青青藤☆

 
发现了一篇资料，西班牙语。想把这篇文章搬过来，本想起个题目叫“关于医院骑士团的看不懂的鸟语存货”，后来才发现英文版本就在西班牙语版本的文章后面，气死

地址在这里：（点我！）【大概需要翻墙】

 感谢原作者，不知道能不能转载，出了问题责任在我。

The Order of Malta and Its Legal Nature

Copyright © 1999

by Analítica.com

这里搬运其中一部分内容（主要是骑士团的国际地位、与意政府的关系 以及 与教廷的关系）：

………………

THE "STATUS" OF THE ORDER IN INTERNATIONAL LAW

The Order of Malta is presented with full international legal personality. This personality is evidenced by:

○ the existence of a right of active and passive legation, of the jus contrahendi, the right to issue passports, privileges and immunities enjoyed by the Grand Master and external representative bodies, 

○ the existence of an internal organization that gives life to legal entities recognized on par with foreign legal entities,

○ the existence of its own legal jurisdiction as an alternative to territorial jurisdiction  or membership, and the power of conferring decorations [of diplomatic honor].

The Order occupies its own place in the scope of the international community no differently than other entities, contributing as others do to forming customary rules – States      do not have a monopoly over this – although, from a purely quantitative point of view, fewer in number.

………………

Relations of the Italian State with the Order

For the purpose of studying the international position of the Order of Malta, the posture of the Italian State in whose territory, since 1870, the Grand Master of the Order is based, is very important. 

Italy would be the state that would have more interest in contesting the sovereignty of the Order, because of inevitable limitations on its recognition arising from Italian sovereignty (the extraterritoriality of the Palace of Via Condotti and the Villa del Aventino in Rome, where the Grand Master and the central functions of the Order have their residence).

The sovereignty of the Order is recognized after the establishment of the Kingdom of Italy (1861) and before its union with Rome (1870). A government commission to study the knightly orders in the various Italian States concluded in 1868 that "the Order of Malta as European public law is concerned, has not ceased to be sovereign."

The question then arose regarding the implementation of the decree of 7 July 1866 (in fact until 1929, when the Concordat with the Holy See was signed) abolishing "orders, corporations and religious congregations." By decision of the State Council of 2 August 1869, application of this decree to the Order of Malta is excluded, in consideration of its particular legal status.

The decree of 28 November 1929, with diplomatic relations between Italy and the Order still not existing, established that "the representatives of the High Magisterium of the Sovereign Order of Malta, regularly accredited and expressly delegated by the Grand Master," were present at public ceremonies immediately after the Diplomatic Corps.

The international character of the Order and its sovereignty are explicitly recognized by the Supreme Court of Appeals in several judgments (from 1913 onwards). In particular the Supreme Court found that:

"The Sovereign Military Hospitaller Order of Malta is a sovereign international subject, although deprived of territory, equivalent to a foreign state, with which Italy maintains diplomatic relations, so there is no doubt, as the Court of Appeals has already advised, that it is premised upon the legal treatment relative to foreign States and therefore also the jurisdictional exemption limits already mentioned, i. e., the activity related to the attainment of its public purposes."

In 1948 the Foreign Minister gave provisions to the Prefecture of Rome so that the Grand Master was reserved, in each circumstance, the treatment intended of foreign sovereigns. 

After World War II Italian courts have reaffirmed the sovereignty of the Order, extracting all the legal results of this recognition. Thus the Court of Rome, in a June 1947 ruling, held that the Order should be equated with foreign states for the exemption of executive acts. 

So, when in 1956, Italy and the Order decided to establish diplomatic relations, it was simply assumed as the logical result of a situation of well-defined and consolidated law and fact.

Relations with the Holy See

As seen, the peculiarity of the position of the Order at the international level is due in part to the absence of territory and non-institutional citizens, and in part, the bond of dependence in relation to the Holy See because of the remaining differences between canonical law and Maltese law.

In fact, special links between Maltese law and canonical law can be demonstrated, because of the decision of the Knights – autonomously organized in the institution – to impose religious rule and to place themselves under the protection of the Pope.

The Apostolic Letters show that S. S. Benedict XIV on 12 March 1753 declared the Order subject to the protection of the Apostolic See, and immune to any other jurisdiction.

Therefore, the Order of Malta has a dual legal personality: in international law and in canonical law.

The Holy See confirmed the most important sources of Law of the Order: the Constitutional Charter and the Maltese Code, to verify the religious orthodoxy, as well as approve or ratify the election of the Grand Master, treating him as an eventual religious Lieutenant Grand Master, as in the past and as provided in the Constitution.

These approvals, however, establish character but no verification nor decrease in the self-determination of the Order, because they conform to the traditional relations that were established with the Church, after the Order assumed the characteristics of a "Religion," and should consider that – until the last century – the Maltese organization being exclusively centered around the professed Knights (First Class), the need for ecclesiastic interventions was clearer.

The sovereignty of the Order led the Holy See to attribute, from the canonical point of view, a very special position of respect for the legal discipline of other religious orders.

The link with the Holy See comes from the fact – mentioned above – that some members belonging to the First Class (inside of the Order the Knights are distinguished by class, based on the nobility of blood, the issuance of religious vows or the promise of obedience (they tend to the perfection of Christian life)). Those in the First Class are Knights of Justice, who profess religious vows and Conventual Chaplains, who are ordained priests.

It is evident that not everything is about a religious profile of assuming vows, and that Maltese law is detached from canonical law, and it is clear that Knights of the First Class only depend on the Holy See within the limits and with respect to the profession of vows.

The Constitution and the Code of the Order include numerous rules of Special Canon Law, which, by repealing Common Canon Law or citing it, discipline the obligations of a canonical nature of the members of the Order, especially those providing religious vows. Under this profile the approval by the Holy See of the Constitution and the Maltese Code was necessary.

The link between the two Entities does not preclude a wide sphere of autonomy of the Order, within which it has the possibility of sovereign self-determination, arising autonomously in its relations with other States, in view of its own institutional purposes.

In international relations, it is ruled out that the Order act in the name and interest of the Holy See, but it is true that the dependent relationship is presented to the outside in the form of "protection" as several historical circumstances demonstrate.

This situation of "dependency," or alleged limitations on the sovereignty of the Order, is not derived from constitutional law or international law, but has its origin in the nature of religious order assumed by the Institution, by the professed vows by the highest ranks of the Order – as noted – and for typically persecuted Christian purposes."

The Grand Master of the Order of Malta is unique among the heads of religious orders in that he has a right to the title of Eminence and to the honors for the Cardinals.

The Order of Malta is the only religious order that has a representative of the Pope, who must be a Cardinal (Cardinalis Patronus), with "the task of promoting the spiritual interests of the Order and its members and to foster relationships between the Holy See and the Order itself."

But in the aspect of religious order, the Order has a particular position, different from that of other religious orders, so much so that even the religious aspect is covered by the Order of Malta in its own legal rules (Constitutional Charter and Code) and, only via an extra channel to establish it, under the Canonical Law.

If we study the issues of a religious nature that the Order has over its sovereignty, it must be noted that such sovereignty has never been put into question by the Holy See and has instead been reaffirmed in the most solemn ways.

The Holy See accepted a diplomatic mission of the Order until 1834 and from 1930 onwards; in the interim period diplomatic relations were suspended simply because, with the Grand Master based in Rome, the existence of a legation in the same city seemed useless.

On 30 October 1921, Cardinal Pietro Gasparri, in his capacity as Secretary of State, declared that: 

"The Holy See recognizes the Order of Malta as an independent international order with sovereign privileges."

The Order cannot be mistaken for a religious-monastic order, either by the presence of lay members or by the absence of a requirement of common life, which is one of the most typical monastic characteristics.

In this regard, we should recall that in December 1951 a controversy arose that originated in the pretense of the Sacred Religious Convention to monitor and investigate the institution of the Knights of St. John of Jerusalem as a common religious order.

In these circumstances, the Grand Master made use of ancient prerogatives that claimed the privilege of the Order of not recognizing "another bishop as superior that was not the Pope" and filed a request directly to the Pope asking for a trial, which was conducted by a Tribunal of Special Cardinals instituted by Pius XII.

In the judgment of 24 January 1953, relations between the Holy See and the Order were defined and the characteristics of "sovereign" and "religious" determined, as well as respective areas of competence.

About the "Nature of the quality of religious rule of the Order," the statement said that "the Jerosomilitana Order of Malta, as composed by the Knights and Chaplains, is a Religion and more precisely a religious order, approved by the Holy See;" it further stated that "the decorations of the Order and their associations depend on it ..."

On 12 March 1953, the Order informed the Secretary of State, through diplomatic channels, of the acceptance of the judgment "conditioned" on the acceptance of a "specific interpretation" in three points, of which the second affirmed that "the religious nature of the Order is limited to the professed Knights and Chaplains who compose it," and that the judgment precluded any interference by the Secretary of State in the diplomatic activity of the Order. The Holy See communicated as always through diplomatic channels, it "has taken note."

"Taking note," without rejecting or contradicting the proposed interpretation, has meant the improvement "of an international interpretative agreement, reached by the parties concerned, on some controversial points, setting a definite position."

However, the most solemn reaffirmations of the sovereignty of the Order are contained in the Constitutional Charter approved by S.S. John XXIII on 24 June 1961. Article 1 affirms that "the Order is a legal entity formally approved by the Holy See. It has the quality of a subject of international law."

Article 3 states that "the intimate connection existing between the two qualities of a religious order and a sovereign order do not oppose the autonomy of the order in the exercise of its sovereignty and prerogatives inherent to it as a subject of international law in relation to States."

It also provides for a diplomatic mission of the Order to the Holy See and the appointment of the Cardinalis Patronus. It further provides (Article 12) that "the Grand Master is the Supreme Commander of the Order. Incumbent upon him are special prerogatives and sovereign honors under the rules in force."

In short, the current situation is no different – in law – from what has been consolidated historically, so that one cannot assert the non-existence of a sphere of self-determination of the Order in its relations with any State, nor may one assert the right of interference of the Holy See in international affairs of an institutional character, because the protection afforded by the Holy See to the Order does not mean protectorate, nor can one speak of allegiance.

The distinction between Vatican diplomacy and diplomacy of the Order is so clear that in none of the States with which the Order has diplomatic relations, is the representation of the latter entrusted to the Apostolic Diplomatic Missions. The Holy See is not involved in any way in the international conventions of the Order. 

From the point of view of internal organization, there is no interference of the Holy See in the elections and appointments to the offices of the Order, unless canonical dispensation (permission) is needed, in some cases, for the appointment of non-professed Knights to offices for which the Constitution of the Order requires them to be professed.

The Prince Grand Master is also head of a religious order and as such, his election ought to be confirmed by the Apostolic See.

The Order of Malta, within the limits that are compatible with its actual position as a subject deprived of territory, is in the international community, a sovereign entity on par with the States, and the Prince Grand Master is comparable, from the point of view of international law, to the Heads of State.

This report is based on the book written by Prof. Aldo Pezzana entitled, Il Fondamento giuridico e storico della sovranita 'dell'Ordine Gerosomilitano di Malta, 37 pages, and the books by Prof. and Attorney Francesco Gazzoni entitled, L'Ordine di Malta, Milan, 1979, 137 pages; A. Pecchioli, Storia dei Cavalieri di Malta, Editalia, Rome, 1978, 125 pages; and in the Annuarie, 1996/1997, Oedre Souverain Militaire Hospitalier de Saint-Jean de Jerusalem de Rhodes et de Malte, Rome, 1996, 142 pages ("Feast of the Patron of the Order, San Juan Bautista," Annuarie, 1996/1997, Oedre Souverain Militaire Hospitalier de Saint-Jean of Jerusalem de Rhodes et de Malte, p.21-23).

It is worth remembering that accredited Maltese representatives to the States enjoy immunities and privileges not as international officials, but rather in their capacity as diplomatic officials, with the rank of Ambassador or Minister plenipotentiary. On the one hand, the clear territorial separation of sovereign areas that exists between the Italian State and the State of Vatican City does not exist between the Order of Malta and the Italian State, but neither can it be said that the treatment given to the headquarters of the Order (Aventine, Via Condotti) is, simply, that reserved for the headquarters of diplomatic missions accredited to the Italian State.

In fact, the headquarters of the Order have diplomatic extraterritoriality (authoritarian acts of any kind – executive, acts of inspection, judicial – cannot take place inside), but in addition, the Italian State recognizes the exercise, in the headquarters, of the prerogatives of sovereignty. This means that Italian sovereignty and Maltese sovereignty coexist without overlapping, because the Order exercises sovereign functions in a wider area than occurs in the diplomatic missions of the States for, although [those diplomatic missions] enjoy extraterritoriality, the guarantees deriving from the privilege of immunity are constrained to a purely administrative area; the Order, instead, makes use of extraterritoriality to meet the very acts of sovereign self-determination that are the same as the States (legislative, judicial, administrative, financial acts).

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正文是很严肃的，以下是一些不那么严肃的发言：

·因为（差不多已经）是组织了，所以领土这个要素对医院来说并不是十分重要，但它依旧保持着许多传统意义上的地位与权力。

·你意心真好，首都里还容得下一只骑士团。

“意王国成立时，曾组织一个委员会讨论存在于意城国内的各骑士团，并得出结论，‘在欧洲公法的框架下，马耳他骑士团的主权并未停止’。虽然在过后1866年（实际上直到1929年与教廷签署条约之后）曾颁布法律废除‘教团、宗教集会等’，但考虑到马耳他骑士团的具体法律地位，该法令不适用于马耳他骑士团。”

·“因为意政府承认医院罗马内两处地产的治外法权，所以意与医共存且并没有主权重叠”