Abstract
This chapter deals with the impact of both Europeanization and globalization on some specific aspects of what was once called “international administrative law”, namely consular assistance and diplomatic protection. First of all, the international conventions on consular assistance and diplomatic protection are briefly summarized. Second, the impact of Europeanization is evaluated, taking into account both the horizontal (the right to consular and diplomatic protection from authorities of member states other than those of citizenship) and the vertical dimension (the right to consular and diplomatic protection from European authorities). Finally, the impact of globalization is considered. It is argued in this respect that the changes observed in these specific sectors could exemplify some more general phenomena. On the one hand, globalization increases the international dimension of domestic administrative law, by widening the part of domestic administrative law that regulates situations having a link with foreign legal systems. On the other hand, globalization decreases the degree of specificity of that part of domestic law, submitting the exercise of “foreign affairs” administrative functions to the general requirements of the rule of law.
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Notes
- 1.
See on the topic Borchard (1913), p. 515. According to Borchard, “the principles of territorial jurisdiction and personal sovereignty are mutually corrective forces: an excessive application of the territorial principle is limited by the custom which grants foreign states certain rights over their citizens abroad”.
- 2.
- 3.
Done at Vienna on 18 April 1961. Entered into force on 24 April 1964. United Nations Treaty Series, vol. 500, p. 95.
- 4.
Done at Vienna on 24 April 1963. Entered into force on 19 March 1967. United Nations Treaty Series, vol. 596, p. 261.
- 5.
On the distinction between consular assistance and diplomatic protection, see, in particular, Kunzli (2006a). This work emphasizes in particular three differences. The first regards the stricter limits imposed by international law on the functions of consular assistance compared with diplomatic protection: “as a result of the obligation not to interfere in the domestic affairs of the receiving state as provided for in art. 55 of the VCCR, this cannot be interpreted to imply that the consul actually has the power to intervene in a judicial process to prevent a denial of justice…(…Consuls) have a particular role in assisting nationals in distress with regard to, for example, finding lawyers, visiting prisons and contacting local authorities, but they are unable to intervene in the judicial process or internal affairs of the receiving state or give legal advice or investigate a crime”. The second difference concerns the degree of representation: “The Ambassador primarily represents the state and not its single individuals. Similarly, when Ministers of Foreign Affairs or even the Head of State are involved, one should properly speak of diplomatic protection and not of consular assistance. Since states (…) assert their own rights through the exercise of diplomatic protection it is connected to state sovereignty.” The third difference, finally, regards the preventive and nonremedial nature of consular assistance: “Consular assistance often has a preventive nature and takes place before local remedies have been exhausted or before a violation of international law has occurred. This allows for consular assistance to be less formal and simultaneously more acceptable to the host state. (…) A diplomatic demarche on the other hand has the intention of bringing the matter to the international, or inter-state, level ultimately capable of resulting in international litigation”.
- 6.
See Vienna Convention on Consular Relations, Art. 5, subsection e): (Consular functions consist in…) “e) helping and assisting nationals, both individuals and bodies corporate, of the sending State”.
- 7.
See Vienna Convention on Consular Relations, Art. 5, subsection i): (Consular functions consist in…) “i) subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests”. See also Art. 36, subsection c): “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action”.
- 8.
See the Vienna Convention on Consular Relations Art. 5, subsection. m): [Consular functions consist in …] “m) performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State”.
- 9.
To this end, included in the Vienna Convention on Consular Relations are “facilities, privileges and immunities” that regard both the functioning of the consular offices (Chapter II, Section I, in particular v. Art. 28: “The receiving State shall accord full facilities for the performance of the functions of the consular post”), and the holders of such offices (Chapter II, Section II, v. in particular Art. 40: “The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity”).
- 10.
See in particular the Vienna Convention on Consular Relations, Art. 55.1: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State”.
- 11.
- 12.
On this point, see also Cassese (1997), in particular, p. 92, where a comparison is made between the right of European citizens to participate in local elections and their right to have access to public employment in other member States: in both cases, “the national public powers are cut off from their own base (the community), but only partially, in the case of public employment limited to the offices that do not bring with them the exercise of authority and care for the general interest; in the case of electoral rights limited only to minor offices”. We could add: as to the protection by diplomatic and consular authorities, limited to consular assistance.
- 13.
See, for instance, Kunzli (2006a, b): “EU citizenship clearly is not sufficient to fulfill the requirement of nationality of claims for the purpose of diplomatic protection. Considering the fundamental nature of this requirement and its universal acceptance, one wonders then how the right to diplomatic protection was included in the various EU treaty provisions. It is submitted that the drafters of these provisions either did not intend to include diplomatic protection but failed to use the proper language or confused – and continue to confuse – diplomatic protection and consular assistance. […] The “right” accorded to citizens of the Union may include consular assistance but EU member states cannot be forced to exercise diplomatic protection”. Contra, Geyer (2007): “granting diplomatic protection to Union citizens through Art. 20 TEC does not as such constitute a violation of international public law. Nevertheless, the exercise of this protection would either require respective negotiations to obtain the consent of third states (as explicitly foreseen in Art. 20, paragraph. 2, TEC) or an understanding of Union citizenship as some form of nationality that would justify the exercise of diplomatic protection by any EU member state in favour of any EU citizen”.
- 14.
Kunzli (2006a, b): “In Decision 95/553/EC the actions for the purpose of diplomatic and consular protection to EU citizens are defined in Art. 5(1): (a) assistance in cases of death; (b) assistance in cases of serious accident or serious illness; (c) assistance in cases of arrest or detention; (d) assistance to victims of violent crime; (e) the relief and repatriation of distressed citizens of the Union. In a Factsheet on consular and diplomatic protection provided through the website of the European Institutions the conditions for protection and the kind of assistance that may be expected are further defined. In order to qualify for protection, an individual is required to: 1) possess the nationality of an EU member state; 2) be “in distress abroad … and require consular protection”; and 3) be in a non-EU state where his or her state of nationality is not represented through an embassy or consulate. While the conditions for protection mention the nationality of claims, they are silent on the exhaustion of local remedies and injury resulting from an internationally wrongful act. Prior to the fulfilment of these conditions, diplomatic protection cannot be exercised. What is envisaged here is clearly consular assistance, which does neither require exhaustion of local remedies nor the occurrence of an internationally wrongful act. Only the assistance mentioned under point (c) could under certain circumstances give rise to diplomatic protection. It is curious to note that the wording of the Decision is fairly precise and deviates in this respect from the text provided in the EC Treaty, the EU Charter and the Constitution. While it is stated in the preamble that the decisions concern “protection” without further qualification, Art. 1 provides that “[e]very citizen of the European Union is entitled to the consular protection of any Member State’s diplomatic or consular representation” (emphasis added). In the light of the activities defined in Art. 5 of the Decision, cited above, this is correct. While even consular assistance is usually only exercised on behalf of a national, it is not impossible that a consular officer of one state may render assistance to a national of another state. Since consular assistance is not an exercise in the protection of the rights of a state nor an espousal of a claim, the nationality criteria are not required to be applied as strictly as in the case of diplomatic protection. There is no necessity for a legal interest through the bond of nationality”.
- 15.
Such is the position expressed, for example, in response to the Green Paper issued by the European Commission, (Diplomatic and Consular Protection of Union Citizens in Third Countries, Brussels, 28-11-2006, COM (2006) 712 final) by the United Kingdom, which has in particular excluded the possibility that the European constitutional norm can create a “legal right” for the European citizen to assistance on the part of the diplomatic and consular authorities of the member States that do not recognize a similar right for their own citizens. The position of the British government is referred to by Geyer (2007), p. 2: “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”. […] In relation to EU law, Article 20 TEC sets out an obligation of nondiscrimination. 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”.
- 16.
See Art. 18 TUE.
- 17.
The diplomatic body has been established by Council Decision of 26 July 2010 (2010/427/EU).
- 18.
EC Council Regulation n. 3286/94 of 22 December 1994, laying down Community procedures in the field of the common commercial policy in order to censure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (OJ L 349, 31.12.1994, p. 71, Amended by EC Council Regulation n. 356/95 and n. 125/2008. On this theme, see, among others: Mavroidis and Zdouc (1998); McNelis (1998); MacLean (1999a, b).
- 19.
Court of First Instance of the European Union, case T-317/02, Fédération des industries condimentaires de France (FICF) and Others v Commission of the European Communities [2004] ECR II-4325, para. 94.
- 20.
On the persistent relevance of the practice of diplomatic protection, notwithstanding the development of international regimes that, in particular in cases of protection of human rights, accord to the individual already the right to address them self autonomously to international tribunals against illicit acts committed by States against them, see in particular Dugard (2005): “Aliens are still in need of protection. Human rights instruments do not grant them effective remedies except in a minority of cases. […] Diplomatic protection provides a potential remedy for the protection of millions of aliens who have no access to remedies before international bodies and a more effective remedy to those who have access to the often ineffectual remedies contained in international human rights instruments. It should therefore, be retained”.
- 21.
Although the special advisor to the Commission on International Law had proposed an article that would have imposed on the States the obligation to exercise diplomatic protection for their own citizens, when these were subject to a gross violation of international norms of jus cogens that could be attributed to another State (“Unless the injured person is able to bring a claim for such injury before a competent international court or tribunal, the state of his/her nationality has a legal duty to exercise diplomatic protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State”) the Commission did not however, agree to this proposal. See Dugard (2005).
- 22.
Lord Justice Richards (2006).
- 23.
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Battini, S. (2011). The Impact of EU Law and Globalization on Consular Assistance and Diplomatic Protection. In: Chiti, E., Mattarella, B. (eds) Global Administrative Law and EU Administrative Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20264-3_9
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