analysis begins on Jurisdiction, the characteristics and traits necessary for the qualification of Jurisdiction in a perfect society are reviewed:
(1) Exercises power over its subjects – not just moral influence or persuasion.
(2) Organized on juridical principles.
(3) Possesses a complete legal system with trial and appellate courts, or it possesses the legitimate legal right or entitlement thereof.
(4) Passes judgment on transgressors and assigns sanctions or could do so, if appropriate.
(5) Has sufficient means within itself for executing its purposes.
(6) Has unimpeded freedom to conduct its mission.
(1) The faithful are obliged to obey the commands of ecclesiastical authority on matters of faith and morals under the pain of sin. Herein lies the root of the modern conflict between Church and state. In today’s secular society with its abolitions of Christian forms of government and widespread neglect of Christian tradition, there are many areas in which the modern state transgresses into matters of morals if not faith, especially in the area of “mixed questions” concerning education and family law. At this point, the faithful are called to make a decision for Christ and choose whether they will obey the laws of God or of summon. To the conscientious Catholic, there can be no question of what the choice will be, especially with the divine sanction of eternal punishment for the incorrect choice, a sanction against which secular civil authorities are unable to compete.
Specifically, the chain of command within the Church extends downward from the Pope to the national Primate (or national conference of bishops) to the Metropolitan (archbishop) to the bishop and to the individual pastor and from thence to the faithful. Each one of these entities exercise jurisdiction of various degrees over the faithful.
In matters of private transgression, the penitent receives absolution from his parish priest (although for extremely serious sins, permission to give absolution may have to come from a higher prelate in the chain of command). For transgressions involving the public character of the Church, there is a regular system of trial and appeal through canonical courts with a variety of sanctions, including excommunication.
The Church does not admit the competence of the state to interfere by civil legislation in matters of faith and morals. In areas where such legislation may exist, the Church declares that such legislation has merely a civil effect and does not entitle the faithful to exercise any “rights” conflicting with either divine or canon law that such legislation seemingly conveys (i.e., remarriage after divorce). Violation of divine and canon law in such matters may result in the commission of mortal sin that, unless the transgressor repents before death, results in eternal condemnation in Hell.
Thus, the power exercised by ecclesiastical authority over the faithful is real jurisdiction not merely moral influence or persuasion . . . backed with peculiar but extraordinarily effective sanctions!
(2) One of the most interesting works that aptly illustrates how the Church is organized on juridical principles is L’Eqlise Catholique, Sa Constitution, Son Administration by Professor Andre Mater at the New University in Brussels. Professor Mater belonged to a group of anti-clerical intellectuals supporting the traumatic 1905 separation of Church and state in France. Nevertheless, it was his thesis that the principle effect of the separation would be to restore to the Church its character of a perfect society that had suffered diminution through the interference of the state in France. He concluded that to the extent to which the Church separated itself from the state, it would emphasize its nature as an independent juridical society as it, indeed, was organized as one:
Mater’s book, entitled L’Eglise catholique. Sa constitution. Son administration, envisaged the Church as organized and operating on the same basis as a state, that is to say, as a perfect society. “If the church thus shares the aspect of a state, why not describe it as one describes states?” asked the author, not illogically. In his work, therefore, he portrays the Church as a society with territory divided into administrative divisions (provinces, dioceses, and parishes), with subjects (the laity), an aristocracy (bishops and prelates), a form of government (monarchy), officials (the priests and religious), governmental ministries (the Roman Congregations), an expansion movement abroad (the foreign missions), public domains (Church property and assets), public income (Peter’s Pence, diocesan taxes, the offerings and tithes of the parishes), a judicial organization (tribunals and sanctions), and so on.
The ingenious plan worked out by the Brussels scholar is not so logical as its author thought to make it. He did not complete the analogy by pointing out that a perfect society should also have a ministry of foreign affairs (secretariat of state of his Holiness) and a foreign service (nuncios and internuncios).
This analysis of the juridical nature of the Church by an anti-clerical is very interesting to say the least. Professor Mater could have further observed that the Church also possesses a royal family (the College of Cardinals – Princes of the Church) out of which its monarch (the Pope) normally comes. In this connection, its royal family (the Cardinals) functions like the Electoral College of the Holy Roman Empire in choosing its sovereign from one among them.
(3) The Church possesses a complete, highly-organized judicial system comparable to those possessed by temporal sovereigns. Ecclesiastical justice can be traced back to the role of the Apostle Paul over the Christian communities he founded (2 Corinthians 10:8; 13:2). The Pope is the fountain of justice and decisions by ecclesiastical tribunals are pronounced in his name. The competence of ecclesiastical tribunals is over spiritual and “mixed” matters. Purely profane matters are recognized as being within the exclusive jurisdiction of the state.
The Tribunal of the First Instance or trial court is the diocesan tribunal appointed by the local bishop. Decisions are appealed to the Tribunal of the Second Instance which is the court of the metropolitan or archbishop who heads the ecclesiastical province to which the diocese of the Tribunal of the First Instance belongs. The ordinary tribunal of the Third Instance is the Roman Rota sitting in the Vatican. In most cases, the decision of the Rota is final. Under very exceptional circumstances, further appeal is possible to the Tribunal of the Signatura Apostolic, which is the supreme court of the Roman Catholic Church. There are special courts in Rome for specialized matters, and there is a separate court system for the religious orders (distinct from the secular clergy and the laity) and for the Eastern Rite Churches in peace and communion with the Holy See.
(4) The right of the Church to pass judgment on transgressors and assign sanctions is based on the power of binding and loosing (Matthew 16:19 and 18:17-18). This power is a juridic authority deriving from the concept of the Church as a perfect society. Under Canon 2214.1 of the Code of Canon Law, the Church has the original authority in its own right, independent of any temporal authority, to discipline its delinquent subjects with spiritual as well as temporal penalties. In fact, a recalcitrant cleric can even be sentenced under Canon 2302 to a term in a house of penance, an ecclesiastical prison.
The principle penalty levied against its subjects is excommunication, which forbids the reception of the sacraments, and, in extreme cases, when one is excommunicated vitandas, the faithful (except for immediate family) are forbidden to communicate with the transgressor. This is an extremely drastic penalty, particularly in a Catholic country. Soon after Argentine dictator Peron was excommunicated for his many crimes, he was overthrown.
The public policy or norm for the Church’s constitutional right (independent of any temporal authority) to coerce delinquents among her subjects by both spiritual and temporal penalties is expressed by the Council of Trent, Sers. XIII, de res., cp 1:
Bishops and other ordinaries should remember that they are shepherds and not slave-drivers, and that they must so rule over their subjects as not to domineer over them but to love them as sons and brothers. . . yet if through human frailty their subjects do wrong, they must rebuke them in all patience and doctrine; for sympathy is often more effective for correction than severity, exhortation better than threats of punishment, kindness better than insistence on authority.
If anything, the Church has been too lenient in recent years, particularly to those on both the Left and the Right who repeatedly demonstrate their utter contempt of ecclesiastical authority, especially the Holy Father, and of the doctrinal teachings of the Church. If the statement of the Council of Trent provides precedent for mildness, then surely the action of Christ in driving the thieves out of the Temple with whips supplies sufficient authority for enforcement of canon law against notorious transgressors without violation to Christian charity.
(5 & 6) Like the civil government, the ecclesiastical government of the Church has sufficient means within itself to execute its mission. The spiritual (and temporal) penalties, the actual power of jurisdiction exercised by bishops and prelates together with the magisterium, or teaching authority of the Church, provides these means.
The Church has always asserted its right to unimpeded freedom to exercise its jurisdiction within its sphere vis-à-vis the state. This right is based on the constitution of the Church as a perfect society:
Pope Pius XI himself indicated that the Church considered itself equally sovereign and independent with the State, the religious nature of the Church giving it priority, however, over the State. In a formal letter of May 30,1929, addressed to Secretary of State Cardinal Pietro Gasparri, the Pope declared: “In the concordat there are present, if not two states, most certainly at least two sovereignties in the fullest sense, that is to say, fully perfect, each one in its own sphere, a sphere necessarily determined by their respective ends, whence it is hardly necessary to add that the objective dignity of the ends, determines no less objectively and necessarily the absolute superiority of the church.”
In conclusion, this study has successfully demonstrated that the Church contains within it – all of the elements of a perfect society, which in the temporal sphere is called the state. As a perfect society, the Church is, therefore, an obvious subject of international law and entitled to the full protection of international law both as to its right to international recognition as well as to its right to have its treaties (the Concordats) enforced, if necessary, by recourse to an international court.
In addition, the Popes are now recognized as sovereign princes and heads of state over the Vatican City state, which was created in 1929. All sovereigns are equal, not in power or size, but legally equal. The Pope is a monarch, and this small area is a fully sovereign territory ruled over by a perfect society.
He who exercises [the] imperial [or royal] prerogative, is a sovereign, [and is] equal [or equivalent legally] to other kings, whatever may be his or their title. He enjoys regal [or by definition, majestic] dignity.
And if this wasn’t enough, the Pontiffs, even during the time when they had no territory, still exercised the sovereign right to make treaties and exchange diplomats. These powers and privileges are well-known recognized attributes of de facto sovereignty. They also conferred nobility both before and after the loss of their territory:
[The] Popes conferred these titles as heads of state, rather than as pontiffs of the Universal Church. Following the loss of the Papal States they continued this practice . . . by virtue of their unchallenged position as Sovereigns in International Law.
Having lost their princely and ducal territories, “by the terms of the Italian royal decree of May 13, 1871, the Pope [was] guaranteed his sovereign rights and other immunities by Italy.” In other words, this country acknowledged “as sovereign the ruler it dispossessed and granting him the same royal rights as the actual sovereign . . .” of their own land. This is an example, although a very extraordinary one, of how dethroned monarchs, and their successors, could continue to be recognized as royal, if they, like the Popes, maintained their sovereign “titles and arms” according to the principles of prescription. One very profound and remarkable historical fact is that the Popes, while they were mere internal, non-territorial de jure sovereigns, by virtue of the preservative rules of prescription, were treated as though they were de facto rulers. This goes back to the fact that the Church represented a perfect society. Not only were the Popes internal, de jure sovereigns, but, in addition, the Church was a perfect society, which by itself, along with the prescriptive right of de jure sovereignty for ancient the Papal States, would make the Church a subject of international law.
The Sovereign Military Order of Malta
Next in antiquity to the Holy See as a non-territorial sovereign is an order of knighthood known as the Sovereign Military Hospitaller Order of St. John of Jerusalem, of Rhodes, and of Malta, commonly referred to as the Sovereign Military Order of Malta (SMOM) or, simply, the Knights of Malta. There are other groups with names similar to that of the Sovereign Order. Some of these are the Protestant versions of the Knights of Malta, which were founded after the Reformation in order to continue the traditions of the Sovereign Order for those of the Protestant faith. These Protestant orders are valid orders of knighthood and are sponsored by the Christian sovereigns of the countries concerned. However, it should be mentioned that there are numerous bogus or illegitimate “orders of knighthood” that falsely represent themselves to be “Knights of Malta.” These bogus organizations have manufactured names similar to that of the Sovereign Order and have invented highly exotic but completely unhistorical legends designed to justify their claims. They recruit movie stars, “celebrities,” and other persons of non-chivalric stature to bolster their reputation.
The non-territorial sovereignty of the SMOM is amply demonstrated by its history. It was founded as a hospital-infirmary (hence its name “Hospitallers”) by The Blessed Gerard for Christian Pilgrims in Jerusalem in 1099 before the taking of Jerusalem in the First Crusade. It was dedicated to St. John the Baptist and organized as a religious community. After the foundation of the Christian Crusader Kingdom of Jerusalem, Pope Paschal II on 15 March 1113 chartered this religious community as a religious order of the Church, exempted it from the payment of tithes, placed it directly under the protection of the Holy See, and granted it the right of freely and solely electing its Grand Master (with papal ratification) without interference from any other spiritual or temporal authority. These privileges were confirmed by Pope Callixtus II on 13 July 1120. A papal brief of 18 February 1130 granted the Order freedom from tolls, and the brief of 10 January 1144 placed the Order under the protection of the Pope and confirmed the donations made to the Order by the Christian kings of Jerusalem.
These various papal bulls granting extraordinary privileges to the Order marked the embryonic beginnings of its sovereignty. In these privileges, we can see the basic elements of a perfect society: independence, authority, and jurisdiction.
It should be noted that, during the medieval era, the Pope, acting as the head of the then undivided Christian Church exercised powerful authority in the international sphere. A fascinating analysis of the authority and jurisdiction historically exercised by the papacy in the international sphere can be found in International Law in Historical Perspective, Volume II, pages 308-338, by Professor J. H. W. Verzijl. At the time when the Sovereign Military Order of Malta was endowed with these privileges, there was no doubt that the Pope possessed international authority and legislative jurisdiction over all Christian kings and sovereign princes and arbitrated disputes among them (powers far greater than those currently possessed by the United Nations, its agencies, or the International Court of Justice [World Court]) and that these extraordinary powers were universally recognized by the Christian rulers themselves. This being the case, the Pope undoubtedly had the creative power to erect a perfect society endowed with sovereignty for Christian rulers to execute Christian charitable and military policy in the international sphere. This recognition being established, the Military Order of Malta thereby retained its unique non-territorial sovereignty even after the break in the unity of Christendom during the Reformation when the international creative power of the sovereign pontiff fell into abeyance.
Although the Sovereign Military Order of Malta did not initially possess territory upon the endowment of non-territorial sovereignty by the Holy See, it acquired such after the fall of St. Jean d’Acre (aka – also known as), the last outpost of the Christian Kingdom of Jerusalem in 1291. The Order fled to Cyprus as guests of its kings. However, it was difficult for the Order to execute its mission of international charitable assistance and defense of the West against the forces of Islam as guests of the king. Under these circumstances, the Sovereign Order acquired the strategic Isle of Rhodes in August 1310 then under the nominal jurisdiction of the crumbling Byzantine Empire, whose decay was inviting conquest of the island by the Ottoman Turks. The needs of Christendom made the acquisition of Rhodes imperative, and the Sovereign Order was definitely encouraged in this respect by the Holy See in a letter of 5 September 1307 by Pope Clement V. The Grand Master of the SMOM was recognized as the Sovereign Prince of Rhodes by the Bull of Pope Nicholas V in 1446. The Grand Master thus combined in real union two sovereign dignities in his person: (1) the Grand Mastership of the non-territorial Sovereign Military Order; and (2) the territorial sovereignty of the Island of Rhodes, each with its own separate laws and institutions. During this period, the Grand Master and Council of the Sovereign Order ruled Rhodes, minted its own money, maintained diplomatic relations with other Christian sovereigns, and became a naval power for the defense of Christendom against the forces of the East.
The vengeance of all Islam was aroused by the Sovereign Order’s thwarting of their plans for mastery over the Eastern Mediterranean. So in 1440, 1444, 1469, and 1480, the Ottoman Turks launched powerful, but unsuccessful, attacks against Rhodes. Finally, in 1522 after an epic defense of six months against Suleiman The Magnificent and his 250 ships and 200,000 men, the Order’s 600 knights and 6,000 soldiers capitulated on 24 December 1522 and under the terms of surrender departed on 1 January 1523 with full honors of war, carrying with them all of the surviving knights and soldiers, its treasury and archives, and many civilians.
The Order, non-territorial again but universally recognized as a sovereign by all Christian powers, set up the Grand Magistry (i.e., the government of the Sovereign Order) successively in Crete, Messiana, Baiac, Civitavecchi, Viterbo, and Nice. From 1523 to 1530, diplomatic agents of the Sovereign Order searched for a new bastion from which to conduct the defense against Islam. The supra-national charitable and military nature of their mission struck a responsive chord in the heart of Emperor Charles V, himself chief of the supra-national Hapsburg Dynasty, who as King of Sicily granted on 24 March 1530 the Islands of Malta, Gozo, and Comino to the Sovereign Order as a perpetual fief with sovereign rights. In return, the Order performed feudal service for the islands by sending a falcon to the Viceroy of Sicily on the Feast of All Saints (1 November) and by agreeing to maintain a perpetual neutrality in wars between Christian princes. Pope Clement VII approved this arrangement by his Bull of 7 May 1530, and on 26 October 1530 the Sovereign Order took possession of the Island and proceeded to fortify it.
The Sovereign Order’s role in stopping the advance of the East to Rome, the Heart of Christendom, earned it the especial hatred of Islam. The Ottomans attacked Malta numerous times, especially in the Great Siege of 1565, but they failed to subdue it. In turn, the Sovereign Order participated in the great Christian victory of Lepanto in 1571 that forever broke the tide of Ottoman aggression in the Mediterranean.
Besides their military activities, the Sovereign Order maintained an internationally renowned research hospital or Sacred Infirmary on Malta together with the School of Anatomy and Surgery and their pharmacy – thus, all the while following the hospitaller tradition which led to their foundation.
The Order’s sovereignty under international law was reconfirmed in 1607 and 1620 when its Grand Master was given the title of a Prince of the Holy Roman Empire with the predication of Serene Highness. In 1630, the Grand Master received rank equal to that of a cardinal of the Church with the cardinalate predicate of “Eminence.” Thereafter, the head of the Sovereign Order has always been styled Prince and Grand Master with the title of “His Most Eminent Highness”. As a sovereign, he is entitled to a crown as a badge of the Order’s sovereignty, and such appears in the Order’s coat of arms and insignia of knighthood. The Sovereign Order also had colonies in the New World between 1653 and 1655 through the cession of the West Indian islands of St. Christopher, St. Barthelemy, St. Martin, and St. Croix by King Louis XIV of France. Due to the Order’s international position as a non-territorial sovereign, it maintained four full ambassadors at Rome, Vienna, Paris, and Madrid in an age when only first-class states enjoying “royal honors” were permitted to send full ambassadors – the others maintaining ministers.
The SMOM’s territorial sovereignty fell not to the Islamic forces of the East but to a new and more terrible enemy of Christendom, the cancer of the French Revolution. In 1792, revolutionary forces despoiled the Sovereign Order of its French properties. Napoleon Bonaparte, en route to invade Egypt in 1798, attacked Malta in violation of the Sovereign Order’s neutrality vis-à-vis Christian nations and forced its surrender on 12 June. The Grand Master and the knights sailed to Trieste where, under the protection of the Hapsburg Emperor, they issued a diplomatic protest to the courts of Europe on 12 October against the French revolutionary aggression.
The Grand Master abdicated at the same time, and the Orthodox Emperor, Paul I of Russia, was elected Grand Master of the Sovereign Order and proceeded to take vigorous action to defend its international position. Although Emperor Paul I’s election was invalid under canon law and the rules of the Order because he was: (1) not a Catholic; (2) not a professed knight (with vows of poverty, chastity, and obedience); (3) was married; and (4) his election was not ratified by the Pope as required by the 1120 Bull of Pope Callixtus II, his intervention saved the international position of the Sovereign Military Order of Malta. Under the Treaty of Amiens of 27 March 1802 Great Britain, which had taken Malta from Napoleon, undertook to restore it to the SMOM. However, due to the strategic position of Malta in the Mediterranean, the British did not follow through on that undertaking and refused to return it.
The Sovereign Military Order again cast about for a new home, and on 19 September 1806 the Protestant King Gustavus IV of Sweden offered the Island of Gothland to the Order in perpetuity. The SMOM declined this gracious offer fearing that it might be interpreted as a renunciation of their rights to Malta under the Treaty of Amiens. Unfortunately, under the Treaty of Paris of 30 May 1814, Malta was definitively assigned to Great Britain. Still searching for a territorial base, the Sovereign Order signed a treaty on 10 July 1823 with newly-independent Greece, still struggling against the Ottoman Turks, whereby the SMOM undertook to aid the establishment of Greek independence, and Greece promised to cede the Island of Rhodes back to the Order when it had been captured. Unfortunately, due to Austrian pressure, this treaty was abandoned.
Having been deprived of a base for its military activities, the Sovereign Order began concentrating on its international hospitaller and charitable activities. Due to its permanent neutrality in wars between Christian states, the Sovereign Order found an outlet for its venerable military tradition by engaging in extensive battlefield hospital work. During the various European wars of the 19th century and the World Wars of the 20th century, the Sovereign Order was greatly assisted in this task by its non-territorial sovereignty and the extra-territorial privileges of its charitable institutions.
Despite the loss of its territorial sovereignty, the Sovereign Order continued to exchange ambassadors with the Holy See, Austria-Hungary, Spain, and Italy. Diplomatic relations with France were renewed after World War I, and today the Sovereign Military Order of Malta has diplomatic relations with 120 countries; of these, 104 are bilateral; they include the following European countries: Albania, Austria, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Holy See, Hungary, Italy, Latvia, Liechtenstein, Lithuania, Macedonia, Malta, Moldova, Monaco, Montenegro, Poland, Portugal, Romania, Russia, Federation of San Marino, Serbia, Slovakia, Slovenia, Spain, and the Ukraine. In Asia: Afghanistan, Armenia, Cambodia, Georgia, Jordan, Kazakhstan, Lebanon, Philippines, Tajikistan, Thailand, Timor-Leste, and Turkmenistan. In South America: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, Guatemala, Guyana, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Saint Lucia, Saint Vincent-Grenadines, Salvador, Suriname, Uruguay, and Venezuela. In Africa: Benin, Burkina Faso, Cameroon, Cape Verde, Chad, Central African, Republic, Comores, Democratic Republic of Congo, Republic of Congo, Ivory Coast, Egypt, Eritrea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Equatorial Guinea, Liberia, Madagascar, Mali, Morocco, Mauritania, Mauritius, Mozambique, Niger, São Tomé and Principe, Senegal, Seychelles, Somalia, Sudan, and Togo. In Oceana: Micronesia. Islas, Marshall and Kiribati.
As stated earlier, the right, to receive and have diplomatic offices recognized in other countries is an attribute of not only de jure sovereignty but also the higher status of a de facto ruler. This is quite a remarkable achievement for a non-territorial de jure sovereignty.
The Sovereign Military Order of Malta also has diplomatic membership in various international organizations in Geneva: the International Committee of the Red Cross, the United Nations High Commission for Refugees, the International Committee for European Migration, and the World Health Organization.
The Order’s history is far more glorious than has been indicated in these few paragraphs treating its historical non-territorial sovereignty. An excellent work in English emphasizing its charitable and medical work is the Medical Work of the Knights Hospitallers of St. John of Jerusalem by United States General Edgar Eskrine Hume, KM, of the United States Army Medical Corps. Having demonstrated the historical foundation of the SMOM’s unique claim to non-territorial sovereignty, this study will analyze the claim under the criteria set forth for the establishment of a perfect society.
The Quality of Independence in Non-Territorial Sovereignty: the SMOM
The first area of investigation is Independence, then Authority and lastly Jurisdiction. Independence, Authority and Jurisdiction are necessary qualifications for a perfect society. The essential points for Independence are:
(1) Independent from any other juridical entity – powers are self-derived and not delegated.
(2) Self-sufficient – has the right to take independent action in the name of the whole society with other societies on an equal basis.
(3) Supreme and independent in its own sphere.
(4) External and visible society in its own right – bearing normal engines and attributes of sovereignty, or it possesses the inherent sovereign legal right thereof.
(5) Moral right to an independent existence.
(6) Actual independence and liberty within its sphere vis-à-vis other sovereigns.
(7) Diplomatic relations with other sovereigns on the basis of equality, or it possesses the de jure moral and ethical right or legal entitlement thereof.
(1) The independence of the Sovereign Military Order of Malta from any other juridical entity is well-established by the Bull of Pope Paschal II of 15 February 1113 instituting the Order, placing it under the direct protection of the Holy See, and ensuring its right to elect successive Grand Masters free from any interference by other spiritual or temporal authority. In an age where kings and princes felt that it was their right to choose and invest the bishops, abbots, and superiors of religious communities within their boundaries, this was a valuable privilege indeed, and Paschal II attached a severe anathema in his Bull against anyone who might be tempted to interfere:
If, therefore, at a future time, any person, whether ecclesiastical or secular, knowing this paragraph of our constitution, shall attempt to oppose its provisions, and if, after having received a second or third warning, he shall not make a suitable satisfaction and restitution, let him be deprived of all his dignities and honours, and let him know that he stands exposed to the judgment of God, for the iniquity he has perpetrated; and let him be deprived of the Sacraments of the Body and Blood of Christ, and of the benefits of the redemption of Our Lord, and at the last judgment let him meet with the severest vengeance.
It is precisely the SMOM’s relationship to the Holy See that has persevered its independence vis-à-vis the temporal sovereigns. After the fall of the Isle of Rhodes, it maintained a close relationship with the Holy See to preserve its sovereign independence:
Its dependence on the Holy See was not, however, diminished as a result of the acquisition of territorial sovereignty. Now, as before, the Grand Masters had to be approved and could be nominated and removed by the Sovereign Pontiff. This dependence, in fact, ensured the Order’s independence from all other Powers, by removing it from the influence of purely secular politics.
Although the Sovereign Order is completely independent vis-à-vis all temporal sovereigns, it does enjoy a unique relationship with the Holy See that international law might describe as a suzerainty not the right to rule over the vassal State:
Suzerainty is by no means sovereignty. If it were, the vassal State could not be sovereign in its domestic affairs and could never have any international relationship whatever of its own. And why should suzerainty be distinguished from sovereignty it being a term synonymous with sovereignty?
This minor guardianship type relationship is, perhaps, more or less equivalent to the relationship enjoyed by the more traditional dominions of the Commonwealth of Nations to the British Crown a few decades ago: back then these nations, while certainly not colonies, are internationally independent from any other juridical entity in the accepted sense of the term; nevertheless, they maintain a unique relationship with the British Crown that matches that of the Sovereign Order to the Pope. Their Chief of State, the Governor General is a direct appointee of the Crown and personally represents the Crown; this office is not merely to be a figurehead, but it conveys real political power as the November 1977 dismissal of the Whitlam Government in Australia by Sir John Kerr very aptly illustrates. Likewise, although the election of His Most Eminent Highness, the Prince and Grand Master of the SMOM, by the Complete Council of State of the Sovereign Order is for life, his election and changes in the Constitutional Charter of the Sovereign Order must be approved by the Pope. Similarly, the British Privy Council, sitting in London and acting in the specific name of the Crown, was the final tribunal of appeals for many of the Commonwealth dominions, superseding even their domestic supreme courts.
Under the 1961 Constitutional Charter of the Sovereign Order, appeals from the Sovereign Order’s internal courts are made to the Court of Cassation of the Vatican State that acts as its supreme court by proxy on behalf of the Sovereign Order. As the relations of the more traditional Commonwealth dominions to the British Crown in no way compromises their international independence, neither does the historic relationship between the Sovereign Order and the Holy See compromise its independence from any other juridical entity:
The Order’s sovereignty has been inherent in its internationally recognized independence of all other States and its mission in the past to provide, on an international scale, for the defense of Christendom. This sovereignty is no more diminished by the Order’s dependence on the Holy See than was that of several medieval kingdoms whose rulers acknowledged themselves to be vassals of the Pope. As in the case of the Holy See in the years 1870-1929, so also the sovereignty of the Order does not depend on territory; nevertheless the Order has, in the course of its history held territory in sovereign possession. The religious and sovereign aspects of the Order are integrally connected, the latter ensuring its supra-national character and enabling it to pursue its religious and charitable activities on a worldwide scale.
The Church, through its lawyers, recognizes that the Sovereign Order’s dependency upon the Holy See affects only its internal organization as a religious body and not its independence and sovereignty as territorial sovereigns.
(2) The Sovereign Order has possessed self-sufficiency or the right to take independent action in its name with other sovereigns on an equal basis from the time of the Bull of Pope Paschal II of 15 February 1113. The very purpose of Paschal II’s Bull was to endow the Sovereign Order with se1f-sufficiency to enable it to execute its supra-national functions:
The Sovereign Military Order of St. John of Jerusalem (of Malta) – a charitable organization dating back to about a thousand years ago, and still in existence (1) – received Papal recognition as an autonomous organization in 1113, having previously been admitted as such by the King of Jerusalem. Shortly afterwards, the Order was granted its first supra-national statute. From that viewpoint the institution, the principal aim of which was, and still continues to be, to assist the sick and the poor on an international basis, can be regarded as the oldest – after the Holy See – international organization recorded in history. . . .
In this respect the Order of St. John can be regarded as the forerunner of the Red Cross with the object of giving assistance through charity to human beings; from the outset the members of the Order founded innumerable institutions and hospitals, including those in the field, and, during military campaigns in more recent times, sanitary trains and hospital ships.
The military force which once protected the Order of St. John, later replaced by an international status, has developed a large variety of institutions ranging from the Leprosy Institute in East Africa or the Hospice in Tantue in Palestine to children’s clinics and homes, ambulance brigades and medical aircraft. Permanent or temporary, such as the postwar refugee camp in Trastevere or relief work for the benefit of Arab refugees, they serve any religious denomination, or alike the international missions’ medical schools of all nations.
However, as a non-territorial sovereign, the Sovereign Order must necessarily carry out its international charitable and hospitaller activities on the territory of various states. To ensure its independence, the institutions of the Sovereign Order traditionally possess the privileges of extra territoriality from the receiving state. This essential privilege of its sovereignty is well-illustrated by the decision of the Italian Court of Cassation (Supreme Court) in the case of Nanni v. Pace and the Sovereign Order of Malta. Before the Court was the status of an endowed Commandry of the Sovereign Order that was created by the grandfather of Count Guisseppe Pace that had been alienated, contrary to the terms of the endowment. Here, the Sovereign Order and Count Pace were seeking restitution; the defendant, Nanni, opposed restitution on the grounds that the Commandry had been created in violation of an anti-clerical statute forbidding gifts to religious institutions without permission of the state. The Court, in a very important decision, examined the international status of the Order, ruled that as a sovereign under international law, the Sovereign Military Order of Malta enjoyed independence from the domestic legislation of Italy and every other state, and rejected the defendant’s plea that the Sovereign Order itself was subject to Italian law:
“Such a proposition was entirely refuted by the essential juridical character of the Sovereign Order of Jerusalem and Malta resulting from its origins, its historical development, and the position actually held by it in the international legal community.” It was inexact to regard the Order as a religious institution in the canonical sense. The Court pointed out that although the Order had adopted a monastic rule, “such a monastic constitution had not in any way brought about a substantial transformation of the community . . . which preserved entirely unaltered its character as a community of hospitallers.” Just as the Order had a special legal character, so had the endowment, which, for reasons stated by the Court, did not require State authorization as contended by the appellants. The Court continued as follows:
. . . These grounds are based on the essential juridical character of the Sovereign Order of Jerusalem and Malta and on the position which is, in our judgment, held by it as an international person existing apart from the national sovereignty of the State. It is, accordingly, by virtue of a customary norm of international law, received by our own internal law, exempt from the necessity of obtaining the permission of the government for the acquisition of immovable property for its own institutional purposes.
In order to dispose of the argument of the appellants it is necessary to trace the historical development of the international personality of the Sovereign Order of Jerusalem and Malta. Sovereignty is a complex notion, which international law, from the external point of view, contemplates, so to speak, negatively, having only in view independence vis-à-vis other States. For this reason it is sufficient to require merely proof of the autonomy of the Order in its relation to the Italian State. Historically, the essential element of such autonomy can be found in the political nature of the mission which the Order has been destined to fulfill, namely, by the aid of its arms to resist the Saracen and Mohammedan menace and to establish its hospitallers in the Levant. In the course of centuries it has aided in the establishment of Christianity and of European civilization. The noble nature and military necessity of such a high and dangerous service brought about its transformation into an Order of Chivalry. . . . (emphasis added)
The core test of the Order’s self-sufficiency vis-à-vis the territorial sovereign can be found in the fact that the Order was held to be exempt from the Italian anti-clerical law of 7 July 1866 suppressing Catholic religious organizations! The significance of this can only be appreciated by understanding the supreme hatred and contempt held by some Masons and other anti-clericals responsible for such legislation for the Church and all of its institutions. If there had been any legal way possible to have suppressed the institutions of the Sovereign Order, one may be assured that these anti-clericals would have surely taken it. However, the Sovereign Order was found to be exempt from such legislation because of “the international nature of the institution, which cannot be the subject of a statute of the State.”
(3) Like that of the Holy See, the sovereignty of the Sovereign Military Order of Malta is vertical to the horizontal or geographical sovereignty of the territorial states. As it is first and foremost an order of chivalry, its sphere of concern lies not in the temporal domain but with those matters of ultimate concern involving time and eternity:
The spirituality of the Order is grounded in its mixed, religious and chivalric character. No less than religious life, chivalry is a manifestation of the impact of the Catholic faith on society. It has also been a unique instance in history when a lay ruling class chose to base its behavior wholly on Christian principles. This code – service to Christ and to the less fortunate, honour, integrity, courtesy, noblesse oblige – hast lost none of its worth with the passage of time. The blending of the two aspects, religious and military, in the first Orders of chivalry helped to spiritualize military valor. One no longer faced individual or personal enemies, but the foes of Christendom. Thus the ideal of the soldier of Christ came into being, one of the noblest and most spiritual blossoms among all the lay achievements of man.
The spirit of chivalry – rallying to the defense of Christendom and the defenseless – lives on in the institutions of the Sovereign Order. Its present day charitable functions are supra-national, and as it was specifically endowed with independence vis-à-vis temporal sovereigns at the time of its creation, it retains such sovereign rights to the present day:
The property of the Order was – as it still is in Italy – exempt from the jurisdiction of the State. We may note that this was not merely the property of the Grand Master as head of a foreign “State,” but the property of the Sovereign Order itself, as belonging to an international person.
We may thus conclude that the Order, was even before the loss of Malta, an international entity of a peculiar kind, and not just an ordinary State. Its cosmopolitan membership and the wide territorial distribution of its property gave it a special status in the days before international organizations having international legal personality, like the United Nations, were dreamed of. It differs radically from all such modern agencies in not being the result of international treaty “legislation” by various States, which makes them in a sense the common organ of those States. The Order is not, and never has been, in any sense an organ of the States from which its member – knights are drawn. Its origins were quite independent of, and indeed anterior to, the modern international world of sovereign States. It is internally an organization sui generis, and at the same time an international legal organism without any real equivalent, past or present.
The above-mentioned rights of extra-territoriality that its religious and charitable institutions enjoy is ample proof that the SMOM is supreme and independent within its own sphere.
(4) Even despite the final loss of its territorial sovereignty in 1798, the Sovereign Military Order has nevertheless carefully maintained the normal insignia and attributes of sovereignty that mark it as an external and visible society vis-à-vis the territorial states. The Court in Nanni v. Pace and the Sovereign Order of Malta, supra., ruled that the Sovereign Order possessed these ceremonial prerogatives in recognition of the sovereignty it enjoys in international law:
. . . the formal recognition of its prerogatives and sovereignty in the legislation now in force in various States, it is sufficient to record that Pius IX in his Brief of 1854, approving the new Rule of the Order of Jerusalem, confirmed its sovereign privileges and character. Leo XIII in 1879 restored the office of Grand Master. A Papal Brief of June 12, 1888, conferred on him the rank of Cardinal and the title of Eminence in all public ceremonies and official acts. All the Catholic States, of which the most recent example was France in her law of 1924, recognized the Grand Master with the title of Prince with the prerogatives and dignities attaching to it. Finally, the recognition on the part of the Italian State of the “sovereignty and independence with which the Order acts in the fulfillment of its mission,” is above all, the indirect consequence of being considered free from all repressive and restrictive laws, with regard to the tenure of immovable property and also with regard to the public activity of ecclesiastical orders, as well as the laws relating to charitable bodies and juridical entities in general. Bearing also on the external aspect of the matter, there is the Convention of February 20, 1884, by which the Italian State recognized the aims and emblems of the Order, its right of active legation, and the right to confer titles; the Royal Decree of October 7, 1923, n. 2192, by which, on the termination of the military occupation of Corfu, the government entrusted to the Order a mission suited to its character as a universal institution; and a Decree of November 28, 1929, n. 2029, which reconfirmed the title of the Sovereign Order of Jerusalem and Malta in Court ceremonial and at public functions.
In this connection, the Prince and Grand Master and the Government (Sovereign Council) of the SMOM enjoy the benefits of sovereign immunity at the Order’s headquarters at the Malta Palace in Rome. States with which it has diplomatic relations notify the Prince and Grand Master of the accession of new heads of state. The Prince and Grand Master receives the ceremonial treatment and honors of a reigning sovereign when paying an official visit to other countries. Such honors were even paid to him by anti-clerical France of the Third Republic on the occasion of the Prince-Grand Master’s state visit of 12 to 19 July 1932. More recently, the Prince-Grand Master was so received on the occasion of his 1966 state visits to Argentina, Brazil, and Uraguay, and in his 1968 state visit to the now independent Isle of Malta, he received a 21-gun salute. As the expression of the Order’s sovereignty, the Prince-Grand Master possesses a crown, and his position as a sovereign prince is recognized by both Church and state:
The Grand Master is, in addition, invested with the title of Prince, first conceded by the Holy Roman Emperors Rudolph II, on 20 March 1607, and Ferdinand II, on 16 July 1620, and recognized, in 1880, by the Emperor of Austria and, in 1928, by the King of Italy. He knows the precedence of a Cardinal of the Holy Roman Church, ranking immediately after the Cardinal Deacons, and also that of a Royal Prince, through the concession, on 30 June 1630, by Pope Urban VIII and the confirmation, on 12 June 1888, by Pope Leo XIII. He is thus styled both Eminence and Highness, or Most Eminent Highness. He has the internally recognized position of a sovereign Chief of State.
(5) The moral right of the Sovereign Order to an independent position stems both from it being granted sovereignty by the Holy See as well as its present international functions. Historically, the Sovereign Order played a most important role in the defense of the Christian West against the threat from the East:
The Order’s navy became one of the most powerful in the Mediterranean and was perpetually engaged in the defense of Christian Europe from the Ottoman Empire and its vassals, the Barbary pirates. It also became as it were, an international naval academy, where sons of the European nobility, on entering the Order and occasionally even without so doing, received, their training in the naval operations against Islam, one year of which was called a “caravan,” and then would often pass to the service of their own countries.
Following the loss of its territorial sovereignty and the decline of the Ottoman Empire, the SMOM’s international functions relate mainly to its great charitable work carried out throughout the world. It is relevant to note that much of its charitable work is carried out in Islamic countries, where it is held in very high esteem for these works as well as for past military victories. Respecting its moral right to non-territorial sovereignty stemming from its international charitable functions, the Court in Nanni v. Pace and the Sovereign Order of Malta, supra., observed:
Such attributes of sovereignty and independence have not ceased in the case of the Order, at the present day – at least not from the formal point of view in its relations with the Italian State. Nor has its personality in international law come to an end, notwithstanding the fact that as a result of the British occupation of Malta such personality cannot be identified with the possession of territory. . . . With regard to this second aspect of the matter it is enough to point out that the modern theory of the subjects of international law recognizes a number of collective units whose composition is independent of the nationality of their constituent members and whose scope transcends by virtue of their universal character the territorial confines of any single State. It must be admitted that only States can contribute to the formation of international law as an objective body of rules – States as international entities which are territorially identifiable. This is so because the fulfillment of this latter requirement makes them the principal objects and creators of such rules. But 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. In accordance with these doctrines, such personality was never denied to the Holy See even before the Lateran Treaty of February 11, 1929. . . .
. . . It would therefore be wrong to deny that the Sovereign Order of Jerusalem has preserved its original plurinational composition with its various languages. The definitely European and universal character of its aims and ideals must be admitted. These aims are charity, Christian piety, and spiritual enlightenment. (emphasis added)
Thus, the SMOM’s moral right to sovereign existence is based on its original character as an international body devoted to relief work as this has been the continuous thread of the Order’s historical existence. Its right to sovereignty can be pragmatically justified under current doctrines of international law by virtue of its international membership, its supra-national duties and activities, and its function as an international relief organization. Its international relief and charitable activities are as follows:
A. Organization and maintenance of hospitals. There are a great number of the Order’s hospitaller institutions in Europe, Asia, Africa, and Latin America. Special attention is given to the care of tropical diseases and especially leprosy. The Order administers several centres for the treatment of leprosy and for the social rehabilitation of the lepers. It also maintains centres of specialized medical research in cancerology, heamatology, and plastic surgery.
B. Care for the wounded in war and peace. The Order has organized several ambulance corps in France, Germany, Ireland, Italy, Canada and the Netherlands. These corps rendered great services during a number of wars. In time of peace they serve in cases of emergency. They are equipped with hospital facilities and operate first-aid stations.
C. Relief for refugees and the needy. The Order maintains an organization of canteens, homes, schools, and summer camps for the poor, students, and children.
(6) The actual independence and liberty of the SMOM within its sphere of activities is best demonstrated by the extra-territorial diplomatic privileges accorded its institutions and its immunity from the municipal legislation of the state where its activities are located. This even includes exemption from anti-clerical laws, which would not be easily conceded by the positivist states of the nineteenth and twentieth centuries unless there were compelling reasons of international law requiring that such be given. Additional evidence of its actual independence and liberty is that its hospital trains and ships are considered neutral during war and are freely allowed to cross front lines to bring relief to the wounded and to wartime refugees. In modern times the Order has acquired airplanes to assist its relief work, and these, also, are accorded neutral, non-combatant status.
(7) The diplomatic relations enjoyed by the Sovereign Military Order of Malta as a hallmark of its independence from, and equality with, other sovereigns cannot be too strongly emphasized. The existence of diplomatic relations with numerous territorial sovereigns, many of which are non-Catholic, is the best possible evidence of the Sovereign Order’s non-territorial sovereignty; as such, a state of affairs is inseparable from sovereignty under international law:
The terms “diplomacy” and “sovereignty” are so intimately linked that one implies the other. Diplomatic representation is one of the touchstones of sovereignty. This is because it has been surrounded by so much protocol and identified with so many political situations directly related to the existence and independence of states. Traditionally it is the characteristic instrument by which, in time of peace, the sovereign states carry on their business with each other precisely as sovereign states. It is the visible symbol of the independence and equality that states claim in the international political community. Semi-sovereign states look forward to full, reciprocal, and unrestricted diplomatic representation as the beginning and sign of their emancipation. This institution took its rise with the beginning of the national states, flourished in the heyday of absolute sovereignty, and, it may not be too much to say, will pass out with the end of the system of national sovereignties upon which our present world political community is based. Although itself an extra-legal institution, diplomatic representation has become inseparable associated with the juridical concepts of sovereignty.
As mentioned, the Order maintains bilateral diplomatic relations with the Holy See, one hundred and twenty States, and numerous international organizations. Today, the diplomatic relations of the Sovereign Order deal chiefly with its international relief activities and the administration of its hospitals and properties. From time to time, its diplomatic agents have engaged in extra ordinary missions, such as during the 1956 Suez Crisis when the Order’s ambassador to Lebanon negotiated the evacuation of Maltese nationals (then a British Colony) from Egypt. The position of the Sovereign Order’s diplomatic missions is identical in privileges, and the Order’s immunities to that of any other mission accredited to that particular sovereign. A 1943 Hungarian tort action against the SMOM’s minister failed on grounds of diplomatic immunity once the Royal Hungarian Foreign Office certified to the court that the minister was a regular diplomat. (See American Journal of International Law, 1949, p. 537) If the Order’s diplomatic agent is a national of the receiving State, as is often the case, he does not receive the usual immunity from taxation and custom duties. However, this is the normal standard practice for the treatment of diplomats who happen to be subjects of the receiving state and constitutes no slur on the sovereignty of the SMOM. The diplomatic agents of the Sovereign Order are always persons of the highest quality and competence, in many instances having previously served in the diplomatic service of their own country or in an international organization. The Sovereign Order issues its own diplomatic passports to diplomats representing the Order; the order also issues passports to Presidents of National Associations of the Order, members of royal families who belong to the Order (accordingly, H.R.H. Prince Ferdinand (IV) of the Two Sicilies, Duke of Castro, Chief (de jure King) of the Royal House of the Two Sicilies, was issued the diplomatic passport of the SMOM that, interestingly enough, also identifies him as the Grand Master of the world’s oldest order of chivalry, the Sacred Military Order of Constantine St. George), and other persons worthy of special consideration of the Order. In connection with its international charitable activities, the Order’s passport has from time to time been issued to assist displaced persons. In Rome, the Order has its own diplomatic corps that is accredited to the Prince and Grand Master at Palazzo di Malta. In many cases the sending state will jointly accredit its ambassador to the Sovereign Order and the Holy See. For reasons of international prestige and to emphasize its sovereignty, the latter will not permit an ambassador to Italy to be jointly accredited to it. Most states maintain two ambassadors in Rome: one accredited to the Republic of Italy and the other accredited to the Holy See and the Sovereign Order.
In the years following World War II, the SMOM launched an aggressive diplomatic offensive to assist its worldwide charitable activities, and it successfully obtained recognition by many nations. The Argentinian decree of 4 September 1948 which established relations between Argentina and the Sovereign Order is typical of the analysis of international law used to provide a legal foundation for such relations:
WHEREAS IT APPEARS: that the Sovereign Military Order of Malta maintains diplomatic relations with various States: that in accordance with the constitution which the said order has freely adopted, it conducts its internal affairs and its foreign relations without the intervention of any State, these being proofs of its character as a subject of international law: and CONSIDERING the amplitude of ways in which the traditional Argentine foreign policy and the directives of this Government favour the strengthening and extension of its relations and the humanitarian aims which inspire the creation of the Sovereign Order of Malta, as well as the importance of the work of benevolence and social service which it maintains and carries out at the present day, the President of the Argentine Nation BY DECREE: 1. Recognizes the Sovereign Military Order of Malta as an independent international entity. 2. Recognizes as the expression of the authority of the Sovereign Military Order of Malta, His Most Eminent Highness the Grand Master of the Order. 3. Establishes diplomatic relations between the Argentine Republic and the Sovereign Military Order of Malta. 4. [registration clause]. [signed] PERON. (emphasis added)
It will be noted that the Argentine Decree, in brief, cites the various elements of a perfect society in justification for diplomatic relations. Note that the decree specifically finds that the Sovereign Order maintains diplomatic relations with other states; this constitutes the element of independence. The decree also finds that the Sovereign Order has freely adopted its own constitution on its own authority and that it conducts its foreign relations without the interference of any state; these constitute the elements of authority possessed by a perfect society. Finally, the decree notes that the SMOM conducts its internal affairs without the intervention of any state; this is, of course, the element of jurisdiction. As a result of finding the Sovereign Order to be a perfect society and reflecting upon its supra-national charitable and social works, the Argentine Republic recognized it as an independent international entity and entered into diplomatic relations with it.
Some of the SMOM’s most valuable diplomacy concerns the multilateral conferences establishing war relief organizations such as the Red Cross. Count Othenio von Lichnowsky-Werdenberg was the delegate of the SMOM to the 1869 Red Cross Conference in Berlin. In his address to the convention, he recounted the venerable history of the Sovereign Order’s hospital work, the measures undertaken by it in war relief work, and the great willingness of the Sovereign Order to cooperate with all charitable organizations devoted to welfare and relief.
In the 1892 Red Cross Convention in Rome, the SMOM was represented by three of its diplomats, the Marquis Torrigiani, Chevelier Flaminius Ghisberti, and Baron Mundy, the Chief Medical Officer of the Ambulance of the Order. In the 1897 Vienna Red Cross Conference, the SMOM’s diplomat was Count Franz von Hardegg, Chief of the Order’s Medical Service. At the St. Petersburg 1902 Red Cross Conference, the chief of the SMOM’s delegation was Minister-Plenipotentiary Count Rudolf von Hardegg. Baron Henry de Fischer was the Order’s delegate to the 1921 and 1923 Red Cross Conference in Geneva. Baron G. F. M. van Hugenpoth tot Aerdt and H. S.H. Prince de Croy-Solre comprised the SMOM’s diplomatic representation to the 1928 and 1930 conferences at The Hague and Brussels, respectively. The Sovereign Order’s representative to the Tokyo 1934 International Red Cross Convention was none other than Admiral Shinjiro Yamamoto, a Magistral Knight of the Order. Since World War II the SMOM has engaged in multi-lateral diplomacy at all levels, and the sheer volume of its diplomatic endeavors are far beyond the capacity of this study to even enumerate.
The above are but a few examples of the Order’s continuing multilateral diplomacy in fields concerning its interests. The role of the Sovereign Order in war relief work was brought out in the Geneva Convention of 6 July 1906. The Geneva Diplomatic Conference of 1929 discussed the works of the Sovereign Order, and the Final Act of the 1929 Geneva Convention declared that the provisions of the Convention concerning the position of relief societies are applicable to the National Associations of the Order:
The Conference, upon the request of the Sovereign Military Order of the Hospita1lers of Saint John of Jerusalem, known as the Order of Malta, holds that the regulations established by the Geneva Convention regarding the status of the aid societies with armies in the field are applicable to the national organizations of this Order.
Likewise, the Sovereign Order participated in the 1927 League of Nations Conference to establish an International Relief Union. Article I of its statutes recognized the Sovereign Order as an international relief organization. In 1936, the SMOM entered into an agreement with the Union to place its hospitals and relief institutions at the disposal of the Union and granting it an annual subsidy. During the period between World War I and World War II, Baron Henry de Fischer was appointed Delegate Plenipotentiary to represent the SMOM before both the League of Nations and the other international organizations in Geneva.
In summary, the diplomatic recognition of the SMOM’s sovereignty is highly important in enabling the Order to implement its international charitable and relief work.
The Quality of Authority in Non-Territorial Sovereignty: the SMOM
The criteria for Authority will be the next area of investigation. Authority is one of the necessary qualifications for a perfect society. These essential points for Authority are:
(1) Unshared and total authority in its own dominion.
(2) Legislates in its own name in the fields within its jurisdiction.
(3) Not subject to any other authority in the execution of its mission.
(4) Sovereign and complete within itself.
(5) Subordinate to no higher society and enjoys independence and autonomy – full judicial existence.
(6) Fully perfect and sovereign within its own sphere, which is determined by the ends of the society, royal family, or order of chivalry.
(1) The complete authority of the Sovereign Order within its own dominion is defined in its Constitutional Charter, approved by Pope John XXIII on 24 June 1961, and its Code, which was approved by an Apostolic Brief in 1965. The Sovereign Order is a unique institution because it is both at once a religious order as well as a brotherhood of knights. As a religious order (i.e., the Professed Knights or Knights of Justice of the Order, who take vows of poverty, obedience, and chastity, and the Priests of the Order, the Professed Conventual Chaplains), it is directly subject to the Holy See and governed in accordance with canon law. As a sovereign order of knighthood possessing international personality, it is the juridical equal of any territorial sovereign.
(2) The Sovereign Order has the full and complete power to legislate in its own name covering all matters within its jurisdiction. It does not derive the power to so legislate from any state in which its possessions and institutions are situated, nor does it need the concurrence or placet of any territorial sovereign for its legislation to become immediately effective. Its ability to legislate for its subjects is derived from its inherent sovereignty. Generally, the matters dealt with in its regulations are questions of internal organization, although, from time to time its acts can affect other states in matters relating to the operation of its charitable institutions or its war relief work. The ordinary legislative body of the SMOM is its Sovereign Council, presided over by the Prince and Grand Master (the Order’s head of state), which is composed of the High Officers of the Grand Magistry and six councillors. Constitutional legislation is enacted by the General Chapter of the Order that assembles every five years and contains representatives of the various territorial units of the Order. In accordance with time-honored tradition dating from the twelfth century Papal Bulls establishing the Order as a perfect society, constitutional legislation is approved by the Pope in the form of a bull or apostolic brief.
As indicated in the case of Nanni v. Pace and the Sovereign Order of Malta, supra., the Order is exempt from the internal legislation of the receiving state in which its institutions are located. In the same manner, the legislation of the Sovereign Order is exempt from compliance with that of the receiving state. Once the legislation of the Sovereign Order has been certified as being true and correct, it must thereafter be applied in the domestic court of the receiving state. If a question of the Order’s legislation should arise in a nation that does not presently have diplomatic relations with the Sovereign Order, such as the United States, the correct procedure would be to treat it as the legislation of a friendly but unrecognized state, such as the Vatican City State, Taiwan, etc.
(3 & 4) By virtue of its internationally recognized sovereignty, the SMOM is complete within itself, enjoying independence and autonomy, and is subordinate to no higher society. It is a unique institution because it is both an order of knighthood and a religious order:
Accordingly, the Sovereign Order of Malta is a persona mixta. It is a religious order of lay brothers and chaplains, the aims of which are the glorification of God through the sanctification of its members, service to the Faith and to the Holy See, and welfare work. As such it follows the principles of Canon Law, while its professed members, its churches, and its conventual institutions are, in accordance with Canon Law, exempt from the jurisdiction of local Ordinaries. But at the same time it is an order of chivalry composed not only of professed, but also of secular knights, and of other associates. The Order is sovereign and an international person, subject of international law, and governed in accordance with its own Code of laws. In this capacity, the Order deals with the Secretariat of State of His Holiness and maintains diplomatic relations with the Holy See and a number of other States the world over, totaling 34 at the present [there are much more now].
To all sovereign entities, other than the Holy See (in its religious capacity), the Sovereign Order enjoys as much juridical independence as Canada enjoys from the United States.
(5) Likewise, the Sovereign Order is subordinate to no other sovereign and enjoys full juridical autonomy from all other sovereigns, with the historical exception of the Holy See. In the secular sense, the Order’s relation to the Pope might be compared to the relations of the Commonwealth Nations enjoying dominion status to the British Crown – although the Prince and Grand Master is a sovereign in his own right and not the mere representative of the sovereign as is the Governor-General in a Commonwealth Dominion. In a strictly religious sense as such particularly concerns the Professed Knights and Conventional Chaplains (priests) of the Sovereign Order, the Pope is the direct religious superior of the Order, and the usual provisions in canon law relating to religious orders are applicable to it – as such would be to the Jesuits. Canonically, the Professed Knights of the Sovereign Order, with their religious vows of poverty, chastity, and obedience, are the exact equivalent of the brothers or monks of any religious order . . . with the obvious (if, now, only theoretical) exception that, as knights, they are allowed to bare arms and fight.
In the early 1950s, the Holy See appointed a Commission of Cardinals to investigate the status of the Sovereign Order both as a sovereign and as a religious order to clarify the limits of their respective spheres of competence. This investigation stemmed from a query by the Sacred Congregation of Religious (a body of the Curia having jurisdiction over religious orders) as to the “moral and economic status” of the Sovereign Order. This created a useful opportunity to clarify the exact status of the Sovereign Order; a valuable 62-page legal summation relative to its sovereignty and the unique legal status of its property and institutions was published by the Sovereign Order and circulated to members of the Order and interested parties in a Lettera Circolare.
The finding of the Commission of Cardinals was issued on 24 January 1953 and was very favorable to the traditional status of the Order both as a non-territorial sovereign and as a religious order of celibate knights . . . of whom it may truly be said that they have a religious vocation to chivalry:
(a) Nature of the status of a Sovereign Order of the Order of Malta. . . :
The status of the sovereign Order referred to in Article 2 of Title I of the Constitutions of the Order now in force which has been repeatedly recognized by the Holy See and which is indicated in the aforesaid article, comprises the enjoyment of a number of rights which the Order possesses as a subject of international law. Such rights which are particular to sovereignty – according to the principles of international law – have, following the example of the Holy See, also been recognized by a number of States; they do not, however, constitute for the Order the complex of rights and privileges which are reserved to entities which are territorial sovereign in the full sense of the word.
(b) Nature of its status as a religious Order. . . :
The Order, insofar as it is composed of Knights and Chaplains, referred to in Articles 4 and 9 of Title I of its Constitutions is a “religio” and more precisely a religious order approved by the Holy See (Codex Juris Canonici, can. 487-488 n. 1 and 2). Its scope, in addition to sanctification of its members, is religious, charitable and to grant assistance (Constitutions Title I, Article 10).
(c) Limits of its status as a sovereign Order and a religious Order, mutual relationship and relations with the Holy See:
The two qualities of a sovereign and a religious Order to which the replies to questions 1 and 2 in the present judgment refer, are closely interrelated.
The status of sovereign Order of the Institution is functional, that is to say, intended to assure the fulfillment of the scope of activities of the Order and its development throughout the world.
The Order of Malta is subject to the Holy See (Pontifical letter “Interr Illustria” of Pope Benedict XIV, 12 March 1753, “Codice di Rohan” passim and the Constitutions in force, passim) and particularly being a religious Order to the Congregation for Religious Orders under Canon Law (Codex Juris Cononici, can. 7, 499; par. I and 251) and according to the Constitutions of the Order passim.
Those to whom the honorary distinctions have been conferred as well as its Associations are subject to the Order and through it to the Holy See according to Chapter 5 of Title III of the Constitutions.
The questions regarding the status of sovereign Order of the Institution to which the first section refers are treated by the Secretariat of State of His Holiness (Codex Juris Canonici, can. 263).
Questions of a mixed nature are resolved in agreement between the Congregation for Religious Orders and the Secretariat of State of His Holiness.
Acquired rights remain untouched and customs and privileges constituted or recognized by the Sovereign Pontiffs to the Order insofar as they are still in vigor according to Canon Law (Codex Juris Canonici, can. 4 and 5; can. 25-30; can; 63-79) and not in contradiction to the present Constitutions of the Order. (emphasis added)
It should be noted that the dependence of the Sovereign Military Order of Malta upon the Holy See affects only its internal organization in its capacity as a religious order, and does not affect the sovereignty of the Order vis-à-vis temporal sovereigns. In its sovereign capacity it is governed primarily by international law rather than by canon law. The Sovereign Order, in fact, maintains dual representation to the Holy See this emphasizes its unique nature as a persona mixta as both a non-territorial sovereign and a religious order: (1) in its spiritual capacity as a religious body composed of Professed Knights and priests (the Conventual Chaplains) with the three economical vows, it, in common with all other religious orders, has a Cardinal Lector that represents it in purely religious matters; and (2) in its capacity as a sovereign under international law, it maintains an ambassador to the Papal Court who takes his place with all of the other ambassadors accredited to the Holy Father in the Vatican Diplomatic Corps.
To be highly technical, one could correctly describe the exact relationship of the Sovereign Order to the Holy Father as that of suzerainty. However, to the rest of the world the Sovereign Order enjoys a full juridical existence and equality with them.
(6) As the 15 March 1113 Bull of Pope Paschal II (the embryonic beginnings of the Oder’s unique, non-territorial sovereignty) strongly emphasizes the sphere of competence or end of the Sovereign Order as primarily in the realm of hospital, charitable, and international relief (especially war relief) work. Indeed, the grant of sovereign and extra-territorial privileges contained in the Bull were specifically linked to the maintenance of the Order’s spiritual and corporal works of mercy, so it is particularly suited to the spirit of Christian chivalry:
Furthermore, all dignities or possessions which your Hospital at present holds, either on this side of the water, to wit in Asia, or in Europe, as also those which hereafter by God’s bounty it may obtain; we confirm them to thee and to thy successors, who shall be devoting themselves with a pious zeal to the cares of hospitality, and through you to the said Hospital in perpetuity. We further decree that it shall be unlawful for any man whatsoever rashly to disturb your Hospital, or to carry off any of its property, or if carried off to retain possession of it, or to diminish ought from its revenues, or to harass it with audacious annoyances. But let all its property remain intact, for the sole use and enjoyment of those for whose maintenance and support it has been granted.
The Order’s military functions and acquisition of territory came at a later time, arising out of its initial mission to maintain hospitals and other charitable institutions in the Holy Land. As an Argentinian international lawyer observed at the time when Argentina entered into diplomatic relations with the Sovereign Order, the sovereign capacity of the SMOM did not come into being merely at the time the Order acquired territorial possessions and, thus, did not disappear with the loss of such territory.
Thus, the SMOM’s sovereignty vis-à-vis the sovereignty of territorial states does not follow the same pattern of that existing between the latter. The relations of states to each other is geographical or horizontal concerning mutually exclusive political jurisdiction over specific areas of land. The relation of the Sovereign Order to the territorial states is co-terminal or vertical in that they exist over the same territory, although on a different plane. The plane of the Sovereign Order is international relief, particularly war relief. The sovereignty with which it is endowed under international law and the extra-territorial privileges, exemptions from domestic (even anti-clerical) legislation that it enjoys from receiving states, and the internationally recognized stature of its diplomatic passports exist to assist it in the performance of its supra-national mission and to ensure the development of its charitable institutions around the world. This mission, the pragmatic reason for recognizing its sovereignty under modern international law (note the tenor of the Argentine Decree of 4 September 1948 citing its international charitable work), is not encountered in the normal relations of territorial sovereigns to each other and cannot be fulfilled by such, particularly during the time of war. Even the peace-time assistance provided by some states carries strong political connotations and is, in fact, justified by national legislative bodies of the donor state for the promotion of the international political and military goals of such states. The traditional neutrality of the Sovereign Order in the wars between Christian nations (now, in any or all wars) guarantees the complete lack of political intent[lxxvii] for the Sovereign Order’s supra-national charitable mission, which is to do the good works Christ commanded of all his followers. It is for the execution of this mission that the Sovereign Order’s unique non-territorial sovereignty was initially granted by Paschal II and other medieval Popes and is currently recognized under modern international law.
To express it another way, the Sovereign Order is still fulfilling the original international charitable and relief works today for which it was initially erected as a non-territorial sovereign in 1113. These invaluable services are as much needed now as they were then, and, thus, the continued existence of the Order’s sovereignty is based on a real need of the world community to have a neutral perfect society endowed with sufficient international personality to perform these functions as well as on the basis of Paschal II’s initial foundation of the Sovereign Order at a historical time when the Holy See possessed the undisputed and universally recognized power to bestow grants of sovereignty. As accurately stated by a historian of the Order, “This venerable Order has displayed so remarkable a capacity for adopting its ideals and policy to the changing requirements of time and circumstance that, unlike so many other ancient institutions, it has never outlived its usefulness.”
The Quality of Jurisdiction in Non-Territorial Sovereignty: the SMOM
The criteria for Jurisdiction will be the next area of investigation. The characteristics and traits of Jurisdiction are necessary for the qualification of a perfect society and therefore the natural right of sovereignty. The points are:
(1) Exercises power over its subjects – not just moral influence or persuasion.
(2) Organized on juridical principles.
(3) Possesses a complete legal system with trial and appellate courts, or it possesses the legitimate legal right or entitlement thereof.
(4) Passes judgment on transgressors and assigns sanctions, or could do so if appropriate.
(5) Has sufficient means within itself for executing its purposes.
(6) Has unimpeded freedom to conduct its mission.
(1) Juridical power over the knights and all subjects of the Order was implied in the Bull of Paschal II to the Founder (first Grand Master), the Blessed Gerard, and set forth in detail in the original rule or code of the Order promulgated by the second Grand Master, Raymond du PUY. This rule was renewed and confirmed in the Bull of Pope Boniface VIII of 7 April 1300. According to the rule the Grand Master possessed juridical power over the knights of the Order by virtue of their vow of obedience:
In the first place, I desire that all those brethren who here dedicate themselves to the service of the poor, shall, by God’s assistance, maintain inviolate the three promises which they have made to him, namely, chastity; obedience, which is to be understood to include whatever may be commanded by the Master; and to live without any property of their own. . . .
Today, this power in both spiritual and temporal matters extends over all of the subjects of the Order (both knights and serving brothers and sisters) as the institutions of the Order are exempt from the jurisdiction of the local bishop or Ordinary and possess an extra-territorial status.
The Sovereign Order possesses several different classes of subjects, each with different admission requirements, functions and duties within the Order:
Like chivalry itself, the Order has been traditionally a nobiliary institution, though today its membership is open to all deserving Catholics. The members of the Order are divided into three classes. The First Class is formed by the Knights of Justice and the professed Conventual Chaplains. These Knights are bound by the three Vows of Religion: Obedience, Chastity, and Poverty, according to Canon Law. At first, the Simple Vows are taken which are renewable every year; then, after a number of years, the profession of the Solemn Vows is made, which confers the designation of Frater or Fra (Brother) before the name. To the Second Class belong the Knights of Obedience and the Donats of Justice, who, without taking any Vows, make a promise to strive towards Christian perfection in accordance with their station in life; the Donats are not Knights, but are full members of the Order. The Third Class is one of lay members and honorary chaplains. It is subdivided into the following grades: (a) Knights and Dames of Honour and Devotion; (b) Conventual Chaplains ad honorem; (c) Knights and Dames of Grace and Devotion; (d) Magistral Chaplains; (e) Knights and Dames of Magistral Grace (called Master Knights in the United States); and (f) Donats of Devotion. The category of the Knights of Obedience and that of the Knights and Dames of Grace and Devotion were instituted in 1956. Some of these categories require proofs of nobility in addition to other qualifications, others require personal merit alone. Within these several subdivisions knights may be promoted to the honours of a Bailiff Grand Cross or a Grand Cross, dames, to those of a Grand Cross. The Cardinals of the Holy Roman Church are traditionally invested with the insignia of Bailiff Grand Cross of Honour and Devotion. As a sovereign institution the Order also confers decorations, but these do not entail membership in it.
Territorially, the Order is at present divided into five Grand Priories, one Sub-Priory, twenty-six National Associations, and two Associations of Knights. Those members who do not belong to any of these divisions are said to be in gremio religionis and depend directly on the Grand Master at Rome.
One issue respecting the Sovereign Order needs to be clarified vis-à-vis contemporary opinion: the requirement of Proofs of Nobility (meaning armigerous descent) required for certain grades of membership in the Sovereign Order, especially for the Professed Knights of Justice that constitute the governing core of the Order and out of which the Prince-Grand Master is elected for life. As one of the great modern writers on heraldic law states, “No Subject is more likely to be misunderstood in the modern climate of equality and democracy.” While a study on the international status of the Order is not precisely the place to investigate the relevance and utility of such requirements, or, indeed, of the tradition underlying it, it is of such importance concerning charges laid against “relevance” (a term whose true import will be examined in the section on “The Philosophy of Revolution”) of an order of knighthood in this century that it will be treated in detail in APPENDIX I and II.
(2) The government of the Sovereign Order is organized like the state on juridical principles. The executive head of the Sovereign Order is the Prince-Grand Master who is at the same time the religious superior of the Order in its capacity of professed religious:
The Supreme Head of the Order is the Grand Master, whose full title is Dei gratia Sacrae Domus Hospitalis Sancti Johannis Hierosolymitani et militaris Ordinis Sacti Sepulchri Dominici magister humilis pauperum Jesu Christi custos. A part of this title commemorates the granting to the Grand Master d’Aubusson of the Mastership of the Order of the Holy Sepulchre by Pope Innocent VIII on 28 March 1489. The Grand Master is elected for life by the Council Complete of State from among the professed Knights of Justice in solemn vows and must be approved by the Sovereign Pontiff. In the vacancy of the Grand Magistry, the Order is ruled by a lieutenant of the Grand Master, or of the Grand Magistry.
The ordinary legislative powers of the Sovereign Order are exercised jointly by the Prince-Grand Master and the Sovereign Council which is composed of councillors chosen by representatives of the territorial divisions of the Order:
The Grand Master governs the Order with the assistance of the Sovereign Council, presided by himself and composed of the four High Officers of the Grand Magistry elected by the General Chapter, the Grand Commander, the Grand Chancellor, the Hospitaller, and the Receiver of the Common Treasure, as well as of six Councillors. The holders of these High Offices are chosen from among the professed Knights and, exceptionally, from among the Knights of Obedience. There are also three Secretaries in charge, respectively, of Foreign Affairs, Internal Affairs, and Financial Affairs. The supreme assembly of the Order is the General Chapter, which is normally convoked every five years; while the Council Complete of State is convened for the purposes of electing a Grand Master or a Lieutenant. Both the General Chapter and the Council Complete of State contain representatives, of the Grand Priories, Priories, Sub-Priories, and National Associations. The Sovereign Pontiff is the Superior of the Order and He nominates as His personal representative in it a Cardinal of the Holy Roman Church, styled cardinalis patronus: the latter is assisted by the Prelate of the Order, who is likewise appointed by the Sovereign Pontiff. The Prelate of the Order is the ecclesiastical superior of the Order’s clergy and the Grand Master’s assistant in the care for the spiritual welfare of the Order. The Order’s headquarters, called Convent, (conventus) – in the sense, now rare in English, of a religious community of men – and the Grand Master’s residence are in the Malta Palace in Rome. Together with several other properties of the Order, it enjoys the right of extra-territoriality.
It can therefore be seen that the Sovereign Order possesses a complete government suitable for its purposes that is organized along juridical lines like that of the state.
(3 & 4) As a sovereign institution, the SMOM possesses a complete legal system with a code of laws and a court system composed of trial and appellate levels:
The life and activities of the Order are regulated by the Constitutional Charter and the Code approved by the Holy See. The Code de Rohan, promulgated by the Grand Master de Rohan in the eighteenth century, retains its validity as a supplementary source of law, provided its provisions are applicable and not contrary to the other two sources of law. Juridical questions and problems of interest and importance for the Order are dealt with by the Consultative Juridical Council, appointed by the Grand Master with the consent of the Sovereign Council.
Violations of the Sovereign Order’s laws are dealt with by its court system which is organized like the court system of any territorial state. Included among the offenses within the competence of the Order’s courts would be violations against the Code of Chivalry (dishonorable conduct) to which all persons of knightly rank are bound. Several of the more traditional European nations (Scotland, Spain, and England) do, in fact, possess such courts, and even in the American armed forces, it is possible to be court-martialed for conduct unbecoming an officer and a gentleman. On a more pragmatic level, as certain possessions and institutes of the Sovereign Order enjoy extra territoriality and exemption from the domestic legislation of the receiving state, the courts of the Order serve a needed purpose in trying controversies that may arise within the confines of such properties:
To deal with cases outside the competence of Canon Law and ecclesiastical Courts, the Order has its own Courts of Law of First Instance and Courts of Appeal, with the Presidents, Judges, Promoters of Justice, and Auxiliaries appointed by the Grand Master with the deliberative vote of the Sovereign Council. Appeals against the sentences of the Order’s Courts may be lodged with the Court of Cassation of the Vatican State, which, in such cases, acting by proxy on behalf of the Order, may exercise the functions of a Supreme Court.
The trial court or Tribunal of First Instance is composed of a President, an Alternate, three Judges, and a Reporter. In contrast, the appellate court or Tribunal of Appeal is composed of a President, five Judges, together with a Secretary. The Court of Cassation of the Vatican State acts with respect to the Sovereign Order as the British Privy Council in London acts as a supreme court on behalf of various independent dominions of the Commonwealth nations.
The Sovereign Order also has a quasi-judicial body, the Board of Heraldic Advisors, which deals with controversies concerning admission into the nobiliary ranks of the Order. It is composed of six advisors sitting under the presidency of the Order’s High Heraldic Grand Councillor. It not only rules on questions involving proofs of nobility or birth briefs but it also advises the Sovereign Council of the Order on those cases where “compensation” or dispensation from some of the requirements might be properly allowed.
The courts of the Sovereign Order pass sanctions on transgressors of the Order’s laws. For offenses involving honor, the courts may sentence the offender to deprivation of the Order’s insignia. For serious violations of the Code of Chivalry, a member might be expelled. In Europe, this carries the same connotation as being expelled from an American national military academy on an honor offense or receiving a dishonorable discharge from the armed services. It is a penalty not to be taken lightly. Sentences against those involved in offenses occurring on the extra-territorial properties of the Sovereign Order would probably be transmitted to the territorial sovereign for enforcement.
Historically, the power of the Sovereign Order to pass judgment on transgressors and assign sanctions can be traced to the Bull of Pope Boniface VIII of 7 April 1300, recapitulating and confirming the original rule (Code of the Order) given by the second Grand Master, Raymon du Pay:
And with respect to all other crimes, and affairs, and complaints, let them be adjudged upon in general chapter, and let a just sentence be pronounced. And all these precepts we enjoin and impose upon you, in virtue of our authority, on behalf of Almighty God, the blessed Mary, the blessed John, and the poor; that they be observed strictly and zealously in all points. . . .
Furthermore, if any brother, having the superintendence of a convent in any foreign land, shall appeal to any secular person, rebelling against our authority, and shall give him the money appropriated to the poor, in order that, by his power, he may establish the authority of the said brother against the Master, let him be expelled from the general society of the brethren. And if two or more brethren shall be dwelling together, and if one of them shall have misconducted himself by an evil course of life, the other brothers are not to denounce him, either to the public or to the prior, but first let them chastise him by themselves, and if he will not permit himself to be chastised, let them call in the assistance of two or three others and chastise him. And if he shall amend his ways they should rejoice thereat; but if, on the other hand, he shall remain impenitent, then, detailing his crimes in a letter, they shall forward it to the Master; and whatever he and the chapter may decree, let that be done to the offender; and let no brother accuse another brother unless he is well able to prove the charge, for if he does so he is no true brother.
This grant of juridical power to the Sovereign Order by the Sovereign Pontiff (made in an era when the latter exercised wide powers of jurisdiction over the international community) establishes the right of the Sovereign Order under international law to exercise this power in its capacity as a non-territorial sovereign over its subjects, properties, and other matters within its jurisdiction. Accordingly, the judgments of its courts would be entitled to comity in the courts of territorial sovereigns.
(5) Besides the privileges of extra-territoriality and exemption from domestic legislation enjoyed by the Order because of its sovereignty, it has sufficient financial resources and investments for maintaining its vast international charitable and relief work. Contributions to the good works of the Order have been made for centuries by the European nobility. In some cases, great noble families have even endowed charitable foundations of the Order known as hereditary commanderies; descendants of such founders became hereditary Knight Commanders of the Sovereign Order, provided they met the necessary qualifications of personal morality and honor. The General Chapter of the Order elects a Board of Auditors composed of a President, two Councillors, and two Alternate Councillors. They control the income and expenditures of the Order.
The Sovereign Order is often assisted in its international relief work by the four legitimate Protestant Orders of St. John as well as by other Roman Catholic chivalric orders, such as the Sacred Military Order of Constantine St. George and the Order of St. George of Bavaria, the latter under the hereditary Grand Magistry of the Chief of the Royal House of Wittelsbach.
The Sovereign Order conducts its international relief work through the AIOM, International Aid of the Order of Malta. AIOM sends money, equipment, and relief items to assist missionary medical social relief work in under-developed countries. It grants scholarships to citizens of such countries and to persons proposing to carry out welfare activities in them. AIOM also trains nursing personnel and assists these countries with agricultural development.
The Sovereign Order’s assistance to lepers is coordinated by the International Executive Committee for Aid to Leper Sufferers. It maintains leper colonies, trains specialized medical personnel, erects specialized hospitals, engages in scientific research, and publishes a scientific review dealing with the medical problems of leprosy. The Committee also assists governments interested in the fight against leprosy. The individual territorial divisions of the Sovereign Order do extensive charitable work in their own names. In a time of war, the Sovereign Order and its territorial divisions cooperate as a worldwide brotherhood to assist the wounded and refugees.
The Sovereign Order is materially assisted in these noble enterprises by its non-territorial sovereignty and its extra-territorial charitable foundations.
(6) The unimpeded freedom of the Sovereign Order to conduct its mission is guaranteed by its non-territorial sovereignty and is universally recognized in practice through the extra-territoriality of its possessions and sovereign immunity from the legislation of the receiving state.
The question of the Order’s status and unimpeded freedom of action arose in Italy in 1860 after the government had confiscated certain commanderies of the Sovereign Order in Sicily. The Minister of Justice and Ecclesiastical Affairs, Giovanni Battista Cassinis, was requested by the government in 1862 to advise it about the legal status of this property. His response demonstrates the type of respect that territorial states are expected to accord the Sovereign Order under international law:
This Order, as everybody knows, is not an order of chivalry which depends on the ex-Kingdom of Sicily, or on any other European state; it is to a certain extent a world Order; an; Order, we may say, of Christendom. Deprived of the Sovereignty it exercised in the Island of Rhodes and then in that of Malta, it continued even after that period to persevere, and does still persevere, a personality which no power in Europe has ever ceased to recognize and respect.
In conclusion, this study has definitively established that the Sovereign Order possesses the three elements of independence, authority, and jurisdiction necessary for the establishment of a perfect society. As a result, it is accorded international diplomatic recognition on an equal footing with territorial states. One hundred and four states conduct bilateral diplomacy with it through the mutual exchange of diplomatic agents and participates through its accredited ministers in multi-lateral diplomacy in the international organizations. As a sovereign it also negotiates treaties with territorial states relative to its interests. Its institutions are entitled to extra-territoriality under international law and it is exempt from the domestic legislation of the territorial sovereign. It issues passports that command universal respect, even from states not presently having diplomatic relations with it. The status of the Sovereign Order of Malta appears to be indistinguishable from that of the territorial states, save the element of territoriality. However, this element is unnecessary for the execution of its supra-national mission. Its sovereignty did not rise in 1113 in conjunction with territorial possessions, so the present-day absence of such should not be regarded to derogate from its sovereignty.
In addition to being a perfect society and thus having the right to non-territorial sovereignty, the Sovereign Military Order of Malta also had the right to the status of being de jure non-territorial sovereigns by virtue of the rules and principles of prescription. The full name of the order confirms their unending solid claim to Malta and Rhodes: “The Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta.” They never stopped their protest against the unlawful loss of their territorial sovereignty. As made clear by Emerich de Vattel, and quoted earlier, “With sovereigns [such as, this illegally deposed sovereign order] the title and the arms of a territory or province are retained, as an evidence that the right to it has not been abandoned.” The arms of the Order since 1741 have a surmounting closed or sovereign crown on the top, reflecting their rightful and continued claim as deposed non-territorial monarchs.
As explained earlier, Rhodes was given to the Order in 1310 as a sovereign possession to protect all Christendom from Islam. They ruled over this island for 200 years until 1522 when the island was illegally violated by a huge and overwhelming Ottoman host. Johann Wolfgang Textor, another one of the founders of international law made the important point that “. . . an exiled monarch does not lose [sovereignty] when the cause of his exile is unjust, as, for instance, insurrection or usurpation.” Jean Jacques Burlamaqui (1694-1748), a well-known Swiss legal scholar, who popularized the ideas of the founders of international law, wrote, “. . . A man [empire or kingdom] cannot acquire sovereignty over a nation by bare seizure. . . . [Theft is] no more a lawful title to the sovereignty [of a nation] . . . than robbery is a lawful manner of becoming rich.” The actions of usurpation are illegal and morally wrong except in very rare and unusual circumstances, which will be discussed later.
Malta was obtained as a sovereign possession by the Order of Malta in 1530. After over two hundred years of rule as sovereigns and defenders of Christianity in the Mediterranean Sea, Malta was illegally taken over by Napoleon who forced the Grand Master to cede the island to France. However, this was unwillingly done under duress. “. . . Sovereignty cannot be acquired by the simple act of conquest, nor be transferred to the conqueror, if the sovereign does not cede it willingly.”
This was not a willing acquisition. The Order was expelled by force of arms from both Malta and Rhodes. However, the de jure sovereignty of a state that has been usurped by a foreign conqueror is not extinguished by such usurpation but survives as long as such sovereignty is kept alive by competent diplomatic protests, which can be the consistent, uninterrupted, and continued use of “titles and arms” to make sure that the claim is maintained. The Order of Malta not only used its titles and arms, but it made numerous protests and attempts to regain the rule over Malta. For example, the Treaty of Amiens of 1802 attempted to gave the Order back their de facto rulership, but the 1814 Treaty of Paris gave the Island to Great Britain. The Order vigorously fought this, especially in the 1815 Congress of Vienna. The Order fully complied and continue to comply with all the rules of prescriptive law that preserves de jure internal sovereignty. The Order is now, at least, recognized by the United Nations as being a genuinely recognized subject of international law.
In a court hearing in Italy in 1954, it was recorded in their findings that:
. . . the Sovereign Order of Malta is a subject of international law having the characteristics of a sovereign State; to be more precise, its position is similar to that of Government-in-exile during the Second World War: although they did not exercise actual sovereignty on their territories, which were occupied by the enemy, nevertheless they arrogated to themselves that sovereignty that they exercised through a large number of international activities – they had their own diplomatic missions, participated in international conferences and agreements, intervened on the battlefield with their own armed forces and so on. . . . [It] has its own government, which maintains twenty-four diplomatic missions in foreign states; . . . it enacts instruments that have the force of law; it confers titles, military and chivalric honors. . . . There is no doubt as to the character of the Sovereign Military Order of Malta as a sovereign entity and therefore its right to be treated by other States as far inter pares [an equal]. (emphasis added)
Thus, by reason of being a perfect or complete society, by the rules and principles of prescription under the law of justice and of nature, and by recognition through treaties, courts, and bilateral diplomatic exchange, the Sovereign Order of Malta has internal, non-territorial de jure sovereignty rights and is entitled to rightfully receive recognition of its non-territorial sovereignty from both reigning and non-reigning sovereigns worldwide. It would be particularly fitting and appropriate if recognition were to be extended to it by those states engaged in the defense of Western civilization and Judeo/Christian values.
The Central Tibetan Administration as a Sovereign Entity
The Nation of Tibet was wrongfully and brutally invaded in 1950. The U.N. General Assembly passed resolutions condemning China in 1959, 1960 and 1961. However, the abuses continued:
By 1965 conditions in Tibet remained bleak. A third ICJ report, Continued Violations of Human Rights in Tibet, was published the previous December. Based on accounts from Tibetan refugees fleeing to India, the report disclosed “a continuance of ill-treatment of many monks, lamas, and other religious figures, resulting in death through excessive torture, beatings, starvation and forced labour. . . .” Following the report and the Dalai Lama’s appeal, the issue was reintroduced at the UN yet again by the 1961 sponsors, joined this time by Nicaragua and the Philippines.
India, speaking out for the first time, reminded the General Assembly that “ever since Tibet came under the strangle-hold of China, the Tibetans have been subjected to a continuous and increasing ruthlessness which has few parallels in the annals of the world.” The Philippines pointed out that 15 years after the “mock liberation of Tibet,” the People’s Republic of China had still “not identified the ‘aggressive imperialist forces in Tibet,’” and Thailand noted that the majority of states refuted “the contention that Tibet is part of China.” Following these and other remarks on the Question of Tibet resolution 2079 (XX) was passed on the Question of Tibet on December 18, 1965. . . .
[However] to this day, the United Nations’ unfinished consideration of the question of Tibet remains one of the global body’s most notable and longstanding acts of omission.
This is a sad tale that has not been resolved. Despite all the strong talk about what is right and just, nothing has changed.
The argument of the People’s Republic of China (PRC) and the Tibetan government-in-exile as to who has the internal legal right to rule Tibet is quite confusing and intricate and convincing on both sides without all the detailed inside facts readily available to the public at large. However, it is quite clear what is right when those facts are boiled down to basic principles in the law of nature and what is ethically and morally right implicit in international law. The International Commission of Jurists (ICJ), not to be confused with the International Court of Justice (ICJ), in 1959 and 1960, did a study of the status of Tibet in international law. This organization consists of a standing membership of 60 eminent jurists, judges and lawyers of many nations. They concluded that:
. . . due to its peculiar history and local conditions, the international position of Tibet is difficult to appraise [however] it is clear that Tibet has been to all intents and purposes an independent country and has enjoyed a large degree of sovereignty.
Tibet demonstrated from 1913 to 1950 the conditions of statehood as generally accepted under international law.
The problem in regard to sovereignty, independence and human rights violations has never been resolved primarily because the United Nations, and individual Member States, based their decisions on the false premise that Tibet was not, a “State.” Operating on this false assumption – the idea that the Tibetan situation is “an internal affair” of China, the UN and its members have done nothing on an international level to alleviate the problem. The Tibetan Government-in-exile, or any government-in-exile for that matter (this includes deposed monarchs who personify such), cannot take a case or have legal standing before the International Court of Justice (ICJ) involving the topic of sovereignty or the illegal loss thereof. Hence, many injustices linger. Some points to consider in regard to Tibetan sovereignty are:
(2.1) United Nations records clarify the mistaken assumption that to be a “State” one must be recognized by other “States.” According to the “Convention of Rights and Duties of States”, signed at Montevideo in 1933, “The political existence of the State is independent of recognition by other States.” [This “gives historical testimony that Tibet does not require . . . recognition by any State to be, in fact, a State.”]
(2.2) The Tibetan Government in Exile is able to demonstrate that it meets the traditional definition of “Statehood” by: (1) Having a population, (2) Having a Government, (3) Possessing a territory, (4) Maintaining international interchange.
(2.3) Demonstration of Tibetan State Instruments – such as: (a) Tibetan Seal of Government, (b)Tibetan International Treaties, (c) Tibetan Flag, (d) Tibetan currency, (e) Tibetan Postage, (f) Tibetan passport [are all present].
(2.4) The truth that all of these Tibetan International Facts and Instruments have been functional entities of the Tibetan State, used in commerce, and agreement with other States, demonstrates historical recognition [and acceptance] of their International and State character.
(2.5) The International Law Commission explicitly exclaims: “Recognition is unconditional and irrevocable.”
An in-depth legal review of the situation was completed by the Law Firms Wilmer, Cutler and Pickering on May 7, 1986. Part of their analysis is quoted below:
Conclusions Regarding The Legal Status Of Tibet [Section E]:
Tibet was a fully independent state until the thirteenth century. It was made a separate part of the Mongol Empire in 1249 but never became a part of the Chinese portion of the Empire that was established in 1279. Tibet regained its full independence from the Mongol Empire in 1349. China did likewise in 1368. Tibet functioned as a fully independent state at least until 1720, when the Manchu Empire began to exert some influence and, for short periods in the late 18th century, a measure of control over Tibetan affairs. By 1840, Tibet was again functioning as an independent state, the Manchu influence having effectively faded. Except for a brief period of occupation by provincial Sichuan troops in the last years of the Manchu Imperium (1909-1911) when the Dalai Lama sought exile in India, the Tibetan government exercised effective control over Tibet as an independent state until Communist China invaded it in 1950.
Because Tibet was an independent state in 1950, the PRC must show convincing proof that it achieved sovereignty over Tibet through a consensual transaction. As discussed above, the so-called ‘Agreement’ of 1951 was not the product of a consensual transaction. On the contrary, as shown above, ‘Tibet signed at pistol-point.’
Although under earlier international law, effective exercise of authority for a prolonged period of time was recognized as a mode of acquiring sovereignty, the United Nations Charter dramatically alters the legal situation:
Under classic international law, the freedom of annexation was derived from the right to wage war. In the meantime that right to wage war has been superseded by the ban on the use of force (Article 2(4), UN Charter). Thus the freedom of annexation, too, was transformed into a ban on annexation.
As a result, the overwhelming majority of States reject claims to territory based on the illegal use or threat of force as contrary to modern international law. Because Tibet was legally and functionally independent before the PRC’s invasion, the invasion cannot create a foundation for a legal claim of sovereignty:
To brand as illegal the use of force against the ‘territorial integrity’ of a State, and yet at the same time to recognize the rape of another’s territory by illegal force as being itself a root of legal title to the sovereignty over it, is surely to risk bringing the law into contempt. For it is not simply a question whether it is possible to allow a title which cannot be pleaded without incidentally exhibiting the illegality. Nor is it merely a question of the limits of the maxim ex injuria jus non oritur. The question is whether an international crime of the first order can itself be pleaded as titled because its perpetration has been attended with success.
Nor has the exercise of authority by the PRC been undisputed: The PRC admitted the existence of substantial popular opposition in 1959, it has continued to the present, and the Tibetan Government-in-Exile is the embodiment of such opposition. Tibet is rightfully an independent state, and the PRC has violated Tibet’s territorial integrity.
No sufficient legal grounds exist to support the contention that after 1951 the Tibetan State ceased to exist and was legally incorporated into the PRC. The State of Tibet still exists as an independent legal entity, with a legitimate Government-in-Exile in Dharamsala, to represent it. That government and the people of Tibet, consequently, have the right to resume the exercise of sovereignty over their own territory, free from the interference of other States.
The fact that no country has officially recognized the Central Tibetan Administration of Tibet (CTA) relates to what has become a typical practice among all nations in modern times, which is to avoid judging or insulting other countries, and to capitalize on trade. In other words, economic and political concerns take precedence over ethical or moral issues. In fact, “Recognition of a government in exile, when there is a government effectively holding power in the state, is regarded as amounting to unlawful intervention in the internal affairs of that state.” Therefore, this lack of recognition does not mean that the deposed government is not legitimate and rightful.
The United States recognized the Nationalist Government of China in exile on the Isle of Taiwan until 1972 when President Richard Nixon decided for political reasons to recognize Red China. This was, however, a highly contemptible move as Red China, under the leadership of Chairman Mao, had an estimated twenty million of his people murdered to secure his oppressive regime following his slogan of political power at the end of a barrel. Red China was recognized for political reasons. There was nothing ethical about it. At that time, Red China was antagonistic to the Soviet Union. By recognizing Red China, President Nixon was able to pressure the Soviet Union. This was, of course, all pure politics and had nothing to do with legitimacy or moral right. Political recognition is political only, not legal, nor does it have any lawful significance on whatever internal sovereign rights exist in the nation or state.
Since the 1970s, things have changed for the most part and external recognition is rarely done. It was found by experience to be impractical and was sometimes considered to be an insult and hurt trade and business prospects. Presently, “The only criterion in international law for the recognition of an authority as the government of a State is its exercise of effective control over the State’s territory.” The use of the terms “de jure” and “de facto” for external sovereignty have become relatively “. . . obsolete, but once commonly used in the international practice of recognizing government. . . .” Now, “. . . the doctrine of non-recognition . . . is an integral part of modern international law. . . .” Although, not perfectly followed, this modern practice was declared by Vattel in the 1600s to be most in tune with the doctrine of non-interference, a basic seminal concept of sovereignty. He wrote:
When an unjust conqueror, or any other usurper, has invaded the kingdom, he becomes possessed of all the powers of government when once the people have submitted to him. . . . [This is called de facto internal sovereignty.] Other states, as having no right to intermeddle [or interfere] with the domestic concerns of that nation, or to interfere in her government, are bound . . . to look no farther than the circumstances of actual possession. They may, therefore, broach and conclude a treaty of peace with the usurper [the new government]. [But] they do not thereby infringe the right of the lawful sovereign [the deposed monarch or his rightful successor, who owns and possesses internal de jure non-territorial sovereignty – the right to rule the country]: it is not their [other countries] business to examine and judge of that right: they leave it as it is [they remain neutral], and only look to the possession in all the affairs they have to transact with that kingdom [or nation], pursuant to their own rights and those of the nation whose sovereignty is contested [by the ousted royal house].
In other words:
. . . The recognition of a usurper by foreign powers does not destroy the rights of the legitimate sovereign of the country. Such a recognition is nothing more than saying, as the usurper is the peaceable master of the country he governs, we may venture to treat him as a neighbour; but this is far from guaranteeing his right to the throne he [the usurper] possesses [illegally by plunder or rebellion].
If I have a neighbor with whom it is convenient for me to be on a good footing [or in good terms], I may visit him, though I know he has not a good title to the house he lives in; but that is not entering into an engagement to support his title in case it be contested. . . . In the same way, had the sovereigns [the emperors and kings] of Europe guaranteed the throne of France to Bonaparte, which was far from being the case, such a guarantee would not have annulled the rights of Louis XVIII to that throne, though it would have prevented him exercising them.
Recognition by the world is a totally different dimension or type of sovereignty than internal sovereignty. Internal sovereignty is the supreme right to rule a land or people. The external side is outside of a nation’s domestic right to rule. It is its independence and equality as a member of the family of nations. As such, external sovereignty obviously has no relationship or connection to the internal legal dimension of sovereignty held by deposed monarchs and governments in exile. “. . . Internal [sometimes called domestic] sovereignty . . . means supremacy over all other authorities within that territory and population. . . . [While] . . . external [outer] sovereignty [is] . . . not supremacy [it is not supreme or above all] but [means in part an] independence of outside authorities.”
External sovereignty consists of two elements:
1. de jure recognition by the international community of a state’s independence; that is, a state in the international system is free and equal; and
2. de facto external independence; that is, no outsider exercises control within a state’s territory.
Externally, sovereignty is the entry ticket into the society of states. Recognition on the part of other states helps to ensure territorial integrity and is the entree into participating in diplomacy and international organizations on an equal footing with other states.
Vattel described a powerful motive to respect and treasure the right of independence. He wrote:
[T]he conduct of one Nation may be unlawful and censurable according to the law of conscience, and yet other Nations must put up with it so long as it does not infringe upon their perfect rights. The liberty of a Nation would not remain complete if other Nations presumed to inspect and control its conduct; a presumption which would be contrary to the natural law, which declares every Nation free and independent of all other Nations.
This important external sovereign right is to be inviolable. Vattel continued:
Nations put up with certain things although in themselves unjust and worthy of condemnation, because they can not oppose them by force without transgressing the liberty of individual Nations and thus destroying the foundations of their [own] natural society.
Deposed monarchs and legitimate governments-in-exile hold internal rather than external sovereignty. They do not have standing in the International Court of Justice or world court as they are not de facto states. Arbitration is not a solution either, because it is completely voluntary. Coercion is not part of the formula, nor should it be. But, as a result, nations are free to use them or to ignore them as they feel is in their best interests. No revolutionary or well-established government is going to risk losing power and control of their territory to contract with a deposed government or dispossessed royal house to determine through arbitration who has the best title and, therefore, shall rule the nation.
In 2001, the arbitration council of the Permanent Court of Arbitration that considered the unlawful takeover of the Kingdom of Hawaii could only rule that the usurpation of this government and land was unlawful. This conclusion was officially admitted much earlier by the United States government in their 1993 resolution concerning this wrongful act, but the arbitration court did not have the jurisdiction or authority to restore the royal house and government of Hawaii. They could have restored the royal house, if, and only if, the United States was a party to this tribunal and had voluntarily agreed that the tribunal’s decision who had the lawful right to rule the islands. But even under this condition, the arbitration court’s power is highly limited if the losing party refuses to abide by their judgment as enforcement is practically non-existent. It is extremely unlikely that the U. S. government, the most powerful nation on earth, will ever part with these islands or return the kingdom to its rightful rulers.
The real problem in terms of justice is that we live in a world where sovereignty, the greatest and most crucial and important international law of all, has routinely and predictably been violated by the great and the powerful of the earth. In other words, it is the views of the popular and/or the dominant that almost always prevails in spite of international law, treaties, or the opinions and ideals of legal scholars. It all boils down to “might makes right” or “the stronger you are, the more rights you’ll have.” If you don’t have great power or clout, if you don’t have any leverage, if you are weak and defenseless like the deposed, the bullies of the world may very well oppress you and take advantage of you.
The point is dispossessed dynasties and governments have no real recourse to justice. They are ignored, as they are powerless and impotent as far as having any real political, military, or governmental power. In other words, “If [the government or monarch-in-exile’s] efforts prove unavailing [that is, unsuccessful in getting back de facto control of the territory forthwith], then [their] claims to sovereignty become nugatory.” “Nugatory” means it is of little or no consequence. No one gives them much attention. On the other hand, the usurper has internal de facto control of the country and usually obtains official or unofficial recognition as soon as the usurping government becomes stable enough to trade and do business. The only thing that the deposed monarchs and governments-in-exile have, if they maintain their rights, is the genuine and authentic legal right of internal sovereignty, but they are powerless to use it. However, even though they have no real external recognition or external sovereignty, they can by law:
. . . exercise all governmental functions on exactly the same footing as if it were still within the boundaries of its own territories. . . . [However] the dispossessed government can only act provided the [sheltering] territorial government authorizes it to exercise all governmental functions [within its territory].
In other words:
When a foreign invader or local insurgents have occupied a state, its government may flee abroad and, provided the state of refuge agrees, operate as a government in exile [or monarchy in exile] with the same legal status as it [or he] had before.
Emerich de Vattel stated that “prescription:”
. . . requires that every proprietor [a deposed government], who for a long time and without any just reason neglects his right [to protest or use his or her titles and arms], should be presumed to have entirely renounced and abandoned it.”
[A failure] to protest . . . [when it is called for to protect rights is] construed as a tacit renunciation or waiver of the right involved, that is a unilateral act of abandoning a right.
Vattel then explains, that, “This is what forms the absolute presumption (juris & de jure) of its abandonment. . . .” Juris in this context means legally “conclusive” – something that cannot be rebutted or refuted. Thus it is permanently forfeited. The other side of the coin is that if protests continue, when appropriate, and the exalted and regal titles and arms of sovereignty are used, de jure internal non-territorial rights can be preserved forever. Thus, the rights of the Tibetan government-in-exile are legally intact.
Dinesh Lal, the author of the book Indo-Tibet-China Conflict, stated that:
When examining all of this, one of the most important things is the number of times China broke international law. Although, even with all the damage done to Tibet, China continues to deny any wrongdoing. The PRC keep steadfast in its belief in its right to remain in control of Tibet, as so many other countries have done to weaker nations in the past.
However, “might does not make right.” The rules of prescriptive law, being consistent with what is morally and ethically right, protect the legitimate right to rule. That is, “. . . Sovereignty cannot be prescribed [legitimately given to the usurper] so long as the legitimate sovereign remains in being [is visible using his regal titles and making proper protests as required] and is prepared to assert his right to sovereignty as a whole [or over the whole kingdom, nation, country or state].”
The history of the CTA or Central Tibetan Administration began in 1959 when His Holiness the Dalai Lama was forced to flee Tibet and reconstituted his old government as the government-in-exile in India that year. CTA is an independent entity that was a perfect society in terms of being independent, having authority and full jurisdiction. It is headquartered in McLeod Ganj, Dharamsala, India. The CTA has a population of about 100,000 exiles and receives about 1,000 new refugees a year who have fled from Tibet. It has a cabinet, a constitution, and everything expected of a valid legitimate and functioning government. Those who comprise the CTA claim to be the rightful government of Tibet and continue visibly to make protests consistently declaring to the world that they have never abandoned their rights.
Acts of protest in international law means that, “The absent sovereign remains the de jure government of the country.”
Recognition of the principle of prescription has been due to the importance attached to the maintenance of a stable condition of affairs among States. It has been deemed more desirable to the family of nations that an occupant long in possession should be suffered to remain in unmolested control, than that an adverse claimant, although unjustly deprived of possession, should retain its rights of sovereignty, unless it made constant and appropriate effort to keep them [those sacred rights] alive, and that by ceaseless protest against the act of the wrongdoer. (emphasis added)
The Tibetan government-in-exile is involved in a constant struggle to end the wrongs of the Chinese government as usurpers involved in the unlawful, brutal oppression of the people of Tibet thereby violating the human rights of these people and the independent sovereignty of their nation. The Tibetan government-in-exile holds internal, lawful non-territorial sovereignty and are, therefore, the rightful rulers of Tibet. These facts should be recognized before the whole world. This sovereignty comes by reason of their organization as a perfect society having independence, authority, and jurisdiction and by the principles and rules of prescription in international law.
Prescription being based on natural law is the “. . . generalization of the legal experience of mankind.” It is the distillation of what mankind has learned from good and bad experience over thousands of years in the interests of justice. “Prescription [being a part of this higher law] . . . carries Natural Equity along with it, that it is grounded on the fairest [most just and equitable] Right. . . .” It, in fact, is so important that prescription “. . . is a direct command of the same law,” that is, the “law of nature.” It is indispensable and universally binding. International law as we know it today is “. . . no more than a modern formulation of the law of nature which played a decisive part in the formative period of international law and which underlay much of its subsequent development.”
From a legal standpoint, Tibet has to this day not lost its statehood. It is an independent state under illegal occupation. Neither China’s military invasion nor the continuing occupation has transferred the sovereignty of Tibet to China. As pointed out earlier, the Chinese Government has never claimed to have acquired sovereignty over Tibet by conquest. Indeed, China recognizes that the use or threat of force (outside the exceptional circumstances provided for in the UN Charter), the imposition of an unequal treaty or the continued illegal occupation of a country can never grant an invader legal title to territory. Its claims are based solely on the alleged subjection of Tibet to a few of China’s strongest foreign rulers in the 13th and 18th centuries.
[When one thinks about it] if other countries were to make such tenuous [weak and questionable] claims based on their [ancient] imperial past, how seriously would they be taken? In considering the merits of China’s arguments, are we not accepting the right of powerful modern rulers to invade foreign countries in order to recreate lost empires of their ancestors? [Does “might make right?”]
The point is, “A government of a country invaded by the enemy remains the legitimate government, even if it takes up residence abroad.” To the CTA’s credit:
On 28 October 1991 both the [United States] Senate and the House of Representatives legislated perhaps the most important legal pronouncement on Tibet. The Foreign Relations Authorization Act, fiscal year 1992 and 1993 (Public Law 102-138 [H.R. 1415]) declared “Tibet, including those areas incorporated into the Chinese Provinces of Sichuan, Yunnan, Gansu and Qinghai, is an occupied country under the established principles of international law, (2) Tibet’s true representatives are the Dalia Lama and the Tibet Government in exile as recognized by the Tibetan people,” and firmly calls for the Tibetan people’s right to self-determination by recalling that (7) “numerous United States declarations since the Chinese invasion have recognized Tibet’s right to self-determination and the illegality of China’s occupation of Tibet.” A milder form of this statement, in passing reference can be found in Public Law 100-204 (1987) in section A4, “beginning October 7, 1950 the Chinese Communist army invaded and occupied Tibet.” The resolution of April 1981 (S.Res. 107) implied U. S. recognition of Tibet’s independence by citing the International Commission of Jurists’ report that “Tibet demonstrated from 1913 to 1950 the conditions of statehood as generally accepted under international law.”
Although these acts were not official State Department recognitions of Tibet, they came very close. Recently, on March 29, 2012, the United States Senate passed another resolution (S.Res. 356) that again shows continued support for the Tibetan people. It is hoped that right will eventually prevail and the truth will be recognized so that an oppressed people might again possess their country and enjoy lawful freedom and independence.
Important General Principles and the De jure Sovereign Rights of the Kingdom of Hawaii
This sub-chapter consists of several principles important to all deposed monarchies on how the supreme right to rule is maintained in international law.
Hawaii was a True and Recognized Kingdom:
Unlike the International Court of Justice, the Permanent Court of Arbitration is open to states as well as other parties. According to their guideline they provide services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties. In dealing with a contrived case brought before them in 2001 concerning the Kingdom of Hawaii, they declared that:
. . . the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties. (Paragraph 7.4)
This arbitration did not have the authority, power, or jurisdiction to restore what was wrongfully taken, but it did reinforce what the United States government earlier admitted; this was that the United States had unlawfully usurped a nation-state against international and natural law.
The following powerfully demonstrates the obvious fact and, therefore, the conclusion of the Tribunal that the Kingdom of Hawaii was a legitimate and independent sovereign nation. Diplomatic recognition and treaties with other states are an acknowledgement of a nation being a subject of international law. The Kingdom sent ambassadors, who were plenipotentiary or fully invested with all the power of the Kingdom, to create treaties, and some permanent embassies were established with the following: Austria-Hungary in 1875, Belgium in 1862, Denmark in 1846, France in 1846 and 1857, Germany in 1879, Great Britain in 1836, 1846 and 1851, Italy in 1836, Japan in 1871 and 1886, Netherlands in 1862, Portugal in 1862, Russia in 1869, Samoa in 1887, Spain in 1863, Swiss Confederation in 1864, Sweden and Norway in 1852, and United States in 1849, 1870, 1875, 1883, 1884.
The following are quotes from the official recognition given by a resolution of the United States Congress in 1993 apologizing for the illegal overthrow of the monarchy. Some excerpts of this resolution are as follows.
Whereas, prior to the arrival of the first Europeans in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture, and religion;
Whereas, from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full and complete diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation. . . .
These two sentences acknowledge the reality of the perfect society features possessed by the Kingdom of Hawaii. With their independence, authority and jurisdiction, they were indeed a sovereign State with all the rights and powers thereof in full plentitude. The following excerpts from this unprecedented apology of the United States include important background into the history of the illegal overthrow and occupation of the Hawaiian Kingdom:
Whereas, on January 14, 1893 . . . the United States Minister assigned to the sovereign and independent Kingdom of Hawaii conspired with a small group of non-Hawaiian residents of the Kingdom of Hawaii, including citizens of the United States, to overthrow the indigenous and lawful Government of Hawaii; . . .
Whereas, soon thereafter, when informed of the risk of bloodshed with resistance, Queen Liliuokalani issued the following statement yielding her authority to the United States Government rather than to the Provisional Government:
I Liliuokalani, by the Grace of God and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the Constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.
That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the Provisional Government. “Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands. [Done at Honolulu this 17th day of January, A.D. 1893];
Whereas, without the active support and intervention by the United States diplomatic and military representatives, the insurrection against the Government of Queen Liliuokalani would have failed for lack of popular support and insufficient arms; . . .
Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators, described such acts as an “act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress”, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown. . . . President Cleveland further concluded that a “substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair” and called for the restoration of the Hawaiian monarchy.
Whereas, the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum; . . .
Whereas, the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land;
Whereas, the long-range economic and social changes in Hawaii over the nineteenth and early twentieth centuries have been devastating to the population and to the health and well-being of the Hawaiian people;
Whereas, the Native Hawaiian people are determined to preserve, develop and transmit to future generations their ancestral territory, and their cultural identity in accordance with their own spiritual and traditional beliefs, customs, practices, language, and social institutions; . . .
Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
The Congress – . . .
(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 . . . and the deprivation of the rights of Native Hawaiians to self-determination;
(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people;
(5) and urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.
It is an established fact that the government of Hawaii was sovereign. But to maintain the right or entitlement to rule, either the royal house or a legitimate government-in-exile must be able to prove it maintained and kept alive its de jure non-territorial sovereignty, and not lost it through desuetude or neglect as such continued action over a certain period of time is legally established to be implied consent – the juridical abandonment of all royal and sovereign rights.
Prescriptive Law and the Overthrow of the Kingdom:
The illegal overthrow or theft of sovereignty began in 1893. In the words of Jean Jacques Burlamaqui that were quoted before, “. . . Such a conquest was no more a lawful title to the sovereignty over those people, than robbery is a lawful manner of becoming rich,” which is true of all such illegal takeovers. But it is not de facto sovereignty we are questioning here. It is the de jure internal sovereignty rights. Is there evidence that this special type of sovereignty was never forfeited? There is.
At the 100 year anniversary of the takeover and overthrow of the government of the Kingdom of Hawaii, the Congress of the United States declared that, “. . . the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.” If a prescriptive title is to be gained, “. . . The [usurping] state must [not recognize or in any way acknowledge] . . . that another state possesses [a rightful claim of] sovereignty over the area.” The resolution admitting that the Kingdom of Hawaii was wrongfully dispossessed. By doing so, the U.S, government destroyed their own claim or postponed any possible prescriptive right it might have obtained.
Another problem with the claim of the United States was that the plebiscite did not separately represent the native Hawaiian population, but it merely obtained the permission of the various opposing groups that inhabited the land. In addition, referendums cannot legally take away the sovereignty rights of a monarchy without its free will consent to it. This did not happen. For these reasons, the U. S. joint resolution declared in a most honest and forthright manner that no renunciation ever took place ceding the rights of the Native Hawaiian monarchy.
However, this still does not prove that de jure sovereignty continued under international law. The Arbitral Tribunal, taking note of this fact, could only declare that the Kingdom of Hawaii was, at the time of its takeover, a sovereign Nation-State. It did not, and could not with the information provided, declare it to currently hold the rights of de jure internal sovereignty of an unlawfully deposed monarchy. The problem is that, after 1898, only a few official protests were offered, then after 1917, they ceased with the death of the last monarch, Her Majesty Queen Liliuokalani (1838-1917). That is, no official protests took place until sometime after 1993. Even though Native Hawaiians continued to desire and prayed for the return of their country, there was a complete silence for over seventy-six years as official protests go. This could be important because in international law, silence is interpreted as acquiescence or implied agreement. Desuetude or doing nothing is legally interpreted to be disinterest or abandonment of all sovereign and/or royal rights. The loss of de jure internal or deposed sovereignty “. . . depends as much on the quiescence [inactivity, neglect or lack of effort] of the former sovereign as on the consolidation [of rulership] through time of the new [that is, by the usurping or subsequent government].” In other words, “Title must be maintained, or it will be lost as a result of failure to . . . protest the actions of an acquiring power. Conduct [therefore] is thus very important.” It is, in fact, extremely important because:
After a reasonable period of time, to be determined in each case on an ad hoc basis, the title will vest in the new state in the absence of protest. It might be mentioned at this point that protests are extremely important in international law.
It is so important that, “The absence of protest . . . forms a constituent element of – estoppel or prescription. Like these two generally accepted legal principles, the far-reaching effect of the failure to protest is not a mere artificiality of the law. It is an essential requirement. . . .” However, continual diplomatic protest did not continue:
The reason, of course, is not hard to find. The government of the Kingdom had been effectively removed from power and the US had de facto, if not de jure, annexed the Islands. . . .
The Kingdom was fully eradicated. No part of it remained on any island. “. . . One might have expected protest to be maintained on a continuous basis by the remaining State,” but there was no remaining State. As quoted earlier, Vattel, declared that if, for the present, the sovereign entity was unable to pursue its rights by formal protest, it could communicate:
. . . by any token whatever, sufficient to show that it is not his [the crown’s] intention to abandon it. . . . With sovereigns [meaning basically with monarchs] it is usual to retain the title and the arms of a sovereignty . . . as an evidence that they do not relinquish their claims to it.
He wrote that this kind of action was sufficient or adequate enough to make the point clear and with no uncertainty that the deposed monarch “does not mean to abandon his right,” but instead retains the internal right fully intact.
This is important as, without continuity of sovereignty, there is extinction, which is a permanent and complete termination of all regal rights. The answer to the question of continuity is the fact that the royal family continued to exist and continued to use their exalted titles and arms throughout their generations, thus effectively preventing prescription from ruining those special rights. The consistent public use of sovereign and royal titles is equal or equivalent to a lifelong series of competent diplomatic protests under such circumstances. They are protected by the continued use of their rights and titles and by their visible presence and sovereign claims. Therefore, this obligation should not be neglected:
Every nation, every sovereign [whether reigning or non-territorial], ought to maintain their dignity. . . . If, then, there are titles and honours, which . . . belong to a prince, he [should] insist upon them; and he ought to do it on occasions where his glory [dignity and honor and prescriptive right] is concerned.
Court Involvement is Unnecessary:
A controversial new protest requirement, which began in the 20th century supposedly, obligates a reference to an international tribunal or court of arbitration:
. . . How far [does] diplomatic and other paper forms of protest by the dispossessed state suffice to “disturb” the possession of the interloper so as to prevent the latter from acquiring a title by prescription. Paper protest may undoubtedly be effective for a certain length of time to preserve the claim of the dispossessed state. If however the latter makes no effort at all to carry its protests farther by referring the case to the United Nations or by using other remedies that may be open to it, paper protests will ultimately be of no avail to stop the operation of prescription.
In other words,
A protest not followed by other actions becomes in time “academic” and “useless.” The other action that was formerly required was forceful opposition of some sort. Since 1919 it was reference of the matter to the League of Nations or the Permanent Court of International Justice.’
This added requirement sounds reasonable and appropriate, but it is not generally accepted, chiefly because it violates the voluntary nature of the international legal system, which should not be forced upon any sovereign entity.
It may not, in fact, be in the best interests for a deposed government to go before an international tribunal. Even if a deposed government could go before such a tribunal, these world courts tend to be strongly biased in favor of the possessor in order to maintain the status quo. That is:
When faced with competing claims, international tribunals often decide in favor of the state which can prove the greater degree of effective control over the disputed territory, without basing their judgment on any specific mode of acquisition.
. . . The object of prescription as between states is mainly to assist in creating a stability of international order which is of more practical advantage than the bare [undressed] possibility of ultimate victory of right.
In other words, although prescription requires or necessitates acquiescence, silence, neglect, or lack of protest on the part of the dispossessed government, some feel stability in international relations is more important than meting out justice. Hence, court remedies tend to be biased against the dispossessed.
. . . International tribunals have been more concerned with the answer to the question of which State [or government] has actually exercised authority [than who has the legal or the moral and ethical right to rule].
Hence, the judges in most international tribunals tend to find reasons or justifications by violating the ancient laws of prescription, which can keep claims alive indefinitely, to discredit any legitimate claim for a deposed royal house or government-in-exile. The attitude seems to be that whatever “. . . actually exists and has existed for a long time should be changed as little as possible.” “. . . The judicial policy, expressed Lybia v. Chad, [is that] of preserving the territorial status quo in all but the most clear cut cases.” The idea behind this bias against exiled governments or monarchies receiving back their just right to de facto possession is that change has for centuries in the past caused far too much bloodshed, not to mention stirring up civil unrest and lawlessness for the rights of a deposed royal house or exiled government. This stance is very understandable, but to terminate the rights, privileges and prerogatives of a non-territorial sovereign entity, that is not a threat to anyone, is to go against all that is considered just, true and good in life.
Such ideas can ignore the rule of law and, therefore, frustrate the demands of justice. They would also by-pass the fact that new legal concepts cannot be applied retroactively. The problem is that most international courts would rob a dispossessed sovereign of his internal rights, even though by law, “. . . A claim of [deposed] sovereignty . . . can only be lost through prescription, acquiescence, desuetude or cession.” (emphasis added) Since none of these methods can legally apply to a dispossessed government that legally and lawfully maintains its claim, it is contrary to law to terminate its non-territorial sovereign and rightful claim. Yet that is the risk one takes with such courts.
It is well-known that certainty of judicial outcome, a long cherished ideal, does not exist in most courtrooms; rather, opinion, convincing and capricious arguments and court rules prevail over just and equitable settlements. One cannot depend on an inevitable outcome. There is, therefore, no security or assurance that fair play will prevail or that natural law will be respected and followed. Hence, dispossessed countries can be reluctant to take the risk of placing their most cherished rights and entitlements before any of these voluntary tribunals.
In addition, “. . . [international courts have] tended to ignore the traditional terms and categories. This has been particularly so with . . . occupation and prescription.” In other words, to the more straight-forward and plain concepts of sovereign title, as elaborated by the great publicists and jurists of the past, are not, unfortunately, articulated in their findings. For example, they generally “. . . do not readily resort to the language of prescription,” yet they use its principles because they are recognized as just and equitable.
As an example, it has been a well-known fact that tribunals use the principles of prescription without calling it by its established name. What follows is an example of this, “A State [a reigning or deposed government, king or sovereign prince] may not assert a territorial claim in a manner that is inconsistent with its conduct.” That is, in the following case, Pakistan was silent and acted uninterested in a certain border territory for over 100 years, which is to legally desert her claim under the rules of prescription. She literally acted or behaved in contradiction to her later professed claim. That is, their claim was “inconsistent with [their] conduct.” The consequence of not asserting her claim is elaborated below:
In the 1968 Rann of Kutch arbitration, for example, Pakistan implicitly relinquished its title to an area on its common border with India. For more than 100 years, Pakistan’s predecessor did not react to obvious assertions of sovereignty (by England and then India) in this disputed border area. The arbitrators determined that Pakistan had acquiesced in India’s exercise of sovereignty over the suddenly disputed area. Pakistan could not reclaim this land after another State had peacefully occupied it for so long a period of time.
Hence, prescription was used, but it was used without properly labeling it, which practice has created confusion in regard to the law. In other words, even though:
. . . textbook writers [with very few exceptions] on the subject of modes of acquisition of territory [are very clear, straightforward and consistent in the law, however], international courts and tribunals in general have not followed their recommended categorizations [labels or definitions] . . . in deciding specific cases. . . . This has lead commentators to arrive at divergent conclusions in regard to [explaining on what basis or what rules were used in deciding cases].”
Note additionally that there are now human rights courts, the International Tribunal for the Law of the Sea, the Appellate Body of the World Trade Organization, the international criminal courts, ad hoc courts, arbitration courts and others. With over 50 unique individual judges from divergent backgrounds, cultures, and domestic legal experience, it is not known how this may or may not fragment or shred the core principles of international law required for justice. The certainty, precision and application of the law may be compromised in this mix. These courts overlap jurisdictionally, and there is no court of appeal to unify the international legal system, which is in a state of disarray. All in all:
The World Court is in no way bound or guided by any definite rules or principles of law. It is entirely free to make up its own rules and render any judgment its members can agree on, as influenced by each judge’s own particular legal concepts, and one may add, as influenced by his national pride and interest – and there is no appeal. . . . This heterogeneous [widely diverse] court [is] largely made up of foreigners – a lawless court [with no constitution], because there are no established [concrete] rules to govern its deliberations. . . .
Binding protective safeguards (checks and balances) are non-existent. These facts make its findings highly unpredictable and risky to what is held to be most precious to a nation or a kingdom.
. . . The recent [20th century] judicial decisions on territory would no doubt appear baffling and unprincipled, mainly because the courts have put more emphasis on the absence of competing acts of sovereignty than on the quality to be attributed. . . . The line between animus [intention] and factum [“a fact in evidence, which is generally the central or primary fact upon which a controversy will be decided”], if [these terms] were ever clearly perceived, has . . . been blurred. . . .
In other words, there have been enough serious problems with international courts and tribunals to make it unethical to force a deposed sovereignty into placing their treasures into the hands of some men who may or may not subscribe to the known rules of natural law that have provided fairness and equity for thousands of years. It is, in addition, a well-established fact that there is no assurance or certainty as to the outcome of any tribunal or court, no matter how clear the situation and the evidence. The reason for this is because people naturally see things differently. There is a great diversity of thought. Personal bias and the subjective opinions and reasoning of judges weigh heavily in the conclusion of any judicial contest. Yet, it is the rule of natural law, the law of justice, that makes us free to be protected from injury under the hands of others who do not have the same values.
The point here is, the dispossessed have real and authentic “rights” recognized in law, but these “rights” which in most cases have little or no legal or just “remedy” or equitable solution in the international court system. That is, the dispossessed can preserve their claim but actually getting back de facto ruling power will not likely ever happen.
[In municipal or domestic prescription] the law always gives to the rightful owner of a thing the requisite judicial means and instruments for asserting his claim and establishing his property against a wrongdoer. . . . [However] international law gives to a state [a deposed monarchy or government-in-exile] . . . who have been wrongfully dispossessed of their territory no . . . [legal] remedy [or no real answer] at all. . . .
Even if it was a good idea for the dispossessed to bring their case to an international tribunal, the:
. . . offending state [that unlawfully usurped de facto rule from the original sovereign] is not bound by any commitment [or obligation] . . . and [therefore can] refuse voluntarily to submit to international adjudication.
. . . A sovereign State [exiled government or deposed monarchy] cannot be subjected to the jurisdiction of any international tribunal, or municipal tribunal of another State, without its consent.
For this reason, it is practically impossible for a government-in-exile or deposed monarchy to seek justice through an international court or tribunal. The dispossessed have been effectively marginalized or made legally powerless and impotent. The only thing deposed monarchies or governments-in-exile can do in most cases, on an international level, is to be visible and use their sovereign titles and national symbols to prevent prescription from taking their exalted royal and/or internal de jure rights away from them.
Obviously, it would be unfair and unjust to require deposed royal houses and legitimate exiled governments to go to court to perpetuate their claims. This important equitable principle was recognized by Vattel, who explained that, “. . . we cannot plead prescription [the loss of rights] in opposition to a [dispossessed] proprietor who being to the present unable to prosecute his [lawful] right. . . .” In light of the fact that there is a powerful discriminatory mindset that would favor the possessor over the unlawfully deposed, by common sense, fair play, and both ancient and modern legal principles of justice, this completely rules out such a coercive and unjust obligation. That is, these tribunals might tend to destroy, disregard, or ignore what is legally protected in the natural rules and principles of prescription as recorded in “the Necessary [or essential] Law of Nations.” Yet that is the risk that is taken when one submits what is sacred and precious to a judicial system that has not held inviolate the higher moral principles and laws. In conclusion, it is clearly and unquestionably wrong to force or coerce a non-territorial sovereign to take his/her case to what is supposed to be a voluntary, non-compulsory, and optional judicial system. It is true that “. . . [protests] must be periodically renewed and must require . . . a certain degree of intensity,” but to require the use of a system that has preconceived notions against them is not just, fair, or equitable.
Unreasonable Protests are not Required:
A requirement to use inordinately excessive measures of protest, such as violence, does not fit with the law nor its primary purposes. Vattel declared that:
It is an error, no less absurd than pernicious; to say that war is to decide controversies between those who acknowledge no superior judge – as is the case with nations. Victory usually favors the cause of strength and prudence, rather than that of right and justice.
"It cannot for a moment be urged that a [deposed] state must commence a war as an individual commences an action at law, or else be barred."
. . . The modes in which prescription is interrupted [stopped or delayed from transferring the supreme right to rule] in international law . . . consists in protests, claims, attempts to actually recover possession, and wars. There is no necessity of this last extreme [that is, war] when there is no probability of obtaining the victory; the other means [mentioned above] produce the effect of paralyzing the pretension of the new possessor who claims the dominion.
It is a well-established doctrine that, “. . . a nation [or a deposed monarchy] is not required to resort to aggression and disrupt the world order to keep a claim alive.” This has been sustained a number of times and in a number of different ways. The 1911 Chamizal Arbitration is one example. It involved a prescriptive claim of sovereignty of sixty-three years over a valued tract of land near the Rio Grande. It was based on an “undisturbed, uninterrupted and unchallenged possession since 1848.” The Mexican government had regularly challenged it through diplomatic protests; therefore, the Arbitrational Tribunal refused to give the United States the rights over this area because:
. . . however much the Mexicans may have desired to take physical possession of the district, the result of any attempt to do so would have provoked scenes of violence and the Republic of Mexico can not be blamed for resorting to the milder forms of protest contained in its diplomatic correspondence.
In other words, the Republic of Mexico was rewarded for not taking violent action and on this basis its public protests becoming even more powerful in maintaining their lawful rights.
Long before international law no longer recognized the acquisition of sovereign territory by force, this arbitral tribunal would not accept violence as lawful or appropriate. Finally, a number of years later, “. . . After World War II, the United Nations Charter prohibit[ed] the illegal use of force, thus forced cession and conquest [were] no longer valid methods of acquiring territorial [internal] sovereignty. . . .” It is highly doubtful that legitimate deposed monarchs and governments-in-exile can use force or bloodshed long after their dispossession without being considered repugnant or involved in foul play before the world. The point is, “. . . All mankind look upon those wars as unjust, which are made for recovery of countries [especially] wherein people have settled quietly for many ages. . . .” Grotius wrote that, “. . . Princes are far from deserving Commendation, who, to the great Damage of the State, and frequently with the Blood of an innocent People, ambitiously strive for the [restoration of their] Government.” He also wrote, “A Civil war is worse than the necessity of submitting to an unlawful Government [that acts halfway decently most of the time].” International law does not encourage, nor require armed action for the retention of non-territorial royal and/or sovereign rights for the unlawfully dispossessed. However:
According to international law, there is no way for a government in exile [or deposed monarch] to obtain legitimacy other than by returning to its “original location” and reasserting its governance there.
This is another way of saying that the deposed are set up for failure as virtually all avenues of redeeming or recovering their claim are effectively denied to them. Nevertheless, by rules of what is truly just and equitable, forfeiture of the internal right to rule, through prescription, cannot be applied to the deposed who have no legal options but to object by ineffective means. All that can be ethically and morally required of them is to make the public protest as appropriate and by consistently employing their dynastic titles, arms, and claims. Such “Protests are sufficient to avoid prescription . . .” – prevent the loss of sovereignty and royalty – especially when “it is not possible” for them to do anything else. For a deposed monarch, retaining one’s “title and arms” is the recognized “protest” and it provides an unmistakable notification to the world that those rights are not, in any way, given up, surrendered, or abandoned.
Emerich de Vattel’s mentor, the German philosopher-baron Christian Wolf (1679-1754), wrote that not only does “Immemorial prescription belongs to the laws of nature,” the highest laws on earth upon which all true laws are created, but he declared that this is what saves and preserves internal de jure sovereignty for the deposed king and his legitimate heirs. It is exactly the same thing as described by Vattel, previously quoted, who declared that:
If anyone sufficiently declares by any sign that he does not wish to give up his right, even if he does not pursue it, prescription does not prevail against him. . . . If any sufficiently declares by any sign [for example, use of royal titles and symbols of sovereignty] that he does not want to give up his right, even if he does not pursue it [does not go to war over it], prescription [or loss] does not avail against him.
In other words, the head of the royal house preserves and safeguards his family’s most sacred entitlements or rights by this means.
Hence it is generally said that one’s right is saved by protesting. Here likewise belongs the case of one who, being unwilling to give up the right of sovereignty [and royalty], claims the title and royal insignia, although [or even though] he does not possess the kingdom. (emphasis added)
[In other words] one who, being unwilling to give up the sovereignty, [must] claim the title and royal insignia. . . . It is undoubtedly wise that the one who wishes to preserve his right, and does not wish to give it up, should give plain indications of his desire, so far as is in his power. (emphasis added)
The whole point is, “Prescription does not prevail against him,” or his legitimate successors, if they sufficiently and clearly declare their claim so there can be no misunderstanding or mistake about it. Protests, whether directly or by use of the title and arms of a kingdom or principality, must take place, because:
. . . silence . . . presumes their acquiescence: and their acquiescence [or implied consent] presumes a defect of title on their part, or an abandonment of their title. A title once abandoned whether tacitly or expressly, cannot be resumed.
It is a very serious thing to remain silent or fail to protest, because:
The principle of prescription rests [primarily] on silence as an implication of consent, but there can be no implication of consent when dissent [that is, a protest] is explicit [that is, made obvious and undeniable].
In a 1933 arbitration, the Legal Status of Eastern Greenland and Fisheries Case, the tribunal findings and conclusions were that protests were again proclaimed as sufficient and adequate to preserve the rightful claim to the territory – along with the internal, de jure non-territorial right to rule the land. For deposed monarchs and governments-in-exile, this means that their existence and visibility must remain constant, consistent, and obvious. For a deposed monarchy, when appropriate, recognizing worthy individuals with knighthoods and other decorations or honors at their command further confirms their royal sovereign status as active members of the international community and as rightful heirs to their former de facto thrones. Other actions that indicate a lack of acquiescence or agreement with the usurpation could be giving addresses to interested audiences as rightful heirs, creating a museum demonstrating the symbols, special achievements, and unique history of their royal house, writing a book on the dynasty’s history and the successor’s rights, making clear and unmistakable declarations, etc. It must be unquestionable and self-evident to all that abandonment has never taken place to be truly safe against the very real threat of the legal extinction of rights. Vattel, one of the most important of the founders of international law, wrote:
. . . Immemorial prescription [long possession of a territory for over 100 years] secures the possessor’s right [the current de facto sovereign’s right to rule without question and it is] beyond the power of [loss or legitimate challenge] . . . for, it affords a legal presumption that he [the current ruling government] is the [true and rightful] proprietor, as long as the adverse party [the de jure claimant] fails to adduce substantial reasons [or adequate evidence of protest] in support of his claim: and, indeed, [how could such] . . . be derived, since the origin [all proof] of the possession is lost in the obscurity [or uncertainty of the distant past and no longer exists] . . . [that is, all] means of proving [it valid has been] . . . destroyed by time. . . .
Vattel also declared:
It is for the claimant to prove his right, for he must show the justice of his claim to a thing which he does not possess. He must have a title [proof of ownership], and his title need not be respected unless its validity is proved. Hence the possessor [the usurper] may remain in possession until it is shown that his possession is unjust. So long as that is not done he is justified in maintaining his possession. . . .
Proof is extremely important. One must be able to prove that one never abandoned one’s rights. Hence, public protests that become part of the historic record are of the greatest value because they become public and official, not merely private family records. Any act of sovereignty, like honoring a person with acceptance into a dynastic order of chivalry in the name of one’s former kingdom, must be kept. Records must show that titles were used consistently in every generation without lapse. There must be no doubt as to the claim to make sure the protest is effective, that it was consistently maintained, and that it is alive and well. If the proof is missing or the only evidence available is from doubtful sources, such as, private family records, which amount to hearsay and could have been fabricated, made up, then sovereignty, if it ever existed, is irrevocably lost. In other words, after one hundred years of public neglect, desertion, or dereliction in regard to this public obligation to provide irrefutable proof, all rights to make a claim is forfeited by immemorial prescription, and no proof after that period of time is admissible or acceptable. That is, “. . . one-hundred years of usage, or possession, do[es] suffice [is sufficient] to determine [finalize or completely end] the controversy.”
No documented record means that there is no proof or evidence that the claim was not neglected, waivered, ceded, renounced, or abandoned in the past. Hugo Grotius declared that outside of any court, but before the world, “. . . unless he [a deposed sovereign] has declared and proved it [that he has protested properly and effectively] by some express and visible act,” the claim is dead. Proof before the world is required under the rules and principles of prescription or loss is certain and inevitable. Some claimants who only have family records and nothing public to demonstrate the validity of their claim are at a grave disadvantage. History that is contestable is also insufficient or inadequate to support a valid and viable claim. Every effort must be made to ensure that there is absolutely no doubt as to a claim. This is not merely advisable – it is necessary. The best evidence is from official public records that cannot be denied or altered.
In full accord with the requirements of prescription, the following are some examples of formal protest:
. . . Louis XVIII . . . [made] a proclamation . . . when Napoleon crowned himself Emperor. Louis demanded, on the day of the coronation, to succeed to the throne of his ancestors by right of “legitimacy.” “Never will we compromise the inheritance of our fathers,” he announced, “never will we abandon our rights.”
Another example is demonstrated in its heading:
The PROCURATION /or making the necessary Protestation, for barring Prescription and Prejudice of the Rights of the Sieur d’Aix, to the Principality of Orange.
It was to stop prescription. He claimed “an indisputable right to the Principality of Orange” even though he was unlawfully deprived of it.
The following is a good example of a public protest given by another deposed Royal House. This took place in Paris on July 16, 1748, from Charles Edward Stuart, popularly known as “Bonnie Prince Charlie” (1720-1788), “To all Kings, Princes, Republiques:”
No one is ignorant of the Hereditary Rights of Our Royal House to the Throne of Great Britain. . . .
For these causes, authorized by the Examples of Our Most Honoured Grandfather, and Our Most Honoured Lord and Father; We . . . PROTEST in the Most solemn Manner, and in the best Form that may be done, against all that may be said, done, or stipulated, in the Assembly now held at Aix-la-Chapelle, or in any other Assembly, which in Consequence thereof may be held in any other place, to the Prejudice or Diminution of the Lawful Rights of Our Most Honoured Lord and Father, of Our Own, or those of the Princes or Princesses of Our Royal House that are or shall be born. . . .
We reserve to Ourselves all Our Rights and Actions, which remain safe and entire.
Responding to Korea’s occupation of Dokdo since 1952, “[O]nce every year, Japan sends a protest note rejecting South Korea’s claim to ownership . . . ,” which protest means Korea cannot make a claim of sovereignty based on prescription or uncontested rule for every year it sends a notice of complaint and disapproval.
The use of titles and this kind of protest would stop any prescriptive claim or legal loss of de jure internal sovereignty. The above protests made it plain and obvious to all the world that non-territorial sovereign has not been abandoned. The Royal House of Stuart perpetuated their lawful internal right to rule and kept the right intact.
Unfortunately for the House of Stuart, the last male direct descendant, Cardinal York (de jure Henry IX of England), sold his regal rights to the English usurping dynasty and no descendent objected; therefore, by natural law, all internal rights were terminated and the English crown was fully and completely legitimized. This was further sustained and ratified by the fact that all the other rightful branches failed to protest or in any way assert the Stuarts’ claims by using the royal titles and sovereign arms of the House of Stuart.
This kind of failure never took place for the Royal House of Hawaii. The following royal heirs to the sovereign majesty and beauty of this land never failed to publicly and consistently use their titles and arms as the symbols of their legitimate claim. In other words, they have collectively maintained and kept the royal prerogative alive and well in full accord with public international law. Thus, they hold all the regal privileges of rightful and true sovereign princes. They are the only rightful holders of the supreme or highest secular authority on earth for the Kingdom of Hawaii, which is an exclusive entitlement. No one else holds this right or shares in it except as delegated by them. The real heroes who have maintained internal non-territorial sovereignty for the Kingdom of Hawaii all these years are its royal family. The Royal House of Kawanankoa has the supreme lawful right to the throne. They, not the so-called Hawaiian government-in-exile, have successfully continued the great honors of sovereignty to the present day by obedience to the rules and rights inherent in the natural law principles of prescription, which preserves the right of sovereignty in international public law.
Objections to the Hawaiian Claim and Conclusion:
However, we need to examine three objections to this claim of internal de jure sovereignty so that it can be seen that there is legal certainty in this matter. One objection is Her Majesty Queen Liliuokalani’s abdication. As an answer to this, Francis Anthony Boyle, a professor of International Law, explained:
We then come to the very famous statement by your Queen. “That I yield to the superior force of the United States of America,” and you are aware of the rest of the language. Well, she made it very clear here that this statement and her later abdication was procured under duress and force. In other words, it could not be treated by anyone as a valid surrender of sovereignty by the Native Hawaiian people at all. And she made that very clear in this language. So in other words she was simply bowing to superior power, but not as a matter of right or of law.
Abdication simply does not dissolve a monarchy, nor does it destroy the sovereign rights of a kingdom or principality. As Textor wrote, if those who have acted as traitors have:
. . . asserted [their] liberty as against its King or Prince without just cause, and it can not, without his [or her voluntary and not forced] consent and [obtained] an abdication [given without threat or duress], on . . . [the right to rule] his former dominion, [that is, such a usurper cannot] attain the legal position of complete independence. . . .
That is, its title of sovereignty is incomplete, as the unjustly dethroned house still holds valid, de jure, internal, non-territorial sovereignty over the land and its people. In addition, as Austrian Emperor Francis II wrote to Czar Alexander, “A prince . . . if he abdicates then his rights are passed on to his legitimate heirs.” That is, it merely passes all royal rights and privileges to the person next in line to succeed to the royal crown. Hugo Grotius made this clear. A father’s abdication:
. . . cannot hurt his Children who are already born, because as soon as . . . the Children are come into the World, they acquire a Right of their own by Law. . . . The Difference between the Children born before the Abdication, and those who were born after, is this, those who were born after had not then acquired their Right; and therefore it might be taken from them [because they do not have an authentic or genuine royal birthright]. . . .
So the abdication is not a barrier to rightful non-territorial sovereignty in the Kingdom of Hawaii or any other kingdom for that matter when it was forced or involuntarily achieved.
The next objection is what is contained in the 1864 Constitution of Hawaii:
ARTICLE 22. The Crown is hereby permanently confirmed to His Majesty, Kamehameha V, and to the Heirs of His/Her body lawfully begotten, and to their lawful Descendants in a direct line; [he died childless] failing whom, the Crown shall descend to Her Royal Highness the Princess Victoria Kamamalu Kaahumanu, and the heirs of his/her body, lawfully begotten, and their lawful descendants in a direct line. [she died childless]. The Succession shall be to the senior male child, and to the heirs of his body; failing a male child, the succession shall be to the senior female child, and to the heirs of her body. In case there is no heir as above provided, then the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life; but should there be no such appointment and proclamation, and the Throne should become vacant, then the Cabinet Council, immediately after the occurring of such vacancy, shall cause a meeting of the Legislative Assembly, who shall elect by ballot some native Alii [tribal chiefs] of the Kingdom as Successor to the Throne; and the Successor so elected shall become a new Stirps for a Royal Family; and the succession from the Sovereign thus elected, shall be regulated by the same as the present Royal Family of Hawaii.
ARTICLE 23. It shall not be lawful for any member of the Royal Family of Hawaii who may by Law succeed to the Throne, to contract Marriage without the consent of the Reigning Sovereign. Every Marriage so contracted shall be void, and the person so contracting a Marriage, may, by the Proclamation of the Reigning Sovereign, be declared to have forfeited His or Her right to the Throne, and after such Proclamation, the Right of Succession shall vest in the next Heir as though such offender were Dead.
ARTICLE 24. His Majesty Kamehameha V, will, and His Successors upon coming to the Throne, shall take the following oath: I solemnly swear in the presence of Almighty God, to maintain the Constitution of the Kingdom whole and inviolate, and to govern in conformity therewith.
The objection is that the Constitution did not provide guidance or direction on what to do with royal succession if the kingdom were occupied and the constitution was put into abeyance. The general principles, that provide an answer to this question have been discussed in Chapter II. It is simply this – under international law, a government and/or monarch-in-exile is deemed to have all the implied constitutional power to flexibly do whatever is needed. The former limitations of the constitution have little or no power to stop the continued functioning of a legitimate dispossessed monarch, his or her lawful successors, or a government-in-exile. The right to preserve the royal house and its regal rights and privileges is fully intact even though deposed. However, to safeguard those rights under the rules and principles of prescription, the royal house must continue to consistently protest and/or use their exalted titles and the symbols of their national supremacy in every generation to protect and secure the royal prerogative to their heirs in perpetuity as a hereditary and unending right.
The third objection revolves around a controversy in the Royal House. Starting with the last King, His Majesty King Kalakaua (1836-1891) reigned from 1874 to 1891. He and his wife had no children. He made his sister, Her Royal Highness Princess Lili’nokalani (1838-1917), the Crown Princess on April 10, 1877, to succeed him as monarch of the Hawaii Islands in full harmony and compliance with the supreme law of the land. She began her reign in 1891. The Kingdom was illegally and unlawfully taken from her under direct protest and under threat of violence in 1893. She was childless, but His Majesty King Kalakaua, before his death had appointed a succession of a second and third heir to the throne in case of any unforeseen problems in the monarchy. His Royal Highness Prince David Kawananakoa (1868-1908) was third in line for the throne after HM Queen Lili’nokalani and Her Royal Highness Princess Ka’iulani. Princess Ka’iulani, the first in line after the Queen, left no children and died in 1898. Prince David was then declared to be the Heir Apparent to the throne on March 6, 1899 by HM the Queen. He passed away in 1908 and, since males have a greater right than females within the historical kingdom of Hawaii, his only son His Royal Highness Prince Edward D. Kawananakoa (1904-1953) was declared Heir Apparent in 1908 and succeeded the Queen in 1917 as head of the Royal House of Kawananakoa or the de jure non-territorial monarch or king of the Kingdom of Hawaii. After Prince Edward died on May 20, 1953, without issue, the Royal House split between his two sisters, HRH Princess Abigail and HRH Princess Lydia. Thus, the important argument became a matter of who was the true and rightful heir and head of the Royal House.
Abigail, being the oldest daughter of HRH Prince David and the sister of the head of the royal house, Prince Edward would naturally be recognized as first in line. There was, however, a rumor, real or unreal, spread that she was illegitimate. Others have presented evidence that she was rightfully born. The charge of illegitimacy is a common accusation, ploy, or maneuver used in royal families where competition for the highest honor is particularly keen. The rumor may have been fabricated by those who were for Lydia, the younger sister of both Prince Edward and Princess Abigail, in order to win the support of the people. It may have come from the fact that Princess Abigail was adopted out of Prince David’s family by her non-royal great-grandparents, which secured to her a better financial inheritance and thereby gave both Prince Edward and Princess Lydia a greater portion of all that Prince David had to pass on. However, according to Prince David’s will, he acknowledged Princess Abigail as his very own child. Normally, adoptions change the legal rights of a child, but it appears this that was solely for financial reasons and did not change the fact that Princess Abigail was his daughter and a royal heir. For example, Princess Lydia’s only child was also adopted by her great-grandmother, HRH Prince David’s wife, who had no succession rights after Prince David’s death, to make this royal princess become a part heiress of the Campbell’s financial fortune. Thus, it appears obvious that adoptions had no impact on succession in the minds of the Royal House. What mattered according to the Constitution is that they were actual royal descendants of the acknowledged Heir Apparent to the throne. HRH Princess Abigail became the regent of the “Hale o na Alii o Hawaii” in 1945, that is, the ruler of the House of the Chiefs of Hawaii, the high nobles of the kingdom, which had the right to choose a successor in case there were no lawful descendant of the Royal House in existence. This is the specially-empowered group was constitutionally powerful and made David Kalakaua the King of Hawaii in 1874 since the former line had become extinct and no collateral lines had royal authority to succeed. King Kalakaua was childless and therefore to stop the election of kings, which is granted under the constitution, he made, as mentioned earlier, his sister Princess Lili’nokalani his heir apparent, which he had a right and obligation to do by the constitution or supreme law of the kingdom.
Because of the 1953 argument, there are presently two major claimants to the throne of Hawaii:
(1) Princess Abigail K. Kawananakoa, the oldest daughter of the Crown Prince David, had three children. Her firstborn and only son, HRH Prince Edward A. Kawananakoa (1924-1997) was considered by many as the next Head and Chief of the Royal House. He had eight children. Of them, Prince Edward J. (born 1945) was skipped because of his severe disability; Prince David C. (born 1954) renounced his right to the throne, which left His Royal Highness Prince Quentin Kuhio Kawananakoa (born 1961) as Heir and Head of the Royal House of Hawaii.
(2) Princess Lydia had one daughter HRH Princess Abigail K. K. Kawananakoa (born 1926). As explained, she was adopted by her grandmother, who had no succession rights to enable her to carry the royal name and to make her the financial heiress of her grandmother’s estate. She is the other main claimant for the right to be the Heir and Head of the Royal House of Hawaii. She has an adopted son, but rightful heirs for succession are to be biological offspring only according to the succession laws of the constitution. Also, one of the founders of international law, Jean J. Burlamaqui, concurred. He made it very clear that, “Adopted children, not being of the royal blood, are also excluded from the crown. . . .”
Her adoptive son may be qualified by adoption to be a royal prince by virtue of the legal rights of this adoption, but not an heir to the throne. All successors must be biological offspring unless appointed to the throne by the House of Nobles, and this cannot take place unless there are no rightful heirs in existence.
The breach of having two claimants will therefore evaporate with the death of HRH Princess Abigail K. K., as she has no biological children and the only remaining direct line descendant of those who last had held the lawful right of sovereignty is HRH Prince Quentin Kawananakoa and his children. But it does not matter who is the rightful heir at this point; what matters is that sovereignty was maintained and perpetuated. Nevertheless, the true and rightful heir should be recognized as the only lawful holder of the right to rule this great land.
The question of how long a “de jure” king [or rightful successors] may continue in this status [the status of being a deposed, non-territorial sovereign] is answered in Textor’s “Synopsis Juris Gentium,” which says that the “de jure” sovereign in exile retain their status as long as they do not surrender their sovereignty to the “de facto” government. . . . The article says that a dispossessed dynasty may keep its claims alive by filing diplomatic protests against the usurpers, which the Stuarts did every generation and/or with every Hanoverian succession as required by international law, and, that a claim is deemed abandoned only when the protests cease. . . . Only when such protests cease does a prescription arise against the “de jure” rights of a legitimate claimant. . . .
Three other claimants exist for the Hawaiian throne: Noa Kalokuokamaile DeGuire, Akahi Nui and Owana Wilcox, but none of their ancestral lines fulfilled the requirements of consistently using royal titles and the national symbols of sovereignty. Neither of these claimants qualifies because of the above mentioned violations of the rules and principles of prescription, which preserves such rights.
Protest has as its primary purpose the preservation of the rights of the protesting State [or a deposed monarchy or government in exile]. . . . [However] it must be . . . continuously repeated [like the consistent use of sovereign royal titles and arms by a dispossessed monarch or his rightful heirs] against [the] continued illegal practice [of the usurper].
If these protests are not made, and if the rights are deserted by sheer neglect, such dereliction justly deprives a family guilty of such of all their regal entitlements. These rights are then legally and juridically transferred to the usurper after the specified period of time.
Frequently people get the wrong idea that just because they have some royal ancestors, they too must be royal and hold all rights and privileges of sovereignty. This is a myth and is so farfetched that there is no need to discuss it. There is only one Hawaiian family that has been in full accord with the international law governing the preservation of dispossessed non-territorial sovereignty, and that is the Royal House of Kawananakoa. Thanks to this one family and their determination to preserve the glory, honor, rights and privileges of true non-territorial sovereignty and the royal prerogatives that go with it, it still exists in all its fullness. “. . . The occupying power [the United States government] may obtain de facto sovereignty [sovereignty ‘in practice’ or ‘in fact’], but the ousted sovereign retains it de jure [that is, ‘in principle’ and ‘in law’].” In other words, the royal house has a solid claim of concrete value and worth. It is a conclusive right that deserves to be recognized and acknowledged worldwide.
 Robert Jackson, Sovereignty: Evolution of an Idea, 1988, pp. 10-11.
 Robert G. Hamerton-Kelly, “The King and the Crowd,” Contagion 3, 1996, p. 68.
 Sources of Japanese Tradition, vol. 2: part 2: 1868 to 2000, Carol Gluck and Arthur E. Tiedemann, eds., 2006, p. 162.
 Ibid., p. 82.
 Article 9: “On the Temporal Sovereignty of the Pope,” The North British Review, American ed. vol. 6, May and August 1849, p. 143.
 Current History, Inc., Current History and Forum, vol. 17, 1923, p. 436.
 J. Gillis, The True Witness and the Catholic Chronicle, vol. 12, no. 223, G. E. Clerk, ed., July 18, 1862, p. 4.
 H. L. Strack and P. Billerbeck, Kommentary Zum Neuen Testament, vol. 1, 1922-28, p. 736.
 G. Kittel, Theologisches Warterbuch zum Neuen Testament, vol. 3, 1935, p. 751.
 Henry Cardinal Manning, Miscellanies and Independence of the Holy See, 1880, p. 783.
 Ibid., p. 785.
 Pope Leo XIII, Encyclical Immorta1e Dei [a circular letter sent to all churches of a particular area], November 1, 1886; Hyginus Eugene Cardinale, The Holy Sea and the International Order, 1976, pp. 79-80, 82.
 Henry Wager Halleck, International Law: or, Rules Regulating the Intercourse of States in Peace, vol. 1, 1878, p. 222.
 Frank E. Holman, “Treaty-Law Making,” ABA Journal, vol. 36, September 1950, p. 708.
 Robert A. Graham, S. J., Vatican Diplomacy: a Study of Church and State on an International Plane, 1959, p. 219.
 Ibid., p. 210.
 Ibid., p. 214.
 Henri Daniel-Rops, A Fight for God, 1870-1939, vol. 1, 1966, p. 150-151.
 Robert A. Graham, S. J., Vatican Diplomacy: a Study of Church and State on an International Plane, 1959, pp. 233-234.
 Ibid., pp. 226-227.
 Ibid., p. 218.
 Ibid., pp. 243-244.
 Bilateral and Multilateral Relations of the Holy Sea (31/05/2007) 2011: http://www.vatican.va/news_services/press/documentazione/documents/corpo-diplomatico/corpo-diplomatico_stati_elenco_en.html.
 R. C. Hingoranj, Modern International Law, 1984, p. 193.
 Robert A. Graham, S. J., Vatican Diplomacy: a Study of Church and State on an International Plane, 1959, p. 244.
 Ibid., pp. 215-216.
 Ibid., p. 221.
 Ibid., p. 225.
 Ibid., p. 218.
 Ibid., p. 241.
 Timothy Lincoln Bouscaren, Adam Charles Ellis & Francis N. Korth, Cannon Law: a Text and Commentary, 1966, p. 872.
 Robert A. Graham, S. J., Vatican Diplomacy: a Study of Church and State on an International Plane, 1959, p. 237.
 John Penford Thomas, A Treatise of Universal Jurisprudence, Book II, chapter 10, no. 27, 1829, p. 301.
 Bruno Bernhard Heim, Heraldry in the Catholic Church: its Origin, Customs, and Laws, 1978, p. 46.
 Henry Wager Halleck, Halleck’s International Law, 3rd ed., Sir Sherston Baker, ed., 1893, vol. 1, p. 119.
 Salvatore Cortesi, My Thirty Years of Friendships, 1927, p. 213.
 Any question concerning the legitimacy of what represents itself to be an “Order of St. John” or “Knights of Malta” should be addressed to the Grand Chancellor of the Sovereign Military Order of Malta, Palazzo Malta, 68 via Condotti, Rome, Italy. One can also go to the website of the International Commission on Orders of Chivalry at www.icocregister.org.
An interesting expose of various false “orders of St. John” and other bogus “orders of knighthood” may be found in The Knightly Twilight by Lt. Col. Gayre of Gayre & Nigg, Chief of the Scots Gayre Clan. It is available for $4.00 from either, The Hartwell Company, 1617 West 261st St., Harbor City, California 90710, or The Armorial, 1 Darnaway Street, Edinburgh 3, Scotland. It is useful as a guide to questionable chivalric orders and titles.
 It is more than a footnote to the history of international law that the Universal Father as Head of the Christian Church from time to time conferred grants of sovereignty on various Christian Nations by erecting them into Kingdoms:
The Holy Roman Empire was created from the ashes of the old pagan Roman Empire by the Pope when he crowned Charlemagne as Holy Roman Emperor; the Hungarian nation dates its sovereignty from the Bull of Pope Sylvester II of 27 March 1000 creating Hungary a Kingdom under St. Stephen with the title of Apostolic Majesty and presenting the famous Holy Crown to the Hungarian nation; Portugal’s existence as a nation dates to the Bull of Alexander II I of 23 May 1179 creating Alfonso I and his successors Kings of Portugal; Pope Innocent III conferred sovereignty on the Bulgarian nation in 1204 when he erected Caloioannis as King of the Bulgars and sent a papal legate to crown him in February of that year, authorizing the Archbishop of Trnovo to perform future coronations; in the same year the Pope also erected Bohemia into a kingdom and bestowed its crown on a prince; and on 7 June 1555 Pope Paul IV erected Ireland into a Kingdom for Queen Mary I of England and her King-Consort, Philip II of Spain. That is, this was at one time considered to be the right of the Papal Office.
 Since this time there have always been very cordial relations between the SMOM and the reigning Imperial House of Romanoff. For example, Emperors Alexander I and Nicholas I and Alexander III were Bailiff Grand Crosses of the SMOM, as were the martyred Nicholas II and the Grand Duke Wladimir, who was one of the claimants to be Chief (de jure Emperor) of the Imperial House of Romanoff.
 Whitworth Porter, History of the Knights of Malta, 1858, p. 491.
 Diplomatic Activity 2011: http://www.smom-colombia.org/Info_SMOM/en_activities_Diplomatic.htm.
 Whitworth Porter, History of the Knights of Malta, 1858, p. 700.
 Grand Magistry of the SMOM, A Modern Crusade: The Sovereign Military Hospitaller Order of St. John of Jerusalem ot Rhodes and of Malta, 1965, p. 17.
 Lassa Oppenheim, International Law: a Treatise, 3rd ed., Ronald F. Roxburgh, ed., vol. 1, 2005, p. 162.
 Ibid., p. 6.
 Animadversiones e voto dell’Ecc, mo Promotore di iustizia, vol. 24, June 1952 , p. 29.
 Arthur C. Breycha-Vaurhier and Michael Potulicki, “The Order of St. John in International Law: A forerunner of the Red Cross,” American Journal of International Law, 1954, pp. 554-555.
 Nanni v. Pace and the Sovereign Order of Malta, Foro Italiano, 60 (1935), I, 1485; Annual Digest, 1935-37, Case No. 2.
 C. D’Oliver Farran, “The Sovereign Order of Malta in International Law,” International and Comparative Law Quarterly, vol. 3, April 1954, pp.217, 229.
 Grand Magistry of the SMOM, A Modern Crusade: The Sovereign Military Hospitaller Order of St. John of Jerusalem ot Rhodes and of Malta, 1965, p. 10.
 Op.cit., C. D’Oliver Farran, p. 224.
 Op.cit., Nanni v. Pace and the Sovereign Order of Malta.
 Op.cit., Grand Magistry of the SMOM, p. 8.
 Ibid., p. 20.
 Op.cit., Nanni v. Pace and the Sovereign Order of Malta.
 Op.cit., Grand Magistry of the SMOM, p. 11.
 Robert A. Graham, S. J., Vatican Diplomacy, pp. 217-218.
 Details on the passport of the Sovereign Order can be found in British Yearbook of International Law, vol. 3, 1968-1969, p. 209, p. 214.
 It is interesting to note that the Sovereign Order maintains its own Order of Merit as a decoration distinct from membership in the Sovereign Order. The SMOM was able to create its own chivalric Order of Merit because as a sovereign in its own right it possesses fons honorum or the right to be a Fountain of Honor (which allows it to create orders of chivalry, bestow titles, and grant coats-of-arms or untitled nobility). This is surely the only case on record of an order of knighthood maintaining its own subsidiary order! Diplomats jointly accredited to the SMOM usually receive the Order to Merit along with the Order of Pius IX, the papal diplomatic order.
 Revista de 1a Facultad de Derecho, Alberto B. Toledo, ed., note 35, 1949, p. 126.
 Edgar Erskine Hume, Medical Work of the Knights Hospitallers, 1940, p. 255.
 Henry Baron de Fischer, “The Sovereign Order of Malta,” The Military Surgeon, vol. 66, June 1930, pp. 823-830.
 Actes de la Conference diplomatique convoquee par le Conseil Federal Suisse pour revision de la Convention pour l’amelioration du sort des blesses et malades dans les armees, 1929, pp. 62-64, 133, 367-378, 414-415, 606.
 Op.cit., Edgar Erskine Hume, p. 257.
 Op.cit., Nanni v. Pace and the Sovereign Order of Malta.
 It is of interest to note that the United States has had official communication with the Sovereign Order in the past. In 1794 the Charge d’Affairs of the SMOM in Paris wrote to James Monroe, American Minister to Paris, proposing a treaty with the United States offering the protection of the harbors of Malta to the United State’s navy, which was then warring against the Barbary Pirates. Monroe reported this eagerly to the State Department. (Edgar Eskrine Hume, “The Proposed Treaty of Alliance between the Sovereign Order of Malta and the United States,” William and Mary College Quarterly, 2nd series, vol. 16, pp. 222-223).
The United States has had full diplomatic relations with the Holy See since 1984. It would be most appropriate to likewise enter into diplomatic relations with the Sovereign Order, and there is no reason why the President’s personal representative to the Vatican could not now be accredited to the Sovereign Order in a similar capacity. Surely, there are no two sovereign institutions in the world with a greater historical and personal commitment to America’s mission to defend Western Civilization than the Holy See and the Sovereign Order. In a day when it has become “chic” to fawn over communist aggression by Russia, China, Cuba, and North Vietnam, it would be fitting to give at least equal consideration to one’s friends who have proven their devotion to the Western cause through centuries of spiritual and temporal combat.
 Op.cit., Grand Magistry of the SMOM, p. 5.
 Lettera Circolare, February 5, 1952.
 Aurthur C. Breycha-Vauthier,”Order of St. John in International Law,” The American Journal of International Law, vol. 48, no. 4, October, 1954, pp. 561-562.
 Whitworth Porter, History of the Knights of Malta, 1858, p. 491.
 C. A. Pasini-Costadoat, “La Personalidad International de la Soveran Militar Orden de Malta,” La Ley, 11 April 1948, p. 3.
 The Sovereign Order’s complete neutrality in executing this mission is aptly illustrated by the fact that it maintained bilateral diplomatic relations in the past with such dictatorial states as Franco’s Spain and Castro’s Cuba.
 J. King, The Knights Hospitallers in the Holy Land, 1931, p. 1.
 Whitworth Porter, History of the Knights of Malta, 1858, p. 491.
 Grand Magistry of the SMOM, A Modern Crusade: The Sovereign Military Hospitaller Order of St. John of Jerusalem ot Rhodes and of Malta, 1965, p. 10.
 Lt. Col. Robert Gayre of Gayre and Nigg, The Heraldry of the Knights of St. John, 1956, p. 109.
 Op.cit., Grand Magistry of the SMOM, p. 8.
 Ibid., pp. 8-9.
 Ibid., p. 9.
 Whitworth Porter, History of the Knights of Malta, 1858, pp. 497-498.
 reference unknown.
 Emerich de Vattel, The Law of Nations, Book II, Chapter II, Nos. 145-146.
 Heraldry of the Order, 2011: www.heraldica.org/topics/orders/ordmalta.htm.
 Johann Wolfgang Textor, Synopsis of the Law of Nations, 1680, chapter XX, no. 18(4); Note: “The sovereignty of the state remains vested in the legal sovereign, even though it is in exile,” Conference on Peace Research in History, Power and Law: American Dilemma in World Affairs, September 1968, Charles Albro Baker, ed., 1971, p. 152).
 Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, vol. 1, part 2, chapter 3, no. 7.
 Guglielmo Ferrero, The Reconstruction of Europe, 1941, p. 140.
 Philip Marshall Brown, “Sovereignty in Exile,” American Journal of International Law, vol. 35, 1941, pp. 666-668 and Emerich de Vattel, The Law of Nations, Book II, Chapter II, Nos. 145-146; Note: History is filled with claims to sovereignty in international law being kept alive by diplomatic protest and the continued use of titles and national arms under the rules of prescription: the Jacobites of Scotland, Carlists of Spain, Miguelists of Portugal, Nationalist Free China-in-exile on Formosa, and the three Baltic Republics following the 1940 Soviet usurpation are examples.
 Sovereign Order of Malta v. Soc. An Commerciale, Italy, Tribunal of Rome, November 3, 1954 in Elihu Lauterpacht, International Law Reports, vol. 22, 1958, pp. 2-3.
 International Campaign for Tibet, “UN General Assembly Resolutions,” 2012: www.savetibet.org/policy-center/un-general-assembly-resolutions.
 Tibet – New Report: “The Question of Tibet and the Rule of Law. 24th July 1959” and Inquiry Committee, Tibet and Chinese People’s Republic, Geneva: International Commission of Jurists, 1960, pp. 5-6.
 Claudia Johnston, TIBET – The International Mistake of the Century, 2011: www.friends-of-tibet.org.nz/mistake-of-the-century.html.
 Yearbook of the International Law Commission, 1971, Vol II, Part II, page 16 & Ibid.
 Tibet Justice Center, 2011: www.tibetjustice.org/reports/sovereignty/independent/e/index.html.
 Ian Brownlie, The Reality of International Law: Essays in Honour of Ian Brownlie, Guy S. Goodwin-Gill, Stefan Talmon, eds., 2003, p. 521.
 “Recognition, as a public act of state, is an optional and political act and there is no legal duty in this regard.” (Ian Brownlie, Principles of Public International Law, 1966, pp. 94, 90-93.
 Stefan Talmon, “Recognition of States and Governments in International Law,” Azerbaijan Diplomatic Academy – Biweekly, vol. 1, no. 19, November 1, 2008.
 Boleslaw Adam Boczek, International Law: A Dictionary, 2005, p. 102.
 Ernst Wolff, “The International Position of Dispossessed Governments at Present in England,” The Modern Law Review, vol. 6, no. 4, December 1943, p. 208.
 Emer de Vattel, The Law of Nations, Book IV, chapter 2, no. 14.
 General View of the Political State of France, and of the Government of Louis XVIII, 1815, p. 9.
 Hedley Bull & Andrew Hurrell, The Anarchical Society: A Study of Order in World Politics, 3rd. ed., 2002, p. 8.
 Donald W Potter, “State Responsibility, Sovereignty, and Failed States,” Refereed paper presented to the Australasian Political Studies Association Conference University of Adelaide, 29 September-1 October 2004, pp. 11-12.
 Eric Brahm, “Sovereignty,” September 2004: www.beyondintractability.org/essay/sovereignty
 Emerich de Vattel, The Law of Nations, Introduction, no. 9.
 Ibid., no. 21.
 Conference on Peace Research in History, Power and Law: American Dilemma in World Affairs, September 1968, Charles Albro Baker, ed., 1971, p. 152.
 Ian Brownlie, The Reality of International Law: Essays in Honour of Ian Brownlie, Guy S. Goodwin-Gill, Stefan Talmon, eds., 2003, p. 521.
 Anthony Aust, Handbook of International Law, 2005, p. 25-26.
 Emerich de Vattel, The Law of Nations, Book II, ch. XI, no. 141; Note: “[Prescription consists of a possession of a country or territory for a long period of time, which possession is] uninterrupted and undisturbed implying full acquiescence on the part of the . . . disposed claimant, which in theory serves to rob it of its rights [by being guilty of dereliction and neglect] and to lodge them [all sovereign rights] in the actual [de facto] occupant.” (Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United, vol. 1, 1922, p. 116).
 Boleslaw A. Boczek, International Law: A Dictionary, 2005, p. 35.
 Ibid.; Note: “[Prescription] is based on the assertion by a usurper of an adverse right for such a long time, uncontested by the true owner of the right, as to give rise to the presumption that the latter has given up such right in favor of the former.” (Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 4, 1974, p. 2).
 Dinesh Lal, Indo-Tibet-China Conflict, 2008, p. 115.
 Julian H. Franklin, Bodin on Sovereignty, 2004, p. 112; Note: “Prescription . . . [becomes] the exclusion of all pretensions to a right [such as being a dynast], an exclusion founded on the length of time during which that right has been neglected, or, according to De Wolff’s definition, it is the loss of an inherent right [to the royal prerogative] by virtue of a presumed consent [or abandonment].” (Sir Travers Twiss, The Law of Nations Considered as Independent Political Communities, 1865, p. 177).
 Oppenheimer, “Governments and Authorities in Exile,” American Journal of International Law, p. 571. & Hersch Lauterpacht, C. J. Greenwood, International Law Reports, p. 559.
 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, vol. 1, 1922, p. 116.
 Hersch Lauterpacht, International Law, Elihu Lauterpacht, ed., 1970, pp. 74-75.
 Samuel Pufendorf, Of the Law of Nature and Nations, Book 4, chapter 12, no. 7, 1710.
 Hersch Lauterpacht, International Law, Elihu Lauterpacht, ed., 1970, pp. 74-75.
 Ramesh Chandra Bisht, International Encyclopaedia Of Himalayas, vol. 5, 2008, pp. 176-177.
 Ernst Wolff, “The International Position of Dispossessed Governments at Present in England,” The Modern Law Review, vol. 6, no. 4, December 1943, p. 215.
 Dawa Norbu, China’s Tibet Policy, 2001, pp. 275-276.
 Tibet will be Free: The Official Blog of Students for Tibet, “Senate Passes Tibet Resolution Unanimously,” 2012: http://blog.studentsforafreetibet.org/2012/03/senate-passes-tibet-resolution-unanimously.
 Permanent Court of Arbitration, “PCA Services,” 2011: www.pca-cpa.org/showpage.asp?pag_id=1028.
 Elihu Lauterpacht and C. J. Greenwood, International Law Reports, vol. 119, 2002, p. 581.
 U.S. Public Law 103-150, November 23, 1993, Legislative History – S.J. Res. 19: Senate Reports: No. 103-125 (Select Committee on Indian Affairs), Congressional Record 139, 1993.
 Melvin E. Page, Colonialism: an International Social, Cultural, and Political Encyclopedia, 2003, pp. 1154-1155.
 Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, vol. 2, part 2, chapter 3, no. 7, p. 74.
 Brian M. Mueller, “The Falkland Islands: Will the Real Owner Please Stand Up,” Notre Dame Law Review, vol. 58, rev. 616, 1983, p. 7.
 R. Y. Jennings, The Acquisition of Territory in International Law, 1963, p. 23; Note: “That the claim or assertion ripens into something worthy of respect is due to the failure of the [original] possessor of that right to make objection for a prolonged period. As the privilege of objection sinks into desuetude [none use], the unopposed claim [of the usurper] acquires strength and gains an acknowledged standing, despite its unlawful beginning.” (Charles Cheney Hyde, International Law, vol. 1, 2nd revised ed., 1947, p. 469).
 Ibid., p. 5; Note: “. . . if a Man [king or sovereign prince], who knows very well that a Thing [a nation or territory in this case] belongs to him, should treat the Person who is in Possession of it, as if he was the true and lawful Proprietor [by acquiescence], he may reasonably be supposed to resign his Right. . . .” (Hugo Grotius, The Rights of War and Peace, Book 2, vol. 2 chapter 4, no. 4) Prescription is built on this obvious fact to the point that after 100 years of such neglect and flagrant abandonment, the forfeiture is legally final and complete.
 Hersch Lauterpacht, International Law: General Works, 1977, p. 164.
 Matthew Craven, “Continuity of the Hawaiian Kingdom,” Legal Brief for the Council of Regency of the Kingdom of Hawaii, 2002, pp. 29-30.
 Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 145.
 Ibid., chapter 3, no. 48.
 Louis Henkin, International Law: Cases and Materials, vol. 1, 1993, p. 323.
 Quoting David John Harris, Cases and Materials on International Law, 1998, p. 212.
 Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 150.
 Willliam Edward Hall, A Treatise on International Law, 7th ed., 1917, p. 121.
 D. W. Greig, “Sovereignty and the Falkland Islands Crisis,” Australian Yearbook of International Law, vol. 8, 1978, p. 45.
 “The Grisbadarna Case between Norway and Sweden,” The Hague Court Reports, Decided October 23, 1909, p. 130.
 Martin Dixon, Textbook on Internaitonal Law, 6th ed., 2007, p. 160.
 “Indian Society of International Law,” The Indian Journal of International Law, M. K. Nawaz, ed., 1983, p. 531; Note: “. . . The rule of the usurper cannot become morally legitimate before the end of two or three generations [66 to 100 years]. After a period of that length, the new government will possess authority by the title of prescription, for time and circumstances have made it clear that the unjustly deposed monarch will never [or is unlikely to] be able to recover his political power.” (John A. Ryan, “Catholic Doctrine of the Right of Self-Government,” The Catholic World: A Monthly Magazine of General Literature and Science, vol. 108, 1919, p. 444.) As will be noted in the law, to this statement must be added the all-important qualifier that the deposed royal house must acquiesce to the new rule by abandoning their rightful claim via implied agreement or implied consent to the new government through silence and/or obvious neglect of the claim. (emphasis added)
 D. P. O’Connell, “International Law and Boundary Disputes,” Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969), vol. 54, April 28-30, 1960, pp. 66-84.
 Robert Yewdall Jennings, The Acquisition of Territory in International Law, 1963, p. 47.
 William R. Slomanson, Fundamental Perspectives on International Law, 6th ed., 2011, p. 300.
 Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 171.
 Frank Ezekiel Holman, Selected Speeches and Articles on American Education, Constitutional Government, International Affairs and Noteworthy Occasions, 1964, p. 225.
 Ibid., p. 80.
 “Prescription in International Law,” The Nation, vol. 11, October 20, 1820, 1870, p. 253; Note: Generally speaking, ". . . The underlying issue here is that in international law non-regnant royal families are sovereign de jure and therefore no juridical authority is empowered to settle [their] . . . dispute[s]." (Louis A. Mendola, In Defence of (Real) History: 2009; 2014: http://www.regalis.com/2sicilieshead.htm)
 H. Lauterpacht, “Sovereignty over Submarine Areas,” British Yearbook of International Law, vol. 27, 1950, p. 396.
 Robert Y. Jennings, “International Law,” Encyclopedia of International Law, vol. 7, 1984, p. 287.
 Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 145.
 Monique Chemillier Gendreau, Sovereignty Over the Paracel and Spratly Islands, 2000, p. 88; Note: “[Prescriptive success] by the acquiring state must be accompanied by acquiescence on the part of the losing state; protests, particularly if they are vigorous and repeated, prevent acquisition of title by prescription.” (Michael Akehurst, A Modern Introduction to International Law, 4th ed., 1982, p. 145).
 Emerich de Vattel, The Law of Nations, Book 3, chapter 3, no. 38.
 “Prescription in International Law,” The Nation: A Weekly Journal, vol. 11, October 20, 1870, p. 253.
 Quoting Eugene Ortolan, a prominent French jurist and legal author in the 1800’s, in Henry Wager Halleck, International Law: Or, Rules Regulating the Intercourse of States in Peace and War, 1861, p. 297.
 The Judge Advocate General’s School, The Military Law Review, vol. 107, 1985, p. 30; Note: “. . . A dispossessed state can not be bound [forced] to declare war in order to prevent prescription from running against it. . . .” (Theodore S. Woolsey, “Prescription,” Universal Cyclopaedia and Atlas, vol. 9, Charles Kendall Adams and Rossiter Johnson, eds., 1902, p. 456).
 Chamizal Arbitration (U.S. v. Mex.), reprinted in 5 AM. J. INT’L L. 782 (1911) p. 807.
 Zoe Keyuan, “South China Sea Studies in China: A Legal Prespective," Southeast Asian Studies in China, Saw Swee-Hock and John Wong, eds., 2007, p. 174.
 Simon Patrick, Richard Arnald, William Lowth, Moses Lowman, Daniel Whitby, John Rogers Pitman, A Critical Commentary and Paraphrase on the Old and New Testament and the Apocrypha, vol. 2, John. Rogers Pittman, ed., 1822, p. 178.
 Hugo Grotius, On the Rights of War and Peace, Book 2, vol. 2 chapter 4, no. 8(2); Note: “. . . a forcibly [and illegally] expelled King or Prince is not prohibited by the Law of Nations from seeking to recover possession of his Kingdom or Principality by arms.” (Johann Wolfgang Textor, Synopsis of the Law of Nations, John Pauley Bate, trans., chapter 10, no. 9). Nevertheless, “History informs us that the attempt of a fallen monarch to regain power [especially by violent means] has not infrequently been regarded with studied and sullen enmity [that is, by disapproval] by the people. . . .” (John A. Ryan, “Catholic Doctrine of the Right of Self-Government,” The Catholic World: A Monthly Magazine of General Literature and Science, vol. 108, 1919, p. 444).
 Ibid., Book I, chapter 4, no. 19.
 Richard W. Hartzell, “Questions of Sovereignty –- the Montevideo Convention and Territorial Cession,” November 2005, 2011: www.taiwanadvice.com/harintmcexc.htm.
 Jessup worldwide Competition for International Law, “Bench Memorandum 2010,” p. 12.
 Christian Wolff, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., chapter 3, no. 361, 1934, p. 187.
 Ibid., no. 364.
 Ibid.; Note: “Every defacto sovereign therefore is de jure [a lawful] sovereign, except . . . where there is an adverse claimant, who has been sovereign; who has been unjustly and sinfully deposed; and who has not lost his right.” (Nicholas Patrick Wiseman, The Dublin Review, vol. 77, no. 5, 1875, p. 44).
 Ibid., pp. 187-188.
 Sir Travers Twiss, The Oregon Question Examined, 1840, p. 24; Note: “Prescription . . . is the legitimization of a doubtful title by the passage of time and the presumed acquiescence of the former sovereign.” (Malcolm Nathan Shaw, International Law, 1986, p. 252) and “The essence of prescription is the removal of defects in a putative [accepted or claimed] title arising from usurpation of another’s sovereignty by the [time proven implied] consent and acquiescence of the former sovereign.” (Ian Brownlie, Principles of Public International Law, 7th ed., 2008, p. 146)
 Alfred P. Rubin, “The Position of Tibet in International Law,” The China Quarterly, no. 35, July – September 1968, p. 141; Note: The essence of prescription is the removal of defects in a putative [supposed] title arising from usurpation of another’s sovereignty by the consent and acquiescence of the former sovereign. (Ian Brownlie, Principles of Public International Law, 7th ed., 2008, p. 146).
 Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 143.
 Ibid., chapter 18, no. 337.
 Henry Hills and Starkey, “A Justification of the Present War against the United Netherlands,” The Harleian Miscellany: a Collection of Scarce, Curious, and Entertaining Pamphets and Tracts, vol 7, 1810, p. 595.
 Hugo Grotius, On the Law of War and Peace, Book 2, chapter 4, no. 3.
 Gregor Dallas, 1815: The Roads to Waterloo, “Talleyrand’s Legacy,” 2011.
 Casimir Freschot, The Complete History of the Treaty of Utrecht, vol. 2, 1715, p. 157.
 H. D., “The Young Pretender’s Protest, 1782,” Notes and Queries, 4th series, vol. 3, 1869, p. 259.
 J. R. V. Prescott, Maritime Jurisdiction in East Asian Seas, 1987, p. 48
 Francis Anthony Boyle, “Restoration of the Independent Nation State of Hawaii under International Law,” 2011: http://hawaii-nation.org/boyleall.html.
 Johann Wolfgang Textor, Synopsis of the Law of Nations, John Pauley Bate, trans., chapter 10, no. 12; Note: However, “if the Sovereign have [willfully and freely] abdicated or been lawfully [rather than illegally] deposed . . . his legal title to international rights and favours has ceased.” (Robert Phillimore, Commentaries Upon International Law, vol. 2, 1855, p. 102)
 Guglielmo Ferrero, The Reconstruction of Europe: Talleyrand and the Congress of Vienna 1814-1815, 1941, p. 261.
 Hugo Grotius, The Rights of War and Peace, Book 2, chapter 7, no. 26, p. 242.
 Fifty-Third Congress, Second Session, United States Senate, Report from the Committee on Foreign Relations and Appendix in Relation to the Hawaiian Islands, p. 1894, p. 126.
 Jean J. Burlamaqui, The Principles of Politic Law, vol. 2, part 2, chapter 3, no. 32; Note: “Wherefore if any one die [that is, a true monarch], without any declaration of his will [or house succession rules], and have no relations by blood, all the right, which he had, becomes extinct, and reverts, if a sovereign, to the hands of the nation, except where express provisions of law have been made to the contrary.” (Hugo Grotius, The Law of War and Peace, Book II, chapter 9, nos. 1-2) The provisions in the Kingdom of Hawaii were not for adoptions to be valid, but that the Council of Chiefs would chose the next king if there were no royal descendants with dynastic rights.
 David Hughes, The British Chronicles, vol. 1, 2007, p. 358.
 Vladimir D. Degan, Sources of International Law, 1997, pp. 347-348.
 Karen Guttieri, “Making Might Right: The Legitimization of Occupation,” p. 13, 2011: http://citation.allacademic.com/meta/p_mla_apa_research_citation/0/7/3/8/3/pages73837/p73837-13.php; Note: “The legal (de jure) sovereignty still remains vested where it was before the territory was occupied although obviously the legal sovereign is unable to exercise his ruling powers in the occupied territory.” (Morris Greenspan, The Modern Law of Land Warfare, 1959, p. 217).
 Many details and information recording in this sub-chapter were taken from two books: (1) House of Kawananakoa, Book, LLC, Memphis, Tennessee, 2010 and (2) Stephen R. Bunford, Kamehameha’s Crown: a History of the Hawaiian Monarchy, Warclay, Bloomington, Indiana, 2011).
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