Monarchies and International Law

Rules of Succession and Modern Laws on Discrimination

Introduction

Rules of succession in a hereditary monarchy are essentially unfair, since their purpose is to select one person for a particular job to which the basic qualification is birth. A random monarchy (at the death of the ruler, a new ruler is drawn at random from the population) would be as close to fair as one could hope; but that's not the way monarchies usually work. So carping about discrimination in succession laws makes little sense.

Nevertheless, modern legal systems embody more and more forms of protection for individuals against discrimination on the basis of certain criteria, such as sex, race, religion, national origin, age, etc. Do these apply, or could they apply, to monarchies?

European Laws on Discrimination

A recent change in British law has prompted some commentary on the effect of "European law" on the British monarchy. The Human Rights Act essentially makes it mandatory for British judges to enforce the provisions which the United Kingdom agreed to observe by signing the European Convention on Human Rights. In most other countries, a citizen must first exhaust his recourses in national courts before he can go to the European Court of Human Rights (ECHR) in Strasbourg.

First, a misconception: this is not European law in the sense of "law of the European Union". In fact, this has nothing to do whatsoever with the European Union. The legal basis is the European Convention on Human Rights signed by a number of European states (presently 41) that are members of the Council of Europe. The now permanent European Court of Human Rights sits in judgment of cases brought by any individual against member states for breach of the convention. The convention was amended by a several protocols (see a complete list of treaties deposited with the Council of Europe).

Article 14 of the Convention says:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

However, the right to inherit the crown is not set forth anywhere in the Convention as a human right, so article 14 does not apply.

Illegitimacy

Traditionally, succession laws exclude illegitimate children (although they frequently allow legitimation by subsequent marriage). The trend in modern law has been to erase the distinctions between legitimate and illegitimate children. In fact, Germany has gone so far as to abolish the distinction altogether: it has at present no foundation in the German civil code.

The European Convention on the Legal Status of Children born out of Wedlock states, in article 9:
"A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father's or mother's family, as if it had been born in wedlock."
and in article 10:
"The marriage between the father and mother of a child born out of wedlock shall confer on the child the legal status of a child born in wedlock."

It was opened for signature in 1975. It has entered in force in the following countries: Austria, Cyprus, Denmark, Greece, Ireland, Lichtenstein, Lithuania, Luxemburg, Norway, Poland, Portugal, Romania, Sweden, Switzerland, and the United Kingdom. Austria reserved the right not to apply article 9, but did not renew its reservation after 1990. Lichtenstein initially reserved article 9 but withdrew its reservation. The United Kingdom reserved to apply article 9 only to the estate of the father and mother (not those of their relatives).

Concerning the succession to the throne or titles, two countries made explicit reservations:

Lichtenstein (17 Apr 1997):

The Principality of Liechtenstein declares that Articles 9 and 10 of the Convention shall not be interpreted in such a way as to grant to a child born out of wedlock a right to ascend the throne. This right can only be transmitted to a specific category of heirs.

United Kingdom (24 Feb 1981, 24 May 1994, 28 Oct 1996, 27 September 2002, renewed for 5 years):

"The Government of the United Kingdom also wishes to confirm its understanding that neither Article 9 nor Article 10 of the Convention is to be interpreted as conferring upon a child born out of wedlock any right of succession to the Crown or a title of honour or any right of inheritance to an entailed interest."

Nobiliary law

Various royal actions brought to the ECHR

The European Court of Human Rights (again, a court unrelated to the European Union) has been used successfully by several members of deposed dynasties against the laws of their countries of origin. Two cases:

• the Prince of Naples sued over article XIII of the Italian constitution prohibiting him from entering Italian territory; the court decided to hear the case in September 2002; the hearing was postponed in January 2002 (see the announcement here), and again in April 2002 (see the announcement here). The Italian constitution was amended by a law of October 23, 2002, which entered into force on November 10, and the procedure before the Court was voided on April 24, 2003 (see text).

  The Savoys' plea is remarkable because they alleged violation of article 3 of Protocol 4 to the European Convention on Human Rights, which states: "No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. No one shall be deprived of the right to enter the territory of the state of which he is a national". When Italy ratified the protocol on May 27, 1982, it made the following reservation: "Paragraph 2 of Article 3 cannot prevent the application of the transitory disposition XIII of the Italian Constitution concerning the interdiction of entry and residence of some Members of the House of Savoy on the territory of the State." In spite of this reservation, the Court found the complaint admissible, that is, did not reject it out of hand. This reservation, having become moot after the repeal of Article XIII, was withdrawn on November 12, 2002.

• the (former) King of the Hellenes sued in 1994 (application 25701/94) over family property confiscated by Greece; the court ruled mainly in his favor on Nov. 23, 2002 (see the press release here) by saying that Greece acted illegally in not compensating the royal family for the properties; on Nov. 28, 2002 it allocated 12m euros to the former king as compensation (see the press release here)

On the other hand, the prince of Liechtenstein lost his case against Germany over a painting confiscated in 1945 in Czechoslovakia which was exhibited in a museum in Cologne (application 42527/98; ruling on July 12, 2001).

The count af Wisborg, second son of king Gustav VI Adolf of Sweden, married without consent in 1934 and lost his titles. Since 1976 he requested several a reinstatement of his titles from the current king, without success. The last petition was turned down in December 2000. In 2001 he petitioned the ECHR (application 69688/01). He died in Feb. 2002.

The Habsburgs are the object of a law passed in 1919 by the Austrian Republic, which excludes them from Austrian territory and confiscates part of their property. When Austria ratified Protocol 4 of the European Convention on Human Rights on Sept. 16, 1963, it did so with a reservation stating: "Protocol No. 4 is signed with the reservation that Article 3 shall not apply to the provisions of the Law of 3 April 1919, StGBl. No. 209 concerning the banishment of the House of Habsbourg-Lorraine and the confiscation of their property, as set out in the Act of 30 October 1919, StGBl. No. 501, in the Constitutional Law of 30 July 1925, BGBl. No. 292, in the Federal Constitutional Law of 26 January 1928, BGBl. No. 30, and taking account of the Federal Constitutional Law of 4 July 1963, BGBl. No. 172." The precedent of the Savoys suggest that such a reservation might not shield the Austrian Republic from a similar complaint.

United Nations Conventions

United Nations Convention on the Elimination of all Forms of Discrimination against Women, Dec 18, 1979

This convention was signed by a large number of countries. Several made reservations relating to the succession to their throne:

Lichtenstein

"In the light of the definition given in article 1 of the Convention, the Principality of Liechtenstein reserves the right to apply, with respect to all the obligations of the Convention, article 3 of the Liechtenstein Constitution."
Note: article 3 of the constitution of Lichtenstein states that "the hereditary order of succession in the princely house of Lichtenstein, the majority of the prince and crown-prince as well as the eventual regency are set by the house laws".

Luxembourg

"The application of article 7 shall not affect the validity of the article of our Constitution concerning the hereditary transmission of the crown of the Grand Duchy of Luxembourg in accordance with the family compact of the house of Nassau of 30 June 1783, maintained by article 71 of the Treaty of Vienna of 9 June 1815 and expressly maintained by article 1 of the Treaty of London of 11 May 1867. "

Spain

"The ratification of the Convention by Spain shall not affect the constitutional provisions concerning succession to the Spanish crown. "

United Kingdom

In the light of the definition contained in Article 1, the United Kingdom's ratification is subject to the understanding that none of its obligations under the Convention shall be treated as extending to the succession to, or possession and enjoyment of, the Throne, the peerage, titles of honour, social precedence or armorial bearings, or as extending to the affairs of religious denominations or orders or to the admission into or service in the Armed Forces of the Crown.

Morocco

"With regard to article 2: The Government of the Kingdom of Morocco express its readiness to apply the provisions of this article provided that: - They are without prejudice to the constitutional requirement that regulate the rules of succession to the throne of the Kingdom of Morocco [...]"

Lesotho

" "The Government of the Kingdom of Lesotho declares that it does not consider itself bound by article 2 to the extent that it conflicts with Lesotho's constitutional stipulations relative to succession to the throne of the Kingdom of Lesotho and law relating to succession to chieftainship. The Lesotho Government's ratification is subject to the understanding that none of its obligations under the Convention especially in article 2 (e), shall be treated as extending to the affairs of religious denominations. "

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François Velde