Dear members,

As I've promised, I'll come up with everything I find interesting or
useful from my Faculty textbooks. So here it is, an exceprt
from 'Public International Law; 150 Leading Cases' by Alina
Kaczorowska, Old Bailey Press. It is about the 'Scarfo v Sovereign
Order of Malta' case [(1957) 24 ILR 1 Tribunal of Rome, Italy]

"Legal personality of the sovereign order of Malta - State immunity

Facts

The plaintiff was employed as a doctor by the Order. He sued for
breach of his contract of employment. The Order argued that Italian
courts had no jurisdiction because the Order, being a subject of
international law and therefore a sovereign entity, was entitled to
State immunity.

Held

The tribunal recognised that the Order was a subject of international
law and therefore the Italian court had no jurisdiction over the
dispute.

Judgement

'There can be no doubt that the Order of Malta is a sovereign entity
and a subject of international law...
The limitations on the sovereignty of the Order of Malta which
undoubtedly exist result mainly from the absence of State territory
and citizens, and also from the fact that it is a religious Order
recognised by the Holy See and what may be termed "persona moralis in
Ecclesia" (which, by reason of its military, noble and knightly
origin, occupies a special position). These limitations, however, are
not such as to be able to negative its sovereignty. Its sovereignty
exists in law and is determined by its own legal order which is
entirely independent of that of other subjects of international law.
The Order has its own administration and courts, and the right of
active and passive legislation (art 2 of the Constitution) which has
been recognised by the Holy See. The latter has approved a diplomatic
representation of the Order (art 4 of the new Constitution), and the
right of legation is also recognised by the Italian State, which has
a legation accredited to the Order of Malta. Thus the status of the
Order as a subject of international law, at any rate vis-a-vis the
Italian State, cannot be doubted because the Italian State, by
establishing a legation, has recognised the sovereignty of the Order
within its own territory...'

Comment

The Order of Malta was founded as a religious military order of the
Roman Catholic Church during the Crusades. In 1312 it was given the
Island of Rhodes by the Pope, which was lost to the Turkish Sultan in
1532. In 1530 the Order became a vassal of the King of Sicily and was
given the Islands of Malta and Gozo, which it lost in 1798. In 1834
the Order established itself in Rome as a humanitarian organisation.
In 1446 Pope Nicholas V acknowledged the Grand Master of the Order as
a 'sovereign prince'. From the time of its establishment in Rhodes,
the Order has always maintained diplomatic relations with other
States and has been consistently treated as a sovereign State despite
its lack of territory or population. Its Knights are citizens of
other States. Italy, where the Order is located, has recognised the
Order as a sovereign State in a number of legislative and
administrative Actsm as well as in decisions of its judiciary. The
Italian Council of State excluded the Order from the application of
the 1866 royal decree suppressing religious orders. In 1921 the Grand
Master and Grand Chancellor of the Order were exempted from customs
duties in the same way as any Head of State or government. From 1956
Italy established full diplomatic relations with the Order, although
the Grand Master has been accreditated to Italy since 1929. The
relationship between the Order and Italy is based on the Note
delivered by the Order's ambassador to Italy on 11 January 1969,
which was endorsed by the Government of Italy. In the endorsement the
Italian Government recognised the Grand Master as a foreign Head of
State and the institutions of the Order were granted judicial
personality and diplomatic immunity in respect of its property
situated in Italy. The Order has also been recognised as a sovereign
State by the Italian Judiciary. In 1947 the Court of Cassation in
Rome held that the Order, being a subject of international law, was
exempt from executive proceedings and therefore the Italian
employment law did not apply to the employees of the Order's Grand
Magistery and the Italian Association of Knights. In the above case
the Italian court recognised the sovereignty of the Order.
The Order has established diplomatic relations with more than 80
States and has lesser relations with five other States, has its own
postal service, issues passports which are internationally
recognised, is a member of numerous international organisations,
since 1994 has a status of permanent observer to the UN, enters into
treaties and international agreements with many independent States,
possesses its own fleet of hospital aircraft carying its flag, and is
independent from other States and jurisdictions except in religious
matters in which the Order is subordinated to the Holy See. Its
decorations (a Bailiff Grand Cross of Honour and Devotion, and the
Collar Pro Merito Melitense) have been accepted by Heads of State or
Government."

I hope this is useful.

Lucas