WHERE THE LAW BECOMES IRRELEVANT: CONSULAR ASSISTANCE AND THE EUROPEAN UNION
Published online by Cambridge University Press: 28 November 2011
In recent years, the European Union (‘eu’) has taken a number of initiatives with a view to co-ordinating consular assistance in third countries. Not only have EU citizens an entitlement to consular assistance by any EU Member State in the absence of a representation of their own, but EU Member States themselves are encouraged to co-operate by means of the Lead State Concept and other forms of co-operation. While this may seem relatively unproblematic from the perspective of the EU, it is very difficult to reconcile with general international law. The various EU agreements in this area have no application to third States: some do not have legally binding form and even those that do only apply to the parties to the treaties, ie EU Member States. This article will present the situation, analyse its complexities and offer some reflections on the global application and desirability of the regime created by the EU.
- International & Comparative Law Quarterly , Volume 60 , Issue 4 , October 2011 , pp. 965 - 995
- Copyright © British Institute of International and Comparative Law 2011
1 Throughout the text, reference will be made primarily to the most recent treaty provision (art 23 TFEU), but when discussing documents released before the conclusion of the TFEU reference will be made to the provision referred to in the document (generally art 20 TEU). The substance of these provisions (and also art 46 EU Charter) is the same.
2 See eg Denza, E, Diplomatic Law (3rd edn, OUP, 2008)Google Scholar; Lee, LT and Quigley, J, Consular Law and Practice (3rd edn, OUP 2008)Google Scholar.
3 eg Amerasinghe, C, Diplomatic Protection (OUP 2008)CrossRefGoogle Scholar; the work of Internationanal Law Commission (ILC) Special Rapporteur John Dugard in his various reports eg in his First Report on Diplomatic Protection, 52nd session, A/CN.4/506 (2000), paras 22–32.
4 Even Lee's authoritative book on consular law and practice, (n 2), is a compilation of State practice rather than a comprehensive statement of the law to the extent it is reflected in this practice.
5 See the Final Report of the CARE project, available through <http://www.careproject.eu>, under Final Report.
7 An elaboration on the bond of nationality is beyond the scope of the present article. The requirement of such a bond was clearly established in the Panevezys-Saldutiskis Railway Case (Estonia v Lithuania) PCIJ Rep Series A/B No 76, 16 and Nottebohm Case (Second Phase) (Liechtenstein v Germany)  ICJ Rep 4, 22.
8 On the distinction between diplomatic protection and consular assistance, see A Künzli, ‘Exercising Diplomatic Protection, the Fine Line between Litigation, Demarches and Consular Assistance’ (2006) 66 ZaöRV 321–350. See also the Report of the International Law Commission on the Work of its 58th SessionA/61/10), Chapter IV (2006): Draft Articles on Diplomatic Protection and Commentaries, adopted by the ILC on Second Reading, 27 (commentary to art 1) (‘Draft Articles on Diplomatic Protection’).
11 See also the general overview provided by M Lindström, ‘EU Consular Cooperation in Crisis Situations’ in S Olsson (ed), Crisis Management in the European Union (Springer Verlag Heidelberg 2009), 109–126.
12 On EU Citizenship generally see Shaw, J, The Transformation of Citizenship in the European Union, Electoral Rights and the Restructuring of Political Space (CUP 2007)CrossRefGoogle Scholar. On citizenship and nationality, see Barber, N, ‘Citizenship, Nationalism and the European Order’ (2002) 27 European Law Review 241Google Scholar; see also Schrauwen, A, ‘European Union Citizenship in the Treaty of Lisbon: Any Change at All?’ (2008) 15 Maastricht J of Eur and Comparative Law 55CrossRefGoogle Scholar. Some of the rights of EU citizens are also applicable to individuals with a third (non-EU) nationality who are for instance married to an EU national. On this see for instance European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States  OJ L158/30, 77.
13 Spanish Government, Proposals Towards a European Citizenship, September 1990, reprinted in Corbet, R, The Treaty of Maastricht, From Conception to Ratification (Longman 1993) 156Google Scholar.
17 See Draft Articles on Diplomatic Protection (n 7) art 19. See also Vermeer-Künzli, AMH, ‘Restricting Discretion: Judicial Review of Diplomatic Protection’ (2006) 75 Nordic JIL 279–307Google Scholar.
18 A strong opponent of the creation of a ‘right’ is the United Kingdom, which reads the ‘entitlement’ as something short of a ‘right’. See CARE Final Report (n 5) 521–522. See also Debates of the European Parliament, 4 February 2009, p 84–92, in which it was suggested that the word ‘entitlement’ was used on purpose and not the word ‘right’.
21 Communication from the Commission to the European Parliament and the Council, Consular protection for EU citizens in third countries: State of play and way forward, Brussels, 23.03.2011 COM (2011) 149, p 2–3.
22 CARE Final Report (n 5) 665ff, where it is concluded that the practice of Member States lacks coherence and that co-operation is scarce.
23 For an overview of existing agreements, including links to these agreements, see CARE Final Report (n 5) 560–570.
24 See Part II F.
25 For instance, it is rather unlikely that the United Kingdom will abandon its co-operation agreements in the context of the Commonwealth, see CARE Final Report (n 5) 527.
26 Art 23 TFEU contains a non-discrimination clause, but this can also be found in art 18 TFEU, which contains a general prohibition on discrimination on the grounds of nationality.
27 For the Brazil-Portugal Agreement see Agreement on consular cooperation concerning consular protection of and assistance to their nationals in third countries (signed at Lisbon on 20 July 1995) 1990 UNTS 45–55 (no 34038).
28 Decision 95/553/EC of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations, OJ L 314, 28/12/1995 P 0073–0076.
29 Decision 95/553/EC, preamble second para.
31 See art 6(2), which states that assistance may also be rendered in other circumstances. On the difficulties of defining consular functions, see (n 91) and accompanying text.
34 COM(2006)712 final (‘Green Paper’). It should be noted that the Green paper fails to distinguish between diplomatic and consular assistance. The problems related to this failure I have discussed in A Künzli (n 7). The present discussion will be limited to consular assistance only.
37 See for instance the statement that ‘These specific measures provide an example of the added value that Europe can offer’, referring to activities by the EU on behalf of EU citizens outside the EU. Green paper (n 34) 10.
41 The second line of thought is actually supported by the Commission Communication (n 21) para 2.1.2, which also suggests training seminars for consular officers of the Member States.
43 Given the lack of competence in this field of the EU itself, such agreements necessarily must include the Member States as parties.
44 Green Paper (n 34) para 5. See also para 3.1 in which Member States are encouraged to include protection clauses in bilateral agreements with third countries.
45 A summary of this hearing is available at <http://ec.europa.eu/justice_home/news/consulting_public/consular_protection/summary_public_hearing_en.pdf> (‘Public Hearing’). The hearing was attended by the author.
46 See on this also a comment by the United Kingdom in the CARE Final Report (n 5) 666–667, in which it criticizes the broad approach taken by the Commission in this document to the concept of consular assistance.
48 Similar concerns of course arise in the fields of immigration and piracy, which also require concerted action, but where the more affluent states are not always the ones with the most urgency to act.
49 See eg art 6 of Decision 95/553/EC and the Lead State Guidelines, discussed below, Part E. It is also interesting to note that the Commission requested an impact assessment on this point, carried out by a private consultancy. A closed meeting on this assessment with representatives of EU Member States and invited others, including the author, was held on 24 September 2010 in Brussels.
50 As an example could serve a comment made by the United Kingdom in the CARE Final Report (n 5) 552, where it is stated that the UK limits assistance to non-national EU citizens to those cases in which it has received guarantees for financial reimbursement.
52 The relevant comment was recorded on file by the author during the public hearing.
54 See <http://www.europarl.europa.eu/comparl/libe/elsj/charter/art46/default_en.htm>. The Parliament does not comment on art 23 TFEU, but since the right contained in art 46 of the Charter and art 23 TFEU have an identical content and have the same legal status in the EU pursuant to art 6 TEU, it is not very significant whether reference is made to the one or the other.
58 Porzio, G, ‘Consular Assistance and Protection: an EU Perspective’ (2008) 3 Hague J of Diplomacy 93–97CrossRefGoogle Scholar.
59 Council, European Union Guidelines on the implementation of the Lead State Concept, 2008/C 317/06 (‘Lead State Guidelines’).
60 Council of the European Union, General Affairs and External Relations, 2808th meeting, 17–18 June 2007, 10654/07, p 15.
61 Technically, it could also be applicable within the EU, when an EU Member State is hit by disaster, but that will be left out of the discussion.
62 See for instance a press release from the Commission ‘EU to reinforce citizens’ right to consular protection and assistance in third countries’ IP/11/355, 23 March 2011, which discusses primarily the assistance in situations of crisis and Commission Communication (n 21) which also strongly stresses the role of consular assistance in times of crisis.
65 Lead State Guidelines (n 59) introduction para 4. And many of these other structures also exist. For instance, the Netherlands and Belgium co-operate in the area of the provision of Schengen visa, and the Netherlands and Germany are considering the sharing of facilities in Rabat. See Report on the Budget for the Foreign Ministry, as provided to the Dutch Parliament, Kamerstukken 32 123 V (2009–2010) (in Dutch), 15.
69 See for instance the Dutch website, which does not mention that France is the Lead State in Chad. <http://www.mfa.nl/afrika/tsjaad>. The same applies to the German website, <http://www.auswaertiges-amt.de/DE/Laenderinformationen/00-SiHi/TschadSicherheit.html>. Even more interesting: the British Foreign Ministry directs citizens to other British representations, outside Chad, rather than the French Embassy. See <http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-country/sub-saharan-africa/chad/>.
70 This leads to a final observation. Turning to an embassy or consulate of another EU Member State will be considered more natural when the individual involved considers herself to be European and not, or not primarily, a national of one of the Member States. The success of this concept will thus to a large extent depend on the (perceived) integration in the EU. This issue was extensively discussed during the workshops of the CARE project, attended by the author. For their programmes and respective speakers, see CARE Final Report (n 5) 689–692.
71 This list, kindly provided by a SITCEN employee, is on file with the author.
72 In Chad, Fiji (with UK), Madagascar, Togo, Central African Republic, Comoros, Djibouti, Vanuatu, Guinea-Bissau (with Portugal).
73 In Barbados, Belize, Sierra Leone, St. Lucia, Papua New Guinea, Gambia, Fiji (with France), Bangladesh.
74 In Tajikistan, Kirghizstan.
75 In Sao Tome and Principe, Guinea-Bissau (with France), East Timor.
76 In Equatorial Guinea.
77 In Surinam.
78 In Lesotho.
79 In Bhutan (with Denmark).
80 In Bhutan (with Austria).
82 The Netherlands and Suriname are a case in point: since the election of the current president, Desi Bouterse, who was convicted in absentia by a Dutch court for drugs smuggling, and sentenced to 11 years in prison, their relations have been strained. The Netherlands issued an arrest warrant for him. which it has not withdrawn, and is also considering the withdrawal of certain programmes in development aid. Apart from the legal consequences, which may be similar to the ICJ's 2002 decision in the Arrest Warrant case  ICJ Rep 3, it has not improved the relations between the two countries.
83 See below Part III B.
84 See Treaty on European Union (Maastricht Treaty) art 18, and Title V, and Treaty of Lisbon art 13(a). See <http://eeas.europa.eu/> for its homepage.
86 An early expression of this can be found in the Commission's Action Plan: ‘It is indeed the case that Member States have primary responsibilities in this area. The Commission wishes to help them discharge those responsibilities. A progressive and gradual approach is therefore necessary.’ Effective consular protection in third countries: the contribution of the European Union, Action Plan 2007–2009, 5.12.2007, COM(2007) 767 final, 5.
87 See Case C-293/95 Odigitria AAE v Council of the European Union and Commission of the European Communities  ECR I-06129. See generally C Storost, Diplomatischer Schutz durch EG und EU? Die Berücksichtigung von Individualinteressen in der europäischen Außenpolitik (Duncker und Humblot Berlin 2005).
88 An objection was strongly worded by the United Kingdom, CARE Final Report (n 5) 543, but it is far from alone it this position, although the CARE Report plays down this problem somewhat by referring to a scholar who sees the benefits of such co-ordination rather than to the opinions of Member States. See CARE Final Report (n 5) 673–674. See also the comments of France and Portugal on the Green Paper, referred to (n 47) and accompanying text.
89 The concept of consular assistance and diplomatic protection by the EU as an organisation is beyond the scope of the present paper. See further Storost (n 87).
91 Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596 UNTS 261, 172 states parties.
92 On the distinction between diplomatic protection and consular assistance see (n 6).
94 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95, 186 states parties.
95 See do Nascimento e Silva, GE, ‘The Vienna Convention on Consular Relations’ (1964) 13 ICLQ 1214, 1214–1218CrossRefGoogle Scholar.
97 It should be noted that the vast majority of these treaties concern the immunities applicable to spouses and children of consular officers and the rules on paid employment of spouses.
98 This particular phrasing is taken from art 5(f), but many other provisions of the VCCR contain a similar limitation.
99 VCDR, art 41(1).
100 Platt, DCM, The Cinderella Service: British consuls since 1825 (Longman London 1971)Google Scholar.
105 See art 3 VCDR and art 5 VCCR.
106 A discussion on this point is beyond the scope of the present paper. Suffice it to say that the relevant EU legislation, such as the TFEU and its predecessors but also Directive 2004/38/EC on citizenship, stipulate that EU citizenship shall be additional to (and thus shall not replace) nationality of an EU Member State. In fact, under art 20 TFEU an EU citizen is defined as a person having the nationality of a Member State. See on EU citizenship generally the extensive study in Shaw (n 12).
107 It should perhaps be added here that not only the exercise of diplomatic and consular functions by one State on behalf of another requires the consent of the receiving State, but that also the exercise of one function by the other service requires consent. Diplomatic agents may not engage in consular activities and consular officers may not exercise diplomatic functions without consent. Art 17 of the VCCR stipulates that ‘a consular officer may, with the consent of the receiving state, and without affecting his consular status, be authorized to perform diplomatic acts’. Art 70 of the same Convention provides that the receiving State must be notified when members of the diplomatic mission are assigned to consular functions. The exchange of functions between consular and diplomatic personnel is thus not something within the exclusive discretion of the sending State.
109 cf art 6 of the VCDR, which allows two or more states to ‘share’ the head of the mission. This again is subject to an absence of objections of the receiving State.
110 See, mutatis mutandis, Regina v Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt 116 ILR 607 (HC and CA 9 July 1999) where the court found that intervention by means of diplomatic protection prior to the exhaustion of local remedies constituted an interference in the domestic affairs of the receiving State, 614–616 and 618–620.
112 In addition, it is generally understood that states are not required to know the internal laws and regulations of other states and that if other states wish to rely on them, that it is their responsibility to make such laws and regulations known. See on this, mutatis mutandis, Case Concerning Elettronica Sicula S.p.A (ELSI) (United States v Italy)  ICJ Rep 15, 46.
113 For the Tsunami, see CARE Final Report (n 5) 643; for Haiti, see CARE Final Report (n 5) 644, for Libya see eg <http://www.bbc.co.uk/news/world-africa-12592725> on British rescue missions and <http://articles.cnn.com/2011-02-27/world/libya.rescues_1_missions-british-citizens-military-aircraft?_s=PM:WORLD> for rescue missions carried out by other European states.
114 A case in point is the rescue efforts of the United Kingdom and The Netherlands in Libya in February 2011. Neither mission was limited to the nationals of the respective rescuing states and elicited protest from Libya. The Netherlands mission was unsuccessful: the individuals to be rescued and the rescuing crew were captured and the equipment confiscated by Col. Gaddafi's troops. Only after intense negotiations with Greece were the individuals released.
115 ILC Articles on State Responsibility, Yearbook of the ILC 2001 Vol II part 2, UN Doc A/CN.4/SER.A/2001/Add.1 (pt 2) 43–45.
116 Chevreau case, 2 UNRIAA 1113–1143, 1141.
118 See eg Case Concerning Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v Spain)  ICJ Rep 3, para 79 in which the Court stated that ‘The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease’. Similar considerations instructed the ILC not to adopt an obligation to exercise diplomatic protection in the Articles on Diplomatic Protection (n 6) commentary to art 2.
121 Special Rapporteur John Dugard proposed a provision for the Draft Articles on Diplomatic Protection designed to create an obligation to exercise protection in certain, limited, situations. This proposal was rejected. For the proposed article see J Dugard, First Report on Diplomatic Protection, 52nd session, A/CN.4/506 (2000), para 74.
122 See Draft Articles on Diplomatic Protection and accompanying commentary (n 6) art 1.
123 See for instance the website of the Dutch Ministry of Foreign Affairs, <http://www.minbuza.nl/nl/Producten_en_Diensten/Calamiteiten>; the British Foreign and Commonwealth office <http://www.fco.gov.uk/en/travel-and-living-abroad/when-things-go-wrong>; The German Ministry of Foreign Affairs: <http://www.konsularinfo.diplo.de/Vertretung/konsularinfo/de/04/Hilfe/Auslandsvertretungen/hilfe__was.html>.
124 The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, Advisory Opinion OC-16/99 Series A no 16 (IACHR), Requested by the United States of Mexico. Similarly, international protection of humanitarian law may be channelled through consular and diplomatic posts, see art 9 of the Fourth Geneva Convention, which reads that ‘the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers’.
125 LaGrand Case (Germany v United States of America)  ICJ Rep 466, 494, para 78 and Case concerning Avena and other Mexican Nationals (Mexico v United States of America)  ICJ Rep 12, 60–61, para 124.
129 For examples of diverging practice, see CARE Final Report (n 5) 564 (consular functions); 573–580 (approaches to implementing Decision 95/553/EC); 580–585 (domestic consular legislation); 608–613 (right to consular assistance). The recommendations can be found on p 675–686, one of them being that the Commission considers the current ‘case by case approach’ of Member States undesirable from the perspective of legal certainty, suggesting that streamlining is necessary (p 680).
131 Above, Part III A.
132 It is curious to note that the EU as an institution is not unfamiliar with the concept of pacta tertiis. In C-386/08 Brita Gmbh v Hauptzollampt Hamburg-Hafen, the ECJ determined that the application of the principle of pacta tertiis allowed the German customs authority to refuse preferential treatment to goods originating from the Occupied Territories but exported by Israel to benefit from the EC-Israel Association Agreement. It considered that the Agreement was not applicable to third parties, in this case the Palestinian Authority on the West Bank.
134 On the supremacy of EU law, see the Kadi case, Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities. This case has important implications for EU member states and the balance between their international and European obligations. In this case, the Court decided that the mere implementation of UN Security Council Resolution by the EU must be in conformity with the latter's fundamental rules, thereby opening the door for judicial review. This case suggests that, similarly, EU member states may be ordered to comply with art 46 of the Charter, if this causes friction with their other international obligations.
135 The author was informed, informally, by a number of EU diplomats during the CARE workshops, that some countries indeed experienced difficulties in visiting non-national EU citizens in prisons in third countries. The CARE Final Report is very vague on this in its general conclusions, stating that not many problems have been recorded, but points out that some states did record difficulties and that the non-availability of information may be explained by the discretion applied by EU Member States in deciding whether or not to offer assistance in the first place. See CARE Final Report (n 5) 574–579.
137 On this principle see generally, Fragmentation of International Law: difficulties arising from the diversification and expansion of international law Report of the Study Group of the International Law Commission Finalized by Martti Koskenniemi. International Law Commission 58th Session, A/CN.4/L.682 (13 April 2006) p 34ff (‘Fragmentation of International Law’). See also art 55 of the ILC Articles on State Responsibility and accompanying Commentaries, ILC Report 53rd session, A/56/10, Chapter IV (2001), 10 August 2001, p 140–141.
138 See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 30.
141 The same argument applies to the lex posterior rule.
142 See also Boyle, A and Chinkin, C, The Making of International Law (OUP 2007) 252–253Google Scholar; H Thirlway, ‘The Sources of International Law’ in M Evans International Law (OUP 2006) 132–133.
144 Although this is only anecdotal evidence, the author has been told informally by official of foreign affairs of a number of EU Member States that, although they welcome co-operation on a pragmatic level, they do not intend to dilute their sovereign powers in this area of law, which is strongly reflected in the two Vienna Conventions.
146 This Convention, ETS No 061, will enter into force once it has been ratified by 5 states. At the time of writing, this was not the case. The Convention was opened for signature on 11 December 1967. Georgia signed it as recently as 25 June 2010, which may indicate that the fifth ratification is pending. Even so, it cannot be said that the convention has been an overwhelming success.
147 An in-depth discussion of the rules on nationality would go beyond the scope of the present paper. The basic rule was established already in the Nationality Decrees in Tunis and Morocco advisory opinion of the PCIJ, PCIJ Rep Series B No 4, 24. For the present purposes is it only important to note that questions of nationality are not exclusively decided by international law.
148 It is of course possible for third states to consent to this development. It is submitted, however, that this consent, which must be given freely in order to be legally valid, should not be presumed too easily, among others due to the political weight of the EU, which may render it difficult for some third states to protest.