SOVEREIGNITY OF THE ORDER OF MALTA
The name of the Order is the Sovereign Military Hospitaller Order of St. John of Jerusalem, of Rhodes, and of Malta (the "Order"). The question is frequently asked as to what the Order means by placing the term "Sovereign" in its name.
The term "sovereign" is most closely identified with nation states. The Order’s current functional nature as an international organization providing assistance to the poor (particularly medical in nature) does not fit into this category. Indeed, it is more in line with the several international organizations (e.g. the Red Cross) which have no claim to sovereignty. The answer to the question is complex and lies in the history of the Order which now spans nine centuries.
The Order came into existence centuries before the modern notion of the nation state came into existence. Legally, it can be described as a persona mixta, having both a religious component inextricably tied to the Roman Catholic Church and the Apostolic See as a religious Order and an autonomous sovereign entity under international law which is not tied to any other sovereign institution or entity.
Its sovereignty ultimately lies in the fact that it does not depend on any particular sovereign nation state for its existence (as, for example, corporations or other international organizations do), but exists outside the jurisdiction of all such nation states. Indeed, with the sole exception of the Vatican, the Order came into existence before any of the modern nation states were formed. As a result, the Order currently, as it has throughout its history, exchanges ambassadors with various countries, issues its own passports and stamps, and its Grand Master is treated as a head of State.
TABLE OF CONTENTS
History of the Order’s Sovereignty
The Order and the Italian State
The Order and the Holy See
The Order’s Sovereignty in Today’s World
History of the Order’s Sovereignty
The Order was founded in by 1099 by the Blessed Brother Gerard as a religious order. The Order was officially recognized as a religious order of the Roman Catholic Church in 1113 by Pope Paschal II.
The military element of the Order was established in 1118 and confirmed by Pope Calixtus II in 1120. The Order’s avowed military purpose was defending the Hospital of St. John in Jerusalem and to defend the Holy Land in defensive warfare against the infidel in the Crusades to defend the Holy Land.
Its juridical existence was is derived from canon law and Papal grant. This existence gave the Order a legal basis by virtue of the jus gentium (the law of nations), of which canon law formed a part. As a result, the Order’s existence, as well as its powers, privileges and immunities were accepted in the feudal jurisdictions which formed part of the imperium.
The collection of the Order’s current powers, privileges, and immunities is the result of the process of accumulation of rights throughout the centuries beginning with canon law and feudal law in the twelfth century.
The next significant event in the history of the Order’s sovereignty is the Order’s establishment on the island of Rhodes in 1310, from where the Order became a major naval power and exercised territorial sovereignty. Later, in 1446 Pope Nicholas V declared the Grand Master of the Order the Sovereign Prince of Rhodes.
Rhodes from the sea, c.16th Century
After having been forced out of Rhodes by the Turkish empire, the Order established itself on the island of Malta. It received the island of Malta, as well as the feudal fief of Gozo and Tripoli, in 1530 from
Emperor Charles V.
The price which the Order paid was the payment of one falcon per year. Although there exists some debate as to whether Malta was considered an international person distinct from the Order itself, it has been forcefully argued that the Order was the international law entity and that the island of Malta was part of its patrimony.
In this regard, the Order was seen as the legal entity exercising control over the territorial area. Thus, the Order was never considered a sovereign territorial state, but instead the Order always maintained its persona independent of any territory.
Map of the Mediteranean with the Islands of Malta, Gozo and Tripoli
This was illustrated when Napoleon conquered Malta in 1798, and the Order renounced its sovereignty over the island in favor of France. The manner in which this was effected constituted a disposal of to the Order’s territorial patrimony and not an annexation and dissolution of an existing State of Malta.
It was at this time that the Order changed its name to include the term "Sovereign." The Order then returned to the status it had before it had occupied the island of Rhodes in 1310, an international entity recognized by canon and feudal law, but without territory.
The Order never based its prerogative of sovereignty on the basis of claimed sovereignty over any territory (be it the island of Rhodes or Malta), but it has consistently maintained its sovereign status which has always been acknowledged by at least one major sovereign state.
Thus, despite not having territorial sovereignty after 1798, several European states treated the Order’s representatives (albeit intermittently) as those of other sovereign states, including France, Austria, Russia, the Two Sicilies and Bavaria, Great Britain, the Duchy of Modena and Reggio, the Duchy of Parma and Piacenza, San Marino, the Greek government in 1823, and the Crown of Sweden.
The Order and the Italian State
The relationship of the Order to the Italian state is of crucial importance in understanding its claim of sovereignty in modern times because it has maintained its headquarters in Rome since 1834. Any recognition on the part of the Italian State of the Order’s sovereignty is a conscious limitation on its own sovereignty and accordingly against its interests.
Castle at Maggione, rebuilt by the Priors of Rome in the 15th century, recognized today as an official residence of the Grand Master.
In 1884 the Italian state recognized the Order’s right to legation, both active and passive, but without immunity as to the passive legation. Since 1921, the Italian state has allowed both the Grand Master and Grand Chancellor to enjoy the same freedoms from customs duties given other Heads of State and of Government.
As of November 28, 1929, by Royal Decree it was declared that the duly accredited representation of the Grand Magistry should take precedence immediately following the foreign diplomatic corps. Also, in 1929 the Italian State recognized the Order’s right to use the term "Sovereign" in its official name. Finally, in 1956 Italy established full diplomatic relations with the Order and the Order’s Ambassador ranks among other diplomats accredited to Italy in accordance to his date of appointment.
Of importance to understanding the relationship between the Italian state and the Order is the decision handed down by the Italian Court of Cassation in 1936 in Nanni v. The Maltese Order. In that case the court held that "These grounds (of state immunity from State legislation) are based on the essential juridical character of the sovereign Order and the position which is . . . held by an international person existing apart form the national sovereignty of the State. . . . Such attributes of sovereignty and independence have not ceased to exist in the case of the Order at the present day . . .. Nor has its personality in international law come to an end . . . notwithstanding . . . such personality cannot be identified with the possession of territory." (emphasis supplied).
The relationship between the Italian state and the Order was conclusively and precisely established in a letter dated January 11, 1969, from the Order’s Ambassador to Italy and delivered to the Italian Minister of Foreign Affairs. On that same date the Italian government notified the Order that it concurred with the letter.
The letter outlined seven terms relating to the Order’s relationship with the state:
(1) that the Order enjoys the fiscal concessions relating to charitable, welfare, and educational activity conferred under Italian law,
(2) the sovereign prerogatives for the Grand Master as a foreign head of State
(3) diplomatic immunity, with the consequent exemption from taxation and administrative constraints, on those of its properties in which it presently exercises the prerogatives of sovereignty,
(4) exemption from customs duty for the Grand Master and Grand Chancellor,
(5) recognition of the juridical personality of its institutions and that the Order’s regulations are the sole instruments governing the deeds of foundation of such institutions and their titulars,
(6) application of existing regulations concerning enforceability of instruments of sequestration and distraint and judgment on the property of foreign states, and
(7) equivalence of the decorations and insignia with those of the Italian State. The letter provided that postal and telegraphic communications with the Order would be dealt with in a future agreement.
The Order and the Holy See
The Order has a very special relationship with the Holy See dating back to 1113 when in a Bull of Pope Paschal II the Order’s privileges were confirmed, thus making the Order one of the oldest Religious Orders of the Roman Catholic Church. As stated earlier, the Order can be considered a persona mixta with both a religious component and a sovereign component. The status of the Order as a sovereign international entity is completely distinct from its status as a Religious Order.
This fact is reflected in the Constitution of the Order which states that the "intimate connection existing between the two qualities of Religious Order and of Sovereign Order do not limit the autonomy of the Order in the exercise of its Sovereignty and of the prerogatives inherent in it as a subject of International Law in dealing with States."
In this regard it is worth noting that the
Order is not included among other Religious Orders listed in the official annual publication of the Holy See, the Annuario Pontifico. Instead, it is listed among those states which have accredited diplomatic missions to the Holy See.
The Holy See’s authority over the Order is currently explicitly limited to two areas: (1) to regulation of the religious and (2) to approval of changes in its Constitutional Charter and Code.
Until recent changes to the Constitution and Code, the Holy See was also empowered to confirm the election of the Grand Master, or Lieutenants of the Grand Master.
The Holy See’s position on the Order was stated in a declaration issued by a Tribunal of five Cardinals charged with deciding the competence and jurisdiction of the Order.
In its declaration the Tribunal found that the Order’s sovereignty "consists in the enjoyment of certain prerogatives inherent . . . as a subject of international law. The said prerogatives are proper to Sovereignty, in conformity with international law, and have been Church of the Grand Priory of Rome in the Aventine Hill recognized by a number of States . . .."
The Order’s Sovereignity in Today’s World
Perhaps since the days when it ruled over the island of Malta, the Order has never enjoyed such widespread acceptance of its sovereignty in the international community.
Despite the absence of a territory over which it rules, the Order’s sovereignty has been recognized by seventy-five countries with which it has full diplomatic relations and lesser relations with five
other states.
The Order issues its own passports, which have been accepted even by states with which it does not exchange full diplomatic relations (including France, Germany, Greece, Cyprus, Jordan and the United States).
It also has its own postal service and stamps and signed numerous postal agreements, including with states with which it does not exchange diplomatic relations (i.e. Canada). Finally, since 1994 it has been accorded the status of Observer at the United Nations.
The above facts reveal the extent to which the Order’s sovereignty is accepted in today’s world. This fact is the result of the Order’s unique history spanning nine centuries before the concept of sovereignty was even considered.