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Issues

The Fundamental Agreement

Msgr. Jaeger, we are observing the 20th anniversary of the “Fundamental Agreement between the Holy See and the State of Israel.” Could you explain what this is, and what role you played in bringing this about?

It could best be seen as the pioneering application of Blessed Pope John Paul II’s new vision for the church in the Middle East. The pope expounded this vision publicly in his address to the participants in an academic conference on Roman and Canon Law on 11 December 1993, shortly before the agreement was signed (30 December).

In essence, it envisaged the transformation of the condition
of Middle Eastern Christian communities from that of being, as it were, “reservations” set apart under the “protection” of a ruling majority — characteristic of the Ottoman era — to a condition of full and equal citizenship safeguarded by the principles of religious freedom and equality before the law.

Several years later, the same vision inspired the “Basic Agreement” with the Palestine Liberation Organization (15 February 2000), guaranteeing the position of the Catholic Church vis-à-vis the Palestinian polity. Distinctively, both agreements are premised on religious freedom for all, in accordance with international standards. In other words, the undergirding conviction is that there is not much sense in trying to carve out — as often enough the concordats of old needed to do — a special position for the Catholic Church in an otherwise unfree environment.

Now, what role I played in bringing this about is best assessed by others. Essentially though, I helped in translating the vision into concrete strategy, did the drafting of our delegation’s positions and proposals and negotiated for it vis-à-vis my counterpart on the State of Israel’s delegation, the late Judge Tzvi Terlo, all at the direction of then Archbishop (now cardinal) Andrea di Montezemolo and in accordance with the instructions given from time to time by the Secretariat of State of the Holy See. Allegedly, too — according to accounts published by others — I maintained additional “back-channel” communications with certain government officials to help overcome obstacles and plan ahead. It was all very demanding:

It was just as well that I was much younger then — still in my (late) 30’s — since I was contemporaneously, for most of that time, the vicar judicial in the Diocese of Austin, Texas, and needed to travel frequently between Austin, Rome and Israel (and sometimes Washington and New York, too), by gracious consent of the then-bishop of Austin, John E. McCarthy.

Before the signing there was a lot of talk about the Holy See “recognizing Israel.” Is this really accurate?

No. With rare exceptions, “recognizing” states or governments is not part of the diplomatic vocabulary of the Holy See. In such matters, the Holy See is simply presumed to follow the principles of international law and the consensus of the international community, so that any state admitted to membership of the United Nations must be presumed to be recognized by the Holy See as well. Israel was admitted to membership in 1949, so that since then there could be no question about it being recognized by the Holy See, too. What did not come about until 1994 was diplomatic relations between the Holy See and the State of Israel, which is another matter altogether.

My feeling is that the Fundamental Agreement is different from the normal exchange of ambassadors between two countries. Am I correct in this, and if so, what is the difference?

Quite. The agreement is called “fundamental” because it intended to be the foundation of the whole bilateral relationship, and so also of the “exchange of ambassadors” that took place after its coming into force several months later. On our side, at least, the idea was that the formal relationship, expressed by an “exchange of ambassadors,” would be premised on the substantive relationship created by the agreement and maintained by compliance with it. The agreement itself, like the “exchange of ambassadors” that followed, is not, of course, “between two countries,” but between the Holy See — the sovereign authority of the worldwide Catholic Church — and a state. This category of bilateral treaty, geared to safeguarding the rights and freedoms of the Catholic Church in the territory of the state, is known as a “concordat,” whether it is called that or, as in this case, by another name.

What has the “Fundamental Agreement” accomplished in the past 20 years and what are the challenges it faces?

Twenty years is not a long time in which to reverse the course of the previous 13 centuries, in which (with but brief interruptions) a totally different model of church-state relations had prevailed — especially if one takes into account the ever tumultuous “environment” in which this is to be accomplished.

In principle, though, the agreement has given the Catholic Church in Israel a “frame of reference” for her relationship with the state, and a secure legal basis for her to claim and defend her rights and freedoms in relation to the state. It is, as it were, a tool put in the hands of the church leadership for them to put to good use in accordance with their assessment of the challenges and opportunities as they arise from time to time.

Moreover, this is, as it states itself, but a “first and fundamental agreement,” which needs to be complemented by a series of further, more detailed, treaties on particular aspects of church-state relations. The first of these, the “Legal Personality Agreement,” was signed on 10 November 1997, and entered into force on 3 February 1999. It is mostly a “technical” treaty consolidating the age-old recognition of the legal personality conferred by canon law on patriarchates, dioceses, the (Franciscan) Custody of the Holy Land, religious institutes and other official bodies of the Catholic Church. Negotiations on the next treaty began on 11 March 1999, and are still underway. This treaty is intended to deal with such diverse subjects as taxation and exemptions there from, and the safeguarding — and, in some cases, recovery — of church property, especially but not only sacred places. Already in 1995 further priority issues were identified, namely: access to ministry by persons in special circumstances, such as prisoners, ervice members and hospital patients; entry visas and residence permits for church personnel deployed from elsewhere; and the correct presentation of Christ, Christianity and the church in the education system. All of this is already public knowledge.

I was in Jerusalem when the “Fundamental Agreement” was signed. I saw demonstrations led by the Haredim, ultra-Orthodox Jews, opposing the agreement. Is this still the case and what might it mean?

Nothing really. I was there, too, of course and I — admittedly busy with “the signing” — never noticed. Of course, as in other religions and other countries, so in Israel, too, there are religious fundamentalists whose fear of contamination by “the other” dictates their attitude to everything and everyone. Just think of those in the United States who have occasionally given the very name of “Christian” some rather unpleasant connotations and who appear to be both proportionately more numerous and more influential than Israel’s “ultra-Orthodox” fringe. And, quite frankly, there was not a general consensus in support of signing the agreement within the Catholic community either.

Some members of the clergy and laity were quite perplexed. There were those who questioned whether it was the right time to do so, while borders and relations with neighboring nations remained unsettled. And there were those who basically did not trust the State of Israel to keep its part of the deal. Our delegation met with some of them, listened and explained. To be sure, no such “deal” is magically self-executing; it presupposes that church leadership, at all levels, be alert, monitor compliance, call attention to problems as they emerge, engage the state about them at the appropriate level and invoke proportionate measures to bring about any needed course corrections.

Has the signing of the “Fundamental Agreement” altered the Holy See’s position on Jerusalem? And how has it impacted the Holy See’s relationship with Palestine, if at all?

It was always understood by both sides that the agreement would not — indeed, could not — alter the Holy See’s position on Jerusalem. The agreement is a bilateral treaty for the benefit of the Catholic Church in Israel, while the question of Jerusalem is of its nature a multilateral matter of concern to the international community as a whole, which can therefore be settled only by the United Nations or with its endorsement. In fact, the Holy See’s position was later stated, with great precision, in the preamble of the 15 February 2000 “Basic Agreement” with the P.L.O., which made it formally its own, too. As to any impact on the relationship with Palestine, the recorded facts show it to have been very positive indeed, in the sense that the “Fundamental Agreement” was actually followed by the analogous “Basic Agreement” with the P.L.O., and the upgrading of formal relations with that side, too, with a view to further more detailed agreements with Palestine as well.

Later, two papal pilgrimages to the Holy Land — Blessed John Paul II in 2000, and Benedict XVI in 2009 — amply demonstrated the Holy See’s determination, and its extraordinary ability, to maintain the friendliest relationship with both nations that call the Holy Land home, even as the two nations are yet to bring about such relations between the two of them.

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