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«RAMSES A. WESSEL Professor of the Law of the European Union and other International Organizations, Centre for European Studies, University of Twente, ...»

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The EEAS’ Diplomatic Dreams and the Reality of European and

International Law

RAMSES A. WESSEL

Professor of the Law of the European Union and other International Organizations, Centre for

European Studies, University of Twente, The Netherlands

BART VAN VOOREN

Assistant Professor of European Union Law and Co-Director of the Centre for European

Constitutional Law, Faculty of Law, University of Copenhagen, Denmark; Associate Fellow, Leuven Centre for Global Governance Studies, University of Leuven.

Paper presented at the UACES Conference Exchanging Ideas on Europe 2012, Old Borders – New Frontiers, 3-5 September 2012, Passau, Germany Abstract The aim of this paper is to confront the diplomatic ambitions of the European External Action Service (EEAS) with the reality of EU and international law. Treaty provisions as well as policy documents and statements of EU officials reveal a development in the direction of a strengthened role for the EU itself as a diplomatic actor. The findings underline a continued tension between the EU’s diplomatic ambitions and EU and international law as it stands. In relation to the EU’s internal structures, there is no doubt that in the new EU institutional landscape dividing lines remain firmly in place. Yet, the working arrangements do point to ‘holistic’ thinking implying cooperation and reciprocity. In addition the paper argues that the EU’s ambitions sit uncomfortably with traditional state-centred international diplomatic law. Extensive diplomatic activity of the EU depends on the acceptance by the willingness of third states to accept the EU as a diplomatic actor.

Keywords: European External Action Service; European Law; International Law; Diplomacy;

Diplomatic Law

1. Introduction The European Union (EU) is not a state. Yet, it is an active participant in the diplomatic network of states that is – primarily ‒ regulated by international diplomatic and consular law. In the report of December 2011 evaluating the first year of the new Diplomatic Service, its foundation is viewed as an historic opportunity to rise above ‘internal debates pertaining to institutional and constitutional reform’, and instead to focus on ‘delivering new substance to the EU’s external action’ (European External Action Service 2011a) There is certainly no lack of ambition in post-Lisbon EU external relations, prompting one commentator to observe that “if there was an international award for ‘enthusiasm’, the EU would stand good chances for winning it.” (Larik 2011).

These intensified global diplomatic actions of the EU trigger the question to which extent the EU’s external ambitions are compatible with their European and international legal framework. Traditionally, diplomatic relations are established between states and the legal framework is strongly state-oriented. The EU is not a state but an international organization, albeit a very special one. It enjoys international legal personality, which allows it to enter into legal relations with states and other international organizations (Wessel 2000; 2008). At the same time, its external competences are limited by the principle of conferral (Art. 5 TEU), and in many cases the EU is far from exclusively competent and shares its powers with the Member States.

As our starting definition of diplomacy we utilize the Vienna Convention on Diplomatic Relations (VCDR). The Convention does not exhaustively define diplomacy, but it does list in Article 3 that the functions to be carried out by a diplomatic mission are, “inter alia” to engage in the following five activities: (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State; (d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; and (e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. Amongst these rather fluid and overlapping activities of diplomacy, we focus on the following issue areas, and investigate any European or international legal obstacles which may impede EU diplomatic

ambitions in these areas:

(a) the legal existence of the EU as a single entity post-Lisbon, and its representation through demarches at multilateral fora where Member States are equally present;

(b) the conduct of diplomatic relations through visits and missions to third countries and international organizations by the EU’s highest political representatives such as the European Council or Commission Presidents, as well as Commissioners and the HR/VP;

(c) the task of political reporting by EU delegations, in the complex inter-institutional and Member State landscape that characterizes the EU;

(d) and finally, the protection of ‘European Union’ citizens not merely as derived from Member State nationality but as an independent legal reality.

Evidently, the realisation of the EU’s ambitions in diplomatic representation also depend on the extent of the recognition by the host countries (Wouters and Duquet 2012). However, in this contribution our main focus is on the EU’s internal hurdles rather than on the third country perspective. Similarly, the scope of this article does not allow for an in-depth analysis of the roles of the different EU institutions/actors. Rather, we emphasize (new) legal provisions, policy statements and other formal and informal documents to indicate the EU’s ambitions, and legal hurdles to achieve them.





2. Delivery of EU Demarches on behalf of the EU and/or its Member States

2.1 From Commission Delegations to ‘Embassies’ Article 221 (1) TFEU was newly inserted with the Lisbon Treaty and reads: “Union delegations in third countries and at international organisations shall represent the Union.” The ambition flowing from this new provision in the TFEU is clear: The Union no longer wishes to have an international presence through delegations of only one of its institutions (e.g. Commission delegations), or through the diplomats of the Member State holding the rotating Presidency.1 Rather, the purpose of this new treaty provision was to have “less Europeans and more EU” (Missiroli 2010), e.g. a single diplomatic presence for the Union speaking on behalf of a single legal entity active globally. When Mrs Ashton took up her post in December 2009, she said that the EU delegations “should be a network that is the pride of Europe and the envy of the rest of the world” and “a trusted and reliable ally on European issues” (Ashton 2009). Speaking on Europe Day 2011 she underlined this continued ambition, that the EEAS should be a “single platform to protect European values and interests around the world”, and “a one stop shop for our partners.” (Ashton 2011).

The transformation from Commission delegations into Embassies proper was not purely formal, but was in some cases accompanied by added powers to at least some of those representations abroad. While all 138 Commission delegations2 were transformed into EU Delegations mere weeks after the entry into force of the Lisbon Treaty, 54 were immediately transformed into ‘EU embassies’ in all but name (Rettman 2010a). This meant that these ‘super-missions’ were not merely given the new name, but also new powers in the form of an authorization to speak for the entire Union (subject to approval from Brussels); as well as the role to co-ordinate the work of the member states’ bilateral missions. Prominent exclusions among those 54 delegations were those to international bodies such as the UN in New York or the OSCE in Vienna, since the Union still had to work out how to handle EU representation in multilateral forums under Lisbon (Rettman 2010b).

In the recent EEAS evaluation report of December 2011, it has been expressly stated that it is the ambition to “progressively” expand these powers to other EU delegations as well (European External Action Service 2011b). This report further states that EU delegations “have progressively taken over the responsibilities held by the rotating presidency for the coordination of EU positions and demarches” (European External Action Service 2011a). In evaluating that process, the report adds that this evolution has been a ‘mixed success’. It argues that the transition “has gone remarkably smoothly in bilateral delegations and has been welcomed by third countries”, although commentators are more cautious (Kaczynski 2011). As regards EU representation at international organizations, the EEAS evaluation report states that “the situation has in general been more challenging in multilateral delegations … given the greater complexity of legal and competence issues.” (European External Action Service 2011a).

Indeed, the unified diplomatic presence for the EU in multilateral fora post-Lisbon has so far proven highly problematic, in spite of the TFEU’s specific legal obligation in its Article 220 (1) TFEU. This provision requires that the EU “shall establish all appropriate forms of cooperation” with various international organisations including, but not limited to (Article 220 (2) TFEU), the UN, the Council of Europe, the OSCE and the OECD. The saga of speaking rights at the UN General Assembly and EU participation in the UN concluded in May 2011 is But see the EEAS document ‘EU Diplomatic Representation in third countries – First half of 2012’, Council of the European Union, Doc. 18975/1/11, REV 1, 11 January 2012, which reveals that in some countries the EU is still represented by a Member State.

This is the latest number including the two newly opened delegations in Libya and the South Sudan.

well known (Ashton 2010; 2011a). There is thus no need to dwell further on this example, and in this contribution we look at evolutions from the second half of 2011. In the following paragraphs we shall look at the dispute concerning EU legal personality and formal presence in multilateral fora on the Member States’ presence, with the International Civil Aviation Organization (ICAO) as a specific example.

For the EU wishing to establish its unified substantive diplomatic presence in multilateral fora, for some Member States – the UK notably – it has become problematic that the EU’s legal personality is now explicitly recognised by the Treaty (Article 47 TEU).

Indeed, with the Lisbon Treaty, the European Community (EC) has ceased to exist (Article 1 TFEU), and is now replaced by the European Union which possesses legal personality.

(Article 1 io 47 TEU) While prior to the Lisbon Treaty the EU did already conclude many international agreements and could thus be argued to possess implicit legal personality (Wessel 2000; 2008). This what one might term ‘politically constructive ambiguity’, allowed the label European Union to function as a political umbrella term referring to the EC ánd its 27 Member States. The fact that now Article 47 TEU explicitly gives legal personality to the EU, has prompted the UK to deploy the rather legal-formalistic argument that the terminology ‘EU’ can no longer be utilized to designate ‘EC and its Member States’ when delivering statements on behalf of the EU in multilateral fora.3 The UK argues that because the Union’s legal personality has explicitly been recognized, “EU” has become a purely legal concept, and can no longer serve to represent areas covered both by EU and Member State competences as that might lead to competence creep for the Union.

The Commission and several Member States strongly opposed this reasoning, which led to formal EU representation in multilateral fora such as the OSCE and UN to grind to a halt during the second half of 2011.4 At that time, several dozen of EU statements and demarches were blocked over deep disagreement as to who delivers the statement: “the European Union” or “the European Union and its Member States”. A temporary cease-fire, though not a permanent solution, was agreed on 24 October 2011 in the form of a document entitled “general arrangements for EU statements” (Council of the European Union 2011) Through this document the EU wishes to keep competence battles “internal and consensual” so that the EU achieve “coherent, comprehensive and unified external representation” in multilateral organisations. However, its focus on extreme minutiae at the level of the Council (“EU representation will be exercised from behind an EU nameplate”) shows how difficult it still is for the EU to reach its ambitions as a diplomatic actor exhibiting these three qualities.

Notably, the arrangement implies an extremely rigid interpretation of ‘international unity’ by requiring that each statement made in a multilateral organisation requires tracing who is competent for which area, and to ensure that the internal division of competences is adequately reflected externally, namely on the statement’s cover page and in the body of the text.

Interview with a senior official in the legal service of a Member State foreign ministry, and discussion with senior official from the Commission, November 2011.

Ibid.



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