1、第二章 国际法上的国家国家概说国家、政府及其他实体的承认国家的继承第一节 国家概说一、国家的概念 国家是指定居在特定的领土之上，并结合在一个独立自主的权力之下的集合体。 （一）永久的人口 permanent population （二）确定的领土 defined territory （三）政府 government （四）主权 sovereignty A sovereign state is a state with a defined territory on which it exercises internal and external sovereignty, a permanent
2、population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither dependent on nor subject to any other power or state. While in abstract terms a sovereign state can exist without being recognised by other so
3、vereign states, unrecognised states will often find it hard to exercise full treaty-making powers and engage in diplomatic relations with other sovereign states. The word “country” is often used to refer to sovereign states, although it means, originally, a geographic region.二、国家类型国家结构形式单一国unitary s
4、tate复合国composite联邦federation邦联Confederation主权限制永久中立国Permanent neutralized state附属国Dependent state附庸国Vassal state被保护国Protected state 梵蒂冈市国 The Vatican State Holy See / Lateran Treaty The Holy See The Holy See (Latin: Sancta Sedes, “holy chair“) is the episcopal jurisdiction of the Catholic Church in
5、Rome, in which its Bishop is commonly known as the Pope. It is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and speaks for the whole Roman Catholic Church. It is also recognized by o
6、ther subjects of international law as a sovereign entity, headed by the Pope, with which diplomatic relations can be maintained Although it is often referred to by the term “the Vatican“, the Holy See is not the same entity as the Vatican City State, which came into existence only in 1929, while the
7、 Holy See, the episcopal see of Rome, dates back to early Christian times. Ambassadors are officially accredited not to the Vatican City State but to “the Holy See“, and papal representatives to states and international organizations are recognized as representing the Holy See, not the Vatican City
8、State. While all episcopal see are “holy“, the expression “the Holy See“ (without further specification) is normally used in international relations, as a metonymy, (as well as in the canon law of the Catholic Church) to refer to the See of Rome viewed as the central government of the Catholic Churc
9、h. Put the pope in the dock Friday 2 April 2010 Legal immunity cannot hold. The Vatican should feel the full weight of international law Well may the pope defy “the petty gossip of dominant opinion“. But the Holy See can no longer ignore international law, which now counts the widespread or systemat
10、ic sexual abuse of children as a crime against humanity. The anomalous claim of the Vatican to be a state and of the pope to be a head of state and hence immune from legal action cannot stand up to scrutiny. The truly shocking finding of Judge Murphys commission in Ireland was not merely that sexual
11、 abuse was “endemic“ in boys institutions but that the church hierarchy protected the perpetrators and, despite knowledge of their propensity to reoffend, allowed them to take up new positions teaching other children after their victims had been sworn to secrecy. This conduct, of course, amounted to
12、 the criminal offence of aiding and abetting sex with minors. In legal actions against Catholic archdioceses in the US it has been alleged that the same conduct reflected Vatican policy as approved by Cardinal Ratzinger (as the pope then was) as late as November 2002. Sexual assaults were regarded a
13、s sins that were subject to church tribunals, and guilty priests were sent on a “pious pilgrimage“ while oaths of confidentiality were extracted from their victims. The notion that statehood can be created by another countrys unilateral declaration is risible: Iran could make Qom a state overnight,
14、or the UK could launch Canterbury on to the international stage. But it did not take long for Catholic countries to support the pretentions of the Holy See, sending ambassadors and receiving papal nuncios in return. Even the UK maintains an apostolic mission. The UN at its inception refused membersh
15、ip to the Vatican but has allowed it a unique “observer status“, permitting it to become signatory to treaties such as the Law of the Sea and (ironically) the Convention on the Rights of the Child, and to speak and vote at UN conferences where it promotes its controversial dogmas on abortion, contra
16、ception and homosexuality. This has involved the UN in blatant discrimination on grounds of religion: other faiths are unofficially represented, if at all, by NGOs. But it has encouraged the Vatican to claim statehood and immunity from liability. This claim could be challenged successfully in the UK
17、 and in the European Court of Human Rights. But in any event, head of state immunity provides no protection for the pope in the international criminal court. The ICC Statute definition of a crime against humanity includes rape and sexual slavery and other similarly inhumane acts causing harm to ment
18、al or physical health, committed against civilians on a widespread or systematic scale, if condoned by a government or a de facto authority. It has been held to cover the recruitment of children as soldiers or sex slaves. If acts of sexual abuse by priests are not isolated or sporadic, but part of a wide practice both known to and unpunished by their de facto authority then they fall within the temporal jurisdiction of the ICC if that practice continued after July 2002, when the court was established.
