I. INTRODUCTION
In 1993, European Citizenship was created in the Treaty of Maastricht, which subsequently became known as the Treaty on European Union (‘TEU’). EU Citizenship comes with many benefits, such as the freedom of movement in the Union and the protection against discrimination. Yet, one asset of citizens of the Union has until recently received very little attention: citizens have a right to protection abroad by any other Member State than their own State of nationality, should their own State not be represented in the relevant third country. This is provided in article 23 of the Treaty of the Functioning of the European Union (TFEU, ex article 20 TEUFootnote 1), which reads:
Every 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. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection.
A similar entitlement is enshrined in article 46 of the EU Charter, which reads:
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she 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 Member State.
Although the wording of the provision and its position in the TFEU already supports this, the inclusion in the Charter makes irrefutably clear that this entitlement is part of the rights of EU citizens, as part of EU citizenship.
This provision has received little, if any, attention. Scholars specialising in diplomatic and consular law are mostly interested in the intricacies related to immunities.Footnote 2 Those interested in diplomatic protection study the field from the perspective of State responsibility, its application in the field of human rights,Footnote 3 and consular assistance proper is not the subject of much literature.Footnote 4 The position of EU Member States, for their part, has been somewhat mixed. As the responses to the CARE project demonstrate, some States consider that very little has changed since the adoption of this provision, while others are more enthusiastic about it.Footnote 5 None of the States, however, seem to be concerned about the legal difficulties this provision has created, which are the subject of the present article. Finally, relevant EU institutions welcomed it as part of EU citizenship, without demonstrating much awareness of the legal complexities of the provision. Websites of the European Parliament and Commission dedicated to consular protection and the CARE project nowhere acknowledge that article 23 TFEU and its siblings diverge from existing general international law.Footnote 6
The article will first consider the relevant treaty provision, article 23 TFEU, analyse its constituent elements and show that some of these, in particular the entitlement to protection and the obligation to co-operate, are difficult to reconcile with general international law. Secondly, it will discuss the European context of article 23 TFEU as provided by accompanying documents, such as guidelines and policy papers, and subsequent developments, such as the Lead State Concept. The article will then turn to the role of the EU institutions in this field, before placing these developments in the context of general international law. It will argue that this provision has serious consequences for the foreign services of the EU Member States, but that it simultaneously directs international law to irrelevance: normal rules on the application of international law are sidestepped and a regime that does not comply with the traditional international legal system is being applied. As will be explained in detail in Part II below, article 23 TFEU first, and prima facie, dilutes the international law requirement of a bond of nationality as a precondition for the exercise of diplomatic protection and consular assistance. Traditionally, it is through this very bond that receiving States would allow activities by sending States that otherwise could constitute an interference in the domestic affairs of the receiving State.Footnote 7 The argument will not necessarily be that this development should be halted, but rather that practice is changing the law, indirectly, and that there is a clear divergence between what States say the law is and what they are applying in practice. As will be pointed out in Part II.C below, the European Commission may actually promote these changes in EU policy and law through its various programmes. In this process, the European consular practice diverges increasingly from the international rules on consular law. As will be pointed out, this may lead to regional customary international law.
Based on this analysis of the current state of the law on consular assistance, the article concludes by observing that the general rules of international law have been replaced by the system of protection for EU citizens created in article 23 TFEU, which is what is implemented and enforced in practice. Throughout the article, the term co-operation in consular matters, or consular co-operation, will be used to refer to EU Member States acting together inter se or with EU institutions in the field of assistance to EU citizens in third countries.
On a final note regarding the scope of this paper, the discussion will primarily be limited to consular assistance.Footnote 8 There is some debate on the scope of article 23 TFEU. The English version refers to protection by the consular and diplomatic authorities, which allows for the exclusion of diplomatic protection properly speaking, but other languages (equally authentic) do speak of consular and diplomatic protection. The problems related to this provision applicable to consular assistance highlighted in this article apply a forteriori to diplomatic protection. It has been a common understanding by the EU Member States that it does not refer to diplomatic protection, but a textual interpretation of the provision does not necessarily support that view.Footnote 9 In the present article, the issue of diplomatic protection will be left largely aside, but it should be noted that diplomatic protection on behalf of a non-national is extremely unlikely to be accepted under current international law. The explicit exceptions in the ILC Draft Articles on Diplomatic Protection, namely, for refugees, stateless persons and ships crew, are considered to constitute an exercise in progressive development. Even more complicated is protection by an EU institution.Footnote 10
II. The EU and Consular Assistance
Two developments have determined the status of consular assistance in the EU. First, article 23 TFEU and its predecessors have created an entitlement to consular assistance for EU citizens. This has, however, been somewhat overshadowed by the practical need for consular co-operation in large international crises such as the attacks on the World Trade Center in New York, the Tsunami in Asia, the war in Georgia and situations resulting from the Arab Spring such as in Libya.Footnote 11 In an attempt to elucidate this entitlement and facilitate its implementation, various EU institutions have issued documents regulating and explaining its content and function, which will now be considered, starting with the ‘mother-provision’ article 23 TFEU and followed by its offspring.
A. Article 23 TFEU
EU citizenship was introduced in the 1993 Treaty of Maastricht, also known as the Treaty on European Union (‘TEU’). A citizen of the Union was defined as a person having the nationality of a Member State of the EU.Footnote 12 Article 20 TEU endowed this citizenship with the right to receive consular assistance, which was to become article 23 TFEU. The rationale for this provision was explained by Spain in its proposal: citizens should have ‘the possibility of taking advantage of this same quality of European citizen also outside the said [European] borders’.Footnote 13 This would include a ‘higher degree of assistance and diplomatic and consular protection’.Footnote 14 The Commission suggested that it was necessary to ensure ‘the protection of Community citizens outside the Community's border’.Footnote 15
1. An Independent Entitlement or a Mere Non-Discrimination Clause?
At first glance, article 23 TFEU leaves little doubt: citizens are entitled to receive consular and diplomatic protection. Yet, there is ample evidence that the EU Member States did not intend this provision to create a right to diplomatic protection, but rather to reflect a non-discrimination clause,Footnote 16 which is in line with current approaches to diplomatic and consular protection as discretionary under general international law (discussed below Part III B). While there may be some development towards a limit on this discretion,Footnote 17 statements of EU Member States themselves indicate that this potential limitation has not resulted in the creation of an individual right.Footnote 18 Thus, an interpretation based on the intention of the States parties of the treaty would without any doubt fail to support the existence of an individual right, despite the textual interpretation pointing in that direction. In the course of the CARE project, many States have responded that they do not recognise such a right. Those States that do support a right to protection do so under national law, not international law, and even they allow discretion in the execution of the right.Footnote 19 The entitlement created in article 23 TFEU is however not unqualified: protection is to be provided ‘on the same conditions as the nationals of that state’. Essentially, it is thus a non-discrimination clause and EU Member States must treat non-national EU citizens in the same way as they treat their nationals; if their nationals have no entitlement to protection, then neither will non-national EU citizens. The Commission initially also displayed an approach taking non-discrimination as a starting point: in its proposal on citizenship preceding the Maastricht Treaty, it stated that citizenship should include ‘the principle of equal protection of Union citizens in non-member countries’.Footnote 20 This has changed however, and the Commission now considers the right to be an important aspect of citizenship.Footnote 21
It is not evident that the entitlement to protection created in article 23 TFEU is subjected to the non-discrimination clause. The ordinary meaning of the text rather suggests that, first, there is an entitlement which provides a basic measure of protection and that, second, States are not allowed to treat non-national EU citizens any less favourably than their own nationals. It will ultimately be up to the European Court of Justice, either directly or through a preliminary ruling, to rule on the interpretation of this entitlement, since it is subject to judicial review as are all provisions in Part II of the TFEU. While there is no existing evidence as to the direction the Court will prefer, a restrictive textual interpretation may be justified because of the sovereign interests of third States involved and conformity with general international law. It will, however, represent a State-centred view on international law and fail to support international law as an instrument to advance the situation of individuals. A teleological interpretation, which will rest on the telos of increasing citizens' protection and taking into account the intention to give citizenship an effect also outside the borders of the EU, will justify a stronger emphasis on the individual entitlement, which may also be supported by the inclusion of the exact same right in the EU Charter.
2. Co-operation to Implement Article 23 TFEU
With regards to the right for European citizens, article 23 TFEU contains a further obligation for the Member States: they shall ‘adopt the necessary provisions’ and must start negotiations with third States to realise the provision. First, it should be noted that the entitlement in the first part of article 23 is not conditioned upon the activities of the Member States outlined in the second part. Thus, the entitlement to consular protection will exist regardless of whether the Member States have adjusted their national law and concluded the necessary international agreements. The negotiations referred to in article 23 TFEU can lead to a bilateral agreement between an EU Member State and a third State on the protection of non-nationals, a multilateral agreement between a number or all of the EU Member States and a number of third States or, finally, a mixed agreement between (a number of) third States, the EU as such and its Member States. In such an agreement, the third State(s) will accept protection and assistance by an EU Member State on behalf of nationals of another EU Member State. At present, hardly any agreements, bilateral or otherwise, exist with third States implementing article 23 TFEU. In fact, the initiative to implement article 23 TFEU has generally not been with the EU Member States, as is abundantly shown by the results in the CARE Final Report.Footnote 22 Most agreements that have been concluded by EU Member States involve other non-EU States as well, and were not concluded in the context of article 23, but rather in a more general approach to co-operation in consular affairs.Footnote 23
Although some of these instances may be taken as a precedent for the more advanced co-operation in the context of the EU as a whole, the consequences are not evident. First, will the bilateral agreements between Member States inter se lose relevance and be replaced by the EU efforts to co-ordinate matters? Presumably, given the fact that the EU has no authority, let alone exclusive competence, in consular affairs,Footnote 24 Member States will consider that they can conclude other arrangements between them as they see fit.Footnote 25 Secondly, will the bilateral agreements between EU Member States and third States be generalised in the sense that other EU Member States will be able to benefit from them too? Applying the pacta tertiis rule, which will be explained below in Part III B.1, any third non-EU State will always be in a position to refuse this, but the position of the EU Member State is not so clear. Based on principles of non-discrimination, any preferential treatment granted to the nationals of one EU Member State must also be granted to nationals of other EU Member States.Footnote 26 It is not entirely unimaginable that, in the case of the consular agreement between Portugal and Brazil for example, a consular officer of Brazil in a third country will at some point in time be requested to assist an EU citizen who is not Portuguese, whose own State of nationality is not represented in the relevant third country, and who invokes the bilateral agreement between Portugal and Brazil based on non-discrimination. Brazil may argue that it is not bound by any agreement between Portugal and other EU Member States, but this argument does not apply to Portugal itself: Portugal will be bound to treat non-national EU citizens as it would treat its own.Footnote 27 The present EU legal and policy framework fails to consider this.
B. Decision 95/553/ECFootnote 28
The first legislation elaborating on (the predecessor of) article 23 TFEU came in the form of a Decision of the Representatives of the Member States meeting within the Council (Decision 95/553/EC). The Decision provides an elucidation of article 8 EC-Treaty, which contains the same text as article 23 TFEU. It explains its rationale and content, while at the same time elaborating on the details of the kind of protection envisaged. Interestingly, the Decision starts by a reassuring statement: the creation of EU citizenship in the TEU should not be interpreted as a threat to nationality: it is to be considered ‘different from, and in no way a substitute for, the concept of national citizenship’.Footnote 29 However, it then shows the expansive view underlying article 23 TFEU by introducing a point that has remained on the EU agenda: ‘common protection arrangements for citizens of the Union in third countries will also strengthen the idea of European solidarity as perceived by the citizens in question’.Footnote 30 This, needless to say, will also show to the outside world that the EU is a unity. Absent a unity in all foreign affairs, this was perhaps considered a way to show at least some coherence and common policy.
The Decision continues by listing a number of instances in which assistance would be due, such as cases of death, serious illness, arrest and detention and so on. In line with the general difficulty of defining consular assistance, this list includes the most common instances, but is not exhaustive.Footnote 31 It also makes abundantly clear that there are no costs attached for Member States providing assistance to a non-national EU citizen: article 6 of the Decision states that the individual concerned or his/her State of nationality is under an obligation to reimburse any costs. Finally, and unlike most other Decisions, the Decision states that it will only enter into force when ratified by all Member States. As a sign of the enthusiasm of the Member States on this point, the decision took more than seven years to enter into force.
C. The Green Paper
After the initial silence following the adoption of the Maastricht Treaty and the issuing of Decision 95/553/EC, the early years of the 21st Century showed a flurry of activity by EU institutions, in particular the European Commission, in the field of consular assistance. The Commission issued a Green Paper on consular assistance in 2006, held a public hearing in 2007, made the information publicly available by means of a special website in 2010,Footnote 32 and initiated the CARE project, resulting in a Final Report in 2011.Footnote 33
The Green Paper, a non-binding policy document, was issued on 28 November 2006 entitled ‘Diplomatic and consular protection of Union citizens in third countries’.Footnote 34 After outlining the various sources of the regulation of consular assistance, and the possible substantive content of the assistance rendered, the Green Paper continues by sketching the situation of the kind and amount of consular assistance available to EU citizens travelling outside the EU and justifying the Commission's approach. The need for further clarification of the purpose and scope of (the predecessor) of article 23 TFEU inspired the drafting of this Green Paper.Footnote 35 In particular, some studies carried out by the Commission demonstrated that there were indeed many third countries in which only a few EU Member States were represented through diplomatic and consular missions, and that, as a consequence, many EU citizens abroad would find themselves without national representation.Footnote 36 The Commission's purpose to show a unified Europe that would take care of its citizens abroad may have inspired the Green Paper as well.Footnote 37 The Green Paper is essentially concerned with the modalities of consular co-operation, to implement article 23 TFEU, and suggests that EU Member States not only share facilities and assist each other's nationals, but also that the foreign offices of the Commission itself could be of use in this context,Footnote 38 even though they have no consular functions or powers.Footnote 39 Another suggestion is that Member State officials receive training in various relevant matters, including ‘the right to consular and diplomatic protection’.Footnote 40 This is at least curious. Under European law, such a right may have been created, depending on one's interpretation of the relevant legal provisions, but, as will be explained below, international law does not recognise such a right. Either not too much weight should be attributed to this sentence, or the Commission perhaps considered that one way of changing international law is by changing the practitioners’ opinions and hence to create a right through practice and opinio juris.Footnote 41
Regarding the relation between EU law and international law, the Green Paper states that ‘[i]mplementation of Article 20 EC [now Article 23 TFEU] requires the consent of third states’ and that therefore the ‘Member States must start the international negotiations required to this end’.Footnote 42 The preferred option of the European Commission seems to be to include the matter in what it calls ‘mixed agreements’.Footnote 43 The term ‘mixed agreement’ usually refers to this ratione personae (a third State, EU Member States and the EU as an international organisation), but what is referred to here is being mixed ratione materiae: the agreement will combine a consent clause on consular assistance with issues of trade and/or development aid or other regulations that would either give the third State preferred access to the Union market or provide it with financial or other assistance.Footnote 44 Even though combining consular assistance with other issues may seem an efficient way to regulate several matters in one instrument, there is one objection to this course of action. Due to the political clout of the EU and its Member States, many third States may not be in a position to reject what may be essential for their economies (the preferential access to EU markets and development aid) to protect themselves from consular activities that they may consider undesirable.
The Green Paper was followed by a public hearing during which anyone wishing to comment on or discuss the Green Paper would be heard in Brussels. This event took place on 29 May 2007.Footnote 45 During the hearing, two, somewhat opposing, views became clear. The first is that there is a need for more assistance to travelling Europeans and that smaller European States in particular would welcome more cooperation, the obvious benefit being reliance on the larger States' more extensive networks of representation. Yet, the second is that many States were opposed to the self-appointed role of the European Commission in this regard.Footnote 46 France stated that ‘the poster presented by the EC [advising EU citizens on their right to consular assistance] … includes important legal errors and pointed out that prior to its publication the Commission should have consulted Member States, which remain solely responsible for consular protection.’ Portugal added that ‘the Commission's poster, by making reference to diplomatic protection, was misleading and that it is up to Member States to decide on the type of consular protection which should be given to citizens.’Footnote 47
There are two further issues of interest to the debate on consular assistance in the EU that were raised during the public hearing. First, as States pointed out, some regulation on burden sharing and resource management would be necessary.Footnote 48 Although the idea has always been that a State, protecting citizens of another State, would be reimbursed by the citizen or his/her State of nationality, the practicalities of this concept are yet to be defined.Footnote 49 Unlike in many other international legal arrangements, this is one in which reciprocity is unequal: those States having more representations also need assistance for their nationals by others less often, so there will be no returning the favour. There is yet a more fundamental question: States with limited representation throughout the world will benefit from the large network of representation of other States. It will probably be impossible to demand that those less well-represented States contribute to the costs incurred by States with larger networks and pay for this benefit, but one can sense the unease. In addition, it will in fact be more difficult for a smaller, poorer, EU Member State to take action on behalf of a non-national EU citizen which will also be more in need of assurances of reimbursement.Footnote 50 This ambivalence, and the accompanying difference in approach, and the difference of interest, was clear in the discussion.Footnote 51 A representative of Cyprus, with limited representation across the globe, welcomed the idea that Cypriots could rely on the services of other EU Member States. What was not reported in the summary of the hearing was that he also mentioned the financial difficulties Cyprus incurred when providing assistance to other EU nationals in the Lebanon Crisis in 2006. This concern was not shared by the larger States.Footnote 52 Secondly, the point of consent of third States was discussed. Representatives of the various EU institutions were rather candid about this, and their suggestions were along the lines of the Green Paper. Member States, on the other hand, were less optimistic. The United Kingdom noted that it was unaware of any objections by third States. However, in contrast, France stated that, to its knowledge, only one situation was covered by agreement: it had arranged with Chad that it would represent all other EU Member States in consular matters, especially at times of crisis. These matters were not resolved.Footnote 53
D. Parliament and Commission: Informing the Public
The European Commission and the European Parliament have taken some effort to create websites about citizens' rights and how to benefit from them. Although not legally binding, the information provided on these websites is indicative of the lack of coherence and legal difficulties involved. The way in which the information is provided has not been an outright success. In an attempt to simplify the language and to make the legal regimes comprehensible, details have been lost and the information is at least inaccurate but often incomprehensible all the same and even wrong.
On its website, the European Parliament, commenting on article 46 of the Charter, explains that this right ‘is an essential element of citizenship of the European Union’, which ‘marks the extension of the institution of EU citizenship to outside the borders of Member States’.Footnote 54 It is submitted that this last citation explains some of the enthusiasm of EU institutions: the entitlement to consular assistance is part of an effort to establish EU citizenship as a coherent concept that has a place in this world, which in turn would increase the visibility of the EU as an organisation. It becomes more complicated when it continues with ‘if the international rule states that a State may only exercise diplomatic protection as regards its own nationals, the assimilation of some immigrants to the nationals is provided for in international law, especially in the case of agreements for international representation of one State by another’.Footnote 55
What is meant by ‘the international rule’ is not entirely clear, but one may presume this refers to customary international law, in absence of a multilateral treaty on this subject. However, international law does not allow the protection of immigrants by means of diplomatic protection, unless they have acquired the nationality of the protecting State. It is limited to nationals, and the suggestion that immigrants will be assimilated to nationals in this respect is deceptive. The way the European Parliament explains it in this last sentence appears to verge on the irrelevant: first, it is not something international law provides for and second, it is not the essence of article 23 TFEU: article 23 TFEU is not limited to assistance to immigrants, but is generally applicable to all EU citizens without representation, regardless of where they happen to live.
The Commission's web page is more neutral.Footnote 56 It just lists the relevant treaty provisions and accompanying documents and explains their contents. The information is essentially no more extensive than the information found on websites of the foreign ministries of the Member States. At the same time, the website is entirely silent on the role of the receiving State. It contains a long list of the kinds of services to be expected. For instance, victims of violent crime ‘will receive all possible prompt and sympathetic assistance’.Footnote 57 That this may be impossible because the receiving State will refuse to accept the assistance provided by a non-national consulate is not mentioned. EU citizens are therefore given the misleading impression that this is all part and parcel of the international system and that this is what they can expect.
E. The Lead State Concept
EU Member States have not been brimming with enthusiasm for the sharing of consular matters under normal circumstances, yet co-operation has been more forthcoming in crisis situations, to some extent regardless of existing EU frameworks. This has led to the development of what subsequently became known as the ‘Lead State Concept’, launched in 2007 by France and the United Kingdom. According to Giorgio Porzio, the concept was inspired by the attacks on New York and Washington in September 2001.Footnote 58 Other serious crises followed, both man-made and natural. In all of these situations a (large) number of EU citizens were affected and required consular assistance, ranging from evacuation and repatriation of individuals to the identification and repatriation of corpses. Co-operation between States was often intense, yet unregulated.
1. The Lead State
The Lead State Concept was elaborated upon in the Lead State Guidelines, issued by the Council.Footnote 59 These (non-binding) Guidelines implement an earlier Council decision to ‘strengthen consular cooperation between EU Member States through implementation of the consular Lead State concept’.Footnote 60 The Lead State is the State taking the lead in consular affairs in a third country in times of crisis.Footnote 61 In the operative part of the Guidelines, under the heading of ‘Lead State Mission’, paragraph 2(1)(a), it is explained that, in a non-crisis situation, the Lead State is expected to draft a ‘disaster-plan’ ready for use when disaster hits the receiving State. Paragraph 2(1)(b) then explains the co-ordinating role of the Lead State in a situation of man-made or natural disaster. So far, it sounds just as the practical and sensible thing to do: it will save costs for the sending States, it will provide clarity for the receiving State, and will make operations much more transparent.
The question of what exactly is the relationship between the Lead State Concept and the legal regime of article 23 TFEU has not been answered clearly by the Guidelines of the Council. It is also not an easy question to answer. At present, the impression one receives is that activities in Brussels concerning consular co-operation seem to focus on implementing the Lead State Concept, more than article 23 TFEU proper.Footnote 62 Article 23 clearly creates a broader regime: not only does it also include diplomatic protection, but, more importantly, it also allows EU citizens to turn to any other EU Member State in the absence of their own, regardless of whether a Lead State has been assigned. To some extent, the Lead State Concept is thus a separate development in the field of consular co-operation between EU Member States, not a direct implementation of article 23 TFEU. At the same time, the Lead State Concept, when implemented with the consent of the receiving State, will circumvent some of the legal issues related to the strict interpretation of article 23 TFEU. It will also create a clearer situation with respect to burden sharing and resource management: it will be clear which State is supposed to act and it will be possible for other EU Member States to discuss the modalities of this activity even before assistance to their nationals is delivered.
In view of the legal difficulties surrounding the regime on consular assisted created in EU law (to be explained more in detail below, Part III), the Lead State Concept is an interesting balancing act. It is clearly an in-between measure: it recognises national sovereignty; it recognises the absence of an EU nationality; and it lets States decide for themselves what level of co-operation they are willing to engage in. As the Lead State Guidelines—themselves not legally binding—stipulate, it is an entirely voluntary enterprise. First of all, paragraph 2 of the Introduction provides that a State has no obligation to become a Lead State. If it does, other States have no obligation to follow that Lead State and might chose to continue their own consular activities, as follows from Introduction paragraph 2 and Operative Part paragraph 2(2). In addition, it is all ‘without prejudice to the primary responsibility of Member States to protect their nationals.’Footnote 63 The Lead State Guidelines are silent about the exact contents of this responsibility, and whether this would include an obligation to provide protection. No further explanation is given, so it is presumably intended first to cover the situation where States have obligations to protect their nationals under their respective national law. They cannot avoid these obligations by referring to the Lead State. Secondly, it may constitute a reference to the lack of competences of the EU in this regard, and the fact that States define their consular and diplomatic policies themselves.Footnote 64 Also, of course, the existence of the Lead State Concept cannot, as the guidelines say, ‘exclude other additional forms of cooperation or coordination initiatives’.Footnote 65
2. Beneficiaries
As explained above, the novelty of the EU's involvement in consular protection was that it was attached to EU citizenship rather than nationality. It is therefore interesting to note who the beneficiaries are of the Lead State Concept according to the Guidelines. One would expect a simple statement that the Lead State will assist Union citizens, but it is more complicated than that. Operative part paragraph 3 provides that ‘[a]ll persons who would be given consular assistance by their Member State may seek assistance from the Lead State’. This clearly includes nationals of EU Member States. Even so, it diverges significantly from the non-discrimination clause in article 23 TFEU. Where article 23 obliges States to treat non-national EU citizens as they would treat their own nationals, the Guidelines suggest that individuals entitled to protection under the law and practices of their own State may turn to the Lead State. This means that, for instance, the Lead State may turn down a request from an individual who would qualify for assistance according to the Lead State but not according to this individual's EU Member State. This would apply in situations where some States do include third country nationals in the beneficiaries of their consular services and other States do not. For instance, some States provide consular services to long term residents, and non-national spouses, partners and children of their nationals, but other States do not.Footnote 66 Thus, whereas the assistance provided under article 23 TFEU will depend on the protecting State, who benefits from the Lead State, according to the Guidelines, will depend on the law and practice of the other EU Member States. It is obvious that third State nationals usually do not benefit from non-discrimination clauses and will not be able to claim benefits that belong to EU citizens. Yet, it is not obvious why the Guidelines do not just provide for a renvoi to EU citizenship instead of shifting the extent of the assistance from the assisting State to the State of nationality of the assisted individual.
3. The Lead State in practice
A closer look at the Lead State Concept will reveal some of its practical consequences. As the Guidelines state, the list of Lead States will be managed by the Joint Situation Centre (SITCEN), the EU Intelligence Unit.Footnote 67 Member States will be provided by SITCEN with an updated list. Presumably, it is then up to the Member States to disseminate this information to their nationals: ordinary citizens do not have access to the SITCEN databases and must rely on other sources for such information. This may seem trivial, but for the Lead State Concept to work it is important for travelling EU citizens to know what consulate to turn to in cases of crisis. A survey a few years ago showed that about one in four Europeans (about twenty-three per cent) knew about their right to approach another EU representation in the absence of their own.Footnote 68 The numbers may by now have risen. Yet, for the Lead State concept, the more important issue is not just whether EU citizens know they can turn to another EU Member State, but whether EU citizens know which State is the Lead State in the relevant third State. An, admittedly limited, consultation of websites of Foreign Ministries reveals that no such information is in fact provided.Footnote 69 Even so, an individual affected by a major crisis may for other reasons not be inclined to seek (or be satisfied with) assistance at an embassy of another EU country, especially if the employees of this embassy or consulate do not speak her language.Footnote 70 The author has obtained a list of Lead StatesFootnote 71 which shows that at the time of writing only nine (of the twenty-seven) EU Member States have offered to be a Lead State: France,Footnote 72 the United Kingdom,Footnote 73 Germany,Footnote 74 Portugal,Footnote 75 Spain,Footnote 76 the Netherlands,Footnote 77 Ireland,Footnote 78 AustriaFootnote 79 and Denmark.Footnote 80 Among those, Spain, the Netherlands, Austria, Denmark and Ireland are Lead State in only one country and some are Lead State together. Even about the official list there appears to be some confusion. The author was informed, informally, by an official of the Belgian Foreign Ministry that Belgium was the Lead State in the DRC, and this is also stated in the CARE Final Report.Footnote 81 But this official subsequently informed the author that Belgium did not appear on the SITCEN list, even though the Foreign Ministry assumed that it was the DRC Lead State, and indeed Belgium was not included on the list on file with the author.
Most Lead States have historical ties with the third State they are Lead State in. They often are their former colonies. While understandable on the basis of this historical (and substantial) presence, these ties complicate matters. The former colony may not always appreciate the presence of the former colonial power.Footnote 82 At the same time, the former colony may receive substantial financial, military and other support from the former colonial power. Without entering into too much detail, this may mean that consent to the exercise of consular functions by the former colonial power on behalf of other western States may not always be freely given, while such consent constitutes a prerequisite for the lawful exercise of such consular functions.Footnote 83 Disallowing former colonial powers to become Lead State in their former colonies is not the point here, as their substantial presence and knowledge of the country will enhance the success of the Lead State Concept. The point is to highlight the importance of respecting the domestic affairs and the principle of non-intervention is advanced, due to the tensions caused by the historical ties. This means that consular assistance should never lead to unlawful intervention in the internal affairs of the receiving State, that no undue pressure should be exercised on the receiving state's government on behalf of individuals who misbehaved, and all assistance should be carried out with the consent of the receiving State.
F. The Role of EU Institutions
With the creation of the European External Action Service (EEAS) under the Treaty of Lisbon, the EU was endowed with an institution that would function as foreign ministry of the Union and its corps diplomatique.Footnote 84 Without entering into the details of the EEAS, suffice it to say here that there is an obvious need for delicate balancing between this service and the national foreign services, between a need for co-operation and co-ordination and self-interest. Depending on the level of (perceived) integration, the pendulum will swing towards the one or the other. Consular services as such are not clearly part of the EU's competences and very much still belong to the Member States.Footnote 85 Not only are the powers of the EU as such limited by article 5 TEU and consular services not expressly attributed to it in either the TEU or the TFEU, but the lack of competences is stressed time and again: Member States have their own responsibilities to protect their nationals, and the EU institutions may, and will, assist where necessary and desired.Footnote 86 This was later inserted in article 23 TFEU, which provides that ‘[t]he Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’ As if the complexities in relation to general international law were not enough regarding consular assistance by Member States themselves, this produces yet another participant in this game. Although the provision of consular assistance (and a forteriori of diplomatic protection) is usually reserved to the State of nationality, the expansion of the EU foreign services will eventually encroach upon this area too. It has been argued already that the EU should be able to provide diplomatic protection in cases concerning a breach of an agreement between it and a third State for the benefit of individuals, as in the Odigitria case.Footnote 87 That case concerned a fishing vessel, the Theodoros M, property of the company Odigitria, which had been issued a licence under an agreement between the European Commission and Senegal. It was boarded by the authorities of Guinea-Bissau, which considered that the Theodoros M was engaged in illegal fishing. The problem was that the area in which the Theorodos M was boarded was disputed by Senegal and Guinea-Bissau. Since the agreements on fishing were concluded by the European Commission, it was arguably the EU which had standing to protect Odigitria, and not—or not exclusively—the State of nationality (Greece). In such cases, it is perhaps also the EEAS, by means of its foreign representations, which could provide assistance. However, such instances are limited, and concern only cases in which the EU is the holder of the right violated and not the individual Member States. By contrast, the consular assistance envisaged by article 23 TFEU will generally relate to situations in the field of human rights (fair trial, prohibition on torture, arbitrary detention) or even situations that do not concern a violation of an international rule, such as natural disasters. The justification for EU involvement based on standing derived from the fact that it, the EU, is the holder of the right at stake, is then not available.
The mandate of EU missions in third countries will usually be determined by agreement with the third country, which will also determine the privileges and immunities of the delegation's staff. No issues will arise regarding consular assistance rendered by the delegation if this is regulated in the agreement. However, since consular assistance is not (yet) one of the competences of the Union, this will mostly not be the case and the delegation will usually only assist Member States in providing consular assistance, financially, logistically or otherwise. At present, it is to be expected that Member States will object to the inclusion of consular powers of EU delegations in agreements with third States.Footnote 88 Yet it is also foreseeable that the EEAS will attempt to develop EU delegations to provide assistance to EU citizens on its own.Footnote 89 As the Commission's Action Plan states, ‘[i]n the longer term, the Commission will also consider the possibility of obtaining the consent of third countries to allow the Union to exercise its protection through the Commission delegations’.Footnote 90
III. GENERAL INTERNATIONAL LAW
A. The Viceroy of International Relations: Consular Law
In 1967, the Vienna Convention on Consular Relations (‘VCCR’) entered into force.Footnote 91 The vast majority of provisions in this treaty concern the privileges and immunities of consular officers and the rights and obligations of the sending and receiving States. The law on consular relations must be distinguished from diplomatic relations.Footnote 92 This is particularly important in the light of the (erroneous) understanding that, despite its wording, article 23 TFEU covers consular assistance only.Footnote 93 Unlike the Vienna Convention on Diplomatic Relations (‘VCDR’),Footnote 94 the VCCR was not, or not primarily, an exercise of codification of pre-existing customary international law.Footnote 95 Rather, the Convention's text was to a large extent based on rules that were found in many bilateral consular treaties.Footnote 96 Although some countries with large consular services such as The Netherlands have preferred the multilateral regime and have abandoned the bilateral treaties, other countries have maintained bilateral relations with other States on the consular level.Footnote 97 This is actually allowed for in the Convention. Article 73 contains a double saving clause: the provisions of the Convention shall not affect existing treaties and the Convention shall not prevent parties from concluding further treaties. This shows that, in 1963 when the text was drafted, States apparently felt the need to retain some space for manoeuvring and did not wish the VCCR to be the only source of obligations in consular relations. The exercise of consular functions is largely subjected to the ‘rules and regulations’ of the receiving State. The functions of the consular service are stipulated in article 5, but many of those are only to be exercised ‘provided there is nothing contrary thereto in the laws and regulations of the receiving state.’Footnote 98 Diplomatic agents must also respect the laws and regulations of the receiving State and may not interfere with the internal affairs of that State, but this is limited to a general statement, rather than a reminder at every single instance.Footnote 99 The extent to which consular services, as opposed to diplomatic services, are subjected to the consent of the receiving State thus demonstrates that they are of a different level, not as closely attached to the sovereign prerogatives of the sending State. With this in mind, it is not surprising that the consular services have also been referred to as the ‘Cinderella service’ of international diplomacy.Footnote 100 Needless to say, this is of course not viewed similarly by individuals travelling or living abroad. For them, consular services clearly prevail in importance, since they will rely more on consular services, not only in case of emergency but also for the provision of passports and other official documentation, visits in prison and assistance in legal procedures. Diplomatic missions generally are more concerned with the inter-state relations than with the situation of individual nationals.Footnote 101 This combination of facts has probably also inspired the EU involvement in consular assistance. Not as sensitive as diplomatic relations, it provided a chance to show that the Union can in fact speak with one voice in such matters, by means of promoting protection to all EU citizens regardless of their nationality.Footnote 102
B. Co-operation in Consular Services and Issues of Nationality and Consent
The creation of EU citizenship, the corresponding right to consular assistance by any EU Member State and the ensuing developments such as the Lead State Concept were not the first occasion for States to co-ordinate their consular services. States have been concluding, and continue to conclude, agreements on the sharing of services, facilities and knowledge in the consular context.Footnote 103 These include co-operation agreements of EU Member States inter se and with third States. In such agreements, States would typically share facilities such as consular offices, issue travel documents on behalf of each other and visit each other's detained nationals in third States where one of them is represented but the other is not. Sharing and co-operation in the Commonwealth occurs rather frequently, eg between Canada and Australia, but Lee also records the examples of Portugal and Brazil, Spain and Lithuania and Norway and Sweden.Footnote 104
Since the VCCR and the VCDR only provide for the assistance and protection of nationals Footnote 105 and since EU citizenship does not (yet) equal nationality,Footnote 106 assistance and protection by any other State than the State of nationality requires tacit or express consent of the receiving State under general international law.Footnote 107 As Lee has stated, ‘a consul may sometimes act for nationals of a third State. (…) Such extension of consular functions is sometimes assured in treaties. In their absence, consuls may not carry out such functions without the consent of the receiving State’.Footnote 108 In line with the differences between consular relations and diplomatic relations, this consent must be express in the case of diplomatic activities on behalf of non-nationals (article 46 VCDR), but for consular services unopposed notification suffices. Article 8 VCCR expressly provides for the situation that nationals of one State are represented by another.Footnote 109 The Convention requires however that the sending State provide ‘appropriate notification’ and gives the receiving State the right to object to the arrangement. Without such notification or if the receiving State objects, the exercise of consular assistance on behalf of a non-national (let alone diplomatic protection) is in violation of diplomatic and consular law and could even be qualified as an act contrary to the principle of non-intervention.Footnote 110 It should be recalled that the Spanish proposal for the Maastricht Treaty, which ultimately resulted in the provision on consular and diplomatic protection for EU citizens, explicitly referred to the necessary consent of third States required by the ‘Vienna Conventions and the different bilateral conventions on this’.Footnote 111 This explicit reference has not reappeared in the final provision in the EU Treaties. What article 23 TFEU does require are ‘international negotiations’ but the conclusion of a treaty by EU Member States inter se, let alone policy documents emanating from EU institutions, laying down rules on consular assistance is not sufficient to meet the requirements of ‘appropriate notification’ or consent.Footnote 112
In the context of the Lead State, absence of consent leads to some further issues. In the crises in Georgia in August 2008, Haiti in 2010, and Libya in 2011, there was not a clearly designated Lead State, but simultaneously there was much co-operation and co-ordination by EU Member States on behalf of their nationals.Footnote 113 However, there had been no previous negotiations (and how could there have been any?) on the modalities of this concerted EU action with the receiving State. It was probably not considered necessary given the nature of the situation. In Haiti it was practically impossible after the earthquake to conduct any meaningful negotiations on this and in Libya it was not clear with whom to conduct negotiations. This, in turn, raises interesting questions about international responsibility for activities in the crisis situation that are contrary to international law, especially when there is no clear consent regarding the agency. Problematic situations include the deployment of the army or even private military contractors in a rescue mission violating human rights such as the prohibition on torture or arbitrary deprivation of life towards nationals of the receiving State, a rescue mission gone awry resulting in human rights violations towards the very individuals who were supposed to be rescued, or rescue missions in violation of territorial integrity of a State, contrary to the prohibition on the use of force and the like.Footnote 114 As the 1931 Chevreau case already demonstrated and in line with article 6 of the Articles on State Responsibility, States will not be internationally responsible when they act on behalf of another State.Footnote 115 The Chevreau case concerned a situation in which an agreement was reached between France and the United Kingdom, under which the United Kingdom would render consular services to French nationals in Iraq on behalf of France. In this case, the Arbiter decided that the United Kingdom could not be held responsible for activities of its consular officers in Iraq which had been carried out on behalf of France.Footnote 116 At the same time, the United Kingdom was found responsible for the arrest and detention of Chevreau, a French national, which was not carried out, at least not according to the Arbiter, in the representation of France's interests. The Chevreau case is curious for many reasons, but for the present purposes it provides a very early example of the complexities surrounding consular activities: France and the United Kingdom did have an agreement on the sharing of consular services and even so a dispute arose as to the legality of the treatment of Mr Chevreau. The case demonstrated that the two States had very different views on what was, and in particular what was not, to be expected in the exercise of consular assistance.
Turning to the Lead State Concept, the situation is even more complicated. While many of the documents discussed at present contain shorter or longer lists of what may be part of consular assistance, none of these are exhaustive and they all assume some measure of normalcy. The determinative element of a crisis situation, to which the Lead State Concept was tailored, is the absence of normalcy and hence activities of the Lead State will inevitably involve ad hoc approaches to the relevant situation with limited time to deliberate on the various courses of action. This is highly problematic in the absence of clear agreement on the sharing of consular services in the first place, which may give rise to disputes between the various sending States. It is, furthermore, problematic for the receiving State. If the receiving State is not properly notified or, depending on the situation, has not given its consent,Footnote 117 consular co-operation between sending States such as occurred in Haiti and Libya or for instance by application of the Lead State Concept, is not in conformity with international law. The implications of this are addressed in the concluding observations.
C. Consular Assistance as a Right under General International Law
Traditionally, States have considered the exercise of diplomatic protection and consular assistance a discretionary right.Footnote 118 Although there may be some development towards a limit on this discretion,Footnote 119 statements of EU Member States themselves indicate that this potential limitation has not resulted in the creation of an individual right.Footnote 120 Current international law does not recognise the existence of a right of individuals to diplomatic protection. The UN Member States, through the work of the ILC, have clearly indicated that such a right is at present not acceptable.Footnote 121 With respect to consular assistance, the situation may be more complicated. Since consular assistance is considered less as an exercise of sovereign power, and since many of the activities in the context of consular services are not politically sensitive (as opposed to diplomatic protection, which usually entails the invocation of State responsibility of the receiving State for a breach of international law),Footnote 122 States may be more inclined to grant their nationals certain rights. Websites of foreign ministries, however, explicitly explain that there are various services that will not be provided, even though they may be in practice, thereby defying the creation of custom because of lack of opinio juris.Footnote 123
Consular assistance is an instrument that can be important in the context of human rights protection. Sometimes, human rights protection can be achieved through consular and diplomatic instruments. This was emphasised by the Inter-American Court of Human Rights, which considered consular assistance as a part of the right to a fair trial and included article 36(1)(b) of the VCCR in the corpus of human rights.Footnote 124 It should be noted that article 36(1)(b) does not contain a right to consular assistance as such, but rather the right to be informed by the receiving State of the possibility to contact one's consulate. This does not oblige the sending State to act upon being contacted by a detained national. Therefore the Inter-American Count's conclusions in this regard are somewhat irrelevant for the present discussion, but it is clear that consular assistance may contribute to a fair trial. The International Court of Justice, in its two leading cases on consular assistance, has refrained from classifying article 36(1)(b) of the VCCR as a human right, and rightly so.Footnote 125 These decisions also firmly confirm the importance of nationality for the purpose of consular assistance. In LaGrand, the Court accepted standing for Germany on behalf of its nationals, based on the existence of formal German nationality even though the LaGrand brothers’ links to Germany were somewhat tenuous.Footnote 126 In Avena, the issue of nationality was even more pronounced, since the nationality of some of the individuals included in the claim was contested. While the Court stated that the burden of proof rested on the United States to demonstrate that some Mexicans also had US nationality,Footnote 127 the parties themselves excluded those nationals from the case that demonstrably possessed also the US nationality.Footnote 128 Contrary to a general tendency to regard human rights as attached to human beings, as opposed to nationals of a particular State, consular assistance is thus still very much confined to nationals. Article 23 TFEU is somewhat in between. The right to consular assistance is ultimately linked to nationality, since it is only available to EU citizens, who must be a national of an EU Member State. Yet, it goes beyond this by allowing assistance to non-nationals. Especially if the implementation of article 23 TFEU is effectuated without the consent of the receiving non-EU State, the absence of a bond of nationality between the assisting State and the assisted individual is a clear divergence from general international law.
It is feasible that some of the regular exercises of consular services, such as the provision of emergency travel documents, the visits to detainees, the renewal of passports and the like, may be part of the regional European right to consular assistance in future. This would be through the creation of regional customary international law in the EU. At present, the outcomes presented in the CARE Final Report do not support this view, given the vast divergence between the practices of the various EU Member States, but if the European Commission succeeds in streamlining the consular activities of the European Member States, this practice may in due course support the emergence of customary international law.Footnote 129 Having said that, regional customary international law is under the general rules of international law still limited in its application to the region in which it was created, and therefore still cannot create a universally binding legal regime. It is further submitted that the attitudes of EU Member States, based on the information in the CARE Final Report, do not show a tendency of States away from their discretion in consular affairs.Footnote 130
D. The Law of Treaties
1. Pacta Tertiis
As transpires from the history of the VCCR, over fifty years ago States were apparently not ready to have all their consular relations organised in a multilateral treaty, and in particular not ready to abandon the bilateral web of relations that existed.Footnote 131 Yet, EU Member States agreed to co-operation in consular affairs through a treaty concluded almost two decades ago. It is now time to consider the effect of this agreement on other, non-EU States. Any internal EU agreement, such as the TFEU but also binding directives and decisions, may have the force of a treaty under international law as defined in article 2 of the Vienna Convention on the Law of Treaties (‘VCLT’). Even if it is an obvious point to make: such agreements are concluded between EU Member States only and do not bind third parties (article 34 VCLT).Footnote 132 Acceptance by third States of the legal regime created by article 23 TFEU and all arrangements that are derived from it cannot simply be inferred from the ratification of the TFEU by EU Member States.Footnote 133 Absent more detailed arrangements with third States, the regime of article 23 remains a pactum tertiis as far as all non-EU States are concerned. It should be noted that this applies a forteriori for non-legally binding policy agreements in the EU: they are not even a pactum.
The individual entitlement created under article 23 TFEU is therefore opposable only to EU Member States: EU citizens can request assistance from their State of nationality, or any other EU Member State in absence of a representation of their own State of nationality. The operation of the pacta tertiis rule does not allow EU Member States to force third States to accept this. Eventually, this may lead to a problematic situation: an EU Member State may be obliged by its own national court, or by a (preliminary) ruling of the European Court of Justice, to provide a non-national with consular assistance based on article 23 TFEU, but may be unable to do so in practice because the third State does not accept it.Footnote 134 Especially in the context of visiting detainees, this may be problematic. States tend to exercise a large measure of control on access to their prisons.Footnote 135 It is not unfeasible that the request of, say, Greece, to visit a detained Cypriot in Chile, is rejected by the Chilean authorities, even if a European Court has forced Greece to act on behalf of the Cypriot national.
2. Questions of Hierarchy
The VCCR was not intended to replace all existing arrangements in consular matters or to prevent further arrangements.Footnote 136 It is therefore possible that other regimes are created that deviate from these general rules. To the regime of the VCCR as lex generalis, the principle of lex specialis may apply to special arrangements, but only where appropriate.Footnote 137 The EU regime on consular assistance is almost by definition more specific than the general regime in the VCCR: it regulates a particular part of the VCCR, the nationality of the assisted person, and the parties are more specific. In addition, the application of the lex posterior ruleFootnote 138 with respect to existing (bilateral) consular treaties was specifically excluded by means of article 73 of the VCCR. Even if this were not the case, all relevant EU law was designed after the entry into force of the VCCR. If States wish to make special arrangements in a field governed by a multilateral treaty, such special arrangements will have precedence over the general rules in the treaty. It is thus perhaps tempting to apply international law's best known rules on hierarchy to this situation and to consider the European regime on consular assistance as a special and later regime as opposed to the general and earlier rules in the VCCR. Yet, this simplified way of applying the principles of lex specialis and lex posterior is very problematic. For reasons of legal certainty, the principle of lex specialis will be applied with caution, and only if the special rule does in fact cover the same content as the general rule. In all other cases, in particular where it concerns third parties, ‘the lex specialis appears largely irrelevant.’Footnote 139 In other words, the application of the principle of lex specialis cannot change the rules for third States that are not party to the special regime. The States who are parties to the special treaty will, through the operation of pacta sunt servanda be bound to the general treaty vis-à-vis all States party to that treaty but not to the special treaty. They will be internationally responsible for any breach of their treaty obligations towards the parties of the multilateral convention, in this case the VCCR. One of the rationales for the principle of lex specialis is that the special rule will show more clearly the intentions of the parties.Footnote 140 Although it may be argued that the EU Member States intended to deviate from the general rules on assistance to nationals only in the VCCR, this is non-opposable to third States.Footnote 141
One further point defies the application of lex specialis (and lex posterior) resulting in a prevalence of the European rules over the rules in the VCCR. One of the rationales for the principle of lex specialis (and lex posterior) is that States are presumed to act consciously and that, therefore, if they conclude a more special or later treaty that deviates from the (original) general treaty, this deviation must have been intentional.Footnote 142 This intentionality will support the precedence given to the special (or later) rule. The question to be answered is, then, whether the EU Member States intended to deviate from the VCCR when they concluded the TFEU (and its predecessors). It is suggested that they did not. A first indication is the reference in article 23 TFEU to the ‘international negotiations’ that Member States are supposed to initiate. This is a clear reference to the necessity of obtaining third States’ consent, in line with the VCCR and VCDR. Secondly, comments by States on consular assistance in the context of the EU usually pointed in this direction, too.Footnote 143 While it is not entirely clear what States had in mind when they included this provision in the corpus of EU law, they certainly did not intend to create a special rule overruling the VCCR.Footnote 144
The conclusion must therefore be that the principle of lex specialis does not apply. Therefore, no legal hierarchy is created between article 23 TFEU and the more general rules applying to consular relations. This leaves us with the conclusion that there are only two ways to circumvent the problem of conflict between the two sources of law that are equally valid for EU Member States on the international plane: either article 23 TFEU must be considered a dead letter in the light of general international law on this matter, or it is not and it is implemented through disregard of other rules of international law. The next Part will offer some observations regarding this, inevitable, conclusion.
IV. CONCLUDING OBSERVATIONS
Despite its importance for individuals travelling or living abroad, consular assistance is not a subject of prime importance to lawmakers and academics. While assistance is often granted, States have not acknowledged the existence of an obligation to do so, as has been explained. Contrary to this relative lack of interest of States themselves in the co-ordination of consular services between EU Member States or in creating or expanding their legal obligations to exercise consular assistance and diplomatic protection, various EU institutions have in recent years demonstrated an increasing activity in the field of consular assistance and diplomatic protection. At the intersection of various EU concepts and principles, a right to consular assistance has emerged as a result of EU citizenship, non-discrimination, the wish to integrate foreign policy and to act on behalf of the Union instead of the individual members. In addition, the EU has been developing legal and policy frameworks for increased co-operation between the Member States, in particular in crisis situations. This new situation, and all its ‘children’ such as the Lead State Concept and even EU consular services within the framework of the European External Action Services, has not been embedded sufficiently in international law. Yet, it will affect many. In the first place, it has positive and negative consequences for EU citizens travelling abroad. Although they potentially may have more assistance to turn to as another EU Member State will be available in the absence of their own, there may also be confusion regarding the exact State they should apply to and the treatment they can expect. Secondly, it severely affects non-EU receiving States who may be presented with consular activities of an EU Member State, on behalf of an individual who is not its national, which in the absent of consent they may consider as interference in their domestic affairs.
The legal consequences of the developments discussed above are considerable for the general law on consular relations. The activity on the side of the EU and the lack of protest against it by third States constitute reasons to reconsider the role of general international law in this field. It should be mentioned that the determinative power of international law is somewhat limited with respect to consular relations in any event. First, ‘consular functions’ were never described in detail and their extent much depends on the national law of the receiving State.Footnote 145 International law prescribes some basic notions, such as the access to detained nationals and certain administrative functions. The VCCR includes a list of consular functions in article 5 and although this is a long list, it is not exhaustive: article 5(m) allows consular officers to perform ‘any other functions entrusted to a consular post’. Attempts to codify this area in more detail have failed, as has the European Convention on Consular Functions.Footnote 146 In any event, all functions included in article 5 VCCR are limited by a reference to the laws and regulations of the receiving State. This reveals the essence: the receiving State will determine, preferably ex ante, what it considers permissible activities and what it does not, thus protecting it against interference in its domestic affairs. International law is, then, not the primary source for determining whether consular activities have been carried out lawfully or unlawfully. Secondly, consular law will be affected by the determination of on whose behalf assistance may be exercised. As has been explained above, under general international law, consular assistance may only be exercised on behalf of nationals. The determination of who are to be considered nationals of the assisting State will again primarily depend on national law, this time of the sending State and there is a (rebuttable) presumption that nationality is accorded in conformity with international law.Footnote 147 There is accordingly a large measure of national discretion involved in consular assistance. Yet, instead of forming a solid body of law of last resort, international law here is approaching irrelevance.
On the one hand, the relevant EU documents demonstrate worryingly little awareness of the existing legal framework in which consular assistance should operate. Although most documents mention the need for consent of the receiving non-EU State, this does not seem to influence the policies. As this reference is usually placed near the end of the document, it is not even presented as a sine qua non of the regime designed in the EU. The absence of such consent has certainly not prevented the EU from developing the concept of co-operation in consular affairs and assistance to non-nationals by other EU Member States or even EU delegations. In addition, no serious mention is made of arguments derived from the international legal framework as provided for in the VCCR or customary international law; no references are made to or solutions sought for the conflict between the various norms that now exists by applying the tools of the law of treaties such as the principles of lex specialis and lex posterior.
On the other hand, neither has it produced an outcry from receiving States. There may be various possible explanations for this. First, third States may not care enough to lodge an official protest. Secondly, even if they do object, they may refrain from doing so publicly for fear of negative political or economical consequences. Thirdly, they may, rightly, consider that they will always be able to prevent consular assistance to a non-national in practice, even if the receiving State has not entered an official protest against article 23 TFEU and as long as there is no official agreement on this. Fourthly, they may not consider this problematic and may not object to assistance to an EU citizen by a State that is not his or her State of nationality.
On the basis of the analysis presented here, it is thus possible to discern two developments. First, and more controversially, the practice of the EU combined with the absence of protest by third states to it may lead to the creation by the EU of law, not exclusively by means of legally binding documents, that subsequently will apply globally. Secondly, the EU regime raises issues of opposability as explained above. Although a thorough transformation of consular law seems unlikely in the near future, issues of opposability are likely to arise. From the academic and legal perspective, one should perhaps condemn these developments. The abuse of power that is reflected in the imposition of rights by the EU on third States is indeed a cause of concern. It could be argued that this disregard of existing international law will create unlawful situations and a lack of clarity.Footnote 148 Yet, such a conclusion is too narrow, and perhaps somewhat pointless. The development towards co-operation in consular matters between EU Member States in third countries arguably benefits first and foremost EU citizens. When in distress abroad, they will have a consulate to turn to for assistance in the absence of a consulate of their State of nationality. It may also benefit the third States, especially when the Lead State Concept is implemented. In times of national disaster, they will not have twenty-seven European States to deal with regarding EU nationals or even humanitarian assistance, but just one (or two where shared).
There are currently no signs that the EU institutions will revise their stance towards consular assistance, nor is it likely that EU Member States will enforce a revision to the extent that the regime is brought in line with general international law. Apart from occasional refusals to let EU Member States assist non-national EU citizens, there is also no international effort to change or challenge this practice. Although it is necessary to point to the problems outlined in this article, the best approach perhaps would be to encourage those involved in the execution of consular assistance to EU citizens, the Lead State Concept and even the assistance by EU delegation to do so with prudence and, for the sake of the credibility and political acceptability of the EU, with due regard to the sovereignty and independence of third States. Even if the EU may consider itself to be somewhat above the law, it may be appropriate to remind it on occasion of a golden rule: treat others as you would like to be treated.
