«RAMSES A. WESSEL Professor of the Law of the European Union and other International Organizations, Centre for European Studies, University of Twente, ...»
In the academic debates on the scope of Article 23 TFEU the point is often made that this provision not only provides a right to EU citizens to consular protection, but also to diplomatic protection. Public international law academics would argue that it is in particular this dimension that cannot be established by the EU unilaterally, given the non-existence of the concept of ‘European nationality’. In their view the essential ‘solid link’ between the intervening state and the protected citizen is missing. It has, however, been argued that the ILC Draft Articles on Diplomatic Protection establish minimum standards under public international law which permits the States to go beyond these rules as long as they respect the condition of obtaining the express unanimous consent of all the States involved in the new model (both EU Member States and (at least implicitly also by) third states) (Moraru 2011).
It is true that the general international rules apply “in the absence of a special agreement” and obviously states can simply agree to allow for the protection by states of nonnationals. Allowing the European Union to protect the nationals of its Member States would, however, be a new step. As third states are not bound by EU law they will have to recognise European citizenship to allow the EU to protect or assist its citizens abroad (Vigni 2011). The EU does not yet have competences in this area, but the Commission has been quite clear on its ambitions: “[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” (European Commission 2007); Lindström 2009). Article 23 TFEU, which now only allows Member States to protect EU citizens with the nationality of another Member States, would then be a first step in a development towards the recognition of a role of the EU itself (Ianniello Saliccti 2011). The current EEAS legal regime does not yet include this option and, obviously, any transfer of powers will depend on the consent of the Member States as well, as they may have good reasons to continue a bilateral representation. After all, essential elements of a relationship between a Member State and a third state may not be covered by the EU’s competences or a special relationship may exist between an EU state and a third country, either due to historical ties and/or geographic location (Cusens 2011). Nevertheless, one medium-sized Member State already openly discussed the possible benefits of a transfer of certain consular tasks to Union delegations (Wouters and Duquet 2012; Netherlands Ministry for Foreign Affairs 2011).
It is difficult to come up with cases in which the EU itself would have a reason to protect EU citizens abroad. The Commission mentions the case in which EU citizens are not represented and may be in need of a ‘portal’ for further assistance (Netherlands Ministry for Foreign Affairs 2011). Another situation may be when the protection of an EU citizen is required on the basis of an agreement that was concluded between the EU and a third state. 16 On may expect the Union delegations to play a role in these situations in the future, but the extent to which the delegations can actually take up diplomatic and consular tasks ultimately depends on agreements that are to be concluded with the third countries.
A case in point was Case C-293/95 Odigitra AAE v Council and Commission  ECR I-06129.
5. Conclusion: Realistic Ambitions or Diplomatic Dreams?
The main aim of this paper was to confront the diplomatic ambitions of the 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. Our 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 our conclusions are necessarily mixed. On the one hand, there is no doubt that in the new EU institutional landscape dividing lines remain firmly in place. Divisions within the wider ‘RELEX family’ in Brussels, as well divisions between the Member States and the Union itself, are visible in different echelons of EU external diplomacy. Te previous picture points that intra-EU structures are certainly not yet final, but that the working arrangements do point to ‘holistic’ thinking implying cooperation and reciprocity. Turf wars may exist intrainstitutionally, but they seem minor in comparison to the deep schism between the EU and its Member States.
In addition we argued that the EU’s ambitions sit uncomfortably with traditional statecentred international diplomatic law. Whereas in the area of diplomatic representation we have seen a pragmatic acceptance of a ‘contracting in’ strategy by the EU (allowing for instance for Heads of Delegations to be accepted alongside states Embassies) (Wouters and Duquet 2012), the diplomatic and consular protection of citizens is too much related to the notion of ‘nationality’ (Vignu 2011).
The practical implication is that third states will have to accept that the EU acts on behalf of its citizens. At the same time, the EU Member States do not seem to be willing to give up their traditional competences in his area: “consular protection is an area of Member State competence and Member State competence solely” (Lindström 2009). As a consequence, “[r]ather than a zero-sum relationship, Member States and the EU as a collective foreign policy actor may operate along-side, across and in tandem with one another” (Bátora and Hocking 2008). While this may form a solution for the short term, the EU’s ambitions seem to go beyond a mere coordinating role. International law does not per se block a further development of the EEAS (and its Delegations) in the area of diplomatic and consular protection, but further steps will not only have to be accepted by the EU Member States, but obviously also by third states (on the basis of bilateral agreements). We believe that in the years to come a pragmatic acceptance of a new role of the EU will have an impact on the interpretation and perhaps even on the nature of international diplomatic law as primarily inter-state law.
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