Jenoff Van Hulle

Most have heard of Concordats, but few have read one. In the light of the Vatican signing Concordats with several East European countries, Jenoff Van Hulle takes a closer look at what this means under international law.

Concordats are International Agreements

It is commonly held that concordats are bilateral agreements between the spiritual power (The Holy See) and the civil power (a State) in regard to matters which in some way concern both Church and State.

You can even qualify them as international agreements:
Article 2, par. 2, section a of the Vienna Convention on the Law of Treaties (22 May 1969): "Treaty" means an international agreement concluded between States in written form and governed by international law..."

Under customary law a treaty is defined as an agreement between two or more subjects of international law in order to establish legal effects and governed by international law.

Those two definitions don't contradict each other:
Article 3 of the Vienna Convention on the Law of Treaties: "International agreements not within the scope of the present Convention: The fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law..." Therefore, article 2 clearly states the legal force of international agreements between states and other subjects of international law.

So far no problem. From a formalistic point of view concordats are just international agreements, next to all the other international agreements between subjects of international law. But as regards the content, a difficulty arises.

The Catholic Church, for her part, has always maintained that she is a supranational community and does not receive her legal existence from any temporal State. The Catholic Church exists as such, and it is in the Holy See that her organic unity is guaranteed, represented and perpetuated. Her extension corresponds to the spread of Catholic believers throughout the world. She is therefore a universal community that knows no national frontiers [1]. Put in other words, when a state and the Holy See conclude an agreement they enter into a relation as two "perfect societies": the first as a temporal society, the second as a spiritual one. The Church receives its laws from her 'Founder' and not, like states, from some temporal power. But that doesn't mean that acts of the Catholic Church can have no effect on temporal jurisdiction. An intersection is possible and at this point the sovereignty of the Catholic Church stops and the problem of concordats begins.

As we have mentioned before, concordats are international agreements under international law.

Therefore, they have to respect fundamental rules of international law. As we read in Article 53 of the Vienna Convention on the Law of Treaties, "a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

Consequences of the Concordat with Slovakia

Let's have a closer look by taking an example: the Treaty on the Right to Exercise the Objection of Conscience between Slovakia and the Holy See. The Treaty, the first in the history of concordats, has the purpose of protecting the free exercise of objection of conscience [2] based on the teaching of faith and morals of the Catholic Church [3]. Since the Draft Treaty first and foremost protects the religious rights of state officials, it would effectively make the delivery of state services conditional on compliance with Catholic teaching. Consequently, in the area of reproductive healthcare, all forms of contraception as well as assisted fertilization may become inaccessible. Information about alternatives of safe and effective contraception methods and protection against STD, including HIV/AIDS, may become unavailable. Restrictive access to contraceptive services would dramatically confine reproductive and sexual freedom in Slovakia. This may result in an increase of maternal mortality rates, unintended teenage pregnancies, number of unsafe abortions and a spread of STD, including HIV/AIDS. The overwhelming majority of reproductive healthcare services are sought by women. The Draft Treaty would thus disproportionably burden women. Women will be discriminated against in their access to healthcare. Moreover, women's right to family planning would be jeopardized. Their access to the relevant information and means to do so would be systematically denied [4]. Such action would be in breach of fundamental human rights and laws of jus cogens. Therefore, the treaty, as an international agreement - as argued before - does not respect article 53 of the Vienna Convention and has to be declared void.

To monitor and study this kind of problems an All Party Working Group on Separation of Religion and Politics - of which the European Humanist Federation is a member - has been founded by representatives of the European Parliament, a good initiative that has to fix clearly the border between religious freedom and fundamental rights, a conditio sine qua non for a democratic society.

Jenoff van Hulle is International Relations Officer of the European Humanist Federation.

[1] C. MIGLIORE, Ways and Means of the International Activity of the Holy See, in: Church and State, Changing Paradigms, Leuven, Peeters, 1999, p. 36.
[2] Draft Treaty between the Slovak Republic and the Holy See on the Right to Exercise Objection of Conscience, article 1.
[3] Idem, preamble.
[4] J. LAJCAKOVA, End of Women's Reproductive Health Freedoms in Slovakia: The Draft Treaty between the Slovak Republic and the Holy See on the
Right to Exercise the Objection of Conscience, University of Toronto, for Pro Choice Slovakia, 2005.