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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