The letter from Henry Bellingham MP in last week's New Statesman -- no doubt written for him by the FCO, at which he is now a junior minister -- deserves a lengthier response. His first paragraph is as follows:
Geoffrey Robertson claims that he asked the Foreign and Commonwealth Office 'why Britain recognises the Vatican as a state when it is so obviously not'. We can find no record of an FoI request from Robertson or his representatives asking this question. It is not the case that Britain recognises the Vatican because of the Lateran Treaty, nor could it be: the UK first established bilateral relations with the Holy See in 1479. Relations were ruptured in 1559 but were restored in 1914, 15 years prior to that treaty.
Of course there is no record of this question being asked in any FoI request because FoI requests must be for documents only, not for answers to questions. For that reason, my researcher, the solicitor Jen Robinson, applied to obtain correspondence between the UK and the Holy See in order to obtain evidence as to the real nature of the relationship between the UK and the Vatican. She was initially refused on the dubious grounds of cost. She had to narrow her request to a few specific categories, including documentation relating to the need to have a separate embassy to the Vatican. Instead of supplying the relevant documents (as the FOIA requires), the FCO's "papal visit team" replied on 19 July 2010 that:
In 1929, the Lateran Pacts guaranteed the full sovereign independence of the Vatican City State in international law. Under the terms of this treaty, it is not possible for ambassadors to Italy to be representatives simultaneously to the Holy See -- hence the need to retain two separate embassies in Rome.
Of course, England -- and later the UK -- has had diplomatic "relations" with the Holy See on and off over the centuries but, since 1870, when the papal states were extinguished by the army of the Risorgimento, no country could have relations with the Holy See as a state because it had no territory (an essential requirement of statehood). As even the Italian courts have ruled, the Holy See was not a state between 1870 and 1929. In 1914, the UK renewed diplomatic relations but this did not -- and could not -- involve recognising the Holy See as a state, as it had no territory. It was a "juridical entity" that could only make a claim to statehood when Mussolini ceded it some inviolable territory, which he did by way of the Lateran Treaty. There can be no doubt about this because, today, as recently as March 2010, in its official sovereignty statement to the United Nations, the Vatican bases its claim to statehood on the Lateran Treaty and only upon the Lateran Treaty:
The Holy See exercises its sovereignty over the territory of Vatican City State (VCS), established in 1929 to ensure the Holy See's absolute and evident independence and sovereignty for the accomplishment of its worldwide mission, including all actions relating to international relations: cf Lateran Treaty preamble and arts 2-3.
So the FCO and Bellingham speak with a forked tongue. The Lateran Treaty is absolutely essential to allow the recognition of the Holy See as a state. We can give "diplomatic recognition" and "international personality" to any number of entities -- corporations or NGOs or individuals -- but to recognise an entity as a state, it must have territory (the second requirement of the Montevideo Convention). Until 1929, the Holy See had not a square inch.
So Bellingham's first paragraph plays with words. The Lateran Treaty is crucial to the FCO's recognition of the Holy See as a state for the simple reason that it is the only basis upon which the Holy See itself claims to be a state.
The second paragraph of Bellingham's letter reads as follows:
On the second issue, Robertson is not wholly at fault. An FCO response to him about why the UK maintains separate embassies to Italy and to the Holy See did mistakenly refer to the Lateran Treaty. But we corrected that on 10 August -- well before publication of the article - making clear that it is the practices of the Holy See, rather than the provisions of the Lateran Treaty, that do not allow ambassadors to be credited to both the Holy See and Italy.
This paragraph suggests that the FCO's "mistake" was voluntarily corrected before I wrote the New Statesman piece. In fact, it was much more than a mistake. And it was not corrected voluntarily or at all. In the letter to my researcher on 19 July (already quoted above), the FCO went on to make the following assertions in relation to a further FoI request for documentation about the maintenance of diplomatic relations with the Holy See:
As explained above, under the Lateran Pacts it is impossible for any state to merge its embassies to Italy and the Holy See. However, in order to guarantee security, the chanceries (offices) of the UK's embassies to Italy and the Holy See are co-located, in separate buildings, but on the same secure compound, in central Rome. They also share support services to the maximum extent possible. However, in accordance with the Lateran Pacts, the two ambassadors' residences remain located in separate parts of Rome.
Legally, this is nonsense. There is nothing at all in the Lateran Treaty that requires the separation of embassies and, moreover, the treaty was not one to which the UK was ever a party, so cannot possibly bind it. This reply so egregiously mis-states the law that my researcher sought to tease out an explanation. On 2 August 2010, she wrote:
You state definitively that the embassies to Italy and to the Holy See need to be separate because of the Lateran Treaty. I cannot locate the provision in the Lateran Treaty which requires this. Can you tell me which provision you are relying upon in formulating this advice?
This request should have made the "papal visit team" aware that it could no longer pull the wool over my researcher's eyes. But did it, as Bellingham asserts, correct the mistake on 10 August 2010? No, it did not. Here is what it said in its reply of that date:
Article 12 of the Lateran Treaty covers issues relating to diplomatic relations of the Holy See. It is the practice of the Holy See not to permit joint accreditation between the Ambassadors to the Holy See and Italy. If you have further queries on this matter, they should be addressed to the Holy See.
This is yet another attempt to pretend that the Lateran Treaty has anything to do with the issue of separate embassies and that it is somehow binding on the UK. Article 12, as the FCO must have known, was irrelevant but it maintained a pretence that the earlier answer was correct. Bellingham's letter suggests that the FCO mistake was "corrected" before I wrote the article. As will be apparent, it was not corrected on 10 August because it still tried to pretend that Article 12 had relevance. But what is really staggering is the admission that the UK had spent a fortune on separate embassies and residences merely because this was Vatican "practice". Why should the UK kow-tow, so expensively and unnecessarily, to the grandeur delusions of the leadership of the Catholic Church?
I have appended the relevant correspondence. The issue of statehood in international law -- and my argument that the Vatican is not a state -- is dealt with at length in chapters four and five of my book The Case of the Pope. As for the FCO's misunderstanding of the law, its pusillanimity in the face of Vatican bluster and the waste of taxpayers money in maintaining two embassies side by side in Rome, the true position is set out in paras 110 to 112 of my book. They read as follows:
110. The Lateran Treaty casts an extraordinary spell over diplomats unaware of its history, or even, in the case of the UK's Foreign and Commonwealth Office, of its actual terms. In answer to a 'freedom of information' request made on my behalf to the FCO asking for documents relating to the decision to have separate embassies for the Vatican and for Italy, an astonishing reply was received from an FCO official described as "assistant desk officer, papal visit team". She wrote that "the Lateran Pacts guaranteed the full sovereignty of the Vatican City in international law" and that "under the terms of this treaty, it is not possible for ambassadors to Italy to be representatives simultaneously to the Holy See -- hence the need to maintain two separate embassies in Rome". This is nonsense: the Lateran Treaty says nothing of the sort, and even if it did, the UK would not be bound, since it was not a party. Indeed, other states (like Australia, until recently) combined the post of ambassador to Ireland and the Vatican. But the letter goes on: "Under the Lateran Pacts, it is impossible for any state to merge its embassies to Italy and to the Holy See . . . They are in separate buildings . . . In accordance with the Lateran Pacts, the two ambassadors' residences remain located in separate parts of Rome."
111. There is nothing at all in the Lateran Treaty that requires this separation. But when this was pointed out to the FCO, the response was that "Article 12 of the Lateran Treaty covers issues relating to the diplomatic relations of the Holy See. It is the practice of the Holy See not to permit joint accreditation between ambassadors to the Holy See and Italy. If you have further enquiries on this subject, they should be addressed to the Holy See." This is a confirmation of (a) their ignorance of law and (b) their pusillanimity in the face of Vatican bluster. By Article 12, Italy undertakes to afford immunity to foreign diplomats accredited to the Vatican and permits their headquarters to be based in Italian territory, but this does not mean that the embassies cannot be combined. However, in 2004, when Britain finally relinquished the luxurious villa in the Appian Way that housed its embassy to the Holy See, to save money on rent, security guards, gardeners and assorted flunkies by relocating it in the concrete monstrosity that is the UK's embassy to Italy, Cardinal Sodano protested loudly that this would be a breach of the Lateran Treaty, and the UK capitulated by moving its mission to a separate building next door. It has cost the British taxpayers millions of euros, over the years, to maintain the charade of two separate and distinct embassies in Rome: one to Italy and the other to the Holy See. The latter performs no useful functions for UK citizens. When I rang its bell recently during office hours I was gruffly informed that visits were by appointment only and, when I claimed to have lost my passport in the Sistine Chapel, I was referred to the UK's embassy to Italy, which handles all problems that mere citizens may have in Vatican village. It is astonishing that the FCO has been such a push-over, conceding a claim by Vatican diplomats that it is wrong in law and is about a treaty to which Britain is not a party. And speaking of parties, the UK's Vatican embassy hosted 52 of them in 2008 for 1,338 guests, and 44 in 2009 for 1,209 guests, namely "senior Vatican officials and others connected to Holy See diplomacy". It is unlikely that the conversations with them over champagne and canapés raised questions about Vatican accountability for the sexual abuse of children.
112. Just what the UK's five person embassy to the Holy See actually does is a mystery kept from UK citizens. Its website claims that it conducts a "dialogue" on subjects related to human rights but a Freedom of Information Act request for any memoranda, correspondence or other policy documents relating to any "dialogue" about human rights met with a flat refusal from the FCO, on the grounds that any disclosure of information "would be likely to prejudice effective relations between the UK and the Holy See". Decoded, this probably means that disclosure would cause embarrassment to the UK government because the Vatican would of course already know the content of correspondence and other "dialogue" addressed to it by the UK ambassador. The FCO claim that all of it is "confidential" cannot be correct. No doubt the British public would be very pleased to know, for example, that their diplomats had pressed the Vatican over the papal interdict on condom supply to HIV/Aids-ravaged countries that has meant thousands of otherwise preventable deaths. But the British people are not allowed to know what human rights issues -- if any -- its Catholic ambassador to the Holy See is discussing with his fellow Catholics, at cocktail parties or elsewhere.
Plainly, the carefully crafted answer in the letter of 19 July was not a mistake made by the papal visit team. The FCO does have good lawyers and no good lawyer could begin to think that a treaty to which the UK was not a party would bind it to spend millions on a separate and unnecessary embassy, or would read into it something it absolutely does not say. I fear we shall have to make further FoI requests to get to the bottom of this.
Incidentally, buried in the Times letter column on 15 September is an opinion from Anthony Aust -- for 30 years a highly respected FCO legal adviser -- that "it is wrong for the United Kingdom to continue to recognise the Vatican as a state . . . [when it is really] a small part of Italy devoted to proselytising Roman Catholicism". Precisely.
Download the original exchanges with the Foreign and Commonwealth Office:
Geoffrey Robertson, QC, is the author of "The Case of the Pope" (Penguin Special, £5.99)