The continuing question of sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of Malta.

• Author: Cox, Noel

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. (11) Most 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 convent (18) (initially and until the fall of the Crusaders States, in the Holy Land), (19) 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...