Select Committee on European Scrutiny Sixteenth Report

Annex 1: UK response to the Commission's Green Paper on Diplomatic and consular protection of Union citizens in third countries

March 2007

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

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.

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