The Abbey-Principality in international law

The position of the Abbey-Principality in international law is key to understanding its past and present nature and operations. The Abbey-Principality possesses both secular and religious attributes; the former including that of (erstwhile) territorial governance and the sovereignty that arises from that governance. However, as will be explained, it also possesses the attributes of non-territorial sovereignty that arise both from the nature of the original foundation and its religious basis.

At the foundation of the Abbey-Principality in the Fezzan on 25 August 1883 its Constitution declared it to be an independent and self-governing entity. The history of the Abbey-Principality states that its sovereignty was recognized by the Holy See at its inception[1]. Primary documentation of this recognition has not survived, since many items in the archives of Prince-Abbot Joseph III were destroyed in a house fire in 1918; others were seized by the Vatican at his death in 1929 and either suppressed or destroyed. Recognition by the French government followed when the two transfers of the office of Prince-Abbot were legalized before the Mayor of the Commune of Seine-Port in 1897 and 1899 respectively.

It is important to emphasise that the Abbey-Principality during its period of territorial rule (and indeed afterwards) was constitutionally independent as a theocratic state. Indeed, the local population had no political rights whatsoever; they were to be subjugated under the absolute rule of the Abbey-Principality as a colonising power. Thus the sovereignty inherent in the Abbey-Principality did not depend on the territory or the people of the region over which it formerly exercised sovereignty, because that territory and those people were not themselves sovereign.

This places the Abbey-Principality in quite a different category compared to other ruling houses whose powers derive purely from territorial rule and dynastic right. It creates a position where, alongside the former territorial sovereignty and those rights deriving from it, there is additionally an attribute of non-territorial sovereignty deriving from the nature of an abbey as an autonomous religious community.

This position is analogous to that of the Pope during the period 1870-1929, during which he was deprived of his territories but continued to concede and recognise titles of nobility and to bestow the Papal Orders, or the (Roman Catholic) Sovereign Order of St John (the Order of Malta) today, whose sovereignty does not derive solely from its former territorial jurisdiction. It means, in effect, that the Abbey-Principality is not tied to a specific territory in order to exercise its prerogatives; thus alongside those prerogatives that do indeed derive from its former territory, there are also others which are inherent in its position as an independent theocracy. An abbey is capable of physical relocation without prejudice to the hierarchical structure of its community, and indeed within the Church there are examples of dispersed orders, where the members of a community are not permanently gathered under one roof. As such, this aspect of the Abbey-Principality has remained intact since its inception.

TERRITORIAL GOVERNANCE

The land under the governance of the Abbey-Principality was the Abbey itself and the immediately surrounding Touareg-Azgar territory of Ghadames, which at that point encompassed the borderlands of what are now Libya, Tunisia and Algeria. To understand what this meant in practice, one must first understand the nature of the terrain; the factor that also meant that there was no other effective government in place within the territory. The surrounding land is desert; settlement was only possible around scattered oases, and even then such settlement was rarely permanent and year-round. The population, rather than being fixed, was nomadic and tribal in nature. Secondly, within the Catholic institution of the prince-bishopric or prince-abbacy it was common by the nineteenth-century for territorial jurisdiction to extend to the seat of the prince himself and to a small (indeed sometimes purely token) surrounding area. Eventually, the Vatican City would take on a similar structure.

Although the Ottoman Empire had claimed jurisdiction of the Fezzan, in practice it took no significant steps to subjugate the region and remained based in Tripoli. In the years prior to 1883, the Fezzan was essentially ungoverned and in a state of anarchy where tribal governance applied more directly to people than to places. France had begun to express ambitions towards the Ottoman possessions in the region, particularly Tripolitania, in discussions following the 1878 Congress of Berlin. In February 1881, the second expedition of Lt-Col. Paul-Xavier Flatters, seeking to establish a route for a French trans-Saharan railroad, met with disaster when Flatters and a number of his men were murdered by the Touareg; the survivors were forced by starvation to resort to cannibalism. During the 1880s, the administrations of Jules Ferry[2] and Charles de Freycinet[3] ushered in a new spirit of French colonialism in Africa. Eventually, in 1902, Italy and France would sign a secret treaty allowing them to intervene in Tripolitania and Morocco.

One can perhaps best understand the position of the Abbey-Principality as a minor experiment in “soft” colonization by those concerned; seeking to expand her empire, France doubtless took the view that if the monks succeeded in establishing themselves in this hostile ground, they could be supplemented by more secular forms of rule in due time. Meanwhile the Holy See would have welcomed the prospect that the Catholic Church would gain converts in partibus infidelitum. This, of course, was not to be. Nevertheless, the territorial position of the Abbey-Principality should probably be understood as one whose boundaries were not intended to be fixed indelibly but whose influence and sovereignty were intended to expand somewhat from its initial territorial holdings in Ghadames, at least temporarily, into a wider area, as converts were made and the populace subjugated.

During the period 25 August 1883 to 2 August 1884, the Abbey-Principality exercised territorial sovereignty with the Prince-Abbot as Head of State.

It is clear that the sovereignty of the Prince-Abbot was vigorously opposed by sections of the local Muslim tribal population, culminating in the murder of Prince-Abbot José I and the sacking of the Abbey on 2 August 1884. With this action, the new Prince-Abbot and the remaining monks were driven into exile.

THE ABBEY-PRINCIPALITY AS A SOVEREIGN STATE 1883-84

The definition of the Abbey-Principality as a sovereign state during the period 25 August 1883 to 2 August 1884 depends upon two main theories of sovereignty.

The constitutive theory requires that a state is sovereign if it is recognized by other states. The recognition of the Holy See would meet the conditions for this theory. One might raise the point that the Holy See had from 1870 been deprived of territory with the loss of the Papal States. However, during the period leading to the Lateran Treaty in 1929, the Holy See continued to be treated as a sovereign power by those countries that had previously maintained relations with it, and diplomatic representatives continued to be accredited (while consuls, who were concerned with the temporal power of the Holy See, were withdrawn).

The declarative theory, set out by the Montevideo Convention of 1935, requires that four criteria be met:

  • Firstly, the state must have a defined territory. This territory was defined in the case of the Abbey-Principality as the Abbey itself and the land immediately adjoining it within Ghadames, although as indicated above these boundaries were most likely intended to be outwardly expandable.
  • Secondly, it must have a permanent population. Although not a conventional population, the Abbey-Principality did maintain a permanent monastic community that varied from at least seven monks at its outset in 1883 to five as of 2 August 1884.
  • Thirdly, it must have a government. The Prince-Abbot exercised power as head of state according to the Constitution, assisted by the other monks.
  • Fourthly, it must have the capacity to enter into relations with other states. The Abbey-Principality maintained relations with the Holy See. Retrospectively, its sovereign status was further recognized by Bunyoro in 1885 and by France in 1897 and 1899, but only after the loss of its territory. Further recognition was granted by the Royal House of Yugoslavia (Karađorđević) in 1962; additionally by the appointment of regnant monarchs and Heads of non-regnant Royal Houses to the membership of the San Luigi Orders, including the King of Denmark, the Emperor of Japan (then Crown Prince), the Maharajah of Mysore and Prince Louis Ferdinand of Prussia. In addition, the British Government in India consented to the promulgation of the San Luigi Orders there and to the wearing of their insignia.

However, Article 3 of the Montevideo Convention provides explicitly that, “The political existence of the state is independent of recognition by the other states,” thus contradicting the constitutive theory.

In 1935, the Italian Court of Cassation commented on sovereignty with regard to the Order of Malta,

“Sovereignty is a complex notion, which international law, from the external standpoint, contemplates, so to speak, negatively, having only in view independence viz-à-viz other States … 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” [4]

While this judgement upholds the constitutive theory, it nevertheless allows for complexities of definition. Where these exceptions exist, they are usually the result of historical anomaly (as in the case of both the Order of Malta and the Abbey-Principality) and to a large extent depend for acceptance on political expediency so far as other states are concerned, rather than resting purely on academic theory[5].

There was certainly a relationship between the Abbey-Principality and the Holy See inherent in the office of prince-abbot that was comparable to a fiefdom. However, in practice, the role of the Holy See was limited to purely religious matters, since the monks of the Abbey would have been subject both to Catholic canon law and the Rule of St. Benedict, and the Holy See therefore did not impinge upon the sovereign prerogatives of the Prince-Abbot. As evidence of this, appointment to the office of the Prince-Abbot was not subject to the approval of the Pope, and the Pope did not have the authority to appoint knights to the San Luigi Orders. It should be added that the Benedictines did not at that time have any central body that acted as co-ordinator, each abbey or monastery being independent and autonomous.[6]

By virtue of the Constitution, the Prince-Abbot possessed the right of appointment of his successor, and that right was twice exercised during 1884 upon the death of successive Prince-Abbots. There is no evidence that such an appointment was required to be ratified by the Holy See, although it would have been routine for notification to be submitted in any case.

GOVERNMENT-IN-EXILE – 2 AUGUST 1884 TO THE PRESENT

After the loss of territory to the Abbey-Principality on 2 August 1884, it continued to be a state de jure but ceased to exercise territorial governance de facto. As such, its governments since that date have been governments-in-exile. The present position of the Abbey-Principality is that it is the legitimate de jure government-in-exile of its former territory in the Fezzan. Additionally, it preserves intact the attributes of non-territorial sovereignty that have been inherent in the Abbey-Principality from its foundation.

The historical locations of the government-in-exile of the Abbey-Principality are as follows: in Bunyoro-Kitara between 1885 and 1888; in France between 1888 and 1899; in the United States between 1899 and 2002 and in the United Kingdom from 2002 onwards.

In as much as territorial claims are concerned, the Prince-Abbot is head-of-state de jure of the former territory of the Abbey-Principality and in official terms the pretender to that territorial jurisdiction. Since the 1883 title of Prince-Abbot of San Luigi is also in itself a title of nobility and of ecclesiastical rank, it continues to exist unimpaired as such, together with the parallel 1885 Bunyoro-Kitara title of Mukungu.

At no point after 1884 did the Abbey-Principality give up its claims over its former territory. There was no act of abdication or renunciation of sovereign privileges at any time. The 1899 and 1934 Statutes of the Order of the Lion and the Black Cross give as an explicit Aim of that body “to help forward the complete re-establishment of the Abbey of San Luigi.” The 2012 Constitution maintains in item 18 that “The Abbey-Principality aims ultimately to secure the territorial restoration of the original Abbey-Principality in Libya, but is aware that political and related considerations are likely to preclude this objective for the time being.” It should be emphasised that the Catholic principles that underpin the institution of the Abbey-Principality are interpreted so as to commit the Abbey-Principality to a strict pacifism and to the restoration of its position by diplomatic means solely. The Abbey-Principality takes no position on present-day Libyan politics or public affairs.

Having come to Bunyoro-Kitara in 1885, the Abbey-Principality’s status as government-in-exile was recognized by H.M. Omukama Chwa II Kabalega by virtue of his creation of the title of Mukungu (Prince-Governor) in favour of the Prince-Abbot and his grant of territory to the monks to re-establish the abbey. These acts did not affect the sovereignty deriving from the Abbey-Principality’s foundation in 1883; rather, they constituted further recognition by a state of the legitimacy of its government-in-exile, as well as cementing a valuable international alliance. It should be remembered that Bunyoro was at that point an independent sovereign state in its own right, and the Omukama an absolute monarch.

After returning to France in 1888, the recognition of the French government was secured through the participation of the Mayor of Seine-Port, M. Eugène Clairet, in the ceremonies of legalization of the transfer of the title of Prince-Abbot on two occasions in 1897 and 1899.

The position of the Roman Catholic Church is less clear-cut, in that Prince-Abbot Joseph III formally petitioned the Holy See for recognition in his office on 12 February 1899, but received no response (save, perhaps, for his excommunication the following year). It has been rare historically for the Holy See to acknowledge the succession to an office previously associated with it in the case of clergy who are not in full communion with Rome, and whose recognition would mean that the Holy See would be forced to accept an act which had been undertaken outside its authority. Silence remains the preferred response in such cases and although the Congregation for the Doctrine of the Faith issued confirmation of the validity of the Holy Orders of two Old Catholic bishops in the latter years of the twentieth-century[7] it has since discontinued the practice of issuing such statements to non-Roman clergy. Nevertheless, writing in August 1938, Prince-Abbot Edmond I stated “I am hoping that [the Order of the Crown of Thorns] will be included – as promised – in the next edition of a List of Catholic Orders published in the Scandinavian Countries.” In the same letter, he added that members of that order were now eligible for membership in the French Association “La Chevalerie” – “that is nothing specially important in itself, but it does have real value in indicating that the Walls of suspicion and objection are tumbling down, so that it can take its rightful place amongst the recognised Orthodox Catholic Orders of Knighthood.”[8]

Unfortunately, these efforts were not to bear the hoped-for fruit. The Holy See has stated recently that it does not grant recognition to any Order that does not have the Pope as its sovereign. For its own part, the Abbey-Principality does not recognise that the Holy See has ever exercised any legitimate authority whatsoever concerning the San Luigi Orders, given that they were established independently by the first Prince-Abbot and (as an explicit revival) by the Syrian Orthodox Patriarch respectively. This position was stated clearly by Prince-Abbot Edmond I in his circular letter regarding the Order of the Crown of Thorns which is reproduced elsewhere in this website. Fortunately, this position was offset by the Patronage of reigning monarchs and Heads of Royal Houses that was forthcoming during the post-war years. In addition, a number of Roman Catholics, including several priests subject to the Holy See, were admitted to membership of the Order of the Crown of Thorns without incurring any canonical penalty.

Although from 1899 onwards the Abbey-Principality had passed beyond Roman influence, it has at all points then and afterwards remained true to the traditional Catholic faith. Until his reconciliation with the Roman Catholic Church, Prince-Abbot Joseph III as an Old Catholic represented a pre-Vatican I position and this has continued to be true of all succeeding Prince-Abbots. The definition of the Old Catholic position is found in the 1889 Declaration of Utrecht which sets out a Catholicism that in line with the Canon of St Vincent of Lérins represents “that which has been believed at all times, in all places, by all.” There is canonical continuity from the church founded by the act of Prince-Abbot Joseph III’s consecration under the auspices of the Syrian Orthodox Church, the Old Catholic Church of America, to the present church with which the Abbey-Principality is united, the Apostolic Episcopal Church[9]. Moreover, as is discussed more fully in other publications[10], Roman canon law provides that valid succession and valid sacraments are preserved regardless of whether the clergymen concerned are in communion with the Holy See. Such validity is not affected by the effluxion of time, hence the Holy See’s continuing recognition of Eastern Orthodox sacraments despite intercommunion having been broken since 1054.

While Bunyoro-Kitara is now a constitutional monarchy within modern Uganda, the sovereign and dynastic rights of H.M. the Omukama are guaranteed by the Ugandan Constitution at Chapter XVI. – Article 246 of 1995 and in the Amendment (No. 2) Act 2005, 5 Schedule – Article 8 and continue intact. H.M. Rukirabasaija Agutamba Solomon Gafabusa Iguru I, Omukama (King) of Bunyoro-Kitara and grandson of H.M. Omukama Chwa II Kabalega has continued to recognize the Abbey-Principality’s government-in-exile. The 2012 bilateral Treaty on Friendly Relations and Co-operation between Bunyoro-Kitara and San Luigi serves as the principal instrument of this ongoing recognition.

The Abbey-Principality continues to seek further alliances both with current and former governments of states, and with current and formerly reigning Royal Houses, including especially those which have previously extended their patronage to the San Luigi Orders or have accepted their accolades. It preserves the ius legationis and is empowered by its Constitution to appoint and accredit diplomatic representatives and to enter into treaties and similar relations of alliance and friendship.

THE PRESERVATION OF SOVEREIGNTY

It is generally agreed that a sovereign who has ceased to exercise territorial governance retains a number of important rights as a personality in international law, while losing others as a consequence of the loss of territory. The jus majestatis and jus honorum are two rights that are preserved by an ex-ruling sovereign unless explicitly resigned. The first refers to the right to receive honour and respect due to his position. The second refers to the right to bestow honours, titles and dignities upon others.

Johann Wolfgang Textor in “Synopsis Juris Gentium” says,

“those Republics which have wrested their liberty by force from Kings or Princes, need after the event the completion of their title by an abdication of royal power on the part of the King or Prince…a King who has been driven from his Kingdom by force and arms, and who has lost possession of his sovereignty, has not thereby lost his right, or at any rate not irrevocably, unless he has in the meanwhile given his assent thereto; but he loses it conclusively at the moment when he consents to a transfer of it to the Estates or to his rebel Subjects…” [11]

Emerich Vattel in Le Droit des Gens offers the means by which this sovereignty may be maintained when not in possession of the territory concerned,

Ҥ 145. Proprietor sufficiently showing that he does not mean to abandon his right.

It is also very evident that we cannot plead prescription in opposition to a proprietor who, being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to show that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it.” [12]

Stephen P. Kerr y Baca, JD, FAS, in his paper “King and Constitution in International Law” makes the following points [13]:

“Thus, de jure sovereigns and governments-in-exile retain their status as long as they do not surrender their sovereignty to the de facto government…However, like most rules [concerning de jure sovereignty] this is usually observed in its breach…in modern law. It is nevertheless, recognized as the ideal.” (p. 125)

“de jure Sovereignty represents the moral principle that “might does not make right,” it is entitled to recognition by other sovereigns adhering to the moral principles implicit in International Law. This recognition takes many forms short of full diplomatic recognition. De jure Sovereigns are active members of the international community, negotiating international agreements, and, when appropriate, recognizing worthy individuals with knighthoods and other decorations or honor[s] at their command.” (p. 126)

“Under International Law a Government-in-exile is deemed to have the implied constitutional power to perform all normal acts of state, including those acts which under its own constitution would require the consent of an organ of government, such as Parliament, which is suspended due to the exile condition.” (p. 127)

The same author has also commented [14]:

“The rules of International Law [govern] the various modes of monarchical succession as well as the . . . position and status of unlawfully dethroned Sovereign Houses.”  “Upon the fall, dispossession, or usurpation of a monarchy, the de jure legal rights to the succession of that monarchy may be kept alive indefinitely through the legal vehicle of making diplomatic protests against the usurpation.”

“when appropriate, recognizing worthy individuals with knighthoods and other decorations or honor at their command” is equivalent to “a series of competent protests [that] will keep a de jure claim alive indefinitely”.

An extensive discussion on the rights of former sovereigns was provided in 1961 by Professor Giuseppe Antonio Pensavalle de Cristofaro dell’Ingegno, who writes[15],

“The severity of this theory, which reaffirmed the ancient teachings of the Prince’s sovereign rights, confirming their personal nature, perpetuity and hereditariness, is gradually giving way to that of “right of claim” (or pretension) whereby the Prince, if he is not dethroned, conserves the valid right to be able to exercise his power over the territory he was deprived of. This more considered application is still approved of today.

With reference to recent authors, such as Nasalli Rocca di Corneliano, G.B. Ugo, Bascapè, Gorino Causa, and Zeininger, Renato de Francesco writes: “The theory of legitimism, stripped of the extreme consequences which some of its supporters have led it to, is now understood as the right to claim, that remains with the ex-reigning Sovereign, and in fact gives him “jure sanguinis” by perpetual “native” right, is perfectly acceptable and satisfies jurists’ needs and peoples’ conscience, even in this dynamic and politically representative century.

Internationally “sovereignty” is not attributed exclusively to the State, no matter what its form. There are significant examples of this, the most illustrious and convincing been that of the Roman Pope, Head of the Catholic Church. If the figure of the Roman Pope were reduced to Head of the State of the Vatican City, it would not only belittle his existence but would deny it altogether, which would mean supporting an inexact situation at international level. The Roman Pope, as Head of the Catholic Church, has the maximum sovereign power in His person: to the extent that, when the Apostolic Seat is vacant no-one could succeed to the supreme power, which is passed directly onto the Pope’s heir through moral continuity. It is evident in this case that the “sovereignty” belongs to the person and accompanies the person everywhere, and is not restricted to the territory, which for a State is a fundamental element. No matter where he is, the Pope maintains all his powers which are recognised as such, not only by millions of believers throughout the world, but also by numerous different foreign powers, as is shown by the historic period from 1870 to 1929 when, even though He had lost the territory of the State, he maintained intact His great prestige in international relationships. Even Italy, after being annexed to Rome, recognised the special position by issuing Law no. 214 on 13 May 1871 called the “Guarentigie”.

Prior to 1870, the Pope had the dual function of Head of the Papal States and Head of the Catholic Church, thus becoming the representative of two different bodies with other States: religious relationships as Head of the church and legal and political relationships as Head of the Papal States. Therefore in his dual function, he was the source of the Nobility he created.

In 1870, the Pope was deprived of his temporal power and only in 1871 was he returned his Sovereign honours in the Kingdom by the Italian Government, maintaining the prominence of honour recognised him by the Catholic Sovereigns, granted all the honorary prerogatives of sovereignty and all the immunity he needed to carry out his High Ministry. However among these honorary prerogatives, one of the most important, because it integrates one of the highest attributes of Sovereignty – that of granting noble titles and knighthoods, no mention is made in the law, giving rise to the problem as to whether the Pope had the faculty to confer noble titles, even after the temporal power had lapsed.

Here we should remember that, even before 1870, the Pope did not always grant honours and noble titles as Head of his States, because even when he granted concessions to foreigners, He acted in his position of Spiritual Leader of the Church, and awarded good actions towards the Church.

The position of the dethroned Sovereign must be considered at international level, because only there can it be concretely justified historically and politically, with motives that do not always coincide with its abstract and philosophical justification. The legal problem is solved positively rather than philosophically, considering the historic and political reality, rather than forced ideals, despite their unquestionable value. But historic reality, which is the effective existence of the phenomenon, is the driving force in international relations, because it influences the legal aspect with its mass of vital interests.

The position of the dethroned Sovereign at international level still finds confirmations of considerable importance, being concrete and unequivocal. The first element is the treatment reserved to the ex-reigning Sovereign by other reigning Sovereigns who accept and respect the prerogatives, given by right of birth and blood. The second important element arises from the attitude of the States towards the Dynasties they have dethroned. Normally the ex-Sovereign is sent exiled from the country and not allowed to return, together with his heirs, and for the resolution to be revoked requires maximum renouncement of the right to pretend by the dethroned Sovereign, except in the case of restoration. When an ex-reigning family is ordered to leave and not return, the country involved affirms its sovereignty and denies that of the dethroned dynasty, but at the same time recognises their claim. If they did not, the orders the State issued would not have any meaning, nor would it make sense to subordinate the return of the Pretender and his family to the renouncement of his right to claim. In fact, it would be absurd to request that he renounces a right that does not exist.

Exile and forbidden return for the ex-reigning family; peaceful restoration of the monarchy requested by the State concerned; granting the return to the country, subordinated to the rights to claim, always involve a legal act which, in the first case is a unilateral act of imperio but, in the other two, is settled with a agreement of will between two distinct equal parties. The parity of the parties is shown by the fact that each of them is independent from the other, resolving the contrast between two claims to the same sovereignty. Contrast, which, in the case of restoration, is settled in favour of the pretender, in the case rights of claim are renounced (accomplished debellatio), and is closed in favour of the State.

The heraldic dynastic wealth, as already mentioned, is outside the state’s order, even when the Sovereign is reigning, i.e. the Head of State. Even more so when the Sovereign no longer reigns and conserves his wealth, no matter where he moves to, for himself and his heirs. Given its nature, it is unthinkable that it becomes any ordinary state order or is transferred from one order to another, being changed each time, depending on the contents and limits that are made by each nationality, perhaps even disappearing to then return when a new legislature begins.” [16]

Thus the quality of sovereignty is preserved in the ex-monarch, provided it has not been resigned, and can be passed on to heirs according to the established regulations governing the succession to the throne in question.

For the Abbey-Principality, these sovereign qualities, both territorial and non-territorial, and their accompanying rights have been retained intact and passed on from one Prince-Abbot to the next, with each being of the same succession. Additionally, as de jure head of state and head of the diplomatic mission of the Abbey-Principality, the Prince-Abbot is entitled to the normal immunities of those positions under customary international law.

Phillip Marshall Brown, the distinguished international lawyer, stated in Sovereignty in Exile (American Journal of International Law, no. 35, 1941, pp. 666-668) that,

“There is still deeper significance to this anomalous condition of sovereignty in exile. There is no automatic extinction of nations. Military occupation may seem final and permanent, and yet prove to be only an interregnum, though a prolonged nightmare for the inhabitants. A nation is much more than an outward form of territory and government. It consists of the men and women in whom sovereignty resides. So long as they cherish sovereignty in their hearts their nation is not dead. It may be prostrate and helpless and yet revive. It is not to be denied the symbols or forms of sovereignty on foreign soil or diplomatic relations with other nations.”

Many of the considerations of the position of the Abbey-Principality regarding sovereignty draw parallels with the recognition of the Order of Malta, not least because the origin of both entities is in the Roman Catholic Church, and because both have exercised territorial sovereignty in the past while no longer doing so in the present era[17]. Significantly, in both cases, sovereignty is attributed to the Abbey-Principality or the Order respectively, and not to the territory or people under their governance. The Abbey-Principality’s constitutional independence establishes this position and means that the loss of territory carries different implications compared to an entity that was sovereign only by virtue of its territory or people.

With those parallels acknowledged, however, one must also recognise differences: the Order of Malta, enjoying the diplomatic support of the Vatican and substantial financial resources, has remained prominent and has acquired wide international support during the past century in particular, while the Abbey-Principality, deprived of such temporal backing, was reduced to circumstances of relative obscurity so far as international affairs are concerned.

That common origin in the Roman Catholic Church is also significant in that it indicates that the historic status held by the Holy See as a religious personality of international law is likewise inherent in the nature of the Abbey-Principality. The differences that have been present between the Holy See and the Prince-Abbots since the breach with Rome in 1899 concern issues of theology, mutual recognition and approaches to the tradition of the Catholic Church rather than of wider fundamental principle; in the event that those issues could in theory be overcome, there would be no ostensible reason why relations with the Holy See could not be restored[18]. What has been preserved throughout, regardless of the state of those relations, is the historic Apostolic Succession that is traceable direct from Jesus Christ to the present generation.

The sovereignty of the Holy See was recognised by multiple states during the period 1870-1929 when it was officially deprived of territory. Even Italy, which claimed that territory, acknowledged that the Holy See was “a subject of international law” rather than simply a group of Italian citizens in the 1871 Law of Guarantees[19]. What is certain is that the sovereignty of the Holy See does not derive from the 1929 creation in the Lateran Treaty of the “City of the Vatican”. That sovereignty was already present on a historic basis and widely recognised by the majority of Catholic countries even when all territory was lost. The Holy See does not have a population as such, and its members are themselves citizens of other states.

A number of other precedents in the modern era suggest that sovereignty continues to be recognized despite a lack of territory. During the 1939-45 War those countries whose territories had been occupied established governments-in-exile which received diplomatic recognition from other states.

Another case is of the United Nations recognition of the sovereignty of the People’s Republic of China over Taiwan. This recognition rests purely on the fact that Taiwan was historically part of mainland China; the People’s Republic of China does not exercise any sovereignty or governance over the people of Taiwan. On the other hand, the Republic of China (Taiwan) was expelled from the United Nations on the recognition of this claim in 1971, despite exercising territorial governance and fulfilling all the theoretical requirements for recognition as a sovereign state.

The Palestinian Authority received limited recognition as a state from 1967 onwards, even at a point where it controlled no territory. The United Nations is regarded by its members as possessing the qualities of a sovereign state, although it controls no territory or population. A similar observation may be made of the European Union.

Despite its continuance, in the practical realm, sovereignty is limited after the loss of territory by the necessity of dependence upon other states. During the period of the Abbey-Principality in Bunyoro from 1885-88, the exercise of such sovereignty would have been delineated in practice by those privileges reserved to the Omukama. This is the situation described by Korowicz, quoted by Stair Sainty as follows,

“There is no such thing, according to Korowicz, as a “limitation of Sovereignty”, only a “limitation of the exercise of Sovereignty… Sovereignty may be limited in a quantitative sense, but not a qualitative one”. The State remains independent as long as it has not abandoned its independence to any other State; a body “which is subjected to International Law through the intermediary of a foreign State is not a Sovereign State under International Law.” [20]

This observation also applies equally to the Abbey-Principality’s current position; while its officers hold citizenship of other states, the Abbey-Principality is not economically or politically dependent on any other state; it remains a subject of international law in its own right. The Abbey-Principality has never been party to any treaty or other agreement that has sought to limit its sovereignty; while its continued existence during the period of exile may have been ignored by the international community at large, its history and succession is comparatively well-documented[21]. Additionally, membership of a federation may result in a loss of sovereignty, but it does not mean the extinction of statehood. Bunyoro-Kitara is no longer an absolute monarchy, as it was in 1885, and is now a part of Uganda. It has not, however, ceased to be a state in its own right according to established definition, any less than, for example, has Monaco by virtue of its status as a satellite of France.

To sum up the position, a further quotation from Korowicz:

“Subjects of International Law may be defined as legal or physical persons upon whom International Law directly imposes duties and confers rights. Sovereign subjects of International Law are Sovereign States. They may also be called original subjects, Sovereignty being inherent in them, stemming from them, and unconditionally applying to them…” [22]

It can therefore be seen that the Abbey-Principality preserves its sovereignty intact even though it no longer possesses control over its former territory.

NOTES


[1] That such recognition was extended was unsurprising in the case of the Holy See, since the monks in question were Roman Catholics. Of those founding monks, some were French and some Spanish. It is possible that some had been associated with the former Benedictine Abbey at Ligugé, which had been closed in 1880 with most of the members of the community then moving to Silos Abbey in Spain. All documentary archives in the possession of Prince-Abbot Joseph III were seized at his death in 1929 by the Vatican; a number had previously been destroyed in a house fire in 1918. See correspondence of Prince-Abbot Edmond I on this matter, “his possessions were seized by Rome and nothing got away without their consent. I never got any of the Order matters, for example, and that has made things very difficult. I saw most of the important papers and documents when he was here, but that is not legal backing.”
[2] Jules Ferry (1832-93) was Prime Minister Sept. 1880-Nov. 1881 and Feb. 1883-Apr. 1885. He was a notable supporter of French colonial expansion, while also being, as a proponent of laicisation, the originator of the law that had forced the abbey at Ligugé to close in 1880.
[3] Charles de Freycinet (1828-1923) was Prime Minister Dec. 1879-Sep. 1880, Jan. 1882-Aug. 1882, Jan. 1886-Dec. 1886 and Mar. 1890-Feb. 1892.
[4] Nanni and Others v Pace and the Sovereign Order of Malta [1935-1937] Ann Dig 2, 4-6 [No. 2] (Cassation Court of Italy, 13 March 1935), quoted in Cox, Noel The Acquisition of Sovereignty by Quasi-States: The case of the Order of Malta, first published (2002) 6(1&2) Mountbatten Journal of Legal Studies 26-47, accessed at http://www.geocities.com/noelcox/Malta.htm February 2008.
[5] See Cox, op cit, “The notions of sovereignty and statehood are not easily defined or explained. To a large degree this is because they are principally political concepts, rather than merely legal principles. With the growth in both the (horizontal) extent and (vertical) reach of international agreements, treaties, conventions and codes, national independence is becoming less relevant. This tendency is becoming more noticeable in the modern commercial environment, and especially the internet.”
[6] The Benedictine Confederation was established in 1883, but by that time the monks of the Abbey-Principality were already in the Fezzan.
[7] Frederick Gilbert Linale, 1982; Douglas Titus Lewins, 1998, both representing different branches of the Old Roman Catholic Church of Great Britain. [8] Prince-Abbot Edmond I (Barwell-Walker), letter to Archbishop Daniel William Alexander, 5 August 1938.
[9] As per Patriarchal Bull of the Catholicos of the Catholicate of the West of 7 June 1946 concerning The Old Catholic Church of America and Instrument of 31 July 1946 merging The Ancient Christian Fellowship with The Apostolic Episcopal Church.
[10] See, for example, the present author’s General Considerations Pertaining to the Apostolic Succession in Ecclesia Apostolica Divinorum Mysteriorum, Ecclesia Apostolica Divinorum Mysteriorum, 2010.
[11] Textor, Johann Wolfgang trans. Bate, J.P., Synopsis juris gentium (Synopsis of the Law of Nations), Carnegie Institute of Washington, Washington, DC, 1916, Chap. X, 9-11, p 88.
[12] Vattel, Emerich, trans. Chitty, J.,  Le Droit des Gens (The Law of Nations), T. & J.W. Johnson & Co., Philadelphia, 1883, Book II, Chap XI, sect. 145
[13] Kerr y Baca, Stephen P., “King and Constitution in International Law” in The Augustan, vol. 18, no. 4, 1977, p. 126.
[14] Kerr y Baca, Stephen P., “Resolution of Monarchical Successions Under International Law” in The Augustan, vol. 17, no. 4, 1975, p. 979.
[15] Although these remarks are directed towards the application of these principles by the Italian courts, their citation here is in order to establish general principles, and does not imply that the Abbey-Principality considers itself subject to Italian nobiliary law, or that of any other state.
[16] Pensavalle, G.A., Questioni al vaglio della Magistratura, Secolo d’Italia, 28 February1959.
[17] However, the Order of Malta continues to exercise extraterritorial sovereignty through specific properties in Italy and elsewhere in those countries that recognize it. The Abbey-Principality is also theoretically empowered to open embassies although it has not done so as yet. One difficulty of doing so is that the United Kingdom, where the Abbey-Principality is based, does not recognise the Order of Malta diplomatically, and would therefore be unlikely to extend formal recognition to any other entity whose sovereignty originated in a similar way.
[18] Discussions between the Holy See and another group of “separated traditionalists”, the Society of St Pius X, seemed in recent years likely to result in reunion (in the light of the 2009 lifting of excommunication from the SSPX bishops), but at the time of writing appear to have foundered as a result of the insistence of the Vatican that the SSPX should accept fully the Second Vatican Council and the beatification of Pope John Paul II as a precondition of reconciliation.
[19] This was, of course, not accepted by the Holy See.
[20] M. S. Korowicz, in Some Present Aspects of Sovereignty in International Law, Leyden, 1961, p 108, quoted in Stair Sainty, Guy, The Order Of Malta, Sovereignty, And International Law, at http://www.chivalricorders.org/orders/smom/maltasov.htm, retrieved February 2012.
[21] See, for example, Independent Bishops: An International Directory, Persson, B, Ward, Gary L, Bain, Alan, Apogee Books, Detroit, 1990, entries on Walker, John Barwell (p. 424) and Lyman, George Arvid Edmond (p 248) amongst others. This book was compiled largely from resources in the American Religions Collection at the University of California, Santa Barbara.
[22] Korowicz, p 102, quoted in Stair Sainty, op. cit.