The 10th anniversary of the signing of the Fundamental Agreement between the Holy See and the State of Israel occurred on Dec. 30, 2003. David-Maria A. Jaeger, O.F.M., has served on the Holy See’s delegation to the negotiations with Israel since 1992 and is widely credited as the principal drafter of the agreement. An Israeli citizen, Father Jaeger is also spokesman for the Franciscan Custody of the Holy Land and professor of church-state relations at the canon law faculty of the Pontifical Athenaeum Antonianum in Rome. He was interviwed by Drew Christiansen, S.J., an associate editor of America .
What is the Fundamental Agreement?
Fundamental Agreement is the formal name of the international treaty between the Holy See and the State of Israel. It is essentially a concordat, with the purpose of securing the rights and freedoms of the church in Israel and regulating matters of common concern, such as Catholic schools or conditions and procedures for entry visas and residency permits for members of the clergy who are nationals of other countries, as are most Catholic clergy and religious in Israel.
Such agreements give the church a measure of legal security and protect its institutions and personnel from arbitrariness at the hands of government functionaries. In the United States, the church is assured its freedom by the First Amendment clause on freedom of religion, and it can effectively defend its freedom by recourse to the courts. This is not the situation in Israel, or in a good number of other countries. Hence such concordats are not only useful but even necessary.
What is the significance of the Fundamental Agreement?
The agreement opens with an explicit commitment to observe freedom of religion and conscience, as defined by the Universal Declaration of Human Rights (1948) and by the other human rights treaties to which Israel is a party. This is the heart and soul of the entire document, indeed of the entire relationship between the church and the State of Israel.
Other provisions reflect general principles on the right relationship between church and state. Thus, the treaty recognizes specific rights of the church—for example, to establish schools, universities, social service and media organizations. At the same time, the agreement recognizes that Israel has rights and responsibilities with regard to the nonreligious dimensions of church activities. For example, the state must ensure the observance of health and safety requirements in church schools and clinics, and it must allocate use of the airwaves fairly. Some provisions are specific to the Holy Land: maintaining the internationally sanctioned rules on sharing the Christian holy places or on the freedom and promotion of Christian pilgrimages.
The treaty also affirms the friendship between Catholics and Jews, the church’s respect for non-Christian religions (Israel has a large Muslim minority), the need to combat anti-Semitism and all other forms of intolerance and the need to promote mutual respect between communities.
What is the agreement’s significance for Christians in the Holy Land and regionally for the Middle East?
The agreement’s significance for the church in the Holy Land is potentially enormous, even revolutionary. There has never been any similar guarantee of freedom of religion and conscience, even though in practice the situation in Israel has always been vastly better than that in any other country in the region; nor has there ever been legal recognition of the Catholic Church as such, or settled rights and obligations pertaining to church bodies and activities.
I read the Fundamental Agreement as the first concrete application of what might be called the “John Paul II doctrine” on the future of the church in the Middle East. In a little-noticed but surely epoch-making speech the pope gave to legal scholars on Dec. 11, 1993, John Paul II called for an end of the Middle Eastern tradition of “toleration” of the Christian communities, and for the introduction of modern models of society, rooted first of all in the human right to freedom of religion and conscience and in the consequent full equality of all citizens and their communities. Following this pattern, in 2000 the Holy See signed a broadly similar accord, called the Basic Agreement, with the Palestine Liberation Organization on behalf of the nascent Palestinian state.
What problems has the church faced in Israel since the agreement was signed?
Recent difficulties include denials of entry visas and residence permits to some church personnel, pursuing church bodies over unpaid taxes (from which they have always previously been exempt) and, most recently, invading church property for the construction of the Separation Wall/Fence.
At the signing of the agreement, dissenting voices criticized the treaty. What were their concerns?
The Holy See entered into full diplomatic relations with Israel in June 1994, before the actual detailed agreements needed to give practical effect to the Fundamental Agreement, particularly on the church’s tax status, had been negotiated. Cassandras warned that once Israel achieved what it most wanted from the agreement—namely, diplomatic relations with the Holy See—it would have no incentive to do its part, specifically to recognize the vitally necessary tax exemptions the church has historically enjoyed, or to return certain church properties.
The Holy See’s negotiators responded that it was better to trust their partners in negotiations and to establish thereby a climate of mutual confidence, which in turn should greatly facilitate achieving the church’s concrete goals in this matter. With the all-important agreement on taxes and property still unfinished, negotiations are now effectively suspended. Critics of the agreement may well be proved right. I wholeheartedly hope that this will not in fact happen, that the prophets of doom will not be shown to have had better foresight, that Israel will still come through and the Holy See’s negotiating strategy will be vindicated. Time, however, is not on our side.
What progress has been made toward negotiating these detailed agreements?
A Bilateral Permanent Working Commission between the Holy See and the State of Israel was set up in 1992. By 1995 the commission had already started to map out some of the detailed agreements to follow at once upon the adoption of a still unachieved tax and property agreement. At the top of the agenda would be an agreement on access to the sacraments and pastoral care by persons in special circumstances, such as prisoners, hospital patients and soldiers.
Then there must be the no less urgent agreement on visas and residence permits for clergy and religious from other countries, without whom the church’s life would practically come to a halt. Proposals were also made for an agreement favoring a more correct presentation of Christ, Christianity and the church in Israeli education and public discourse, to counter hurtful stereotypes and prejudice. All this is work yet to be done.
Can you tell us more about the difficulties in the way of implementing the treaty?
Neither the treaty as such, nor any of its provisions, has yet been written into law in Israel. This severely limits its applicability within Israel and makes it unenforceable in the Israeli courts.
For example, the treaty says that the state would not seek to impose unilaterally its position on taxation (from which the church claims exemption on the basis of U.N. resolutions, Israeli commitments to European powers and the like), pending conclusion of the new treaty on taxation. Yet when tax authorities take church institutions to court, the courts decline to consider this treaty provision, on the grounds that it has not been made into an Israeli law. The attorney general and the foreign ministry, moreover, routinely decline to testify to the state’s binding international obligations under the Fundamental Agreement.
Where do the negotiations stand today?
Negotiations on the next agreement, called the “Economic Agreement” for short, began in March 1999 and continued by fits and starts until July 1, 2003. At the Vatican in July, Israel’s foreign minister, Sylvan Shalom, told reporters he expected to be back “within three months” to sign the new agreement. But on Aug. 28, in a surprise move, the government of Israel communicated that its delegation would not attend the negotiations on any of the agreed dates, and no proposals were forthcoming for new dates to be set. This came as something of a shock, given the progress already achieved and positive outlook that had prevailed in the talks.
Tax status issues are fundamental. Imagine the church in the United States without any of the exemptions it enjoys from federal, state and local taxes. Indeed, the sum total of the church’s expectations certainly does not exceed the exemptions current in the United States, and possibly does not even reach that level. This is an important comparison to make, since so much of the funding needed for the church in the Holy Land actually comes from U.S. citizens, who are entitled to expect that the church in the Holy Land be treated no less well than it—as well as Jewish and other religious organizations—are treated in the United States.
Overall, is the church in the Holy Land better off as a result of the Fundamental Agreement?
Not so far. It should be, and will be—immeasurably so—if and when the “Economic Agreement” is done and fully in force, and then to the extent that the other necessary implementation agreements are concluded and applied. Meanwhile, it is all one can do to comfort alarmists who fear that it will all come to nothing. Indeed a high-ranking international church official of my acquaintance, who is normally exceptionally well disposed toward Israel, has recently written an Israeli correspondent, a former senior official, that it was his feeling that the church had been more respected and more secure before the official relationship. With the 10th anniversary, I hope that the setbacks will prove temporary, the proverbial blip on the screen, and that the forward march of this crucial relationship will resume, full-speed ahead. For that to happen, the support of both the Catholic and the Jewish communities in the United States may be decisive.