Criticism of concordats


Criticism of concordats

Treaties with the Holy See of the Roman Catholic Church, often called “concordats”, have been criticized on three grounds: for the allegedly undemocratic way some concordats are brought about, for the financial burdens they may impose and for the incompatibility of some concordat clauses with the norms of human rights.

Contents

Concerns about democratic control

Secrecy from legislatures

From earliest times treaties have involved a two-step process: signature and ratification. After the emissary negotiated and signed the treaty it had to be approved or ratified before his country consented to be bound by it, thus ensuring that he had not made unacceptable commitments on his own. Today preliminary texts or draft treaties are often published before they are signed in order to serve as the basis for further negotiations. Then, when the final text has been agreed upon and signed, the treaty text is usually published well in advance of the ratification vote so that there can be an informed debate on whether or not to accept it.

Like other treaties, concordats are complex documents and a country cannot unilaterally withdraw from them, making it advisable to leave time for sufficient legal scrutiny. However, with some concordats this has not always been the case. For instance, a number of concordat texts have not been revealed to democratic legislatures or the public until they are already signed. This was the case with the concordats from Poland (1993),[1] Georgia (2003),[2] Brandenburg, Germany (2003),[3] Portugal (2004)[4] and Brazil (2008).[4]

Though signing a treaty does not oblige a state to observe it, it does amount to a non-binding presumption that it will eventually be ratified. Therefore, the state must refrain, as a matter of good faith, from doing anything to defeat the purpose of the treaty.[5] In addition to imposing this limitation on the state, keeping the concordat text under wraps until it is signed prevents any input by the legislature. This is because the act of signing a treaty indicates assent to the treaty text, even though it doesn't mean willingness to be bound by it. Thus once the concordat is signed, the legislature can only accept or reject it as a whole.[6]

The fait accompli of a signed concordat can help increase pressure to get it ratified, as is suggested by the Polish concordat which was signed in 1993 before the text had been made known even to the parliamentarians, let alone the general public.[1]

First, the signature imposed legal limitations, for it prevented the new constitution from enshrining the principle of church-state separation because that could have exposed the concordat to a constitutional challenge. This would have violated the “good faith” commitment implied by the signature. Thus in 1996 an earlier draft of the constitution was revised to remove any mention of this from the final version.[7] In other words, the country’s constitution had to accommodate itself to the secretly signed concordat.

Second, the fact that the concordat was presented to the parliamentarians already signed appears to have exerted psychological pressure, because some construed it as a promise to the “Polish pope” which should be fulfilled through ratification as soon as possible. Thus President Kwaśniewski hoped to present the ratified agreement as a gift to the Pope when he made his seventh visit to his homeland in June 1997.[8] When that didn’t happen in time, and after the concordat was only ratified the following year, the leader of a group of Polish MPs proposed sending the Pope an official apology for having taken so long.[9]

And third, the fact that the concordat had already been signed gave it a momentum which made it easier to apply political pressure to get it ratified. Thus in the Sejn debate about ratification at the end of 1997, doubters were depicted as obstructing the successful conclusion of the concordat due to a lack of patriotism. The concerns expressed by some Polish MPs that the concordat had been prepared in secret and signed by a government which had lost the confidence of parliament were not discussed. Instead, those who voiced doubts were accused of continuing “the brutal war against the nation, imposed by the Communists”.[10]

Rushed ratification and legal ethics

The situation is exacerbated when a concordat whose text has been held secret until it is signed is then rushed through the legislature. The concordat for the German state of Brandenburg (2003) was scheduled to be ratified just two days after its text was revealed and this timetable was only cancelled when a copy of the secret text was leaked by a mole.[11]

The Brazilian concordat (2008),[12] was also kept secret until it was signed and was ratified under a hastily-introduced new law. This changed the requirement that a treaty needed the Congressional approval, and permitted it to be approved by a government committee, instead. It was claimed that this new procedure would provide “greater efficiency and speed” than a Congressional debate.[13] Yet even this was not fast enough for the Brazilian Bishops Conference which sent one of its members to visit the President of Congress to ask his help in pushing through the concordat as quickly as possible.[14]

Another concordat ratified under unusual circumstances was the Vatican agreement with Poland (1993).[15] It was signed in the summer of 1993 after the government had lost the confidence of parliament[16] and then ratified by a simple majority in the legislature, even though the Polish Constitution (art. 90.2) (Text) requires a two-thirds majority “for ratification of an international agreement”.[17][18]

The "mousetrap clause"

The Holy See, in whose name the concordat is made, is not only the government of the Catholic Church, but also of the State of the Vatican City.[19] It is the Vatican’s statehood that allows concordats to assume the form of international treaties. By contrast, state agreements with other religious bodies do not have this international dimension. The treaty status of a concordat means that once it is approved by the legislature it can no longer be altered or abrogated by democratic means, as can a domestic law. This is because a treaty generally takes precedence over national laws, preventing them from overriding it.[20] Thus no concordat can be changed by elected representatives without Vatican consent. This requirement of “mutual agreement”, which is generally emphasized in a concordat's concluding article, has been dubbed by a critic, the “mousetrap clause”.[21]

Concordats made with dictators

In Western nations, a treaty is normally signed by a democratically-elected representative, often a country’s foreign minister, and then tabled in a democratic legislature for ratification. However, this is not the case with the many concordats concluded with states ruled by dictators. The strongman’s own signature may suffice to make the concordat binding, with no ratification necessary. For example, Benito Mussolini himself signed the Lateran concordat between the Holy See and Italy (1929).[22]

Alternatively, the dictator may have it signed by a member of his government. Thus Adolf Hitler had the Reichskonkordat with Germany (1933)[23] signed by his Vice-Chancellor, Franz von Papen who was also a Chamberlain of the Pope. And there was no doubt that it would be ratified, for Hitler had already brought in the Enabling Act which allowed his government to pass anything it pleased. In fact, it was on the very day after the Enabling Act vote that Ludwig Kaas, the priest and politician and expert in Canon Law, went to Rome in order to, as he put it, to “investigate the possibilities for a comprehensive understanding between church and state”.[24]

Sometimes dictators don’t even go through the motions of ratification. Such was the case with François Duvalier and Jean-Claude Duvalier in Haiti (1966[25] and 1984[26] ) and also with Houphouët-Boigny in Côte d'Ivoire (1992), whose concordat states “The present Agreement comes into force on the date of the signing.”[27]

Post-dictatorship

Treaties can be abrogated on the grounds that circumstances have radically changed. However, in practice, a transition to democracy does not cause the cancellation of concordats concluded with the regime of a dictator. Thus concordats made by the following dictators were retained long after their departure, and indeed most of them are still in force. These include the concordats with Mussolini in Italy (1929),[22] Hitler in Germany (1933),[23] Salazar in Portugal (1940),[28] Franco in Spain (1953),[29] François and Jean-Claude Duvalier in Haiti (1966[25] and 1984[26]), Trujillo in the Dominican Republic (1954),[30] Dollfuss in Austria (1933),[31] Aramburu and Onganía in Argentina (1957[32] and 1966[33]), Bermúdez in Peru (1980),[34] Houphouët-Boigny in Côte d'Ivoire (1992)[27] and Tudjman in Croatia (1996).[35]

The Catholic Church justifies this by asserting the legality of the treaties. Archbishop Giovanni Lajolo, a former Secretary for Relations with States defends the conclusion and retention of the many concordats with dictators: “According to the norms of international law, it is the State (which remains) that concludes an agreement and not governments or regimes (which come and go)”.[36]

This distinction between the state and the regime has enabled the Peruvian concordat to remain in force today, although it violates the country’s present constitution. On 28 July 1980 the new democratic constitution of Peru came into effect.[34] It guaranteed religious equality (art. 2.2), which could have caused problems for a concordat giving “preferential treatment to the Catholic Church in education, tax benefits, immigration of religious workers, and other areas”.[37] However, just two days earlier the concordat had already been ratified by the departing military junta. This was the government led by Francisco Morales Bermúdez who, in 2008, along with his Prime Minister, Pedro Richter, was prosecuted for disappearances in connection with Operation Condor.[38] The fact that the concordat with this dictator came into effect just before the democratic constitution which could have prevented it is mentioned only in Latin. At the end of the Spanish text on the Vatican website is a note with the crucial date written in Latin abbreviations and Roman numerals: “…die XXVI m. Iulii a. MCMLXXX…”, “26 July 1980”, the second last day of the dictatorship.[39]

The Reichskonkordat (1933)[23] is another concordat made with the regime of a dictator and retained by the democratic state that succeeded it. In 1957 when the papal nuncio complained that Lower Saxony, one of the German states, was disregarding it, the German Federal Government supported the nuncio by bringing the matter before the Constitutional Court.[40] In essence, the judges agreed with Archbishop Lajolo that concordats made with “regimes (which come and go)” commit “the State (which remains)”: the German Reich had not disappeared as a subject of international law; it had merely lost its “state organization” and become the Federal Republic which was still bound by the concordat.[41] Although the 1933 concordat has since been amended by various concordats with individual German states, (which took over some functions of the national government), this concordat made with Hitler remains in place.

Financial concerns

State benefits for Catholic social agencies

Concordats often stipulate that Catholic social institutions enjoy parity with state institutions serving the same purpose, including that they receive the same state subsidies. Examples can be found in the concordats of Hungary (1997, I, art. 2, III)[42] Slovakia (2000, art. 17.2),[43] and Brazil (2008, art. 5).[12] This entitlement to equal funding applies even though, to conform to Catholic doctrine, Church-run hospitals may not offer the full range of legally-permitted services, such as abortion and contraception, and Catholic schools may not permit sex education.

Never-ending financial support

Concordats can require inflation-adjusted payments for Church property that was nationalized long ago, sometimes with no provision for ending them unless the Vatican agrees. In former Eastern Bloc countries, widespread nationalization of Church property took place under the Communists after 1945. Compensation for this is laid down, for example, in the Hungarian financial concordat (1997).[42] Other concordats stipulate payment for earlier nationalizations. The concordat for the German state of Bavaria (1926) continues to require compensation for the Secularization of 1803, when the state took over principalities ruled by abbots and bishops.[44] This payment, now made to the Lutherans, as well, is in addition to the “church tax” and it comes out of state funds. In 2009, from Bavaria alone, it brought the Catholic Church €65 million.[45]

Another agreement with the Vatican, the Lateran Financial Convention (1929)[46] obliges Italy to pay the Church for a still earlier loss, the abolition of the Papal States in 1870. This treats the land solely as Church property, with no consideration for the inhabitants’ wishes. These had been clearly demonstrated through the plebiscite of 2 October 1870, held in Rome and the surrounding Campagna, which overwhelmingly endorsed joining Italy.[47] Further, Pope Pius IX did not recognise democratic self-determination and, in fact, had issued a decree two years earlier, Non expedit, in support of the motto, “Neither elector nor elected”. Nor did the other party to the agreement recognise the right to democratic self-determination. In 1925, several years before signing the Lateran Pacts, Mussolini had himself abolished parliamentary elections in Italy.[48] This is an explanation as to why the Lateran Financial Convention treats the dissolution of the Papal States, not as freedom granted to the inhabitants in accordance with a plebiscite, but as the confiscation of Church property which requires Italy to pay annual compensation.

Concordats can anchor other financial legislation

Not only are concordats, once ratified, exempt from unilateral changes by the legislature, they may also prevent other legislation from being changed. The church law expert Michael Pietrzak explains how the Polish concordat (1993) has been used to remove certain domestic laws from legislative control:

"The extremely beneficial measures for the Catholic Church, in terms of the taxation of the clergy and the legal personality of the Church, cannot be amended unilaterally by the state. [This is because] the Concordat (article 22 §2) stipulates that changes to current legislation on financial institutions and of churches and clergy can only be made with the agreement of the Catholic Church."[49]

Financial privileges, tax exemption and secrecy

Some concordats guarantee the Catholic Church the tax-exempt status of a charity, either stating this explicitly, as in Brazil (2008, Article 15)[12] and Italy (1984, Article 7.3),[50] or phrasing it indirectly, as in Portugal (2004, art. 12).[51]

When the political will is present, such concordat privileges can be extended by domestic legislation. In 1992 the tax exemption granted the Church by the Italian concordat was interpreted by a law which permits the Catholic Church to avoid paying 90% of what it owes to the state for its commercial activities.[52] Thus, a small shrine within the walls of a cinema, holiday resort, shop, restaurant or hotel is sufficient to confer religious exemption.[53] In June 2007 Neelie Kroes, the European Commissioner for Competition announced an investigation of this. Then, in August, the deputy finance minister in Romano Prodi’s fragile center-left coalition said the issue needed to be tackled in the next year's budget.[54] However, after that nothing more about this was heard from the Barroso Commission and a few months later the Prodi government fell, reputedly with the help of the Vatican. [55]

Another way to keep Church income untaxed is to keep it secret. The Slovak concordat (2000, art. 20.2) ensures that church offertories are “not subject to taxation or to the requirement of public accountability”.[43] This is also the case in Côte d'Ivoire, where far larger sums are involved. The Basilica at Yamoussoukro, is estimated to have cost $300 million, and the additional running expenses for what is the largest church in the world are also shielded from scrutiny by the 1992 concordat concluded with the Ivorian dictator. Houphouët-Boigny claimed that these funds came from his private fortune. A Vatican official is reported to have called it the agreement over the foundation set up to administer these funds “a delicate matter”.[56] This spending was heavily criticised, since in Côte d'Ivoire most people die before they reach the age of 50.[57] Nevertheless, this concordat ensures that the foundation’s income and assets remain untaxed (art. 9.1), it holds these funds beyond the reach of both criminal and civil law (art. 7.1), it permits this money to be sent out of the country (art. 13.2) and it keeps all the foundation’s documents “inviolable”, in other words, secret (art. 8).[27]

Concerns about human rights

Violations of religious equality

Any “church-state agreements” concluded with non-Catholic religious organizations of necessity lack the treaty status of Vatican concordats because only the Catholic Church has its own a state. A former Vatican Secretary for Relations with States, Cardinal Jean-Louis Tauran, explains that if concordats didn't have the status of international treaties they would be “subject to local law and therefore always be fragile, insofar as they are dependent upon the hazards posed by the political regimes or parliamentary majorities of the future”.[58] A group of Polish MPs is among those who have argued that this constitutes “a deviation from the principle of equality between religions and equality between citizens, regardless of their faith”.[59] And the European Union Network of Independent Experts on Fundamental Rights has concurred,[60] because a church-state treaty made with non-Catholic denominations in Slovakia does “not gain the status of an international human rights treaty and therefore will not take precedence over laws of the Slovak Republic”.[61]

Church control over divorce

With the exception of Malta, divorce has so far only been eliminated through concordats with rightwing dictators. The Dominican concordat with Trujillo (1954, art. 15.2), which is still in force, says explicitly that people married in a Catholic church, and therefore under Canon Law, may never file for a divorce.[30] So, too, did the now superseded Portuguese concordat concluded with Salazar (1940, art. 24).[28] Civil divorce was forbidden completely under both the Italian concordat with Mussolini (1929, art. 34)[22] and the Spanish one with Franco, (1953, art. 23-25).[29] Today Malta’s Marriage Concordat (1993) still outlaws divorce.[62] In a separate development the Pope issued a decree[63] in December 2009 which could serve to tighten up concordat marriage by eliminated a loophole and forbidding divorce even to those who have left the Church.[64][65]

Theocratic powers and canon law

Eugenio Pacelli (later Pius XII), was the “main architect”[66] of the 1917 Code of Canon Law and he established its jurisdiction in many of the concordats that he negotiated. As former Vatican “foreign minister” Giovanni Lajolo notes, “the concordats and agreements of the following years had the aim of regulating Church life in various countries in accordance with the norms contained in that text”.[36] For example, the 1940 Portuguese concordat [28] says that, “the Catholic Church in Portugal may organize itself freely in accordance with the norms of Canon Law” (art. 3) and the 1993 Polish concordat [15] grants the Church “the exercise of its jurisdiction, management and administration of its own affairs, in accordance with Canon Law” (art. 5).

However, the Church is not sealed off, but operates in society. Thus the legal recognition of Canon Law within a state which has its own legislation can lead to controversy. Speaking on the Polish concordat, Prof. Pawel Borecki claims that:

"It limits the sovereignty of the Polish state in some matters by ceding the power of governing bodies to an international organisation, which is what the Church is. […] This happens as a consequence of including Canon Law in the Polish legal system, which is sanctioned by the concordat. Canon Law should be considered foreign law. The Polish authorities have no influence on its content, nor on the process by which it is established."[67]

In Italy the acceptance of a judgement based on Canon Law was the subject of an appeal before European Court of Human Rights. An Italian court had enforced a ruling by a Vatican court, the Roman Rota, which is set up and run according to the norms of Canon Law. However, in 2001 the European Court rejected this on the grounds that the Vatican court failed to reach the standards of a fair trial as set forth in the European Convention on Human Rights.[68]

Also controversial is the application of Canon Law in social welfare institutions which are run by the Church, but which, in some countries such as Germany, are overwhelmingly subsidized by the state.[69] These include schools, hospitals and homes for the aged. At one time these institutions were staffed by nuns, and in Britain nurses are still addresses as “sister”.[70] Although today the employees are predominantly laymen, as, of course, are their pupils, patients and clients, in some respects, Canon Law may still apply to them. Through concordats this use of Canon Law receives legal protection.

In Germany the jurisdiction of Canon Law in Catholic institutions is safeguarded at many levels. First, the German concordat (1933, art. 1) permits the Catholic Church to run its own affairs “independently”, and issue “binding laws” for its members.[23] Second, the German Constitution confirms that religious societies can run their affairs “independently”.[71] And third, contracts required by Catholic institutions as a condition of employment or even of school enrolment also refer to Canon Law or to Church teaching.

The conflicting claims of Canon and civil law have led to controversy and litigation with regard to officially leaving the Catholic Church. According to Canon 751 a baptized Catholic who leaves the Church commits the sin of apostasy.[72] Although the right to change one’s religion is recognized as a human right,[73] exercising this in the context of Canon Law can cause problems. For instance, the parents of children attending Catholic schools must sign a contract with the diocesan school authorities committing the child to the beliefs of the Church. This permits a pupil who officially leaves the Church to be expelled from a Church-run school.[74] In addition, employment contracts stipulate that an employee can be fired from a Catholic institution without notice for “serious breaches” of Canon Law such as leaving the Church. There can be economic pressure to forfeit one’s religious freedom by signing the contract, since the German churches are the country’s largest private employers.

Examples of violations of Canon Law that are considered grounds for dismissal from employment are:

"...leaving the Church, a marriage-like living together in a marriage that is invalid according to Church law (for example, marriage after a divorce), participation in an abortion or the public advocacy of abortion thinking, participation in, or support of, endeavours that are immoral, irreligious or against the Church, as well as membership in organisations that predominantly serve to promote these endeavours."[75]

Anonymous informers have been known to tip off Catholic institutions about staff members “living in sin”, yet if divorced Church employees remarry they risk drawing more attention and thus increasing their likelihood of losing their jobs.[76]

German courts, from the state employment tribunals up to the nation’s highest court, uphold the right of the Church to enforce compliance with Canon Law on laymen.[77] In accordance with a legal principle called the “exhaustion of local remedies” these rulings cite the German Constitution. This principle means that “a State must be given the opportunity to redress an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question”.[78] However, although the direct appeal is made to the Constitution, it is the concordat which makes it clear that for the Church to run its affairs “independently” it must be free to apply Canon Law, a legal system not mentioned in the country’s Constitution.

Human rights violations

Certain concordat clauses have been judged by courts and legal experts to conflict with the requirements of human rights. For example, the Colombian concordat (1973)[79] was found by the country's Constitutional Court to be incompatible with international human rights norms in the areas of religious liberty, equality of marriage rights, freedom to teach, the rights of indigenous peoples and the right of military personnel to pastoral care according to their beliefs.[80]

Another concordat, the unsigned draft of the Slovak “Agreement on the Right to Conscientious Objection”[81] was strongly criticized in 2005 by the European Union Network of Independent Experts on Fundamental Rights. It pointed out that this concordat could lead Slovakia to violate three important human rights commitments: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women.[61] In the face of this warning by human rights experts, Slovak Foreign Minister Eduard Kukan refused to sign the concordat. This prompted the Christian Democrats to pull out of the coalition and led, in February 2006, to the government’s fall.[82]

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  22. ^ a b c English translation of 1929 Lateran Concordat
  23. ^ a b c d English translation of 1933 Reichskonkordat
  24. ^ Enabling Act of 1933
  25. ^ a b English translation of 1966 Haitian concordat
  26. ^ a b English translation of 1984 Haitian concordat
  27. ^ a b c English translation of 1992 Ivorian concordat
  28. ^ a b c English translation of 1940 Portuguese concordat
  29. ^ a b English translation of 1953 Spanish concordat
  30. ^ a b English translation of 1954 Dominican concordat
  31. ^ English translation of 1933 Austrian concordat
  32. ^ English translation of 1957 Argentine concordat
  33. ^ English translation of 1966 Argentine concordat
  34. ^ a b English translation of 1980 Peruvian concordat
  35. ^ English translation of 1996 Croatian concordat
  36. ^ a b “Holy See Diplomacy”, Vatican Information Service, 15 November 2005
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  40. ^ “Reichskonkordat 3.1 Das Konkordatsurteil des Bundesverfassungsgerichts” ("The Concordat Constitutional Court decision")
  41. ^ "Reichskonkordat" See IV.2
  42. ^ a b English translation of 1997 Hungarian concordat
  43. ^ a b ASC&kb_id=1222 English translation of 2000 Slovak concordat
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  45. ^ “Landespolitiker wollen Kirchen Millionenzuschüsse kürzen”, (Country's Politicians Want to Cut Churches [Million Euro] Grants), Der Spiegel, 24 July 2010.
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  50. ^ English translation of 1984 Italian concordat
  51. ^ English translation of 2004 Portuguese concordat
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  56. ^ “The Basilica in the Bush”, Richard N. Ostling, Time Magazine, 3 July 1989.
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  68. ^ Pellegrini v. Italy (2002) 35 EHRR 2.
  69. ^ “Vorfahrt für Gott” “German taxpayers subsidise 98% of faith-based social services”, translation of Dr. Carsten Frerk, Jungle World, Nr. 14, 7 April 2005.
  70. ^ “Nursing in the United Kingdom”
  71. ^ Basic Law for the Federal Republic of Germany (Grundgesetz, GG), Article 137.3, Appendix to the Basic Law, Extracts from the German Constitution of August 11, 1919 [Weimar Constitution], 23 May 1949.
  72. ^ Code of Canon Law, (1983), Canon 751.
  73. ^ Article 18: Freedom of Religion, Universal Declaration of Human Rights, 1948.
  74. ^ “Kirchenaustritt mit Folge” Carsten Muth, Südwest Presse Online, 3 May 2010.
  75. ^ [1] For a translation of this type of contract, see the last box on the right.
  76. ^ “Katholische Klinik: Kündigung wegen zweiter Ehe” (“Catholic clinic: Fired due to second marriage”), Kölnische Rundschau, 1 July 2010.
  77. ^ “Unter Gottes Dach” ("Under God's Roof") Annette Jensen, Publik, April 2008.
  78. ^ “The Rule of Prior Exhaustion of Local Remedies in the International Law Doctrine and its Application in the Specific Context of Human Rights Protection”, Abstract, Silvia d'Ascoli and Kathrin Maria Scherr
  79. ^ English translation of 1973 Colombian concordat
  80. ^ “Religious liberty and cultural and ethnic pluralism in the Colombian Constitution of 1991” Senator Viviane A. Morales Hoyos, Brigham Young University Law Review, 1999, p. 3
  81. ^ ASC&kb_id=1227 English translation of the 2004 Slovak Draft Concordat on the Right to Conscientious Objection
  82. ^ “Basic Treaty between Slovakia and Vatican caused problems”, Slovak Radio, 8 February 2006.

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