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Duke Law > Duke Law Scholarship Repository > Journals > DJCIL > Vol. 31 > No. 2 (2021)

 

Abstract

This article analyzes how human rights obligations apply to the Holy See, focusing on the Convention on the Rights of the Child (CRC) as the case study. The Holy See is the sovereign of a state and yet it is also a unique nonstate actor in international law. Unlike other non-state actors, it has international legal personality, controls territory, and is party to several human rights treaties. At the same time, the Holy See is also a religious institution whose governance of a church is not subject to international law. This unusual arrangement challenges the application of human rights treaties whose terms were designed with territorial states in mind.

Under human rights treaties, including the CRC, states parties are only responsible for wrongful acts that are attributable to them, and occur within their jurisdiction. In order to violate the CRC, consequently, a state must not only act wrongfully, but it must have done so in a situation in which it has a sufficient degree of control. However, the Holy See is non-territorial entity that governs a micro-state as one of its international roles, and this reality challenges the application of the jurisdictional requirement. Although the Holy See is bound, it is unclear when its obligations arise.

This article concludes that human rights obligations, such as the CRC, should apply to the Holy See similarly to the current approach applied to states. The first critical issue in assessing the applicability of the CRC to the Holy See is describing the relationship between the Holy See and the Vatican City, as two distinct international legal persons, and identifying which entity is party to the CRC. The second issue is applying the concept of jurisdiction as provided in the CRC and in keeping with other human rights treaties, being de facto control, to this non-territorial entity that governs a territorial state. This analysis shows that the Holy See is indeed bound by the CRC and subject to its obligations where it has sufficient control.

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