WP62_Wouters

Working Paper No. 62 - May 2011

THE

EU,

EEAS

AND

UNION

DELEGATIONS

AND

INTERNATIONAL

DIPLOMATIC

LAW

NEW

HORIZONS

Jan Wouters

Sanderijn Duquet

THE

EU,

EEAS

AND

UNION

DELEGATIONS

AND

INTERNATIONAL

DIPLOMATIC

LAW

NEW

HORIZONS

Prof. Dr. Jan Wouters and Sanderijn Duquet

BSTRACT

The European Union has a unique ‘sui generis’ status on the international plane,

which is reflected in its capability to enter into diplomatic relations with third States

and international organizations. Over nearly six decades the EU has gradually built

its own worldwide bilateral and multilateral diplomatic network which is made subject,

through specific agreements with the host country, to the 1961 Vienna Convention

on Diplomatic Relations. The ‘Union delegations’ are now operating as the diplomatic

missions of the EU as a whole, in contrast to the former Commission delegations.

This paper examines the relationship between the EU and international diplomatic

law: how does the EU establish and conduct diplomatic relations? What legal

instruments are being used? How do the Vienna Convention and customary

diplomatic law come into play? What is the exact legal status of EU ambassadors

and diplomatic staff? In critically analyzing these issues the specific contribution

which the EU makes to the further development of international diplomatic law is

assessed.

ORDS

European Union - EU delegations - EEAS – 1961 Vienna Convention on Diplomatic

Relations - EU ambassadors – EU external representation – International diplomatic

law

UTHORS

Prof. Dr. Jan Wouters

Jean Monnet Chair ad personam EU and Global Governance

Professor of International Law and International Organizations

Director, Leuven Centre for Global Governance Studies and Institute for International

Law, University of Leuven

Sanderijn Duquet

Junior Member, Leuven Centre for Global Governance Studies, University of Leuven

DDRESS FOR

ORRESPONDENCE

Jan.W[email protected]ven.be, Sanderijn.Duquet@law.kuleuven.be

reproduced without permission of the authors.

Working papers are research materials circulated by their authors for purposes of information and

critical discussion. They have not necessarily undergone formal peer review.

ONTENTS

1. Introduction 3

2. The EU as a diplomatic actor ‘sui generis’ 4

A. Not a State… 4

B. … But much more than a classical international

organization

C. The Lisbon Treaty’s external relations machinery

3. The EU’s diplomatic network 7

4. Conduct of EU diplomatic relations after Lisbon 9

A. Establishment of diplomatic relations 9

B. Accreditation process and status of delegations 10

5. Challenges for international diplomatic law 11

A. The ‘diplomatic and consular functions’ of EU

delegations

B. Classification of EU ambassadors and ordre

protocollaire

C. Application of the Vienna Convention on Diplomatic

Relations

1. Diplomatic passport 16

2. Diplomatic asylum 17

D. Is the Vienna Convention on Diplomatic Relations

always the right framework?

6. Conclusion 19

1. I

NTRODUCTION

The Vienna Convention on Diplomatic Relations of 1961 (‘VCDR’ or ‘Vienna

Convention’)

and customary international diplomatic law form the legal framework

for inter-State diplomatic relations. There are 187 State parties to the VCDR

and its

content has to a large extent become part of customary international law itself.

crucial issue concerns the application of international diplomatic law by non-State

actors, in casu the European Union (‘EU’ or ‘Union’).

The EU has an active and

passive jus legationis and relies on a worldwide bilateral and multilateral diplomatic

network to conduct international relations. Although the EU is not a party to the

Vienna Convention - the wording of Art. 48 and 50 VCDR impedes this

- the

Convention is being applied to the widest extent possible in the EU’s bilateral

diplomatic relations via multiple agreements.

This contribution is divided in four sections. First, we address the unique ‘sui

generis’ status of the EU at the international plane: it is quite different from a

classical nation State but does exercise important external policies and powers that

make it also unique in comparison with classical intergovernmental organizations.

Additionally, the Lisbon Treaty

has reinforced the EU’s external policies and

international actorness. The creation of the function of the High Representative for

Foreign Affairs and Security Policy (‘High Representative’) and of a European

diplomatic service, the European External Action Service (‘EEAS’), are of particular

significance. The extent to which the external part of the latter body, the ‘Union

delegations’, now operating as the diplomatic missions of the entire EU,

are

contributing to the European diplomatic network will be analyzed in the second

Vienna Convention on Diplomatic Relations, signed at Vienna on 18 April 1961, entry into force 24

April 1964, UNTS, vol. 500, p. 95, no. 310. Two optional protocols were added to the Convention: the

Optional Protocol concerning the Acquisition of Nationality, done at Vienna on 18 April 1961, entry into

force 24 April 1964, UNTS, vol. 500, p. 223, 51 State Parties; the Optional Protocol concerning the

Compulsory Settlement of Disputes, done at Vienna on 18 April 1961, entry into force, 24 April 1964,

UNTS, vol. 500, p. 223, 66 State Parties.

See United Nations Treaty Collection, available at treaties.un.org/pages/ViewDetails.aspx?src=

TREATY&mtdsg_no=III-3&chapter=3&lang=en (consulted in April 2011).

See ICJ, Case concerning United States Diplomatic and Consular Staff in Tehran of 24 May 1980

(U.S. v. Iran), I.C.J. Rep. 1980, 3, § 62 in fine; ICJ, Case concerning the Arrest Warrant of 11 April

2000 (Democratic Republic of the Congo v. Belgium), 14 February 2002, I.C.J. Rep. 2002, 1, § 52.

G.R. Berridge, Diplomacy: Theory and Practice, Palgrave Macmillan, 2010 (4e ed.), 282 p., 112:

relations with international organizations and special missions are excluded from the scope of the

VCDR. [Hereafter Berridge, Diplomacy: Theory and Practice.]

According to Art. 48, the VCDR “shall be open for signature by all States Members of the United

Nations or of any of the specialized agencies or Parties to the Statute of the International Court of

Justice, and by any other State invited by the General Assembly of the United Nations to become a

Party to the Convention […]”. Art. 50 VCDR adds that the Convention remains “open for accession by

any State belonging to any of the four categories” mentioned in Art. 48.

Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the

European Community, signed at Lisbon, 13 December 2007, OJ 2007, C 306/1, 17 December 2007.

[Hereafter Lisbon Treaty].

section. These delegations form a network of ‘embassies’ and fulfill a similar

function: the representation of the EU with local governments.

Third, this

contribution aims to examine the conduct of EU diplomatic relations after the entry

into force of the Lisbon Treaty. Finally, we will highlight a number of challenges of a

legal and practical nature to international diplomatic law resulting from EU diplomatic

relations with third countries and international organizations.

HE EU AS A DIPLOMATIC ACTOR

‘

SUI GENERIS

’

A. Not a State...

The conduct of formal diplomatic relations is regarded as both a privilege and a

monopoly of the sovereign State.

The EU has a unique ‘sui generis’ status in

international law. Its Member States have conferred powers to the Union, including

powers to act externally.

Since EU Member States themselves remain sovereign

diplomatic actors, the EU’s constraints in initiating and conducting diplomatic

relations are put to the test regularly. Moreover, since the Union is not a nation State,

certain purely State-like competences in international diplomatic law are not at its

disposal.

First, EU Member States retain the exclusive competence to recognize other

States and/or governments, which is a preliminary condition to enter into diplomatic

relations.

States are the only actors in international law able to recognize other

States - be it de jure or de facto.

This may complicate the EU’s external relations:

one could think of a situation in which the Union intends to accredit a diplomatic

representative to a third country not recognized by all 27 Member States.

Second, the EU as a diplomatic actor is hindered by its inability to reciprocate

in diplomatic relations. Art. 2 VCDR stipulates that States agree by mutual consent to

establish diplomatic relations with equals. Reciprocal privileges and immunities in

inter-State relations are underlying principles in international diplomatic relations.

Reciprocity is based on States’ desire to see the protection offered to foreign

Art. 221(1) Treaty on the Functioning of the European Union, OJ 2010, C 83/47, 30 March 2010.

[Hereafter TFEU].

Alain Plantey, Principes de Diplomatie, Paris, Editions A. Pédone, 2000, 458 p., 18. [Hereafter:

Plantey, Principes de Diplomatie]. According to PLANTEY, sovereignty also is a necessary condition for

diplomacy: Id., 20. The international diplomatic regime has a strong State-oriented nature: Ben

Rosamond, ‘Conceptualizing the EU Model of Governance in World Politics’, European Foreign Affairs

Review, vol. 10, no. 4, 2005, pp. 463-476, 465.

The EU must respect its Member States’ essential State functions while exercising these powers, in

conformity with Art. 4(2) of the Treaty on the European Union, OJ 2010, C 83/13, 30 March 2010.

[Hereafter TEU].

Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations,

Oxford University Press, 2008, 556 p., 31. [Hereafter Denza, Diplomatic Law]; Plantey, Principes de

Diplomatie, 204.

Art. 7 Montevideo Convention on Rights and Duties of States, 26 December, 1933, League of

Nations Treaty Series, vol. 165, pp. 20-43.

diplomats on their territory equally accorded to their own diplomats accredited in

another country.

Precisely because of this mutual dependency diplomatic privileges

and immunities are generally well-respected.

This raises the question how the EU,

as a non-State actor in diplomatic law, is able to require a full-fledged diplomatic

status for its diplomatic agents in third countries without being capable to grant

equivalent privileges and immunities on its territory to foreign diplomats accredited to

the Union.

A pragmatic solution was found for the large number of diplomatic

missions accredited to the EU and the latter’s interest in guaranteeing protection of

its staff abroad: Article 16 of Protocol No. 7 on the privileges and immunities of the

Union

tasks the Member State in whose territory the Union has its seat – in other

words, Belgium – ‘to accord the customary diplomatic immunities and privileges to

missions of third countries accredited to the Union.’ The diplomats of third countries

accredited to the EU are entitled to exercise all normal diplomatic functions.

B. … But much more than a classical international organization

The ‘sui generis’ position of the EU in international law is further accentuated by its

supranational characteristics. The broad conferral of powers

by Member States to

the Union causes both internal and external effects. As to the first, the EU has seen

the creation of “a new legal order of international law for the benefit of which the

States have limited their sovereign rights”.

The creation of a fully-fledged Union

legal order that is ‘an integral part of the legal systems of the Member States and

which their courts are bound to apply’

and whose ‘essential characteristics […] are

in particular its primacy over the law of the Member States and the direct effect of a

whole series of provisions’

, makes the EU truly unique among international

organizations. The EU legal order and a number of its key policies (e.g. a single

currency, a common commercial policy, EU citizenship) in a certain way resemble

Plantey, Principes de Diplomatie, 207-208.

Marjoleine Zieck, ‘Diplomatiek en Consulair Recht’, in Nathalie Horbach, René Lefeber, Olivier

Ribbelink (eds.), Handboek Internationaal Recht, T.M.C. Asser Press, 2007, 946 p., 291. [Hereafter

Zieck, ‘Diplomatiek en Consulair Recht’]

From the mid-1970s onwards Commission delegations gradually obtained full diplomatic privileges

and immunities from the receiving States in conformity with the Vienna Convention: Véronique Dimier &

Mike McGeever, ‘Diplomats without a Flag: The Institutionalization of the Delegations of the

Commission in African, Carribean and Pacific Countries’, Journal of Common Market Studies 2006, vol.

44, no. 3, pp. 483-505, 496. [Hereafter Dimier & McGeever, ‘Diplomats without a Flag’].

Protocol No. 7 on the Privileges and Immunities of the European Union, OJ 2010, C 83/266, 30

March 2010. [Hereafter Protocol no. 7 on the Privileges and Immunities of the European Union].

Ivor Roberts, Satow’s Diplomatic Practice, Oxford University Press, 2009 (6th ed.), 730 p., 408.

[Hereafter Roberts, Satow’s Diplomatic Practice].

Art 5(1) TEU spells out that “the limits of Union competences are governed by the principle of

conferral. The use of Union competences is governed by the principles of subsidiarity and

proportionality”.

ECJ, Case 26/62, Van Gend & Loos, [1963] ECR 1.

ECJ, Case 6/64, Costa v. ENEL, [1964] ECR 585.

ECJ, Opinion 1/91, European Economic Area, [1991] I-6079.

the functioning of a State.

Institutions, at first the High Authority of the European

Coal and Steel Community (‘ECSC’), later on the Commission, Council, Parliament

and Court of Justice were entrusted with executive, legislative or judicial powers.

Supranational principles apply in many of the decision-making processes, from the

exclusive right of legislative initiative of the Commission to the system of voting by

qualified majority in the Council and the co-legislative role of the directly elected

European Parliament in the so-called ‘ordinary legislative procedure’.

As to the external effects, in the course of the process of European

integration and unprecedented by any other international organization, the Union

also gathered competences that enable it to act as a prominent international actor.

The Union may negotiate and conclude treaties with one or more third countries or

international organizations.

According to Mike Smith, the EU’s growing

engagement with the global order resulted in the exercise of ‘State powers’ in the

global political economy and the global security order.

The Lisbon Treaty also

explicitly granted legal personality to the Union (Art. 47 TEU), enhancing its capacity

to enter into relations with States and international organizations and emphasizing

the unique EU position in international law.

Third, the Union has an active and passive jus legationis and manages its own

diplomatic service. Through the years, the scope and number of diplomatic missions

has strongly expanded.

Legal questions on Union delegations and their status will

be tackled infra.

C. The Lisbon Treaty’s external relations machinery

The Lisbon Treaty’s aspiration to upgrade the role of the EU at the global level has

been extensively discussed by scholars and commentators.

The enhanced

Teija Tiilikainen, ‘To be or not to be?: An Analysis of the Legal and Political Elements of Statehood in

the EU’s External Identity’, European Foreign Affairs Review, vol. 6, no. 2, 2001, pp. 223-241, 228.

Magdalena Ličková, ‘European Exceptionalism in International Law’, Eur. J. Int. Law, vol. 19, no. 3,

2008, pp. 463–490, 464.

See, respectively, Art. 17(2), 16(3) and 14(1) and (3) TEU.

Roberts, Satow’s Diplomatic Practice, 399.

Art. 37 TEU and Art. 3(2), 216, and 218 TFEU. See the EU Treaties Office Database, available at

http://ec.europa.eu/world/agreements/default.home.do (Consultation April 2011).

Michael Smith, ‘The European Union and International Order: European and Global Dimensions’,

European Foreign Affairs Review, vol. 12, no. 4, 2007, pp. 437-456, 452.

Rohit Ambast & Vinay Tyagi, ‘Ambassadors of Europe: An Insight into the Evolution of the European

Union and International Diplomatic Law’, Studia Diplomatica, vol. LXI, 2008, 16, available at

http://www.ies.be/files/repo/conference2008/EUinIA_VIII_1_AmbastTyagi.pdf. [Hereafter Ambast &

Tyagi, ‘Ambassadors of Europe’].

See amongst others: Simon Duke, ‘Providing for European-Level Diplomacy after Lisbon: The Case

of the European External Action Service’, The Hague Journal of Diplomacy, vol. 4, no. 2, 2009, pp. 211-

233. [Hereafter Duke, ‘Providing for European-Level Diplomacy after Lisbon’]; Michael Emerson et al.,

Upgrading the EU’s Role as Global Actor, Brussels, CEPS, 2011, 144 p. [Hereafter Emerson et al.,

Upgrading the EU’s Role as Global Actor]; Jan Wouters, Dominic Coppens & Bart De Meester, ‘The

European Union’s External Relations after the Lisbon Treaty’, in Stefan Griller & Jaques Ziller (eds.),

European external relations machinery resulted in new actors speaking and acting

on behalf of the Union.

The European Commission continues to represent the

Union externally, with the exception of the common foreign and security policy and

other cases provided for in the Treaties (Art. 17(1) TEU). New actors - the President

of the European Council and the High Representative for Foreign Affairs and

Security Policy - were called into existence. The former represents the Union on

issues of common foreign and security policy, at his level and in that capacity (Art.

15(6) TEU). The latter has the more general mission to take the lead in the Union's

common foreign and security policy and is assisted by the EEAS (Art. 18 and 27(2)

TEU). The Council Decision establishing the organization and functioning of the

EEAS of 26 July 2010 (‘EEAS Decision’) spells out that the EEAS shall function as

an autonomous, sui generis body, separate from the Commission and Council.

Whereas the EEAS can be marked a ‘Brussels-based machinery’, its external part,

the Union delegations, operate as a diplomatic service to the Union.

Commission

delegations functioning under the authority of the Commission were converted into

Union delegations operating under the authority of the High Representative.

delegations coordinate EU external policies, represent the Union outside of the

common borders and perform certain supportive tasks in regard to diplomatic and

consular protection of EU citizens.

The head of delegation is accountable to the

High Representative for the overall management of the work of the delegation and

for ensuring the coordination of all actions of the Union.

HE EU

’

S DIPLOMATIC NETWORK

Prior to the entry into force of the Lisbon Treaty, the European Commission

maintained a network of Commission delegations, including staff and foreign assets,

which was almost universal in scope. While the transformation of Commission

delegations into Union delegations by the Lisbon Treaty is as such not revolutionary,

The Lisbon Treaty: EU Constitutionalism Without a Constitutional Treaty?, Vienna, Springer, 2008, 383

p., pp. 143-203.

The lack of consistency due to the multitude of actors involved in the EU’s public diplomacy has been

a general criticism for many years which is regularly ventilated as the so-called ‘need to speak with one

voice’; Steffen Bay Rasmussen, ‘The Messages and Practices of the European Union’s Public

Diplomacy’, The Hague Journal of Diplomacy, vol. 5, no. 3, 2010, pp. 263-287, 282. [Hereafter

Rasmussen, ‘The Messages and Practices of the European Union’s Public Diplomacy’].

Art. 1(2) Council Decision 2010/427/EU of 26 July 2010 establishing the organization and functioning

of the European External Action Service, OJ 2010, L 201/30, 3 August 2010.

Art 1 EEAS Decision.

Art. 221(2) TFEU reads: “Union delegations shall be placed under the authority of the High

Representative of the Union for Foreign Affairs and Security Policy”. See Sophie Vanhoonacker &

Natasja Reslow, ‘The European External Action Service: Living Forwards by Understanding

Backwards’, European Foreign Affairs Rev., vol. 15, no. 1, 2010, pp. 1-18, 13. [Hereafter Vanhoonacker

& Reslow, ‘The European External Action Service’].

Art. 221 TFEU. The functions of Union delegations are discussed infra.

Art. 5(2) EEAS Decision.

it must be noted that Union delegations represent the entire Union and all of its

policies

instead of solely the Commission, whose key focus was trade and aid.

present, a network of 138 Union delegations is operating globally.

Of these, 131

bilateral delegations - including regional delegations - are accredited to almost 160

third countries. Seven delegations represent the EU at the headquarters of

international organizations (in Geneva, New York, Paris, Rome, Vienna, Strasbourg

and Addis Ababa). The function of head of delegation of a Union delegation can be

combined with the function of EU Special Representative. Currently, one double-

hatted head of delegation is operating in Afghanistan.

The guidelines laid down in

the 2009 Presidency Report on the establishment of the EEAS and agreed upon by

the Council foresee autonomy in terms of administrative budget and management of

staff.

The High Representative, respecting usual budgetary rules, must propose a

budget for the EEAS, which is to be a separate section of the EU budget.

Since 1

January, 2011 the EEAS has taken over full management responsibility and related

administrative, financial and contractual obligations.

The budgeted administrative

expenditure for the EEAS in 2011 amounts to € 464,1 million, of which € 279,9

million is reserved for delegations.

The EEAS comprises officials from relevant departments of the General

Secretariat of the Council and of the Commission as well as staff seconded from

national diplomatic services of the Member States.

To ensure a balanced

representation between the different categories at least one third of diplomatic staff

in delegations will be national diplomats.

A rotation between headquarters and

Art. 221(1) TFEU.

Roberts, Satow’s Diplomatic Practice, 407. The Member States are represented by the Commission

in multilateral fora for the areas where the Community has competence; this role expanded extensively

within and across competence sectors: R.P. Barston, Modern Diplomacy, Essex, Pearson Education,

2006 (3d ed.), 387 p., 85. [Hereafter Barston, Modern Diplomacy].

See: EU External Service Directory, available at http://eeas.europa.eu/delegations/web_en.htm

(Consulted in April 2011).

Ibid.

§ 16 Council of the European Union, Presidency Report to the European Council on the European

External Action Service, Brussels, 23 October 2009, 14930/09, available at

http://register.consilium.europa.eu/pdf/en/09/st14/st14930.en09.pdf (Consulted in April 2011). [Hereafter

Presidency Report EEAS 2009].

Art. 8 and 13(5) EEAS Decision.

Council of the European Union, Draft amending budget No. 6 to the general budget 2010 - Statement

of revenue and expenditure by section, Brussels, 18 June 2010, 11251/10, § 2.6 available at

http://register.consilium.europa.eu/pdf/en/10/st11/st11251.en10.pdf.

European Parliament, Definitive adoption of the European Union’s general budget for the financial

year 2011, OJ 2011, L 68, 15 March 2011, I/512, available at http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:L:2011:068:0001:0550:EN:PDF (Consulted in April

2011).

Art. 27(3) TEU. For comments on competing or collaborating epistemic communities in EEAS, see

David Spence, ‘Taking Stock: 50 years of European Diplomacy’, The Hague Journal of Diplomacy, vol.

4, no. 2, 2009, pp. 235-259, 245-251; Vanhoonacker & Reslow, ‘The European External Action Service’,

6-11.

Art. 6(9) EEAS Decision. For special provisions applicable to EEAS staff, see Art. 1(9) Regulation

1080/2010 of the European Parliament and of the Council of 24 November 2010 amending the Staff

delegations is provided for, as well as a rotation between the EEAS and national

diplomatic services and between the EEAS and the Commission/Council.

The

proposed establishment plan of the EEAS includes a 5.778 staff, including civil

servants, contract agents, local agents, seconded national experts, and junior

experts.

CONDUCT OF EU DIPLOMATIC RELATIONS AFTER LISBON

A. Establishment of diplomatic relations

Under international law, the recognition of a State, the establishment of diplomatic

relations and the establishment of a permanent mission should be distinguished.

As mentioned before, the EU does not recognize third countries and/or governments;

this recognition is a preliminary condition to enter into diplomatic relations.

Furthermore, the establishment of diplomatic relations is distinct from but can

precede the establishment of a diplomatic representation, often referred to as a

diplomatic mission.

According to Art. 2 VCDR the establishment of diplomatic

relations between States, and of permanent diplomatic missions, takes place by

mutual consent. The process commences via a formal request made by the Ministry

of Foreign Affairs of the sending State to the receiving State’s authorities. The actual

decision on the opening of a diplomatic mission is taken by the head of State or

government.

A similar method is used by the EU when establishing diplomatic

relations.

The EEAS Decision stipulates that the High Representative, in

agreement with the Council and the Commission, decides to open or close a

delegation.

The High Representative must thereto enter into ‘the necessary

practical arrangements’ with the receiving State or the international organization

concerned.

It is further spelled out that, in an ‘Establishment Agreement’ or

‘Headquarters Agreement’, the High Representative must take the necessary

measures to ensure that host States grant the Union delegations, their staff and their

Regulations of Officials of the European Communities and the Conditions of Employment of Other

Servants of those Communities, OJ 2010, L 311/1, 26 November 2010.

§ 22 Presidency Report EEAS 2009.

Emerson et al., Upgrading the EU’s Role as Global Actor, 141.

Zieck, ‘Diplomatiek en Consulair Recht’, 278; Roberts, Satow’s Diplomatic Practice, 71.

Zieck, ‘Diplomatiek en Consulair Recht’, 278.

Biswanath Sen, A Diplomat’s Handbook of International Law and Practice, Dordrecht, Kluwer, 1988,

22. [Hereafter Sen, A Diplomat’s Handbook].

The European Commission started negotiating ‘Establishment Agreements’ with receiving States

granting diplomatic status to its envoys at the beginning of the 1980s: Dimier & McGeever, ‘Diplomats

without a Flag’, 496.

Art. 5(1) EEAS Decision.

Art. 5(6) EEAS Decision.

property privileges and immunities equivalent to those referred to in the Vienna

Convention.

B. Accreditation process and status of delegations

International diplomatic law governs the formal accreditation process of diplomatic

agents.

A diplomatic representative is appointed by the head of the sending State

whereupon his name is submitted to the government of the host State.

The

appointment of a head of delegation is announced to the State in a ‘Letter of

Credence’ signed by the head of the sending State or government and addressed to

the head of the receiving State, in order to receive agrément.

The Ministry of

Foreign Affairs of the receiving State is notified of the details of the appointment of

members of the mission.

The head of a diplomatic mission is considered as having

taken up his functions in the receiving State either when he has presented his

credentials or when he has notified his arrival and a true copy of his credentials has

been presented to the Ministry for Foreign Affairs of the receiving State.

The EU

developed a practice in which it duplicates State-to-State procedures accrediting

heads of delegation. Accreditation procedures and letters have been used by the

European Commission since the 1970s.

The post-Lisbon practice has been one

where the ‘Letters of Credence’ are co-signed by the President of the European

Council and the President of the European Commission - not by the High

Representative.

The current practice is a legacy of the Commission delegations:

before the Lisbon Treaty came into force, letters of credence of heads of

Commission delegations were signed by the President of the Commission. The head

of a Union delegation is bringing together two different tasks and institutions while

supervising both EEAS staff working in political, press, information and

administrative sections and staff from Commission services, including inter alia trade,

aid and development. Moreover, the Commission may “in areas where it exercises

Ibid.

Denza, Diplomatic Law, 49.

Sen, A Diplomat’s Handbook, 34.

Sen, A Diplomat’s Handbook, 50; Zieck, ‘Diplomatiek en Consulair Recht’, 281. However, since the

essence of the agrément procedure is its informality, the VCDR does not prescribe a form or method to

be used: Denza, Diplomatic Law, 49. Members of a diplomatic mission other than the head of the

mission are not subject to the previous agrément of the receiving State (Art. 7 VCDR).

Art. 10 VCDR.

Art 13(1) VCDR.

Dimier & McGeever, ‘Diplomats without a Flag’, 496.

This is remarkable, bearing in mind the general mission of the High Representative stated in Art. 18

TEU and the resemblance with the function of the HR with that of a national minister of foreign affairs,

as e.g. described in Vanhoonacker & Reslow, ‘The European External Action Service’, 1-2.

the powers conferred upon it by the Treaties” issue instructions to delegations to be

executed under the overall responsibility of the head of delegation.

The EU heads of delegation are conferred the authority to perform functions

equivalent to those of national diplomats and the third country is requested in the

letter of credence to give credit to all the head of delegation may say in the name of

the Union.

Still, only the receiving State (and consequently not the sending State,

or in this case, the EU) has the power to confer diplomatic status on the delegation

members.

The EEAS Decision does not shed light on the legal status of “EU

ambassadors” in third countries. Moreover, it is disputed whether a head of a Union

delegation may actively utilize the title of ‘ambassador’. Nevertheless, there is an EU

practice of informing the receiving State of the status which it wishes to see granted

to its direct envoys. Since 1983, the Commission has been referring explicitly to a

‘Courtesy Title of Ambassador’ in its letters of credence.

Still, until now it was urged

that the active use of the term ‘ambassador’ be avoided since it reflects a courtesy

title, and not a function and it might ventilate diplomatic sensitivities present in both

Member States and third countries.

CHALLENGES FOR INTERNATIONAL DIPLOMATIC LAW

International diplomatic law is confronted with a number of challenges with the EU

entering the diplomatic scene, of which a selection is discussed below.

A. The ‘diplomatic and consular functions’ of EU delegations

According to Art. 3(1) VCDR, the functions of a diplomatic mission consist, inter alia,

in: (a) representing the sending State in the receiving State; (b) protecting in the

receiving State the interests of the sending State and of its nationals, within the limits

permitted by international law; (c) negotiating with the Government of the receiving

State; (d) ascertaining by all lawful means conditions and developments in the

receiving State, and reporting thereon to the government of the sending State; (e)

promoting friendly relations between the sending State and the receiving State, and

developing their economic, cultural and scientific relations. The first function of

Art 5(3) EEAS Decision. For further details on the relationship between the Commission, EEAS and

Union delegations, see: Bart Van Vooren, ‘A legal-institutional perspective on the European External

Action Service’, Common Market Law Review, vol. 48, no. 2, 2011, pp. 475-202, 492-495.

Compare to a classic ‘Letter of Credence’ which also contains such a request: Roberts, Satow’s

Diplomatic Practice, 62.

Jean Salmon, Manuel de Droit Diplomatique, Brussels, Bruylant, 1994, 678 p., 141-148. [Hereafter

Salmon, Manuel de Droit Diplomatique].

Dimier & McGeever, ‘Diplomats without a Flag’, 496; Philippe De Schoutheete & Sami Andoura, ‘The

Legal Personality of the European Union’, Studia Diplomatica, vol. LX, no.1, 2007, 7 available at

http://aei.pitt.edu/9083/01/Legal.Personality.EU-PDS-SA.pdf.

representation is often overlooked or naively minimized according to Berridge.

EU diplomacy, however, it is well-established that the head of delegation performs

tasks as direct envoy representing the Union.

The EU grants the head of delegation

the power to conclude contracts on behalf of the Union in the country he or she is

accredited to.

Similarly, the delegations may, in appropriate situations, be

authorized to bring or defend legal proceedings on behalf of the Union. Next to this,

the Union and more specifically the EEAS headquarters need to be briefed on the

situation on the ground in the third country.

Through the years, the European delegations’ area of competence has

expanded from being strictly related to the Commission’s commercial policy to a

broad range of Union projects and programmes.

The predominance of trade

diplomacy is not exclusive to the EU’s diplomatic relations: it is a first order activity in

State-to-State diplomacy

, though it should be stressed that EU delegations do not

engage in ‘economic diplomacy’ in the strict sense of the word. Although the

functions of EU delegations increasingly resemble those of nation States, Simon

Duke rightly argues that the EU ‘remains a rather fragmented actor whose main

claim to being a diplomatic actor remains its considerable influence in trade,

development and assistance issues’.

On specific topics and areas, an EU delegation’s mandate will be more

restricted compared to the mandate of a diplomatic mission of an EU Member State.

Union delegations’ powers are limited to Union powers, i.e. the competences

conferred upon the EU by its Member States.

Still, within the limits of those powers,

especially when they are exclusive powers

, the function of a Union delegation is

equivalent to that of any diplomatic mission of a sovereign State. The situation is less

clear for competences shared by the Union and Member States.

Berridge, Diplomacy: Theory and Practice, 114.

See Art. 5(8) EEAS Decision.

Ibid.

Rasmussen, ‘The Messages and Practices of the European Union’s Public Diplomacy’, 274.

This expansion of competences started before the transformation of Commission delegations into

Union delegations: “Broadly speaking, the Commission delegations were also not just confined to

commercial negotiations but were competent in fields such as agriculture, fisheries, environment,

transport, health and safety as well”: Ambast & Tyagi, ‘Ambassadors of Europe’, 16. It has been argued

that the previous Commission delegations were styled diplomatic missions by courtesy only, because

the range of diplomatic and consular functions they were entitled to was confined to e.g. trade, aid and

development: Roberts, Satow’s Diplomatic Practice, 407.

Berridge, Diplomacy: Theory and Practice, 119; Barston, Modern Diplomacy, 134-135.

Duke, ‘Providing for European-Level Diplomacy after Lisbon’, 212.

On the principle of conferral, see Art. 5(1) and (2) as well as Art. 4(1) TEU; specifically as to the

action of EU institutions, see Art. 13(2) TEU. See also supra note 17.

Art. 3 TFEU lists the exclusive EU competences for trade, competition and monetary policies, the

conservation of marine biological resources and, importantly, for the conclusion of certain international

agreements.

See the shared competences listed in Art. 4 TFEU and Protocol No. 25 on the exercise of shared

competences; Emerson et al., Upgrading the EU’s Role as Global Actor, 5 and 23.

As part of the implementation of the Lisbon Treaty, the Union delegations

have taken over the coordinating role and functions previously undertaken by the

embassy of the Member State holding the rotating Presidency.

Still, it is clear that

there is a strong need for intense cooperation between Union delegations and the

existing diplomatic missions of EU Member States. This is reflected in Art. 35 TEU,

according to which

The diplomatic and consular missions of the Member States and the

Union Delegations in third countries and international conferences, and

their representations to international organizations, shall cooperate in

ensuring that decisions defining Union positions and actions adopted

pursuant to this Chapter are complied with and implemented.

They shall step up cooperation by exchanging information and carrying

out joint assessments.

They shall contribute to the implementation of the right of citizens of the

Union to protection in the territory of third countries […]

Union delegations are instructed to support the Member States in their diplomatic

relations and in their role of providing consular protection to citizens of the Union in

third countries on a resource-neutral basis.

Although it is not the core task of Union

delegations to perform consular tasks, they are nevertheless granted the capacity to

act upon requests by Member States in order to protect EU citizens who cannot turn

to their national consulates.

The EU delegations therefore contribute to the

implementation of the right of citizens of the Union to enjoy protection in the territory

of third countries in which the Member State of which these citizens are nationals is

not represented, laid down in art. 20(2)(c) and 23 TFEU.

Certain EU Member

Emerson et al., Upgrading the EU’s Role as Global Actor, 52.

Art. 35 TEU. See also: art. 221(2) TFEU and the Decision of the Representatives of the Governments

of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens

of the European Union by diplomatic and consular representations, 95/553/EC: Assistance in the event

of death, accident or serious illness, assistance in the event of arrest or detention, aid and repatriation

for EU citizens in difficulties.

Art 5(10) EEAS Decision. See: Duke, ‘Providing for European-Level Diplomacy after Lisbon’, 228-

229.

Art. 5(8) EEAS Decision.

See currently still Decision of the Representatives of the Governments of the Member States meeting

within the Council of 19 December 1995 regarding protection for citizens of the European Union by

diplomatic and consular representations, OJ 1995, L 314, 95/553/EC, 28 December 1995, which in Art.

1 and 5 stipulates the mandatory protection and assistance in the event of death, accident or serious

illness, arrest or detention, violent crime and aid and repatriation for EU citizens in difficulties, of any

Member State's diplomatic or consular representation if his own Member State has no accessible

permanent representation. See also: Commission, Green paper on diplomatic and consular protection

of Union citizens in third countries, Brussels, 28 November 2006, COM(2006)712 which states that

“Although [Union delegations] do not have consular powers, these delegations could be included in joint

efforts to pool resources”.

States take the view that the European diplomatic service in the future should be

accorded full consular tasks, including the issuing of short-term (Schengen) visa.

B. Classification of EU ambassadors and ordre protocollaire

What is the position of EU ambassadors and their staff in the corps diplomatique

Regarding the internal classification of a diplomatic mission, Article 37 VCDR

categorizes diplomatic staff other than the ambassador into members of the

administrative and technical staff of the mission, members of the service staff of the

mission, and private servants of members of the mission. Each delegation proposes

the classification of its staff on the diplomatic list which can be either accepted or

rejected by the receiving State.

The EEAS uses its own classification system of

diplomatic staff, reflecting internal administrative grades. These grades are

translated into equivalent diplomatic titles and reported to the receiving State.

Seconded national officials working in delegations will be able to invoke the

diplomatic status and diplomatic title which they would have been entitled to had they

been serving in their national embassy.

The aforementioned ‘sui generis’ status of the EU as an international

diplomatic actor is reflected in specific arrangements with host countries on the

ranking of Union heads of delegation. In a local ‘corps diplomatique’ the

ambassadors of nation States are listed firstly in the diplomatic list containing all

ambassadors present in a capital.

Part two of the classification contains the

representatives of international organizations.

There is a strong EU reluctance of

being listed in the second part of the diplomatic list. Union delegations therefore

request to be registered at the end of the list of States’ missions, referring to the ‘sui

generis’ position of the EU, without however claiming being equal to States.

Regarding the precedence of heads of mission, Article 16 VCDR

stipulates that the

Emerson et al., Upgrading the EU’s Role as Global Actor, 61: A common consular service can play a

role (a) in countries where Member States are not represented and (b) in the issuing of short-term

(Schengen) visa. The Netherlands is e.g. currently researching to what extent greater involvement of

Union delegations in consular tasks can lead towards more synergy on the one hand and budgetary

cuts on the other hand: The Netherlands Ministry of Foreign Affairs, “Nota modernisering Nederlandse

diplomatie”, 8 April 2011, 10 and 18, available at http://www.rijksoverheid.nl/documenten-en-

publicaties/notas/2011/04/08/nota-modernisering-nederlandse-diplomatie.html.

The corps diplomatique comprises the heads and the diplomatic staff of all the missions accredited to

a particular receiving State. See Roberts, Satow’s Diplomatic Practice, 197; Plantey, Principes de

Diplomatie, 254.

Art. 17 VCDR.

Rules and Information concerning Seconded National Experts (SNE) in the Delegations of the

European Union, 2, available at http://ec.europa.eu/delegations/delita/about_us/

Rules_and_information.pdf.

Plantey, Principes de Diplomatie, 254.

Salmon, Manuel de Droit Diplomatique, 97.

Art. 16 VCDR refers to Art. 13 of the same Convention, which spells out that the head of a delegation

will be considered as having taken up his functions in the order of presentation of credentials or of a

true copy thereof will be determined by the date and time of the arrival of the head of the mission. Art.

ranking of ambassadors will be based upon the order of the date and time of taking

up their functions

, while the head of the Union delegation is always classified at the

end of the heads of State missions holding the rank of ambassador and before

heads of mission of lower rank. In other words, EU delegations are not meant to be

treated according to the seniority rules laid down in the Vienna Convention. This

principle of ‘freezing of seniority’ is a general exception to the, otherwise almost

complete, applicability of the VCDR in EU-third State relations.

In general, an EU head of delegation will operate in a receiving State as an

actor in the local diplomatic corps. Specific challenges can be distinguished. First,

the head of delegation bears the nationality of one of the EU Member States also

represented in the same corps by a national diplomatic mission; prudence and

courtesy in the relationship with this is therefore crucial.

Second, the Union

delegation needs to develop a relationship with the embassy of the EU Member

State holding the rotating Council presidency in order to coordinate EU policy.

C. Application of the Vienna Convention on Diplomatic Relations

The EU’s diplomatic network is made subject, through specific agreements with the

host country, to the Vienna Convention. Most States have accepted to accord

privileges and immunities to Union delegations, their staff and their property in this

manner. However, the specific provisions and legal frameworks may differ according

to the party concerned. As indicated above, the EEAS Decision requires the High

Representative to enter into the necessary arrangements with the host country

which opens the door to some variety in the application of the VCDR. Next to this,

the most-favoured nation requirement, which is crucial in international diplomatic

law

, does not apply in relation to the EU. The question remains to what extent third

countries are willing to grant VCDR privileges and immunities to Union delegations.

Historically, the Commission Delegation in the United States was the first to be

granted diplomatic status and the accompanying privileges and immunities in 1971.

Today, all but one of EU delegations have the status of diplomatic missions and as

such enjoy full diplomatic immunities and privileges according to the Vienna

Convention. The situation in Israel is exceptional: there is one Union delegation in

16(3) VCDR states the Article is without prejudice to any practice accepted by the receiving State

regarding the precedence of the representative of the Holy See.

Denza, Diplomatic Law, 119; Plantey, Principes de Diplomatie, 255; Roberts, Satow’s Diplomatic

Practice, 197: The most senior ambassador is the doyen of the diplomatic corps.

On nationality, Art. 8(1) VCDR declares that members of the diplomatic staff of the mission should in

principle be of the nationality of the sending State.

Art. 5(6) EEAS Decision.

Art. 47 VCDR reads “in the application of the provisions of the present Convention, the receiving

State shall not discriminate as between States”.

Ambast & Tyagi, ‘Ambassadors of Europe’, 16.

Tel Aviv, where the staff (32) is accorded diplomatic privileges and immunities. The

other Israel-based Union delegation in Jerusalem (69), responsible for West Bank

and Gaza Strip, is the only EU delegation in a third country whose staff is not

granted diplomatic privileges or immunities.

The above-mentioned method of seeking arrangements with host countries to

‘contract-in’ the Vienna Convention has great advantages in practice but has limits

as well, as will be shown below in addressing a number of practical challenges

regarding diplomatic passports and diplomatic asylum.

1. Diplomatic passport

First, the EU does not currently issue diplomatic passports, i.e. the common travel

document for diplomats. This challenges the EEAS in sending out Union delegations.

The situation is further complicated by the fact that, although the diplomatic passport

is the globally accepted instrument to guarantee the prompt crossing of borders by

diplomats, its use is not regulated by the VCDR. The EU uses a ‘laissez-passer’

document as an alternative to the diplomatic passport. Article 6 of Protocol No. 7 on

the Privileges and Immunities of the European Union forms the legal basis for this

travel document:

Laissez-passer in a form to be prescribed by a European regulation of

the Council acting by a simple majority, which shall be recognized as

valid travel documents by the authorities of the Member States, may be

issued to members and servants of the institutions of the Union by the

Presidents of these institutions. These laissez-passer shall be issued to

officials and other servants under conditions laid down in the Staff

Regulations of officials and the Conditions of employment of other

servants of the Union. The Commission may conclude agreements for

these laissez-passer to be recognized as valid travel documents within

the territory of third States.

It follows from this provision that the Commission – not the High Representative - is

responsible for negotiating and concluding with third States agreements for the

recognition of the EU laissez-passer. Many issues do arise here. For instance, it

remains unclear whether all foreign authorities, e.g. in airports or at border-

crossings, acknowledge these laissez-passer documents

and what the travel

European Commission, Directorate General for External Relations, email, 8 November 2010.

Art. 6, Protocol 7 on the Privileges and Immunities of the European Union.

This document e.g. lacks the security features and formalities of the diplomatic passport, which might

lead to non-recognition by third State authorities.

documents to be used by family members of EU delegations are.

The legal

situation is further complicated in case an EU diplomatic agent is not traveling

directly to the country of destination, i.e. the State he or she is accredited to, but

instead passes through a third country while proceeding to take up or to return to his

or her post, or when returning to his or her own country. In this situation it is hard to

predict to what extent foreign authorities will accept the laissez-passer document as

an alternative diplomatic passport, or how they will apply inviolability and such

immunities as may be required to ensure the EU diplomat’s transit or return.

The

problem might be less stringent for seconded national diplomats working for the

EEAS, as they will have received diplomatic passports from their national

governments. But precisely this situation – factual and legal inequalities - is likely to

give rise to tensions within Union delegations.

2. Diplomatic asylum

The Vienna Convention does not contain provisions on diplomatic asylum. Moreover,

there is no universal acceptance by the international community of this concept’s

legal content.

Diplomatic asylum is regarded as a humanitarian practice rather than

a legal right, which may only be granted for the purpose of saving life or preventing

injury in the face of an immediate threat to the refugee.

As mentioned supra, the

EU requests third countries to respect the VCDR privileges and immunities in

relation to its delegations. This consequently also contains a reciprocal EU

commitment to respect VCDR terms and conditions in the application of such

privileges and immunities. EU delegations therefore have to respect Art. 41(1) VCDR

regarding the non-interference in the internal affairs of the receiving State and the

duty to respect the latter’s laws and regulations.

To further complicate matters, customary diplomatic law and related practices,

including diplomatic asylum, do not automatically form part of the EU diplomatic legal

web. Still, Union delegations might be confronted with persons in life-threatening

situations in need of diplomatic asylum. As an organization founded on the values of

The legal status of members of the households joining Union delegates residing in a third country

remains problematically unclear. According to Art. 37 VCDR family members enjoy the privileges and

immunities specified in Art. 29 to 36, but Art. 5(6) of the EEAS Decision does not specifically mention

the applicability of the VCDR to their status. M. ZIECK also points out it is in first instance the sending

State who has to stipulate who forms part of the household of a diplomat (Zieck, ‘Diplomatiek en

Consulair Recht’, 282). In casu, the EU will have to decide upon a common practice regarding the

households of its diplomats originating from 27 Member States.

Art. 40 VCDR deals with the passage of a diplomatic agent through or stay in the territory of a third

State. It provides for diplomatic privileges and immunities in such a case, but there is no legal guarantee

that this rule will be accordingly applied to travelling EU envoys.

When negotiating the VCDR, governments regarded rules on diplomatic asylum as highly

controversial and sensitive: Denza, Diplomatic Law, 141; Roberts, Satow’s Diplomatic Practice, 108.

Roberts, Satow’s Diplomatic Practice, 110.

respect for human dignity and human rights (including the rights of persons

belonging to minorities)

and having committed itself in its founding treaty to uphold

and promote its values and in particular the protection of human rights in its relations

with the wider world

100

, the EU cannot do otherwise than to uphold humanitarian

rules. In that sense, Union delegations do not only have the right but arguably even a

duty to grant diplomatic protection in extraordinary situations and adhere to the

principles of humanity if confronted with a person in a situation which poses an

immediate threat to his or her life or a serious injury. If necessary they have to

translate these principles into taking action, after careful consideration and bearing in

mind Art. 41(1) VCDR. Because of the limits to the aforementioned contracting-in

strategy, though, the concrete legal basis to grant diplomatic asylum remains

unclear. However this may be, a Union delegation according some kind of (even

provisional) diplomatic asylum can rely upon Article 22(1) VCDR on the inviolability

of the premises of the mission: the agents of the receiving State may not enter them,

except with the consent of the head of the mission. The person seeking protection

could therefore, at least temporarily, have refuge in the EU delegation. Eventually, a

settlement will have to be concluded in dialogue with the receiving State.

101

D. Is the Vienna Convention on Diplomatic Relations always the right framework?

The existing international diplomatic framework and more specifically the Vienna

Convention may not always be the most suitable legal framework in the light of the

peculiarities of the EU as an international actor.

102

The rationale behind the

European strive to insert itself consistently in the diplomatic system via the use of the

Vienna Convention is to a great degree pragmatic. The EU arguably did not even

want to become a classical diplomatic actor, but in order to function effectively in

diplomacy, it had to reconcile itself to existing global structures. In general, the

Vienna Convention is considered a success story with a well-established global

See Art. 2 and 3 TEU.

100

Art. 3(5) TEU and, more elaborated, Art. 21 TEU.

101

ICJ, Haya de la Torre case of 13 June 1951 (Colombia v. Peru), I.C.J. Rep. 1951 p.71: The reach of

such an agreement between State parties involved was the outcome in this case on diplomatic asylum

granted to a Peruvian national by the Colombian embassy in Lima. The International Court of Justice

held that, although Colombia was under no obligation of international law to surrender refugee Victor

Raul Haya de la Torre to the Peruvian authorities, the diplomatic asylum had to be terminated (§ 83).

102

In general, the changing nature of diplomatic actors, functions and strategies have been argued, as

well as the conclusion of a new treaty on diplomatic relations. See amongst others: A. K. HENRIKSON,

‘Diplomacy’s Possible Futures’, The Hague Journal of Diplomacy 2006, afl. 1, 3-27; Jorge Heine, ‘On

the Manner of Practising the New Diplomacy’, The Centre for International Governance Innovation

Working Paper No. 11, 2006, available at http://igcc.ucsd.edu/pdf/HeineNewDiplomacy.pdf (consultation

February 2011); Michael Koch, ‘Wozu noch Diplomaten?’, in Enrico Brandt & Christian Buch (eds.),

Auswärtiges Amt: Diplomatie als Beruf, Wiesbaden, VS Verslag Für Sozialwissenschaften, 2005 (4th

ed.), 411p., 346-360; Barston, Modern Diplomacy, 4-5.

practice.

103

Berridge argues that it was precisely the limited brief of the VCDR

dealing exclusively with traditional bilateral diplomacy which was one of the reasons

of its success.

104

The limits of the ‘contracting-in’ strategy and the ‘multiple

bilateralism’ have been exemplified by the variety of legal uncertainties touched upon

in this contribution. Next to this, Art. 5(6) of the EEAS Decision is silent on the

applicability of customary international law, a key source of international diplomatic

law.

CONCLUSION

In nearly six decades, the EU has developed a role as a global diplomatic actor: the

number of its diplomatic missions has increased significantly and it currently has an

almost universal network. The Union applies the 1961 Vienna Convention on

Diplomatic Relations to the fullest extent possible in bilateral agreements with third

countries and other international organizations. As a result, the EU has made an

original contribution to international diplomatic law. The EU’s aspiration to act as a

diplomatic actor originates from and is justified by its ‘sui generis’ character. The

Union's external role is in many respects much more advanced than that of any other

international organization. Still, it lacks the features of a sovereign State to develop a

full-grown legal framework for establishing, maintaining and terminating inter-State

relations. The entry into force of the Lisbon Treaty caused significant changes.

Commission delegations became Union delegations, the EEAS was set up and the

High Representative is responsible for the Union delegations, which represent the

Union as a whole. In many ways the EU as a diplomatic actor is a success story:

Union delegations obtained privileges and immunities in conformity with the VCDR in

virtually all third countries they are present. The delegations’ representational

function is well-established and EU diplomats are taking part actively in the local

corps diplomatique.

The process of building up a global EU diplomatic service, relying on the

Commission’s work in the past, but also implementing new features since the Lisbon

Treaty, is far from completed. In all of this, a delicate balance between Union

delegations and the continued diplomatic practice and delegations of EU Member

States needs to be found.

105

Challenges also arise in the determination of a proper

legal framework. The EU pragmatically opted to contract-in the 1961 Vienna

103

Denza, Diplomatic Law, 1; Holger. P. Hestermeyer, ‘Vienna Convention on Diplomatic Relations

(1961)’, Max Planck Encyclopedia of Public International Law, 1, available at www.mpepil.com

(Consultation February 2011).

104

Berridge, Diplomacy: Theory and Practice, 112.

105

Cf. Declarations No. 13 and 14 concerning the Common Foreign and Security Policy attached to the

Lisbon Treaty.

Convention through bilateral arrangements. However, it was shown that a system of

‘multiple bilateralism’ is not on an equal footing with multilateralism. This was

illustrated by the problems regarding diplomatic passports and diplomatic asylum,

the complexity inherent to the variety of legal EU arrangements as well as the

unresolved issue of the application of customary diplomatic law.

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