1. THE ABBEY-PRINCIPALITY OF SAN LUIGI IN INTERNATIONAL LAW
The position of the Abbey-Principality of San Luigi 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 we are told that its Constitution declared it to be an independent entity[i]. According to Serge Thériault, its sovereignty was approved by the French colonial government of the time[ii]. It would also appear likely that it was recognized by the Holy See at its inception at least as a Benedictine monastic foundation, if not more[iii], 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[iv]. 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[v].
The constitution of Benedictine orders prior to the Apostolic Brief “Summum semper” of 12 July 1893 was not centralized. All such communities were autonomous and did not require any form of “abbatial blessing” or “sanction” from anyone. We should recall Pope Leo XIII’s phrase that the Benedictines were an “order without order”[vi]. The Rule of St Benedict establishes that a community of monks may elect its own abbot. It does not set any minimum number of brethren to form an abbey.[vii] Moreover, in former times, it was not even required that the abbot be ordained. Commendatory abbots, who could be either lay or ordained, survived well into the nineteenth-century and still exist today, though all are now ordained.[viii] The majority of criticisms of the Abbey-Principality on the grounds of its constitution as a Benedictine abbey fail because they seek to apply a later standard of practice and Roman canon law to the Abbey-Principality than actually existed and was enforced in 1883.
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, and the right of election of the Prince-Abbot (such as it was, for it also appears that the Prince-Abbot could nominate his own successor) was confined to the monks. 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 ecclesiastical sovereignty deriving from the nature of an abbey as an autonomous religious community. This ecclesiastical sovereignty descends by right from the sacred origins of the undivided Church, and in the nineteenth-century from the inherence of such sovereignty (explicitly ecclesiastical) in the Holy See as previously discussed.
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 ecclesiastically sovereign 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.
2. 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. Technically, this territory was all under the Rum Millet as discussed above. 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 de facto 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 provide a similar structure. Examples of sovereignty being exercised by prince-bishops and prince-abbots in the past include the Prince-Bishopric of Basel[ix] (a feudal state within the Holy Roman Empire between 1032 and 1803) and the Imperial Abbey of Kempten (extending to around 1,000 square kilometres of land and embracing some 42,000 subjects).[x]
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. The position of Ottoman suzerainty within the Rum Millet would not prevent the Abbey-Principality of San Luigi from being regarded as sovereign and exercising the fons honorum that derived from territorial governance. In addition, the 1880s saw the Rum Millet and the Ottoman powers weakened and increasingly vulnerable amid the rise of nationalism.
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[xi] and Charles de Freycinet[xii] ushered in a new spirit of French colonialism in Africa[xiii]. Eventually, in 1902, Italy and France would sign a secret treaty allowing them to intervene in Tripolitania and Morocco.
There was a wider context to the missionary efforts of the Abbey-Principality in that the White Fathers (Missionary Fathers of Africa of Algiers) had been present in the region for some time previously. In April 1878, three of their priests were assassinated by their Touareg guides while trying to cross the Sahara to Sudan, where they had intended to oppose the slave trade, and subsequently the White Fathers founded two stations at Ghadames and Tripoli. Notwithstanding the massacre of the Flatters expedition, the White Fathers again attempted to cross the Sahara, with Fr. Louis Richard setting out from Ghadames to join with Frs. Gaspard Morat and Alexis Poupiard at Ghat. However, all three priests were assassinated by the Touareg. This event in 1881 marked the end of the White Fathers’ mission at Ghadames[xiv]. The exact relation between the San Luigi monks and the White Fathers is unclear, but it may well be that the Abbey-Principality was established in what had previously been the White Fathers’ station at Ghadames.
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 most likely 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 Touareg 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.
3. 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 France would meet the conditions for this theory.
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. We are told that the Abbey-Principality maintained relations with France. 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[xv].
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”[xvi]
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.[xvii]
The Roman Catholic office of prince-abbot was comparable to a fiefdom, and that status also recalls the position of Christian communities within the Rum Millet. 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 would not have impinged 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, neither of these things would prevent San Luigi being nevertheless in full communion with the Holy See and regarded correctly as a Roman Catholic entity. It should be restated 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.[xviii] Nor would the Rum Millet have prevented the Abbey-Principality from exercising sovereignty; it allowed self-government to the Christian communities it contained and did not intervene in their administration.
By virtue of the Constitution, the histories tell us that the Prince-Abbot either possessed the right of appointment of his successor, or his successor was elected by the body of monks. There is no evidence that such an appointment was required to be ratified by the Holy See, although it would have been routine for a notification to be submitted in any case.
The short-lived period of effective sovereignty of the Abbey-Principality – lasting eleven months and seven days – is not unprecedented. Numerous other states have existed for brief periods, without their sovereignty being subject to doubt. Such a list would include the Principality of Albania (ruled for just under six months by Prince William of Wied; he and his son were regarded as de jure sovereigns thereafter), the First and Second Mexican Empires (the head of the House of Iturbide today claims the throne of Mexico, which his ancestor ruled for a total of ten months), the Kingdom of Tunisia (sixteen months in 1956-57), the Independent State of Croatia, the Principality of the Pindus (to which there is at least one pretender), and indeed the Central African Empire, to name but a few recent examples. Sovereignty and statehood are not determined by length of time, and eleven months is not a particularly short time in political affairs. The Hundred Days in France is a good example; no history book denies that Napoleon ruled France for that period and was therefore its sovereign at that point, although his rule was arguably gained by an act of usurpation.
4. 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 1998 and in the United Kingdom from 1998 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[xix].
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.
It may be argued that excommunication is evidence that the Prince-Abbot possessed a power that was necessary for the Holy See to control; had he not possessed such a power, such an act would not have been required. As is evident from his letter to Prince Guy de Lusignan of 29 December 1893, he was promoting the Order of the Crown of Thorns as an example of a Catholic Order outside Papal control, “France is a Roman country, subject to the Pope of Rome, it suffices for our order of the Crown of Thorns to refuse the infallible Pope’s blessing, for the French newspapers to be in harmony with the Pope of Rome to curse and despise Religious Orders which are Catholic without being Roman or Papist.”[xx]
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.”[xxi]
Notwithstanding these developments, the Holy See has explicitly restated in 2012 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 of the medieval French Order) 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 of 1930. 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 direct Roman jurisdiction, 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[xxii]. Moreover, as we have previously found, 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.
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; it is augmented by the Royal Protection graciously extended by H.M. the Omukama to the San Luigi Orders.
Indeed, separately from the arguments that San Luigi is sovereign, it is also possible to argue that since H.M. the Omukama is a reigning sovereign, his 2012 grant of Royal Protection of the chivalric Orders of San Luigi in itself places those Orders under a valid fons honorum.
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.
5. 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…”[xxiii]
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,
“§ 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.”[xxiv]
Stephen P. Kerr y Baca, JD, FAS, in his paper “King and Constitution in International Law”[xxv] makes the following points: “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 juresovereignty] 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 jureSovereigns 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[xxvi]: “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[xxvii]. We have already quoted those passages of his work that relate to the Papacy and especially the period 1870-1929.
In addition, he says, “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…
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.”[xxviii]
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. It matters not that whatever government has since been established on the territory concerned may purport to abolish the monarchy. The regicide of 1649 in England and subsequent abolition of the monarchy did not prevent its restoration in 1660. In the modern era, King Kigeli of Rwanda, whose effective reign there was one of nine months[xxix], continued to bestow titles of nobility and chivalric honours in exile notwithstanding the hostility of the Rwandan government to the monarchy.
For the Abbey-Principality, both territorial and ecclesiastical sovereign qualities, 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 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.”[xxx]
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[xxxi]. 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 backing, was reduced to circumstances of relative obscurity so far as international affairs are concerned. Moreover, events of the past decade concerning the replacement of the Grand Master of the Order of Malta and its subsequent reform have shown that even if that Order once held a position of essentially independent sovereignty, it is now merely a vassal of the Papacy and any sovereign functions are heavily circumscribed as a result.
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 be overcome, there would be no ostensible reason why full communion with the Holy See could not be restored. 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. With the preservation of the essentials of the undivided, pre-1054 Church, comes the ecclesiastical fons honorum that subsists in the Holy See and those other churches with a clear descent from its common root.
In addition to the case of the Holy See, 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 by the Axis forces 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 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.”[xxxii]
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[xxxiii]. 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…”[xxxiv]
It can therefore be seen that the Abbey-Principality preserves its sovereignty intact even though it no longer possesses control over its former territory.
- The Abbey-Principality of San Luigi possesses temporal sovereignty in that it was during the period 1883-84 in sovereign control of territory. Although it may be said that this was under condition of the suzerainty of either or both of the Holy See or the Ottoman Rum Millet, this suzerainty does not prevent an entity from nevertheless being regarded as sovereign, any more than would the Holy Roman Empire or the German Empire.
- At the same time, from its foundation, the Abbey-Principality has also possessed the same ecclesiastical sovereignty that derives from the Holy See, as established in Part I.
- The Abbey-Principality thus maintains both temporally-derived and ecclesiastical sovereignty, and its fons honorum draws on the combination of these two sources.
- The Abbey-Principality was in full communion with the Holy See between 1883 and 1899, and 1925 to 1929. Since 1929, it has been in partial communion with the Holy See because it has not been under Papal jurisdiction. However, as will be further shown, it has preserved the necessary attributes both for validity as a church in the Roman definition and for the maintenance of the fons honorum.
- The chief recognitions of the position of San Luigi come from the Kingdom of Bunyoro-Kitara (1885, confirmed 2012) and the Kingdom of Yugoslavia (1962) both of which recognized the Prince de San Luigi and bestowed additional honours upon him. In the present age, the Royal Protection of the San Luigi Orders by H.M. the Omukama of Bunyoro-Kitara from 2012 onwards places those Orders under the authority of a reigning monarch.
[i] Ordre Chevaleresque et Religieux de la Couronne d’Epines, History and Regulations, 1922, USA, n.p., p.2 “The Colony by its constitution was independent.”
[ii] Serge Theriault, Msgr. Rene Vilatte, Community Organiser of Religion 1854-1929, California, Apocryphile Press, 2006, p.150.
[iii] Of those founding monks, some were French and some Spanish or Portuguese. 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.
[iv] A Symposium in Honour of the Crown of Thorns, Editions Pelerin, Tonbridge, 1962, p.13.
[v] Vincenzo Privitera, Ordine Cavallereschi, Storia e Decorazioni, 1982, Italy, Centro Culturale Siciliano – Trinacria, p.395; Ordre Chevaleresque, 1922, op. cit., p.2.
[vi] As quoted at https://www.newworldencyclopedia.org/entry/Benedictine retrieved September 16 2020.
[vii] Johnston, William M.(ed.), Encyclopedia of Monasticism, Routledge, Abingdon, 2015, articles “Abbeys, Territorial”, pp.2-4, “Abbot”, pp.7-9, “Abbot Primate, Benedictine”, pp.10-11.
[viii] Ott, M. (1908). Commendatory Abbot. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved September 16, 2020 from New Advent: http://www.newadvent.org/cathen/04155b.htm “A commendatory abbot is an ecclesiastic, or sometimes a layman, who holds an abbey in commendam, drawing its revenues but not exercising any authority over its inner monastic discipline.”
[ix] Lins, J. (1907). Basle-Lugano. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved September 16, 2020 from New Advent: http://www.newadvent.org/cathen/02338a.htm “During the episcopate of Adalbert (999-1025) the foundation of the secular jurisdiction of the Bishops of Basle was laid by the grants made by King Rudolph III of Burgundy; the king appointed the bishop administrator and protector of several religious foundations, bestowed a number of towns and territories on him, and conferred various rights, such as the right of coinage, hunting-rights, etc. Adalbert rebuilt the cathedral which had been pillaged by the Magyars and consecrated it with much pomp in 1019 in the presence of the Emperor Henry II and his wife. Adalbert’s immediate successors Ulrich II (1025-40) and Dietrich (1041-53) were included among the spiritual princes of the Holy Roman Empire. In the period following Adalbert’s administration the territory of the diocese was greatly increased, especially through gifts made by the Emperors Henry II, Henry III, and Conrad II.”
[x] Immler, Gerhard, Kempten, Fürstabtei: Territorium und Verwaltung in Historisches Lexikon Bayerns published online, retrieved at https://www.historisches-lexikon-bayerns.de/Lexikon/Kempten,_F%C3%BCrstabtei:_Territorium_und_Verwaltung September 16, 2020, translated: “The Imperial city of Kempten itself formed an Imperial State in its own right and an enclave within the abbey’s territory. The Princely Abbey of Kempten covered approximately 1,000 square kilometres (390 square miles) and included some 85 villages and hundreds of hamlets and farms, making it one of the largest Imperial abbeys. At the time of its annexation to Bavaria in 1802, it had some 42,000 subjects.”
[xi] Jules Ferry (1832-93) was Prime Minister of the French Republic 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.
[xii] Charles de Freycinet (1828-1923) was Prime Minister of the French Republic Dec. 1879-Sep. 1880, Jan. 1882-Aug. 1882, Jan. 1886-Dec. 1886 and Mar. 1890-Feb. 1892.
[xiii] See Lisa Anderson, Nineteenth-Century Reform in Ottoman Libya in International Journal of Middle East Studies, Cambridge University Press, Vol. 16, No. 3 (Aug., 1984), pp. 325-348. Anderson highlights the suspension of the Ottoman Constitution in 1876 as the beginning of a strong European cultural influence in Tripoli province. In her discussion of French influence in Tripolitania (p.337) she records that “the assassination of three French missionaries in Ghadamis in 1881 [those of the White Fathers discussed above] led the Ottoman authorities to forbid Europeans, for their own safety, from entering the interior of the province without a visa from the wali.” The subsequent assassination of the Prince de San Luigi in 1884 and the sack of the monastery suggest that the warnings of the Ottomans were timely.
[xiv] Goyau, G. (1912). Vicariate Apostolic of Sahara. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved October 18, 2020 from New Advent: http://www.newadvent.org/cathen/13327a.htm
[xv] History of the Abbey-Principality of San Luigi, 1954, n.p., p.5.
[xvi] 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 on February 2, 2008.
[xvii] 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.”
[xviii] The Benedictine Confederation was established in 1893, a decade after the establishment of the Abbey-Principality.
[xix] Theriault, op. cit., p.151.
[xx] Copy of letter in the archive of the Western Orthodox University.
[xxi] Prince-Abbot Edmond I (Barwell-Walker), letter to Archbishop Daniel William Alexander, 5 August 1938.
[xxii] 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, published in The Ancient Christian Fellowship Review, California, Oct-Dec 1946, vol. 1 sect. 4, pp. 12-13.
[xxiii] 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.
[xxiv] 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
[xxv] Kerr y Baca, Stephen P., “King and Constitution in International Law” in The Augustan, vol. 18, no. 4, 1977, p. 126.
[xxvi] Kerr y Baca, Stephen P., “Resolution of Monarchical Successions Under International Law” in The Augustan, vol. 17, no. 4, 1975, p. 979.
[xxvii] 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.
[xxviii] Pensavalle, op. cit.
[xxix] https://www.washingtonian.com/2013/03/27/a-king-with-no-country/ retrieved September 16 2020. He was crowned in October 1959 and fled the country in June 1960.
[xxx] Philip Marshall Brown, Sovereignty in Exile in American Journal of International Law, no. 35, 1941, pp. 666-668.
[xxxi] However, the Order of Malta continues to exercise extra-territorial sovereignty through ownership of 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 now 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.
[xxxii] 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.
[xxxiii] See, for example, Persson, B, Ward, Gary L, Bain, Alan, Independent Bishops: An International Directory, 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.
[xxxiv] Korowicz, p 102, quoted in Stair Sainty, op. cit.