DIPLOMATIC AND CONSULAR PROTECTION OF
UNION CITIZENS IN THIRD COUNTRIES (6192/07)
Letter from the Chairman to Rt Hon Geoff
Hoon MP, Minister for Europe, Foreign and Commonwealth Office
This Green Paper was considered by Sub-Committee
E at its meeting of 7 March 2007.
We welcome the Commission's Green Paper as a
useful contribution to the debate on how best to implement the
provisions in Article 20 TEC on consular assistance.
We are grateful for your detailed Explanatory
Memorandum which we found very helpful in identifying the Government's
concerns. You say that there may be issues of subsidiarity and
we would be interested to hear your detailed comments on this.
Do you consider that EU action should be taken to improve EU citizens'
awareness of the provisions of Article 20? The Commission has
identified a significant knowledge gap here, which might be taken
as an indication that Member State action in this field has proved
inadequate.
Further, we are not convinced that action at
EU-level to improve the delivery of the protection afforded by
Article 20—for example, through simplification of existing
procedures and more effective organisation of services—would
necessarily raise subsidiarity concerns. It is difficult to envisage
how the objectives of Article 20 can be met by unilateral action,
and while bilateral agreements are a possibility might there not
be benefits in coordinating an EU-wide approach?
We do, however, consider that some of the Commission's
suggestions may go further than is envisaged under Article 20.
In our opinion, there are serious doubts as to whether Article
20 has the effect of creating a Commission duty to provide diplomatic
protection, notwithstanding the Odigitria judgment. The
suggestion that in the long-term the Commission, on behalf of
the Union, might exercise a duty of protection in cases relating
to Community competence ought, in our view, to be strongly resisted
at this time.
We welcome your support for increased cooperation
between Member States' embassies and Commission delegations in
third countries. In our view, common offices could be an effective
means of achieving this, provided always that consular officials
act under the authority of their States and not under any purported
Union authority. We would be interested to hear your views on
this. We also consider that the Commission might play a helpful
role in improving consular officials' awareness of EU-related
aspects of consular assistance and relevant EU legislation, although
we agree that a wider training role would seem inappropriate.
Finally, we are sceptical about the possibility
of setting minimum standards of protection for EU citizens. The
terms of Article 20 are quite clear: assistance is to be offered
on the same conditions as the nationals of the requested State.
In our view this does not envisage agreement of minimum standards
of consular protection, however desirable it may be at a practical
level for EU citizens to have a clear understanding of their rights.
We have decided to hold the Green Paper under
scrutiny and look forward to receiving a copy of your response
to the Green Paper in due course.
8 March 2007
Letter from Rt Hon Geoff Hoon MP to the
Chairman
Thank you for your letter of 8 March 2007 about
our response to the EU Commission Green Paper on Diplomatic and
consular protection of Union citizens in third countries. I enclose
a copy of our response.
The Green Paper contains a number of proposals
the Commission believes would more effectively fulfil Article
46 of the Charter of Fundamental Rights of the European Union
(TEU) and Article 20 of the Treaty establishing the European Community
(TEC). These articles state:
"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 establish the necessary rules among themselves and
start the international negotiations required to secure this protection."
From a legal perspective, there are a number
of difficulties with their approach. Firstly, the Green Paper
assumes all Member States' nationals have a legal right to consular
assistance. Certainly, under the domestic law of some Member States,
such as Sweden and Finland, nationals do have such a right. But
in many others, including the UK, France, Germany, the Netherlands,
Bulgaria and the Czech Republic, consular assistance is provided
as a matter of policy.
Secondly, the Green Paper suggests Article 20
TEC creates a legal right to consular assistance independent of
domestic law. We cannot accept this interpretation. Article 20
TEC merely provides for the provision of consular assistance to
unrepresented Member States' nationals on the same terms as it
is provided to their own. Nor does it require setting minimum
or equal standards for consular assistance amongst Member States.
Lastly, the Green Paper suggests officials from
EU institutions may deliver consular assistance themselves in
future. Under international law, consular relations are between
States. The Vienna Convention on Consular Relations, and applicable
bilateral consular conventions, provide a framework for the conduct
of inter-State relations; they do not cover the provision of consular
assistance by international or intergovernmental organizations.
Furthermore, we do not believe that the Commission and the EU
have competence under the existing treaties to provide consular
assistance.
Further to your other specific question about
subsidiarity, we agree that too few Member States' nationals may
be aware of the implications of Article 20 TEC, and agree that
efforts by the Commission and Council to improve public awareness
are unlikely to raise issues of subsidiarity. Likewise, we welcome
efforts to improve co-ordination amongst Member States, and agree
this is unlikely to raise issues of subsidiarity. Our concerns
for subsidiarity are primarily related to the provision of consular
assistance by EU institutions, and particularly the Commission.
We believe consular assistance is most effectively provided by
Member States themselves.
Notwithstanding these concerns, we share your
appreciation for the Commission's contribution. We support consideration
of more effective and efficient ways to deliver consular assistance,
including closer co-operation with other Member States. Many of
the Commission's proposals are a welcome contribution to these
objectives. Others are unclear and the benefits are not apparent,
perhaps as a result of the Commission's lack of direct experience
of consular work. The Green Paper is also unclear on how some
of the proposals would be achieved and often fails to take sufficient
account of the practical, and legal, realities of consular operations.
Over the past few years, Member States have
improved consular crisis co-operation. This has proved extremely
effective, increasing our collective capacity to react to crises
overseas. A recent example is the evacuation from Lebanon last
summer. The UK evacuated nationals from other Member States, who
likewise included British nationals in their evacuation arrangements.
Based on this success, we believe there is potential to further
improve our consular operation by broadening EU co-operation to
include more routine consular assistance. This requires a detailed
examination of the areas where there is scope for greater co-operation
and of the benefits of doing so. Our response to the Green Paper
recognises the value of the Commission's contribution in this
respect and, whilst commenting on the difficulties many of the
proposals present, seeks to encourage further discussion of these
issues amongst Member States.
We have discussed our position with other EU
Member States, many of whom share our objectives and concerns.
Our views will be further expressed by officials in the open meeting
on 31 March as appropriate.
13 March 2007
Annex A
1. INTRODUCTION
1.1 The UK welcomes the Commission's Green
Paper on Diplomatic and consular protection of Union citizens
in third countries. Our commitment to providing high quality
consular assistance is reflected in the UK Government's current
strategic international priorities, the ninth of which reads:
"Delivering high-quality support for British
nationals abroad, in normal times and in crises".
1.2 The UK takes seriously Member States'
obligation not to discriminate against other unrepresented EU
nationals in delivering consular assistance. We are acutely aware
that, in some parts of the world, delivering consular assistance
to British nationals is only possible through the consular and
diplomatic networks of our EU Partners. And while providing assistance
at times of crisis is only one element of the broad range of activities
which make up consular assistance, co-ordination amongst Member
States is integral to planning and providing effective responses
to crises when they do occur.
1.3 The UK shares the Commission's objectives
of ensuring unrepresented Member States' nationals know they can
seek consular assistance from other Member States' missions, and
of ensuring any assistance provided to them is efficient, effective
and non-discriminatory. We are pleased co-ordination amongst Member
States has improved in recent years and grateful to the Commission
for its consideration of how it might be improved still further.
1.4 Member States provide their consular
assistance in a variety of international and domestic legal frameworks.
Consequently, it would be useful to set out the basis on which
the UK provides consular assistance.
1.5 Firstly, the UK differentiates between
consular assistance, passport issuance, notarial services and
visa applications. Although these four activities are often performed
by the same personnel, they have different legal and policy foundations.
The Green Paper is concerned primarily with consular assistance:
the provision of assistance by consular officials or diplomatic
authorities to nationals in difficulty overseas. The list of activities
under Article 5 of Decision 95/553/EC serves as good illustration.
Article 20 TEC, to which Decision 95/553/EC and this Green Paper
respond, is also concerned with consular assistance.
1.6 Secondly, it is important to recognise
diplomatic protection as a distinct legal concept from consular
assistance. Consular assistance can be easily confused with diplomatic
protection. This may be because consular assistance is often referred
to as consular protection, or because it is frequently provided
by staff who have both consular and diplomatic functions. Diplomatic
protection is formally a state-to-state process by which a state
may bring a claim against another state in the name of a national
who has suffered an internationally wrongful act at the hands
of that other state. Under international law, states may exercise
diplomatic protection only on behalf of their own nationals, and
not on behalf of nationals of other states. Conversely, consular
assistance is the provision of support and assistance by a state
to its nationals, or those nationals to whom it has agreed to
provide assistance, who are in distress overseas. The vast majority
of such cases do not involve an internationally wrongful act.
1.7 Thirdly, British nationals do not have
a legal right to consular assistance overseas. The UK Government
is under no general obligation under domestic or international
law to provide consular assistance (or exercise diplomatic protection).
Consular assistance is provided as a matter of policy, which is
set out in the public guide, "Support for British Nationals
Abroad: A Guide". Other Member States provide consular
assistance on a range of bases, some of which recognise a right
to consular assistance under national law, and some of which do
not.
1.8 In relation to EU law, Article 20 TEC
sets out an obligation of non-discrimination. It requires Member
States to treat requests for consular assistance by unrepresented
nationals of Member States on the same basis as requests by their
own nationals. In compliance with this, the UK provides consular
assistance to significant numbers of unrepresented Member States'
nationals. But Article 20 TEC, does not create any right to assistance
beyond this. Decisions 95/553/EC and 96/409/CFSP do not affect
this position or broaden the basic legal principle set out in
Article 20.
1.9 In relation to EU law, Article 20 TEC
sets out an obligation of non-discrimination. It requires Member
States to treat requests for consular assistance by unrepresented
nationals of Member States on the same basis as requests by their
own nationals. In compliance with this, the UK provides consular
assistance to significant numbers of unrepresented Member States'
nationals. But Article 20 TEC, does not create any right to assistance
beyond this. Decisions 95/553/EC and 96/409/CFSP do not affect
this position or broaden the basic legal principle set out in
Article 20.
2. INFORMATION
FOR CITIZENS
2.1 The UK agrees with the Commission that
Member States' nationals should be better informed about Article
20 and their opportunity, where unrepresented by their own State,
to seek consular assistance from other Member States. To this
end, we welcomed the General Secretariat's recent brochure on
Decision 95/553/EC. We would encourage the Commission to co-ordinate
with the Council to ensure the public is aware of further action
pursuant to Article 20. The UK would welcome further details of
the Commission's public information campaign.
2.2 We agree that printing Article 20 in
future designs of passports may prove to be an effective means
of further disseminating this information to EU citizens. The
UK would consider printing Article 20 in the next generation of
biometric passports if it is found to be cost effective. This
should be considered in the context of the EU Directive on second
generation biometric passports.
2.3 Similarly, the UK agrees that the Commission
should ensure Member States' nationals have access to the contact
details of the relevant Member States' posts overseas. However,
those Member States with large consular networks, offering higher
levels of consular assistance or with a higher profile presence
in third states risk a disproportionate burden from unrepresented
Member States' nationals. The UK notes Article 4 of Decision 95/553/EC.
2.4 Without prejudice to Article 1, diplomatic
and consular representations may agree on practical arrangements
for the effective management of applications for protection.
2.5 Where local agreements are in place
pursuant to Article 4, contact details should also provide clear
information about which Member States will assist which unrepresented
nationals. In such circumstances, efforts should be made to apply
local agreements consistently, and to avoid the risk of "consular
shopping".
2.6 Providing timely, accurate and measured
travel information is one of the most effective means of helping
British nationals to mitigate the risks of travelling overseas.
We produce our own travel information covering 219 states and
territories around the world, and rely on others states' travel
information on twelve other states and territories. We take a
close interest in other Member States' advice in responding to
changing circumstances, and provide links to French, German and
Dutch travel information from our website.
2.7 Member States can subscribe to free
e-mail updates informing of changes to our travel information.
Where we advise against all or all but essential travel to a country
or area we inform other Member States by COREU in accordance with
standard practice across the EU. This is then published on the
COCON website. Similarly, we reflect relevant determinations by
international bodies such as the World Health Organisation. The
Commission may have a role in helping ensure Member States' travel
information reflects common information where it relates to common
EU responses to, for example, pandemics.
2.8 Similarly, we agree with the Commission
that Member States' nationals should be aware that alternative
travel information is available from other Member States in other
languages. This would be most effectively achieved by establishing
links between Member States' travel advice through a Commission
portal. We would welcome the Commission thoughts on how to take
this forward.
2.9 But we do not think that common or centrally
located travel information would be effective or necessary. Accurate
and helpful travel information relies on flexible and responsive
updates. Reaching agreement amongst 27 Member States on common
travel advice will inhibit our ability to respond to fast moving
events. We have on occasion amended our travel information within
an hour of it becoming necessary. Moreover, travel advice raises
political, intelligence and security issues which are not best
discussed in a consular forum.
2.10 Individual Member States are in the
best position to advise their nationals on the risks they face
and how to mitigate them. Different EU nationalities do not necessarily
face the same risks in third countries or benefit from the same
advice. These differences can only be captured by the provision
of separate travel information.
2.11 Fundamentally, it is to their own Member
State that nationals will turn for information and assistance
and it is their own Member State to whom they may make further
requests or complaints if the information or assistance provided
is thought to be inaccurate or unhelpful. We believe the current
arrangements for keeping Member States informed of changes to
one another's travel information are the best means to allow Member
States to benefit from one another's knowledge.
3. THE SCOPE
OF PROTECTION
FOR CITIZENS
3.1 The UK does not believe the consolidation
of consular assistance between Member States is either necessary
or desirable. There is no evidence that Member States' nationals
are inconvenienced by the varying levels of consular assistance
offered. The only comparison they are likely to make is with the
consular assistance they expect to receive from their own Member
State. In any event, given the necessary complexity of consular
policy and procedures, and their widely varying legal contexts,
the task of agreeing and implementing a common standard of consular
assistance would be disproportionate to the benefits achieved.
3.2 As a general matter of policy, the UK
does not normally provide consular assistance to non-nationals,
including family members of British nationals. UK consular assistance
is funded exclusively through passport fees. UK residents make
65 million trips overseas a year and 13.6 million potential British
passport holders resident overseas, a significant proportion are
related to third country nationals. Extending consular assistance
to third country nationals could not be covered by current resources
and would not justify a rise in current passport fees.
3.3 There are also legal obstacles to providing
such assistance. As discussed in paragraph 5.1 below, a sending
state may not normally exercise consular functions in the receiving
state on behalf of a third state unless the receiving state has
been notified and been given an opportunity to object. In any
event, Article 20 only requires non-discriminatory treatment of
Member States' nationals, not their family members.
3.4 The UK applies a different, more flexible
policy in responding to crises. In a crisis, the UK offers the
same level of consular crisis assistance to the third country
dependants of British nationals as we do our own nationals, particularly
during evacuations, where it is our policy to avoid splitting
families. In doing so, we are acting in accordance with the "Lead
State" framework, recently agreed in COCON. Where the UK
offers to assist an unrepresented Member State, we aim to apply
the same policy to their unrepresented national and their third
country dependants as we do our own. Of course, this may be impossible
where we are unable to evacuate third country nationals because
they do not have the right visa status for the destination country.
3.5 Many Member States operate similar policies,
with some variations. However, for the reasons stated in paragraph
3.1 above, we do not believe that harmonising this policy across
all Member States is necessary or desirable. Instead, we should
work together within the Lead State framework to ensure third
country dependants of Member States' nationals are provided sufficient
consular assistance at times of crisis.
3.6 We share the Commission's concern for
the quick and simple identification and repatriation of mortal
remains. The repatriation of mortal remains was handled exclusively
by international teams following the 2004 Asian tsunami, sparing
families the complexities and cost of doing this themselves.
3.7 The UK agrees with the Commission that
prompt and accurate identification of mortal remains is a pre-requisite
for their repatriation. We have encouraged further research and
development into DNA identification techniques, CT scanning and
electronic scanning and transmission of fingerprints. We thank
the Commission for adding its support to these existing efforts.
3.8 The identification of victims of disasters
is a highly complex and technical area of work. We work closely
with the Interpol Disaster Victims Identification (DVI) Steering
Group. It consists of police and practitioners from eight countries
with extensive practical experience of DVI and the Interpol DVI
Standing Committee. This Steering Group meets bi-annually to maintain
the integrity and drive the co-ordination of DVI matters. The
Interpol processes are effective and should be supported by Member
States.
3.9 The UK has not experienced significant
difficulties in providing and being reimbursed for financial assistance
to unrepresented Member States' nationals. Whilst, we recognise
the Commission's concerns, it would not be practical for common
offices to provide financial assistance because staff would have
to administer 27 different kinds of financial arrangements. The
current system of providing financial assistance on a non-discriminatory
basis is more effective, and is in accordance with Article 20.
However, we would welcome the Commission's views on whether a
central clearing house for repayments between Member States would
make the current system more efficient. We would also note that
while financial assistance should be as efficient as possible,
it should not necessarily be made as easy as possible. Having
sufficient funds is first and foremost the responsibility of the
individual and not his or any other Member State.
4. STRUCTURES
AND RESOURCES
4.1 We share the Commission's objective
of ensuring consular assistance for unrepresented Member States'
nationals is provided in as efficient a manner as possible. Member
States have made significant progress in the co-ordination of
their consular services. The recently reviewed guidelines for
co-ordinating consular assistance in third countries, agreed by
COCON in 2006, are a good example of this. Some Member States'
consular operations are already co-located. The UK co-locates
in Almaty, Ashgabat, Dar es Salaam, Pyongyang, Quito, Reykjavik,
Minsk and Chisinau. Co-location can drive down costs and improves
co-ordination amongst Member States. Similarly, Member States'
consulates—fully aware of their Article 20 obligations should
allocate unrepresented nationals amongst themselves on the basis
of resources, language, and so on. Such agreements are best agreed,
monitored and adjusted by consulates locally. They are in the
best position to assess the needs of unrepresented nationals and
identify those best placed to assist them. It is they that can
best react to changing circumstances and demand. As part of its
efforts to promote Article 20 amongst Member States' nationals,
the Commission might consider maintaining a central record of
these arrangements for public enquiry.
4.2 The concept of "common offices"
for EU consular work in third countries is not clearly defined
in the Green Paper. For example, it is not clear on what basis
the level of consular assistance being provided would be set.
Would it depend on the nationality of the applicant, the consular
officer or a common policy? And would all Member States' nationals
seek assistance from these "common offices", or just
those that are unrepresented? The benefits of such "common
offices" are also unclear. They would not, for example, provide
any resources savings over co-location. And experience shows that
Member States' nationals will continue to expect consular assistance
from consular staff of their own nationality, wherever possible.
This is certainly the case for British nationals.
4.3 We would like to note that consular
assistance, with which this Green Paper is primarily concerned,
should be distinguished from providing visa and passport services.
Member States are under no obligation to provide these services
to unrepresented nationals on a non-discriminatory basis.
4.4 Member States already co-ordinate their
response to crises, as demonstrated by the 2006 crisis in Lebanon—
The UK is very grateful to other Member States who have assisted
our nationals in such situations. To further develop co-ordination,
we should look to the Lead State framework (which the PSC discussed
and invited the Consular Working Group to agree the details of
in November 2006). This work is being taken forward under the
German Presidency. We hope this will encourage better crisis planning
in third countries and a more co-ordinated EU response.
4.5 Crisis co-operation must be flexible
and fast. We believe the Lead State framework, in which one or
several Member States take responsibility for unrepresented EU
nationals and one Lead State ensures proper co-ordination (including
sharing resources where appropriate) between those on the ground
is the most efficient approach. Within this framework, the Commission
could usefully provide logistical support when it is requested
by Member States, The Council Secretariat could also usefully
assist the Lead State(s) by collecting and circulating important
operational information, as it did in Lebanon.
4.6 We note the Commission's offer to facilitate
training and best practice amongst Member States. While the Commission
has no experience of providing consular assistance itself, it
is well placed to organise seminars and conferences amongst experts
and officials from across the EU on areas of common concern.
4.7 Similarly, the Commission could facilitate
training for consular crises. The UK already invites Member States
as observers to our consular crisis training courses. In February,
the UK and France staged a joint crisis exercise in Thailand.
We would be keen to see more regular exercises.
4.8 However, we are concerned by the suggestion
that, in the longer term, the EU should provide consular assistance
through Commission delegations. The Commission has no experience
in providing consular assistance and we do not believe that EU
nationals would receive better consular assistance from the Commission
than can be achieved by cooperation among the Member States. Additionally,
it is not clear to the UK that there is a legal basis for the
Commission to exercise consular functions. The rules and principles
established by the Vienna Convention on Consular Relations and
customary international law provide for the provision of consular
assistance by states, not international or intergovernmental organisations.
Although the UK accepts and welcomes the role of the Commission
in facilitating co-operation and ensuring non-discrimination in
the provision of consular assistance, the Commission has no competence
under the EU Treaties to provide consular assistance.
5. THE CONSENT
OF THE
THIRD COUNTRY
AUTHORITIES
5.1 The UK understands the importance of
obtaining the consent or acquiescence of the receiving state in
providing consular assistance to Member States' unrepresented
nationals. However, whether this requires Member States to negotiate
bilateral agreements with third states depends on the agreements
and arrangements already in place with the receiving states. For
example, Article 8 of the Vienna Convention on Consular Relations
allows consular assistance to be provided to non-nationals where
the receiving state has been notified and been given an opportunity
to object. In our experience, receiving states are generally content
for assistance to be provided by other Member States. Consequently,
the need for consent clauses in bilateral agreements is unproven
in many circumstances.
5.2 However, the UK recognises the value
of these provisions in facilitating such assistance. Consequently,
we would welcome discussing the possibility of "consular
provisions" in the context of any consultations held with
the Commission pursuant to Decision 88/384/EC. Of course, it would
be inappropriate for any Member State to commit in advance to
the inclusion of such provisions. The negotiation of agreements
with third states is complex and difficult. Whilst the inclusion
of a "consular provision" may be uncontroversial in
some instances, its benefits are unlikely to justify efforts to
negotiate it in many others. Moreover, any such provision would
be without prejudice to the division of responsibility amongst
Member States' missions for unrepresented nationals.
6. CONCLUSION
6.1 The UK shares the belief of the Commission
that there are opportunities to enhance the co-operation between
Member States in their provision of consular assistance to unrepresented
nationals. Member States have already implemented a number of
initiatives to this end. A comprehensive understanding of the
systems already in place is needed before new initiatives can
be usefully assessed.
Letter from the Chairman to Rt Hon Geoff
Hoon MP
Thank you for your letter of 13 March 2007,
enclosing the UK's response to the Green Paper, which was considered
by Sub-Committee E.
We are pleased to see that the views we expressed
in our letter of 8 March are, for the most part, shared by the
Government.
We note what you say in your Response regarding
the establishment of common offices but remain of the view that
there may be a case for such action. We will of course consider
any Commission proposals in this field most carefully.
As regards the position of third country nationals
who are related to Union citizens, the Government's position is
understandable. We are pleased that the UK adopts a flexible approach
in crisis situations but we will be interested to see any proposals
that the Commission may bring forward.
The Committee decided to clear the Green Paper
from scrutiny.
29 March 2007
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