The Continuing Question of Sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of Malta NOEL COX* Abstract The Sovereign Military Order of Malta is the only organisation currently recognised, albeit by a minority of States, as quasi-sovereign. The article begins with a brief look at the concepts of sovereignty and statehood as traditionally understood. The case of the Order of Malta is then examined in its historical context, and the basis for its claimed sovereignty assessed. Recent reconsideration of the concept of State sovereignty, and challenges to the State, are then considered. The lessons from the example of the Order of Malta for the relationship of territory and statehood are evaluated.
Introduction The Sovereign Military Order of St John of Jerusalem, of Rhodes and of Malta, also known as the Order of Malta, the Order of St John of Jerusalem, or simply the Knights Hospitallers or Hospitallers, is a unique international confraternity. It is the only organisation currently recognised, albeit controversially, by a minority of States, as sovereign or quasi-sovereign. In view of the claims to ‘sovereignty’ which have been made from time to time by other Orders of chivalry – or more recently by various pretended Orders – to such status, it is worthwhile looking more closely at the claims made by or on behalf of the Order of Malta. In so doing we may help to locate the origin and nature of this so-called sovereignty, and answer the question of which Orders of chivalry are likewise ‘sovereign’, or, indeed, whether the Order of Malta itself is truly sovereign.
The article begins with a brief look at the concepts of sovereignty and statehood as traditionally understood. A survey is then made of the origins of what might be called anomalous entities – bodies which have some status at international law, but which are not traditional States. The case of the Order of Malta is then examined in its historical context, and the basis for its claimed sovereignty assessed. The position of branches of the Order, and of other ancient religious Orders is looked at. Recent reconsideration of the concept of State sovereignty, and challenges to the State, are then considered. The lessons from the example of the Order of Malta for the relationship of territory and statehood are evaluated.
1. Sovereignty and Statehood The notions of sovereignty and statehood were once among the most important aspects of public international law. Their heyday was perhaps in the late nineteenth century, when sovereign States enjoyed almost unfettered independence of action. These were subject only to the regulation of their diplomatic and military action, principally by the Law of Armed Conflict, or the Laws of War.1
But to have sovereignty, a State must have a permanent population, it must have a defined territory, it must have a government, and it must have the capacity to enter into diplomatic relations.2 No other entity could be regarded as a sovereign State, whatever its de facto power. The Order of Malta at one time met all these criteria for statehood, but does not do so now.
This article is the latest in a long series of attempts to explain the somewhat anomalous situation of the Order.3 That this is an on-going controversy is the result of what Breycha-Vauthier and Potulicki called ‘a somewhat regrettable confusion of the Order’s permanent position as an international organisation and its role as a territorial Power’.4 The character of the Order did not originate simultaneously with its territorial sovereignty, and therefore did not disappear with the latter.5 We must, therefore, be on guard against attaching too much significance to the characterisation of a particular entity as a ‘State’.6 The Order may be sovereign in a limited sense, but not necessarily a State. It may also be true that recent debate surrounding the nature of State sovereignty has gone some way to tempering the hitherto rigid adherence to nineteenth century notions of State sovereignty.
2. The existence of anomalous entities having personality at international law Traditionally only territorial States were regarded as international persons, capable of having rights and duties under international law.7 That was simply a corollary of public international law, which was nothing less than – and originally little more than – the rules governing the relations of States. But that understanding of statehood has passed through several phases. In one model 1648 and the Peace of Westphalia have stood out as seminal, but there have been other important historical moments. That entities other than States can be subjects of international law is not even now a universally accepted idea, and exactly which entities do have this status is an even more controversial topic.
The status of organisations in international law is less controversial than the assumption of rights and duties by individuals or groups of individuals. In 1949 the International Court of Justice recognised the United Nations (‘UN’) as an international person,8 thereby beginning the process whereby an ever increasing number of modern international organisations are recognised as having personality at international law. That is not the same thing as saying that the UN is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.9
There are now many international organisations, though not all of these are necessarily subjects of international law.10 Whilst many such organisations, such as the European Union, or the UN, receive ambassadors from member countries, the Sovereign Military Order of Malta (known as SMOM for short – but here referred to as ‘the Order’ for convenience) almost alone among international organisations claims the right to send representatives to other States for the purpose of carrying on diplomatic negotiations, as well as to receive representatives from other States for the same purpose.11Most importantly, the Sovereign Military Order of Malta claims, and is sometimes acknowledged to be, a sovereign State in its own right.12 This status has been claimed since at least the fourteenth century, well before international law began to accord legal personality to international organisations.13 But the Order is not unique in such claims. Its own parent body, the Holy See, has for long been regarded as sovereign, apparently even when the papacy was without territorial possessions.
The twentieth century, and particularly in the second half of the century, saw the growth of international organisations and other bodies now accorded general if not unanimous recognition as subjects in international law. With the growth in both the (horizontal) extent and (vertical) reach of international agreements, treaties, conventions and codes, national independence is arguably becoming less relevant. This tendency is becoming more noticeable in the modern commercial environment, and especially in regards to the internet.
Non-countries have increasingly become subjects of international law, most noticeably, the UN.14 It was perhaps inevitable that as the traditional sovereign State lost ground in the face of economic globalisation, newer types of international entities, enjoying powers and privileges recognised by the international community, should emerge. Yet it is ironic that the first of these international organisations should date, not from the twentieth century, but from the twelfth.15
3. The Sovereign Military Order of Malta The major features of the long history of the Order are well known. In the early eleventh century a hospice, served by a lay fraternity, was founded or restored in the city of Jerusalem. Its staff were bound by oath to serve the poor of the Holy Land, whatever their religion. The hospital was later dedicated to St John the Baptist. On 5 February 1113 the hospital was recognised by the Bull Pie Postulatio Voluntatis by Pope Paschal II as an autonomous religious Order, dedicated to serve the poor and sick.16 Thereafter the Order spread outwards from Jerusalem, particularly to western Europe, where the Order’s estates provided funds to operate the expensive and extensive medical facilities in the Holy Land, and new recruits for the Order. Eventually there were hospitals, or houses of the Order, throughout Europe.17 The Order had one convent18 (initially and until the fall of the Crusaders States, in the Holy Land19), but they erected a hospital wherever they went. It is scarcely an exaggeration to say that it is to the Order of Malta that we owe the survival of a public hospital service through the middle ages in Europe.20
In its early years the Order remained purely eleemosynary in character. But due to the exigencies of the times, between 1126 and 1140 it assumed an additional, military, function, ‘to defend the Holy Sepulchre to the last drop of blood and fight the unfaithful wherever they be’.21 In 1137 the Hospitallers accepted the custody of the newly fortified castle of Bait Jibrin, and the Order’s military role in the Holy Lands steadily grew under the leadership of the second grand master, Raymond du Pay.
The military Orders gradually replaced the Frankish feudal aristocracy as the landlords in Syria. On the death of Baldwin II, King of Jerusalem, in 1185, the castles of the kingdom were placed in the custody of the two military Orders. But unlike the Order of the Temple (the Templars), the Hospitallers were never a purely military body, and they also allowed women to become affiliated members. They maintained the fight against the forces of evil on two fronts, against the seen and unseen enemy. One they fought in hospitals and on their estates in Europe, the other from their castles and fastnesses in Palestine, and later on Rhodes and Malta.22
The Order of St John withdrew from the Holy Land in 1291, when they established their convent on Cyprus. In 1309 they moved to Rhodes (which they seized from the Byzantine empire), which was to remain their home until 1523. After a time on the Venetian island of Crete and elsewhere, in 1530 they reformed on Malta,23 their home till their power was finally broken with the arrival of the French in 1798.24 On Rhodes and later on Malta – though not, apparently, on Crete – the Order had acquired and exercised sovereign authority, ruling the islands – at least in the early centuries – with an efficiency and vigour which was much to the advantage of the native inhabitants. Not the least of the Order’s responsibilities was maintaining a small fleet for the suppression of piracy in the Mediterranean.
Attempts were occasionally made after 1798 to regain territory for the Order,25 but none succeeded. Although lacking a territorial base, the Order continued to maintain hospitals, as it still does. For a few years it also retained its public status in Germany as a member of the Holy Roman Empire, with voting rights in the College of Princes26 and retained a vote in the College of Princes of the Empire,27 until those bodies in their turn fell under the wheels of the advancing French juggernaut, and the Holy Roman Empire collapsed with the abdication of Francis II in 1806.
Due to its grievously weakened condition, the Order remained for some time in danger of dissolution, despite its ongoing hospitaller function. As a sign of its weakness it lacked a permanent head for nearly a century, and it was governed by Lieutenant Grand Masters until 1871. Only in 1879 did the Holy See authorise the election of a new Grand Master.28 But throughout this time the Order maintained diplomatic relations with a number of countries, and, at least to some extent, preserved its sovereign status.29 While the loss of territory extinguishes a State, temporary loss due to the occupation of one’s territory does not. However, given the voluntary cession to Great Britain of the island of Malta by its inhabitants in 1800, it cannot be claimed that this is a temporary loss of territory. However, unlike other sovereign entities the Order was peripatetic, and has shifted its territorial base more than once, while apparently preserving its sovereign character. Membership, with voting rights, in the College of Princes, reinforced this impression, though it could well be that the sovereignty was due to possession of Malta, and that the principality was effectively mediatised after the loss of that territory.
The Order of Malta is still recognised by many countries – though by no means all – as a sovereign entity in international law.30 The Order is not a country, but it exhibits some aspects of a sovereign State.31 How did this ambiguous situation arise? The key is in its long history, and in the dual nature of the Order, as both Order of chivalry and religious Order.
4. The legal basis for the sovereignty of the Order The Order of St John is generally held to have become a State in international law possibly as early as 1291,32 when it settled in Cyprus,33 and certainly by 1313, in its possession of the islands of Rhodes.34 In 1523 the Order lost possession of the island of Rhodes, but not its sovereign territorial character, as it shortly thereafter acquired Malta, in the possession of which it was accorded recognition by the majority of the princes of western Christendom. Perpetual sovereignty over Malta was granted (or confirmed) in 1530 by the Emperor Charles V, in his capacity as King of Sicily, as a perpetual fief cum imperio of the Kingdom of Sicily.35 By the late eighteenth century this grant was to cause problems for the Order, since it implied that the Order might not, as the possessor of a fiefdom of the kingdom, be sovereign in its own right. The conquest of the island by Napoleonic armies and the end of that century brought that problem to an end,36 and the Order found itself homeless once again. Hopes that Great Britain would restore the island to the Order proved unjustified, and attempts to acquire other islands proved unsuccessful.37 Since 1834 the Order has been domiciled in Rome, where its headquarters, the Palazzo Malta, covers three acres, which has exterritorial status but is not sovereign territory.38
As the rulers of Malta, the Order was regarded by contemporaries as a sovereign power. But did the loss of territory extinguish the independence, the sovereignty of the Order? Although sovereignty is not affected by loss of territory, complete loss would extinguish the State.39 The principal question to be asked then is this: was it the Order which was an international person, or was it Malta? Thus, was the Grand Master a sovereign qua head of the Order, or qua head of the Maltese State?40 If the Order itself was the international person, then this status should continue undiminished despite the loss of Malta. Cansacchi thought that it was arguable that there was a personal union akin to that of the Pope, as occupant of the Holy See and sovereign of Vatican City State,41 but as the Grand Master was ruler of Malta solely as head of the Order,42 and not separately as prince or duke of Malta, this argument appears weak. But in 1446 Pope Nicholas V had recognised the Grand Master of the Order as sovereign prince of Rhodes,43 and this suggests that, at least with respect to Rhodes, the Grand Master was a sovereign prince qua head of the Rhodean State rather than qua head of the Order. It may well be that the situation with respect to Malta was no different.
But while neither alternative (the Order itself or Malta being sovereign) is entirely satisfactory to explain the post-1798 history of the Order, the most likely explanation was that it was only the possession of territory that gave the Order sovereign status – though that does not, necessarily, mean that that status was lost with the loss of Malta. The reality – and early international law was nothing if not realistic – was that the Order was an international person only because it possessed territory as a vassal of the Holy Roman Empire44 and later of the Kingdom of Sicily.45 This can be seen in the lack of similar status being accorded the Templars46 or the Iberian Orders, and, in contrast with these, of it being conferred upon the Teutonic Order, masters of Prussia.47
As, until the twentieth century, only a sovereign State could be a subject of international law, it would seem that the Order could not have been such a subject in its own right. But the possession of Rhodes, and later Malta, gave it this status. The Grand Master of the Order was a sovereign prince as holder of a perpetual fief cum imperio of the Kingdom of Sicily, in the same way that the Archbishops of Mainz, Trier and Cologne were regarded as sovereign princes as feudatories of the Empire.48 The Archbishops – and most other hitherto sovereign princes of the empire – lost their sovereignty when the empire was dissolved and they were integrated into the various successor States. It was only those which retained territory of their own that preserved their sovereign status, though in some (honorific) respects the former sovereign princes retained their personal status.
What complicates the picture is the fact that after 1798 the Order still seems to have been widely believed to still possess an international legal personality, despite the loss of territory, a personality that was apparently independent of specific territorial sovereignty.49 It would seem that the Order continued to be recognised as possessing something akin to sovereign status after 1798 for two major reasons. Firstly – in the earlier years at least – there was the distinct possibility that the Order might have recovered territory, and so its sovereignty, as it had done in 1530.50 In this respect it might more appropriately be recognised as being equivalent to an exiled Government. Some of these, such as those of Poland and the Baltic States, were recognised by some countries for many years after they lost control of their territory.51 But this is an unsatisfactory basis for continued claims to sovereign status in the twenty-first century, particularly given that the Order does not maintain a claim to the island of Malta, or indeed to any territory (its convent in Rome excepted).
The second reason is that, due to its unique history and humanitarian function the Order acquired the then unique status of international legal personality after 1798.52 This did not equal the sovereignty which they possessed as masters of Malta, and which they must have lost some time after 1798 – though the distinction between the two sources of authority soon became blurred. It may be that at this time there was uncertainty as to the origin and nature of the sovereignty of the Order, and that the Order benefited from this uncertainty. This personality was based on the role of the Order as one of the few international humanitarian organisation of its time, and upon its unique history.53
Since the twelfth century the Order of Malta had been an international religious Order or brotherhood.54 It only gradually became an Order of chivalry, as that term was later to be understood,55 and the possession of sovereign powers over island territories also came comparatively late in its history.56 The term ecclesiastical Orders of knighthood describes those knightly Orders which, in one way or another, were connected with the Roman Catholic Church. At the present time there are two different groups of ecclesiastical Orders of knighthood: the pontifical Orders of knighthood in the strict sense and a group of chivalric Orders which derive from mediæval military Orders and continue to come under ecclesiastical jurisdiction.57 A third category are the Eastern Orthodox and Uniate (in communion with the See of St Peter) Eastern Rite Churches Orders, which share similarities with both the other groups.58
The pontifical or papal Orders of knighthood are conferred directly by the pope. They include the Supreme Order of Christ,59 the Order of the Golden Spur,60 the Order of Pius IX,61 the Order of Saint Gregory the Great,62 and the Order of Saint Sylvester.63 The religious military Orders include the Order of St John of Jerusalem, the Teutonic Order,64 and the Order of the Holy Sepulchre.65 There are also various Spanish Orders.66 Most of the other ancient religious military Orders are now extinct or have become purely secular Orders of knighthood. Although it once possessed land in its own right, the Order of Malta was, and remains, essentially a religious Order.67 While the Templars were suppressed, due largely to jealousy of their wealth and perceived privileges (and lack of peacetime function, since they were exclusively military in nature), the Hospitallers, always preserving an essential charitable function, survived.68
The legal status of the Order of Malta within the Roman Catholic Church was defined with greater precision in 1951. Pope Pius XII, on 10 December of that year, appointed a special tribunal of five cardinals, presided over by the Dean of the Sacred College,69 Eugène Cardinal Tisserant,70 in order to determine the nature of the Order and the extent of its competence both as a sovereign and as a religious institution, as well as its relationship to the Holy See. After long discussions the commission of cardinals on 24 January 1953 gave the following unanimous verdict:71 The Order of Malta is a sovereign Order, inasmuch as it enjoys certain prerogatives which, according to the principles of international law, are proper to sovereignty. These rights have been recognized by the Holy See and a number of States. However, these rights do not comprise all the powers and prerogatives that belong to sovereign States in full sense of the word.72 The cardinalitial tribunal made clear in its decision released 19 February 1953 that the Order’s sovereignty was ‘functional’, in that it was based on its international activities and not on the possession of territory. But, what does this ‘sovereignty’ mean? By ‘functional sovereignty’, the cardinalitial tribunal seems to have meant little more than de facto and de jure independence from the Church, and recognition by a number of States. In other words, this was personality in international law, not sovereignty, and justified by the international work of the religious Order.
In 1961 the Sovereign Military Order of Malta promulgated a new Constitutional Charter and Code. This was revised by an Extraordinary Chapter-General 28-30 April 1997.73Inter alia, this provides:
The Order is a subject of international law and exercises sovereign functions.74 The religious nature of the Order does not prejudice the exercise of sovereign prerogatives pertaining to the Order in so far as it is recognized by States as a subject of International law.75 However, internal rules cannot of themselves make an otherwise non-sovereign body sovereign; though States can recognise only what the Order claims for itself. If the Order of Malta is sovereign, it is so only because of the recognition of international law. Such recognition is not generally accorded, but the Order is widely accepted as an international entity with unusually wide privileges.
So far as canon law is concerned the Order remains sovereign. But canon law does not overrule the municipal laws of States. Sovereignty recognised by the papacy has canonical validity.76 But it will lack validity in international law, since canon law is not universally accepted as a norm of international law.
The international personality of the Order of Malta was however upheld by the Italian Court of Cassation in 1935:
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.77 Although it too uses the term sovereignty, the Court of Cassation seems to have meant merely that the Order had ‘international juridical personality’78 – though even this concession has been rejected by a majority of international lawyers. Neither the cardinalitial tribunal in 1953, nor the Court of Cassation in 1935 accorded recognition to the Order of Malta as a State. Both seem rather to be recognising a precocious development of international personality.
In 1959 the Office of the Legal Adviser of the US Government asserted that:
[t]he United States, on its part, does not recognize the Order as a State.79 The Office of the Legal Adviser of the US Government is right to assert that the Order is not a State. Although sovereignty is not affected by loss of territory, complete loss would extinguish the State. Many countries accord it diplomatic recognition, but, as with the UN, this does not amount to recognition of full sovereign status. The view of the Office of the Legal Adviser of the US Government did however appear to agree with the majority opinion of scholars in the 1950s and 1960s, if not more recently also.
For examples of what might be termed the mainstream international lawyers view of that time, Paul Guggenheim stated that ‘[c]ontrary to a commonly defended opinion, these Orders do not have in general international law any legal status other than “charitable societies”.’80 Roberto Quadri states: ‘it seems obvious to us that one must reject the international personality of the Order.’81 Debez similarly states that ‘we must, along with the majority of the doctrine, refuse [the Order] the status of subject of international law.’82 Alexander Hold-Ferneck says that the Order’s international status is ‘merely an outward form, which has been preserved for a variety of reasons, not an actual personality’.83
More recently, Dominique Larger and Marcel Monin have concluded that ‘the thesis of the international personality of the Order seems to us to rest on too tenuous evidence to be accepted.’84 Ian Brownlie observed that:
Even in the sphere of recognition and bilateral relations, the legal capacities of institutions like the Sovereign Order of Jerusalem and Malta must be limited simply because they lack the territorial and demographic characteristics of States. In the law of war the status of the Order mentioned is merely that of a “relief society” within the meaning of the Prisoner of War Convention, 1949, article 125.85
At the other end of the continuum between recognition and non-recognition lie writers such as Berthold Waldstein-Wartenberg, who wrote that the sovereignty of the Order and its personality in international law is ‘generally recognised by international law doctrine’.86 More significantly, Georg Dahm suggests that the Order is a ‘[v]ölkerrechtsubjekt ohne Gebiet’ (a subject of international law without territory).87
There are signs that greater flexibility may slowly be prevailing. James Crawford says that its international personality is recognised by particular States, but is not an objective international personality like the UN.88 Gerhard von Glahn concluded that ‘the Order can be classified as a non-State subject of international law, although of a somewhat peculiar nature.’89
Helmut Steinberger noted that ‘[w]ith the historical exception of the Holy See, which maintains diplomatic relations with more than 100 States, in contemporary international law only States as distinguished from international organisations or other subjects of international law are accorded sovereignty.’90 Since the Order itself maintains diplomatic relations with approximately half the recognised sovereign States in existence today, it may be questioned whether Steinberger’s own argument might be used to defend claims for the sovereignty of the Order. Wilhlem Wengler rejects the notion that recognition of the Order by some States can make it a subject of international law, which argument would also be applied to the Holy See, where this to lack territory.91
It can be recognised as a non-State entity subject to international law, even if it is not a State, which is what the Constitutional Charter and Code of the Order appears to indicate. The privileges actually claimed or exercised by the Order appear to confirm this. It exercises, to some extent, the privilege of treaty-making.92 It issues passports,93 but these also are not universally recognised. They do not, for instance, fall within the ambit of the New Zealand Passport Act 1992 (NZ), as such a document could not establish the nationality of the holder.94 Its right to mint coins and issue stamps is confined to an ornamental level.95 From 2005 the Order has issued stamps with the Euro as the unit of postage, while Scudo (pl. Scudi) remains the Order’s official currency. The scudo was a unit of currency in Malta under the rule of the Order of Malta. The denominations of the currency were 1, 2, 5, 10, and 20 Scudi. The 1 and 2 scudo coins were made of silver while the 5, 10, 20 scudi coins were made of gold. It was subdivided into 12 tari, each of 20 grani. Amateur radio operators consider the Order to be a separate ‘country’, but stations transmitting from there use an entirely unofficial call-sign starting with the prefix ‘1A0’.The Grand Master of the Order is however entitled to sovereign immunity, as is his residence,96 and is accorded appropriate status on official visits to some countries.97
The Order is represented on international bodies.98 The Order is a signatory to, though not a member of, the Universal Postal Union,99 although other non-sovereign entities are also members or associate members.100 The Order has observers at UN bodies in Paris (the United Nations Educational Scientific and Cultural Organization), Rome (the Food and Agriculture Organization), Geneva (the World Health Organization, and the UN High Commissioner for Refugees) and Vienna.101 It also has member status at the International Maritime Organization, London.102
The UN does not classify it as a ‘non-member State’ but as one of the ‘entities and intergovernmental organizations having received a standing invitation to participate as observers’. For instance, while the International Telecommunication Union has granted radio identification prefixes to such quasi-sovereign jurisdictions as the UN and the Palestinian Authority, the Order has never received one. The UN regards the Order as an entity having received a standing invitation to participate as an observer in the sessions and the work of the General Assembly and maintaining a permanent office at UN Headquarters.103 The International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies are two other bodies listed under this classification.104 Delegates are sent by the Order to the Council of Europe, and to the European Commission.105 The Order is represented at the Organizacion de Estados Centro-Americanos, the Institut International de Droit Humanitaire, the Institut International Pour l’Unification de Droit Prive, and the Comite International de Medecine et de Pharmacie Militaires.106
The right to accredit diplomatic missions is known as the right of legation, or ius legationis. The only comparable non-territorial body claiming a similar right is the Holy See, and that is now a territorial State as well as a world-wide religious body,107 though it was without territory between 1870 and 1929. The status of the Order’s diplomats was confirmed in a wartime Hungarian case.108 But even the right of legation is not conclusive evidence that an entity is sovereign, as any international organisation can accredit representatives to other organisations or to States. What is unusual is the antiquity and continuity of the Order, and its existence in age in which the Church itself was the only truly international organisation.
Although the Sovereign Military Order of Malta maintains diplomatic relations with many countries, and has maintained such relations for centuries, this, of itself is no guarantee of sovereign status. Today many international organisations are recognised as personalities in international law, though they do not claim sovereign status. The Order of Malta is equivalent to such bodies. While the Order was ruling on Rhodes and Malta it was a sovereign Order because it possessed territory over which it exercised at least de facto sovereignty. After 1798 it became the first of the organisations recognised by international law as having a separate legal personality. The Order itself is not however a State, nor can it be said to be sovereign, at least as that term is understood in traditional, nineteenth century, terms. Peculiarities of status can be explained by the ancient origins of the Order.109 Any immunity enjoyed by the Grand Master of the Order, and by his diplomats, is akin to that now widely enjoyed by representatives of international organisations, rather than that of the princes of sovereign States.
5. The branches of the Order of Malta and other religious military Orders A Convention110 of Alliance in 1961 linked the Sovereign and Military Order of Malta, the Most Venerable Order of the Hospital of St John of Jerusalem,111 the Johanniterorden,112 and the Swedish and Dutch Orders of St John.113 His Royal Highness The Duke of Gloucester, Grand Prior of the Most Venerable Order of the Hospital of St John of Jerusalem, is President of the Alliance Orders of St John. Each member of the Alliance recognises each other as historic successors of the ancient Order. As such, they must be considered the sole possessors to historic continuity, though only the Sovereign and Military Order of Malta can claim sovereignty in any sense by which that term may be used. Although the daughter Orders too operate beyond the territory of any one country, they do not, unlike the Order of Malta, enjoy the status at international law of being a legal person, or international organisation. Neither the Templars, nor less well-known Orders, such as the St Lazarus, ever achieved sovereign status, as they never obtained control of territory.114 The Teutonic Order lost its sovereign status – which it acquired through the control of territories in Prussia – in when it ceased to rule territory in Germany after 1525.115
6. Reconsideration of State sovereignty in the late twentieth century Since the development of the modern nation-state the concept of the State has dominated international law, but it has always been present, in one form or another, since the development of the first city-states, tribal federations and complex social alliances of this nature.116
The modern State as generally understood today evolved in Europe in the wake of the decline of the classical world and later especially under the impetus of the crusades against Islamic aggression in Europe and to recover the Holy Land of Palestine and its contiguous regions.117 It gained encouragement from the growth of trade and commerce, and from the rediscovery of Roman laws and classical learning, in the years after the final long-drawn out and painful collapse of the Eastern Empire based on Constantinople.118 Following the advent of the modern nation-State in the later middle ages political and legal theory tended to exalt the State as the pinnacle of authority – though this was disputed both by the Church119 and, at times, by mesne feudal lords, burghers and other communities.
During what might be terms the classical period of statehood120 – from the Treaty of Westphalia 1648 to the Treaty of Versailles 1919 – the study of politics tendered to centre on the State. But for much of the twentieth century it had focused on political behaviour and policy-making, with governmental decisions explained as a response to social forces. In part this has been due to a growth in awareness of the limitations of studies based on political events which might themselves be the product of underlying stresses and dynamics. It also suited the increased emphasis in western debate upon countries outside Europe and North America and those countries within their direct and indirect spheres of influence.
The traditional understanding of public law (and more especially the more narrowly defined constitutional law) emphasised particular ideas of power that are associated with territory, sovereignty, and law, all concept about which there is often uncertainty – though some legal systems tend to imply a form of permanence, even akin to Platonic forms. The ideas of State, and State power expressed through law, however remain central to understanding government.121
International law is more fluid and less certain than the domestic legal systems of most if not all States, as is perhaps inevitable for a system which has evolved largely through State practice over a considerable period of years – and which has lacked a truly effective enforcement or sanction system such as was almost indispensable for domestic State legal systems. It is derived from written and unwritten rules, treaties, agreements, and customary law. Custom is general State practice accepted as law. The elements of custom are a generalised repetition of similar acts by competent State authorities and a sentiment that such acts are juridically necessary to maintain and develop international relations.122 The existence of custom, unlike treaty-law, depends upon general agreement, not deliberate consent.123 This requires time to develop, and is often uncertain.
The development of public international law, and indeed of law in general, never truly ceases; like all living things, it evolves. There are times when important, indeed profound, changes occur, or milestones are reached – such as the establishment of the League of Nations, or of the Nuremberg and Tokyo war crimes tribunals.124 These events may be important in themselves, or because of the example which they present for the future – though this latter may not always be perceived at the time as being especially significant. At other times there may appear to be little or no progress, neither improvements nor retrograde changes.125 But, as Foucault would maintain, formal stasis – if such a thing can be found in international law – does not mean that the discourse has ceased or the power relations unchanging.
Change there may well be, for international law is intensely political and dynamic, as any law must be which is the distillation of the hope, needs and desires of almost 200 sovereign States.126 Nor is it immutable by nature, though international laws may evolve more slowly than the domestic laws of some, though not necessarily all, countries.127 Law itself, as a human artefact, is also inseparable from history and from culture.128 This is especially true of public international law, which is formed and developed through the interactions of numerous sovereign States, but dominated by concepts derived from Roman law and the laws and practices of European States, principally during the period of European commercial and later colonial expansion.
The sovereign State seems to be one of the relatively few abiding constants in international law129 – though sovereignty is not a necessary feature of a domestic legal system.130
But the concept of the sovereign State, though one of comparatively ancient origin,131 has not continued completely unquestioned – nor has it continued unchanged.132 Its place in the global political and legal system is not absolute, for the sovereign State belongs in a world in which interdependence (whether acknowledged or not) is inescapable.133 Governmentality would recognise that it is in the discourse, rather than the formal structure (though this informs the discourse), that the real power may be seen.
Those geo-political developments which have also encouraged a re-evaluation of the nature and role of the State have been the recent use of force by great powers and a superpower,134 in Yugoslavia in the name of humanitarian intervention,135 and in Iraq on the basis of pre-emptive self-defence,136 and the attitudes and assumptions which these actions reflect. The Iraq war in particular has served to highlight structural weaknesses in the fabric of the international security framework,137 since it was widely condemned as illegal, yet little could be done to prevent it, even if this were desirable. But at the same time it is possible to be cautiously optimistic. At the forefront of much of the discourse from the allies in both wars was the perceived need for their actions to be justified in international law.138 These cases illustrate the dynamic effect of both power projection and technology – of a military sort – upon the relationships between States. Formal political equality may exist, but that is relatively meaningless when the political will exists to ignore or disregard that equality and impose (or attempt to impose) the will of one nation – or a coalition of States – on another.
These recent wars, small though they may have been in historical terms, have served to draw both popular and academic attention to the evolution of, and recent challenges to, the laws of armed conflict – or laws of war as they were commonly known.139 These laws have long had the effect of imposing limitations upon the freedom of States to levy war without the support of the international community and without ‘just’ or lawful cause.140 Just what constituted a just cause (or just war) was never entirely certain, but, like the equally vague concept of the rule of law, it served to impose some limitations on freedom of State action – by operating in a form of Foucaultian discourse among the politicians and rulers who decided national policy. But such limitations on State sovereignty have been challenged by these wars, which were conducted despite lacking clear justification in public international law.
Regretfully, it would appear that the precise legal limits upon the levying of war, perhaps the most ancient and fundamental of a State’s responsibilities towards its people,141 are now more uncertain than they have been for 50 years. Both these wars have also raised important questions about the legal justification for State or international intervention in another State’s internal affairs, on humanitarian grounds, or to depose a tyrannical regime.142
The geo-political environment is concerned with the strategic balance, and relations between States. This is affected by the law of armed conflict, and other formal legal limitations which are imposed upon State sovereignty. These can be, and often are, challenged by the strategic balance, by wars and by the threat of the use of force by States. It is also affected by changes of an ostensibly more benign – or less obviously malignant – form, such as telecommunications, transportation, agricultural improvements, and so on.
The late twentieth century and early twenty-first century is an appropriate time to re-evaluate the concept of sovereignty. The sovereign State must evolve, or at least have its nature reassessed, as its environment changes. The world is very different today to what it was in what may be regarded as the zenith of State sovereignty, in the nineteenth century.143 The notion that all States are legally equal,144 whilst perhaps laudable in theory, has also been shown more than once to be subject to important practical qualifications.145 Nor indeed is the notion of equality of particularly great antiquity.146 The freedom of action of States can at times be severely restricted, both legally, and practically,147 by strategic considerations, by international law, and by economic factors. The increasingly pivotal role of international economic law is also having a significant effect.148
As a consequence of these developments, and others, the relationship between national law and international law, and the concept of 2tate sovereignty, are arguably more uncertain today than they were 100 years ago. It is therefore an opportune time for investigation and exploration, albeit one which is narrowly focused, and at times tentative in its conclusions. It may also cast light on the apparent anomaly of the Sovereign Military Order of Malta.
Conclusion – Territory and Statehood The Order of Malta owes it peculiar status to having been possessor of the fiefdom of Malta for 200 years, and of Rhodes even earlier. But it, after it ceased to rule Malta, it retained certain attributes of sovereignty, at a time when international law was slowly developing new concepts of statehood. This was due in part to the circumstances of the time (just as the continued recognition of the Baltic States by the USA was a consequence of the Cold War), but also because the Order was the oldest and most prestigious of the hospitaller religious Orders of the Roman Catholic Church. These two factors, which quickly became intermingled, preserved for the Order a marked degree of independence, and placed it amongst the first of the international organisations to be recognised by international law. Not, indeed, as a sovereign State, but as a subject of international law with some powers and duties akin to those enjoyed by States.
To have sovereignty, a State must have a permanent population, it must have a defined territory, it must have a government, and it must have the capacity to enter into diplomatic relations.149 No other entity could be regarded as a sovereign State, whatever its de facto power. Yet, this definition is increasingly meaningless.
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.
As the concept of State sovereignty declines in relevance, so notions of racial sovereignty have grown. The idea that a given population group is, or ought to be, sovereign within a larger country is not confined to New Zealand.150 Yet, sovereign States have clung tenaciously to their rights, rights which have become more precious as they become rarer.
It was perhaps inevitable that as the traditional sovereign State lost ground, so newer types of international entities, enjoying powers and privileges recognised by the international community, should emerge. Yet it is ironic that the first of these international organisations should date, not from the twentieth century, but from the twelfth.
1LLB LLM(Hons) MTheol(Hons) MA LTh PhD, Professor of Law & Chair of Department of Law, Auckland University of Technology.
International law has been called ‘the sum of the rules or usages which civilized states have agreed shall be binding upon them in their dealings with one another’; West Rand Central Gold Mining Co v The King  2 KB 391 quoting Lord Russell of Killowen in his address at Saratoga in 1876. See also Sir Michael Howard, George Andreopoulos & Mark R Shulman (eds), The Laws of War – Constraints on Warfare in the Western World (1994); John Gillingham & J C Holt (eds), War and Government in the Middle Ages (1984).
2 The Montevideo Convention on the Rights and Duties of States, signed on 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934) (‘The Montevideo Convention’); Manley Hudson (ed), International Legislation (vol VI) (1931-50) at 620. Although the application of the Convention is confined to Latin America, it is regarded as declaratory of customary international law.
3 See, for example, Giorgio Cansacchi, La personalitá di diritto internazionale del S.M.V Gerosolimitano detto di Malta (nd) at 8; Arthur Breycha-Vauthier & Michael Potulicki, ‘The Order of St John in International Law: A forerunner of the Red Cross’ (1954) 48 American Journal of International Law 554; Charles D’Olivier Farran, ‘The Sovereign Order of Malta in international law’ (1954) 3 International and Comparative Law Quarterly 222; Carlos Pasini-Costadoat, ‘La personalidad internacional de la S.M.O. de Malta’(September-December 1948) Revista Peruana de Derecho Internacional 231; Giorgio Cansacchi, Il diritto di legazione attivo e passivo dell’Ordine de Malta (1940) at 65; A Astraudo, ‘Saint-marin et l’Ordre de Malta’(1935) La Revue Diplomatique 7.
4 Breycha-Vauthier & Potulicki, ibid at 555.
5Id at 557.
6 Oliver J Lissitzyn, ‘Territorial Entities in the Law of Treaties, (1968-III) 125 Recueil des Cours Academie de Droit International 5 at 9-15 (1968-III). See also James Crawford, The Creation of States in International Law (1979).
7 Public International Law regulates the relations between nations. The basic sources of international law are written and unwritten rules, treaties, agreements, and customary law. Custom is general state practice accepted as law. The elements of custom are a generalised repetition of similar acts by competent state authorities and a sentiment that such acts are juridically necessary to maintain and develop international relations. The existence of custom, unlike treaty-law, depends upon general agreement, not unanimous agreement; Gerhard von Glahn, Law Among Nations: An Introduction to Public International Law (6th ed)(1992).
8 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) (1949) 4 ICJ Rep 179.
9 Ibid, ‘[The United Nations Organisation] is a subject of international law and capable of possessing international rights and duties, and ... it has capacity to maintain its rights by bringing international claims.’
10 They may become subjects of international law by operation of municipal law, as for example, the International Organisations Act1968(UK), and SI1968, No 442, which recognises the representative of the Council of Europe in the United Kingdom.
11The Order was also involved in the Geneva Conventions, and is a member of the International Red Cross; Arthur Breycha-Vauthier, Der Malteser-Orden im Völkerrecht (1950) at 401-413. The European Communities also accredit some ambassadors.
12 For example, the Republic of San Marino acknowledged the Order as a sovereign state in a treaty of amity in 1935; Astraudo, above n3; Cansacchi, above n3 at 65.
13 Though the canon law of the Church accorded recognition to certain organisations.
14 Reparation for Injuries Suffered in the Service of the United Nations, above n8.
15 Strictly perhaps, it is the nineteenth century – or late eighteenth century – since the Order of St John owed its sovereignty to possession of the island of Rhodes. However, its sovereignty survived the migration of the Order from Rhodes to Malta, and may be said to have attached more to the Order than to the particular territory which it occupied. The same may be said of the Teutonic Order, in the Prussian lands.
16 Johann Christian Lünig, Codex Italiae Diplomaticus (vol IV) (1725-35) at 1451. It had previously been admitted as such by the King of Jerusalem; Breycha-Vauthier & Potulicki, above n3 at 554.
17 In 1130 the Order was granted freedom from tolls (Lünig, ibid at 1451); in 1144 it was placed under the protection of the Holy See (Magn. Bull. (vol II) at 471); and 1190 placed under the protection of the Emperor (Lünig, ibid at 1455).
18 The name for the monastery that was their home. Contrary to popular belief convents were not necessarily the homes of nuns.
19 The Order withdrew to Cyprus in 1291 when the jewel in the crown of the Latin principalities in Palestine, the Kingdom of Jerusalem, fell to the infidel.
20 In England, the old Order was effectively disbanded in 1540. It was revived by letters patent on 2 April 1557, and never subsequently abolished. Titular grand priors were appointed from the 1560s till 1815 by the Grand Master or (later) Lieutenant Grand Master in Malta (and after 1798, wherever they were temporarily based). A new grand priory was established in 1994. The revival of the Order in England in the early nineteenth century was not recognised as a branch of the Order. This revival was led initially by French Knights of Malta, as part of an abortive plan to raise military and naval forces to aid the oppressed Greeks gain their freedom from the Ottoman empire. Today relations between the Sovereign Military Order of Malta, and what eventually became the Most Venerable Order of St John of Jerusalem, are amicable. For the history of the Order in England, see Edwin King, The Knights of St John in the British Realm (1967); Edwin King, The Grand Priory of the Hospital of St John of Jerusalem in England (1924).
21 Guy Stair Sainty, “The Sovereign Military Hospitaller Order of Malta: The Crusades”