The abstract says,
This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic ‘effect’ of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate.As I've mentioned here already, the current crisis has offered so far a small number of instances in which the Vatican has used its diplomatic status to avoid legal accountability for high-level officials. Cardinal Law's departure from Boston for Rome in 2003, although it was not to avoid direct legal jeopardy, would have made him effectively unavailable for civil depositions, and observers have suggested this as a reason he never returned to the US afterward. Others have suggested Cardinal Wuerl might find it in his interest to leave for Rome and stay there for similar reasons.
More recently, "The Vatican has told French authorities that Cardinal Luis Ladaria Ferrer, Prefect of the Congregation for the Doctrine of the Faith (CDF), cannot testify at a clerical sexual abuse trial in Lyon because he enjoys immunity due to the Holy See's sovereign status." A more pressing question, although it's largely outside the scope of the subject here, is how the Vatican has or hasn't lived up to its legal responsibilities as a player in the international banking system.
Morss argues,
[A]n agreement was reached between the incumbent Pope and Benito Mussolini in 1929, according to which a small area of Rome (the Vatican City) would be treated by the Kingdom of Italy as having special status. The international status of this ‘sui generis’ entity is both conceptually problematic and of practical concern – whether this status amounts to statehood or to something less than statehood.Morss discusses the arbitrary and ambiguous relationship between the "Holy See" and the international entity of the Vatican State.. . . To the extent that the Vatican City or the Holy See has either internationally recognized statehood, or a status that in any way approaches statehood so as to sustain any of the privileges that go with statehood, then any ‘normal’ criminal investigation is impeded. (p 928)
[T]he Holy See is defined expansively in the Code of Canon Law as comprising the pontiff, the Roman Curia and ‘that which appears from natural law or the context’. At the same time, ‘a country does not have diplomatic relations with the Vatican, but with the Holy See’. In its preparatory work for the 1969 Vienna Convention on the Law of Treaties, the International Law Commission noted that treaties are ‘entered into not by reason of territorial sovereignty over the Vatican State, but on behalf of the Holy See, which exists separately from that State’. (p 930)It seems to me that in normal circumstances, this is a purely theoretical, not a practical, question. But the quote attributed to Stalin, "The pope -- how many divisions has he got?" bears some resonance if we try to consider the Vatican as a nation-state. Since 1870, popes have usually relied on moral suasion in the international field; if a pontiff addresses the United Nations, it's on the same basis as the Dalai Lama, but if the President of the United States speaks, it's to articulate policy that can be backed up with legal, financial, and military muscle.
Even Pius XII and John Paul II acted on the global political scene by indirection, mostly just giving prestige to movements like resistance to Hitler or support for Polish Solidarity, even if such movements were informally or secretly coordinated with the Vatican. But if the Vatican tries to use diplomatic legal standing to protect ecclesiastical bad actors, this could alter the situation.
Morss looks primarily at the legal and diplomatic foundation of the Vatican as the successor to the Papal States (where the pope did in fact have divisions). But, especially in the 16th and 17th centuries, popes were players in European power politics beyond the Italian peninsula, with decidedly mixed results. The European religious wars during this period were good for no one, fought the Protestants only to a stalemate, and quite possibly distracted the Church from the more important agenda of defeating Mahometanism, which was resurgent.
I'm still thinking this over, but I wonder if the current crisis signals the start of a new realignment. Morss concludes,
Either the responsibilities that go with statehood must be fully embraced or the immunities that go with statehood must be fully relinquished. The analysis presented above supports the second of these options. What is needed now, in other words, is an appropriately Franciscan gesture of humility. (p 946)
