Will the Treaty of Lisbon, the new Stockholm Programme and the new figure of the European Union High Representative wake up the sleeping beauty of the consular and diplomatic protection of the European citizens ?
Even the Head of State and Government have recognised that “..This right, enshrined in the Treaties, is not well publicised, and more effort is needed to ensure its full application. Targeted communication campaigns could be conducted in connection with this right…” Moreover they have invited the Commission to “..consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFUE.”
As a matter of fact not many of the half billion European citizens know that since the entry into force of the Maastricht Treaty in 1994 …“[e]very citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State.” (art. 23 TFUE, formerly art 20 of TEC)
It is worth recalling that under international public law, both customary and treaty law (1) , Consular and diplomatic protection should be provided by the States to their nationals.
In particular Consular protection or assistance is the provision of help and immediate assistance by a State to its nationals, both individuals and bodies, or to nationals of another State (2) when in distress. The most frequent situations are the relief and repatriation of distressed citizens of the Union, the assistance of victims of serious accident or serious illness, or of violent crime or the assistance to people arrested and detained or even the repatriation of the bodies in cases of death or catastrophes such the tragic Haiti earthquake. In these case, the State supports, by career or honorary consuls, its nationals (or non-nationals) in asserting their rights under the legal system of a foreign State, provided that the individual concerned has given his consent.
Diplomatic protection consists of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility (3) . In this case, the State acts on its own behalf, to protect its rights, on an international level and through diplomatic action or other means of peaceful settlement conducted by diplomatic officials or Government representatives (4) .
It is only very recently the EU has been associated to the exercise of these functions so deeply rooted in the States sovereign functions and this it happened only during the last twenty years with the developpement of the Schengen cooperation which brought progressively together the officials of the member states administrations in activities such as the visa delivering and by implementing the same common consular instructions.
Therefore Member States remain jealously attached to these functions and even after the Lisbon Treaty they avoided a legislative role of the EU institutions by stating that “Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.”
Even if the wording of art. 23 TFUE is adamant in conferring directly to EU citizens (5) this right (confirmed also in Article 46 of the now legally binding Charter of Fundamental Rights of the European Union) to transform it in a reality and to enforce it before a judge, Member States should have had agreed a sound and coherent legal implementing framework.
Therefore the true fact is that since the entry into force in ’94 of art. 20 TEC only few binding acts have so far been taken by the Member States (6) and art. 1 of the first ’95 general decision (which entered into force only in 2002), covers only the consular protection .
Even in this case the approach has been minimalistic as it appears from the one page Decision of ’95 (7) which looks more anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, than to establish a full fledged system of assistance and alleviate suffering for EU citizens.
In the last twelve years no other bindings acts have been adopted on Consular protection and only recently, after 2006, under the pressure of the European Council and of the Commission the member states have agreed on some complementary and non-binding Guidelines on consular protection of EU citizens in third countries as well as on non-binding measures to counter crisis outside the territory of the EU (such as the notion of the “Lead State Concept” according to which a member state will on voluntary basis coordinate the consular protection in a specific third country and prepare if needed evacuation plans in case of disasters or of terrorists attacks) (8).
Moreover there are not many signs that Member States have started ” … the international negotiations required to secure this protection. “ as required by art. 23 of the TFUE (former art. 20 of the EC Treaty)
It could then be considered an understatement the European Parliament declaration according to which the right to consular and diplomatic protection has remained ‘underdeveloped’(9). The Strasbourg Assembly should then be praised as it asked to the Member States and Commission to foster the current situation by improving the current :
a) – lack of legal certainty : The generic brochure published on the Council Site and the publication on the EU Citizens passports of the art.23 TFUE (former 20 TEC) are useful but, still , could not be considered sufficient for European Citizens who can challenge this situation before the national and european Courts;
b) – lack of common EU standards. For the time being Member States are obliged not to discriminate between their own nationals and citizens of the other EU countries. Given that the standards granted are different according to the countries concerned (for instance it seems that Danes authorities, due to their constitutional duties ensure a wider protection than the one the UK authorities give) also the treatment granted for the non nationals will be different from the one they can enjoy from their own country.
c) – lack of operational transparency. The situation is unsatisfactory also as far as the practical issues are concerned as there is no simple way to know which consular post of an EU Member State could be contacted in a specific third country . Even the notion of “lead state” remain very vague even between the Member States themselves (guess how could be for one of the 180 millions of EU citizens travelling abroad ..)
d) – lack of financial solidarity. The most frequent cases are the ones of people who lost everything and need financial help. Due to the absence of common system of compensation between the member States (such as the ones who exists on the territory of the EU for other purposes) the Consular Offices are very reluctant in assuming financial burdens.
Will this unsatisfactory situation be overcome ?
After the Lisbon Treaty the EU institutions even if without legislative powers will be entitled to financially and logistically support the MS actions in the framework of EU Directives to be adopted according to art. 23 of the TFUE as evoked in the Stockholm Programme.
It is more than likely that the first proposals will mainly try to overcome the weaknesses denounced by the EP resolution (clear definition of scope of the consular protection, financial compensation system between the Member States when anticipating money for another MS citizen, creation of an Internet global site which can give the links to the “Lead State” offices in each third Countries …etc etc) even if this institution will not be involved in codecision but will be only consulted…
Moreover a positive evolution could come out from the strengthened cooperation between the MS diplomatic missions with the new European Union External Action Service as defined by the Article 35 TEU (ex Article 20 TEU) which states that :
“The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.”
It is worth noting that some signals of this change of attitude and more positive approach from the MS diplomats could be taken in the latest Council report on the ways to respond to disasters in third countries.
In the same perspective it is also possbile that the European Parliament even if it would not play a direct legislative role will probably make full use of its budgetary powers to make more evident the european solidarity in these situations.
(1) See also Vienna Convention on Diplomatic Relations of 1961, United Nations, Treaty Series, Vol. 500, p. 95. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf and Vienna Convention on Consular Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
(2) Article 5 (e) and 8 Vienna Convention on Consular Relations. In particular, the latter states: ‘Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State’.
(3) International Law Commission, Article 1 Draft articles on Diplomatic Protection.
(4) Provided that the requirements of diplomatic protection have been met, i.e. there has been a violation of international law for which the respondent State can be held responsible, local remedies have been exhausted and the individual concerned has the nationality of the acting State. According to Articles 46 and 45 (c) Vienna Convention on Diplomatic Relations, only temporary and at the request of a third State not represented in the receiving State or in case of breakdown in diplomatic relations between two States, a State may, with the prior consent of a receiving State, undertake the protection of the interests of the third State and of its nationals.
(5) In a consistent line of case law, the ECJ has elaborated different aspects and consequences inherent to these treaty provisions, emphasising that “citizenship of the Union is destined to be the fundamental status of nationals of the member states”. See inter alia ECJ, Case C-413/99, Baumbast  ECR I-7091, para. 82; for a recent assessment see Attorney General Colomer, opinion in Cases C-11/06 and 12/06, Morgan and Bucher, 20.3.2007
(6) See: 95/553/EC: Decision 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 ; 96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
(7) As example of a MS Ratification see FR: http://www.franceurope.org/pdf/adapt/decret2002701.pdf LUX: http://www.legilux.public.lu/leg/a/archives/1997/0049/a049.pdf#page=2
(8) See Council of the European Union, Guidelines on consular protection of EU citizens in third countries, Council Doc. 10109/06, 2.6.2006(a), as adopted by the General Affairs Council during its 2736th Council meeting in Luxembourg, 12.6.2006. See Council of the European Union, Reinforcing the European Union’s emergency and crisis response capacities, Council Doc. 10551/06, Brussels, 15.6.2006(b); see also M. Barnier, For a European civil protection force: Europe aid, European Commission, Brussels, May 2006
(9) European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on diplomatic and consular protection for citizens of the Union in third countries, 13 June 2007, Rapporteur Ioannis Varvitsiotis http://www.europarl.europa.eu/oeil/file.jsp?id=5531372
(10) “CONSULAR ASSISTANCE : Besides further refining the Lead State Concept, two papers have been studied and adopted by the Consular Affairs working group, as part of the consular guidelines already approved by the Council: an “Internal Information Strategy”, aimed at ensuring proper training of consular staff on issues derived from obligations under the treaties; and a paper on “Consular Crisis Coordination”, aimed at strengthening cooperation during consular crises affecting several Member States. The Commission will assist in the development of a “training kit” on EU-related obligations, to be used by Member States in their national training of staff to be posted abroad. Work has also been initiated to develop the next generation of European emergency travel documents (ETDs) containing new security features. A Troika meeting has been held with the US to discuss issues of common concern and possibilities for strengthened cooperation in third countries. Training sessions for Member State’s consular staff have been organised, facilitating the exchange of information and best practise between actors in the field of consular protection.”