Luca Pasquet (Utrecht University School of Law)

In a judgment rendered on 12 October 2021 (J.C. et autres c. Belgique, available only in French), the European Court of Human Rights (ECtHR) held that by granting state immunity to the Holy See in a proceeding concerning compensation for alleged acts of pedophilia, Belgian domestic courts did not violate the right of access to a court (Article 6.1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR)). In the proceedings before the Belgian courts, the applicants had sued the Holy See with reference to various alleged structural omissions in the handling of child abuse cases, for promoting a «culture of silence» and failing to take disciplinary measures against bishops who had allegedly covered up the responsibility of the perpetrators.  The Tribunal and then the Court of Appeal of Ghent recognised the right of the Holy See «a tous les privilèges étatiques existants en droit international en ce compris l’immunité de juridiction» (para. 8). The Court of Cassation of Belgium confirmed this decision on 3 August 2016. The ECtHR, for its part, merely found that this reconstruction was neither unreasonable nor arbitrary, as it corresponded «to the international practice on the matter» (para. 63). It then concluded that Belgium had not violated the Convention based on the principle first stated in Al-Adsani v. UK that «measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1» (para. 56).

This post offers a critical analysis of the judgment. First, it discusses whether state immunity applies to a non-state actor such as the Holy See. Second, it addresses the question of whether managing an ecclesiastical organization can be considered a sovereign activity. Third, it analyses the arguments that Belgian courts raised (and the ECtHR endorsed) for disapplying the territorial tort exception. Fourth, it addresses the question of whether it is fair that the Holy See invokes jurisdictional immunity without also taking responsibility for the human rights violations that members of the Catholic clergy committed outside Vatican territory. Fifth, it discusses the ECtHR obiter dictum on alternative remedies and its implication in the context of sexual abuses within the Catholic Church. Finally, it offers some conclusions.

Does state immunity apply to a non-state actor?

The ECtHR reasoning is premised on the principle that state immunity is compatible with the ECHR to the extent that it reflects general international law. In order to determine whether granting immunity to the Holy See is compatible with the ECHR, one should therefore understand whether the Holy see enjoys immunity from jurisdiction under international customary law. The complex legal status of the Holy See makes it particularly difficult to answer this question. The Holy See’s self-definition in its correspondence to the Committee on the Rights of the Child hints at such complexity: «the Holy See, intended as the Roman Pontiff, in the narrow sense, and the Roman Pontiff with his dicasteries, in the broader sense […] is related but separate and distinct from the territory of Vatican City State (VCS) over which the Holy See exercises sovereignty […], is related, but separate and distinct from the Catholic Church, which is also a non-territorial entity and may be defined as a spiritual community of faith» (p. 4, paras. 7-8). In other words, the Holy See is an entity that governs both a State with its own territory and an ecclesiastical organization, but is distinct from them.

Given this premise, there seem to be no reasons to deny the application of state immunity to the Vatican City State, unless one considers that the latter does not meet the criteria for statehood. Likewise, as high officials of the said state, the Pope and the Secretary of State probably enjoy personal immunity. However, one cannot simply assume that what applies to the Vatican City State also applies to the Holy See. For one thing, the relevant practice indicates that state immunity generally applies to states, while the Holy See has traditionally been considered a sui generis subject of international law, where sui generis essentially means “other than a state”. Moreover, the right to immunity cannot be automatically derived from the international personality of the Holy See. International organizations are also subjects of international law, but – although positions on the matter differ – they do not enjoy immunity unless this is provided for by a treaty or national law. In any case, they do not enjoy the same degree of immunity as states.

I contend that in such an uncertain situation, and given the impact of jurisdictional exemptions on the right to access to justice, the Holy See’s right to immunity should not be presumed. As Ryngaert noted, «in light of the increasing importance of individuals’ right to access to a court, immunities ought to be interpreted restrictively, all the more so if the beneficiary of the immunity is not a State but a non-State actor» (p. 857). Belgian courts, however, took a different approach. Instead of examining international practice, they resorted to analogical reasoning: like states, the Holy See has the capacity to conclude treaties and enter into diplomatic relations, ergo it also enjoys the same immunity as states. The Strasbourg court endorsed this reasoning without questioning its premises.

In his 2011 article, Ryngaert observed that «consistent state practice in favour of granting immunity to the Holy See may be lacking […]» (ibid.). Something has probably changed since then, but the relevant practice remains limited and is not univocal. Italy has traditionally regulated the exercise of its jurisdiction over the Holy See based on art. 11 of the Lateran Treaty, a provision which, according to the Italian Court of Cassation, does not provide for a jurisdictional immunity, but rather prohibits Italian authorities to interfere with the “patrimonial activity” of the Church’s “central organs” (Cass. Pen. n. 22516/2003; see also Pasquali). However, in a number of recent decisions, while denying immunity because the relevant acts would have been private in nature, the Court of Cassation did not rule out the application of state immunity in relation to sovereign acts (Cass Civ, Sez. Unite, 7022/2016; Cass. Civ., Sez. Unite, 21541/2017). Similarly, in a few cases concerning children abuse, US courts considered the Holy See as a state for the purposes of applying the Foreign Sovereign Immunity Act (FSIA) (see O’Bryan v. Holy See, 490 F.Supp.2d 826, 830). However, US courts have so far confined their reasoning to the application of a domestic legislative act (the FSIA) and never ruled on the conditions for the application of immunity in international law.

The Ghent Court of Appeals has now joined the US federal courts in considering the Holy See indistinguishable from the Vatican State, following an approach that is also supported by some scholars (see Cismas, chapter 4). I concede that the Holy See may well be indistinguishable from the Vatican City State when it acts as the Government of the latter. However, insofar as it deals with the organization of the Church in the United States or in Belgium, the Holy See acts as the head of a non-territorial ecclesiastical entity, and not on behalf of the 0.44 square kilometer state. It therefore seems neither impossible nor incorrect to distinguish the acts that the Holy See performs as the Government of the Vatican City State and those it performs as the head of the Roman Catholic Church, the former enjoying immunity, the latter not (as suggested by the plaintiffs in O’Bryan v. Holy See). Confusing the two levels could instead have repercussions in terms of accountability and access to justice, insofar as it would allow the main bodies of an ecclesiastical organization to shield themselves behind institutions and concepts designed for states.

Is managing a church a sovereign activity?

The immunity of the state can be invoked only in relation to sovereign acts, or acta jure imperii, and not in relation to private acts (or acta jure gestionis). One of the objections raised by the claimants before Belgian courts was precisely that the relationship between the Holy See and Catholic bishops was of a private, or at least non-sovereign nature, insofar as it related to the management of a religious organization. However, the Ghent Court of Appeal held that «the relationship between the Pope and the bishops» was one «of public law, characterised by the autonomous power of the bishops», which in the court’s reasoning implied «not only that the faults of the Belgian bishops could not be attributed to the Pope […], but also that they concerned acts iure imperii» (J.C. c. Belgique, para. 9). In other words, the relationship between the Pope and the bishops was held to be one of public law, but at the same time the autonomy enjoyed by bishops was construed as an obstacle to the attribution of the relevant conduct to the Holy See. The ECtHR endorsed this reasoning (Ibid.).

This interpretation is problematic in more than one respect. To start with, one may wonder whether it is logical and fair that the same relationship – between the Holy See and Catholic bishops – is qualified as jure imperii, that is, one involving the exercise of sovereign power, but also as one that does not involve enough control to allow for the attribution of the bishops’ acts to the Holy See. Belgian courts, and indirectly the ECtHR, seem to characterize this relationship in different ways depending on a shifting standpoint: in a top-down perspective, there appears to be a strong link between the Holy See and the lower organs of the Church; in a bottom-up one, the bishops seem able to escape the control of the Pope.

Moreover, the argument by which the administrative tasks of a non-state actor and its power to issue directives are “sovereign” in nature seems far-fetched. The problem with it is that a “public law” is hard to conceive in isolation from the state. Scholars of international organizations have traditionally opposed applying the notion of acta jure imperii to international institutions because, they claim, these entities «are definitively not states» (see Pellet; Blokker and Schrijver, pp. 37-38). It is therefore surprising that such a notion is applied to an ecclesiastical organization. While international organizations are usually considered public entities, today, in Europe, following a process of separation between churches and state that began at least in the eighteenth century, churches are generally associated with private law entities. By way of illustration, Catholic dioceses in Belgium have the legal status of non-profit private associations (J.C. c. Belgique, para. 32).

If administering an organization and issuing directives are the decisive criteria for the qualification of an activity as sovereign, then these criteria are applicable to basically any juridical person. For example, the relationship between the Holy See and Catholic bishops seems entirely analogous to that between the legislative and executive bodies of various Christian churches and their respective bishops or other territorial bodies. Thus, one can wonder whether the relationship between the President of a Lutheran Church and the bishops of her Church should also be considered sovereign in nature, or whether the analogy applies only to the Roman Catholic Church, and if so, why. One can also ask whether this reconstruction implies that the acts related to the administration of associations, foundations, and other private entities is sovereign in nature (again, after all Belgian dioceses are private associations). If one removes the state from the equation, the distinction between sovereign and private acts loses all meaning.

In order to distinguish between the activity of the Holy See as the Government of a state and the acts it performs as head of an ecclesiastical organization, one should consider the acts related to the administration of local churches outside the territory of the Vatican State as private acts, that is acts not covered by immunity. It is indeed very difficult to see how the activity that the Holy See performs in this capacity is different from that of the director or board of an NGO. One should also note that, in international practice (for instance when it comes to the participation in the activities of international organizations) all other religious or humanitarian organizations are considered “civil society”, or NGOs, and it is really hard to explain why the Catholic Church should enjoy special treatment (see Abdullah, p. 1875). Of course, one could justify this special treatment based on the history of the Holy See, but one should be aware that such a line of argument is likely to be seen as Eurocentric. The idea that contemporary international law should recognize the universal value of a religious institution which developed in European Middle Ages and grant special privileges to it may arguably reflect the sense of cultural superiority which characterized European colonialism. Finally, someone may argue that the special treatment of the Holy See derives from the fact that the Catholic Church is the only religious community possessing its own territory. I contend, however, that such a reconstruction would be inaccurate. The Vatican City State has a territory, but the Catholic Church is a non-territorial ‘community of faith’ rather than the emanation of a state.

Three arguments for disapplying the territorial tort exception

The Belgian courts, and indirectly the ECtHR, ruled also on the applicability of the so-called territorial tort exception to immunity, which is provided for in some treaties and national legislation, and may have acquired the status of customary norm (see Webb). Such exception provides that immunity cannot be invoked in proceedings which relate to compensation for death or injury to persons caused by acts (or omissions) committed at least in part within the territory of the forum state, «if the author of the act or omission was present in that territory at the time of the act or omission» (see art. 12 United Nations Convention on Jurisdictional Immunities of States and Their Property). The applicants had argued that the damage they had suffered had been caused in Belgium as a result of a “policy of silence” promoted by the Holy See about the Catholic clergy’s behaviour. Hence, they asked Belgian courts to apply the territorial tort exception. In a line of reasoning subsequently considered “reasonable” by the ECtHR, the Ghent Court of Appeal rejected the application of this exception on three grounds: (1) this exception would not apply to acta iure imperii such as those performed by the Holy See; (2) the acts of the bishops could not be attributed to the Holy See under Article 1384 of the Belgian Civil Code; (3) the acts directly attributable to the Holy See («la politique générale fondée sur des documents pontificaux et l’omission de prendre des mesures ayant un impact en Belgique») would have been committed in Rome, which for the Court meant that «neither the Pope nor the Holy See’ were in Belgium at the time of the events» (J.C. c. Belgique, para 10).

These arguments fail to persuade. To begin with, the exclusion of sovereign acts from the scope of application of the territorial tort exception is not mentioned in the two main reference treaties (art. 11 European Convention on State Immunity and art. 12 UN Convention on Jurisdictional Immunities of States). To be sure, it would be difficult to explain it on logical grounds: since state immunity can only be invoked in relation to sovereign acts, this exclusion would render the territorial tort exceptionpractically useless. Moreover, the Belgian courts and the ECtHR ignored the Commentary of the UN Commission on International Law to the Draft Articles on Jurisdictional Immunities of States and Their Property, according to which the territorial tort exception must be applied «irrespective of the nature of the activities involved, whether jure imperii or jure gestionis» (art 12, para. 8). As Judge Pavli observed in a dissent to the ECtHR’s judgment (paras 7-9), the Belgian courts have probably confused the unavailability of the exception in relation to acts performed in armed conflicts (ICJ, Jurisdictional Immunities of the State (Germany v. Italy), para. 78) with a general unavailability in relation to sovereign acts.

As for the second argument, immunity is a preliminary question pertaining to the jurisdiction of national courts, which precedes the examination of the merits of the case, and the ascertainment of responsibility (Ibid., para 82; Fox and Webb, p. 12). Hence, the application of the rules on immunity cannot depend on whether the Holy See is responsible for the acts of the bishops. The two main international instruments on the matter do not construe the attribution of the act to the state as a condition for the application of the territorial tort exception. The European Convention on State Immunity (art. 11) makes no mention of it, while the UN Convention (art. 12) refers to an act or omission «which is alleged to be attributable to the State». One should also note that, in his dissenting opinion, ECtHR Judge Pavli found the conclusion of Belgian courts on the non-attributability of bishops’ acts to the Holy See insufficiently motivated (paras 12-16). Although the parties had not disputed that the Pope had considerable powers over the bishops, and although the claimants had «submitted evidence purportedly showing that the Holy See had sent a letter to all Catholic bishops worldwide in 1962 that mandated a “code of silence” regarding cases of sexual abuse within the Church, on pain of excommunication; and that this direction […] was reaffirmed in a letter sent by the Holy See in 2001 – Pavli wrote – none of these arguments were addressed by the Belgian courts» (ibid.)

The question of which conducts are attributable to the Holy See also impacts the third argument, concerning the presence of the author of the act in the territory of the forum state. As Judge Pavli pointed out (para. 18), «the reference […] to the “author” of the act or omission is to the individual representative of the State who actually does or does not do the relevant thing, as distinct from “the State itself as a legal person”». It is therefore not necessary that the Pope or the Secretary of State were in Belgium at the time of the events. It suffices that one of their agents was. It is therefore decisive to establish whether bishops or other members of the Catholic Church can be considered agents of the Holy See. Judge Pavli writes in this regard that «the domestic courts should have considered the key question whether the individuals on Belgian soil – the bishops and priests who committed the abuse and who allegedly followed orders issued directly from the Holy See on the handling of such abuse – could trigger the Holy See’s tort liability under the circumstances […]. In the case before us, the Belgian courts dismissed the applicants’ arguments, in my view, in an exceedingly summary fashion» (para 18). This discussion, highly technical in appearance, touches on a more general and fundamental aspect of the relationship between the Holy See and international law, to which I now turn.

Rights without responsibilities?

The impression of this author (shared by others) is that the Belgian courts and the ECtHR used the ambiguities inherent in the Holy See’s status to grant the latter as much immunity (and exemption from responsibility) as possible. On the one hand, the relationship between the bishops and the Pope are construed as jure imperii activities in order to assimilate the Holy See to a state and allow it to enjoy immunity. On the other hand, the Catholic Church’s special features, particularly the autonomy of the bishops as “local legislators” under Canon law, is used to prevent the clergy from being considered as agents of the Holy See, thereby breaking the chain of attribution and eluding the territorial tort exception.

In sum, the Holy See enjoys the privileges of states without also assuming the responsibilities that correspond to them. Is this fair? As Morss writes, «with the advantageous incidents of statehood go the responsibilities, such as […] the responsibility for extraterritorial violations of human rights standards by persons and other legal entities closely connected with such a state-like entity» (pp. 928-929, emphasis added). Canon law contains more than one indication of a close connection between the Holy See and the bishops. By way of illustration, the Pope has «supreme, full, immediate, and universal ordinary power in the Church» and particular churches (including dioceses), which «he is always able to exercise freely» (Can. 331; Can. 333). Furthermore, bishops, who are appointed and can be removed by the Holy See (Can. 192 ff. ), swear allegiance to the Apostolic See (Can. 380) and are required to report to the Pope (Can. 400). Applying the Articles on the Responsibility of States (ARS) to a non-state actor, specifically a church, would be a complex exercise requiring to adapt a corpus of norms to a context that differs from that for which it was conceived. This should make us wonder about the desirability of assimilating the Holy See to a state. However, should one decide to use this analogy for the purpose of granting immunity, as the Belgian courts and the ECtHR did, then one should perhaps stick to the analogy when it comes to attribution of conduct.   

Obiter dictum on alternative remedies

The ECtHR affirmed, obiter, that the immunity of the Holy See did not deprive the applicants of their right to have access to a court, since they had a number of alternative remedies at their disposal. More specifically, besides the Holy See, the claimants had sued a bishop, two of his predecessors, other leading figures of the Belgian Catholic Church, and could act as civil parties in a future criminal trial (paras. 71-74).  This clarification is unusual because in the Court’s case-law the existence of an alternative remedy is considered relevant only with regard to the immunity of international organizations (Waite and Kennedy v. Germany, para 68). Although the ECtHR stressed that the argument was offered « à titre surabondant», this choice further reflects the Court’s willingness to grant the Catholic Church unjustified privilege. In a recent commentary Ryngaert suggested that this might indicate that «the Court had second thoughts regarding its application of the international law of State immunity to an entity which is not a State after all».

However, as previously done in the case-law on international organizations (see eg Stichting Mothers of Srebrenica, para. 167), the Court interpreted the notion of alternative remedy very broadly, including, over and above the remedies available against the actor enjoying immunity, those theoretically available against other subjects which may have contributed to the damage. This approach attracted criticism with reference to international organizations for two reasons. The first is that two or more subjects may have caused the damage to different extents, or may not have the same financial capacity, thus affecting the right of the claimants to obtain an effective remedy. The second relates to the concept of accountability: if the person enjoying immunity is exempted from responsibility for human rights violations, there would be much less incentive for it to address the systemic reasons for such violations (I discussed these objections here).

The problem, especially its accountability dimension, also exists regarding the Holy See. How can one shed light on the actual existence of a “policy of silence” if not by suing the Holy See, and more generally, those having the power to tackle the systemic causes of pedophilia within the Catholic Church? The Sauvé Report, which recently analyzed sexual violence against minors within the French Catholic Church from 1950 to 2020, devotes a chapter to the «root causes of the problem» (pp. 311 ff.). These include a generalized fear of scandal, «qui a favorisé la dissimulation, le secret et le silence» (p. 313), the absence of a culture of internal control (p. 433 ff. ), which together with a culture of obedience, fosters abuses of power (pp. 326 ff.), the identification of the power of the sacrament with institutional power (p. 433, recommendation 44), and the «overvaluation of celibacy» (pp. 323 ff). The report also calls for a «plan d’action vigoureux dans les domaines de la gouvernance, de la sanction et de la prévention». These are fundamental issues that cannot be addressed solely at local level. Moreover, whether or not one agrees with Sauvé, it is apparent that the problem of sexual violence against minors within the Catholic Church acquired a global proportion (see also here). It is not a matter of single dioceses. It is likely that granting immunity to the Holy See will hinder attempts at shedding light on the responsibilities of the Catholic Church’s highest authorities and will not encourage the Holy See to address the systemic causes of sexual abuse.

Conclusion

The Holy See is indistinguishable from the Vatican City State insofar as it acts as the Government of the latter. However, it can be argued that when it organizes and administers the Catholic Church outside Vatican territory, it acts as the highest organ of an ecclesiastical organization and should not be treated differently from any other religious non-governmental organization. The Holy See should not be able to invoke immunity in relation to this activity, which should be qualified as jure gestionis.

In the case of sexual abuses committed in the territory of the forum state, should the national courts equate the Holy See to a state (which would be, in my opinion, undesirable), it would seem appropriate to apply the territorial tort exception to allow the victims of sexual violence to invoke the responsibility of the highest organs of the Catholic Church. Canon law seems to establish a strong connection between the Holy See and bishops, which can hardly be ignored. If national courts intend to treat the Holy See like a state, they should also apply the articles on state responsibility to determine if local bodies of the Catholic Church act as agents of the Holy See on the territory of the forum state.

Finally, it is regrettable that the ECtHR has accepted a new restriction on the right of access to a court without seriously discussing whether a non-state actor can enjoy state immunity. Even if an analysis of relevant norms of general international law is almost absent from the Court’s reasoning, its decision will likely constitute a precedent easing up the grant of immunity to the Holy See in cases of sexual abuse.