The Consular and Diplomatic Protection: The State’s Law and the Supranational Legal Orders

The consular and diplomatic protection's public law studied the interaction between the State’s law and the supranational legal orders

1. The consular and diplomatic protection in the interaction between the national legal orders and the international law: in particular, the diplomatic and consular relations’ origins

The consular and diplomatic protection and, in general, the State’s foreign relations, studied, mainly, in the last decades, within the international law, represent an important field of research for the publ

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ic law's doctrine, in particular, with reference to the questions posed by the interaction between the international law, the supranational one and the various national legal systems. The human societies know, since the beginning, forms of relations that can be defined external. Until the Congress of Vienna (1814), those activities involve, without practical distinctions, both the currently defined diplomatic relations and the consular ones : Leibniz, for example, yet, uses the word "diplomatic" to indicate the rule of international law . These instruments have, however, a not structured and stable form until the XII century B.C.

They, in fact, in the same times, are developed more according to the force's use, than on the ground of a stable office (or of a subject) entitled to manage the foreign contacts with the sovereign powers . In the XIV century B.C., in the ancient Egypt, the interactions of this kind are cited, in particular, in the “Tell-El-’Amarnah” documents . The same functions, in the hellenic age, after a period (the homeric phase) in which are attributed to the “keryx” , are developed by the "presbeis", Authorities competent in the "poleis" for the functions of a "diplomatic" kind. The qualification of "autokratores" (or of "telos echontes") is, sometimes, present : the word evidences the main aspect of the external (and, in particular, diplomatic) relations, afterward affirmed in the modern State, since the “autokrator (…) has the sovran power delegated to him for (…) special business or emergency”, “so that his acts (…) require noratifications" . Such an external public function, in the Roman period, evolve in the figure of the "Legati Oratores" and is, then, stabilized in the republican age .

2. The consular and diplomatic protection and the State

The foreign relations begin to develop a more significant role in the XI century, in the maritime Republics , in particular, in Venezia . The same evolution puts in evidence the “office” that, according to the modern legal terms, we can call "Consul" . The circumstance is important in the picture that we are drawing: the same aspect, in fact, indicates that, in the functions concerning the public external relations, the consular “offices” are the first instrument by which these functions are exercise and, historically, anticipates the other “foreign” activities, later, prevailing, in connection to the State’s sovereignty . That term, in particular, indicates the person representing (and granting), in a foreign territory, the rights for the (Republic’s) citizens living there .

The word uses a Roman law’s notion, but in a new sense: in that legal framework, in fact, the term was referred to the “cursus honorum” (the path that every citizen, with a public Authority, had to cross, in a jerarchical structure) ; the new meaningintroduced and developed, instead, in the Municipalities, since the XIII century, poses the Consul as, for one hand, a figure with some functions similar to the external representation’s activities already seen in the maritime Republics and, for the other hand, a stable Authority, directed to connect the “corporative” system and the Municipality’s legal order, since the Consul is the subject charged, within the associations of arts and professions, to represent the interests and (the views) of these associations in the Municipality's public decisions : those meanings, therefore, preserve, with reference to the Roman law’s notion, the connection to a local Authority charged about representative functions concerning the overall political community’s existence. With the end of the Municipalities, the second indicated meaning dismisses its importance, while the first one becomes prevailing : the Consul’s activity, granting, for a big part, commercial interests, then, allows the local commercial and maritime law’s expansion in the foreign countries, creating a transnational legal order for the same matters ; the consular function, anyway, preserves, in this perspective, some of the previous aspects, implementing, as we have explained, the law of a particular legal system (the commercial one) in a different and wider order .

The Consul, in that framework, appears the first and more significant instrument by which the functions directed to externally represent the relations and the policy of the sovereign powers are exercised . The following evolution, gradually, distinguish the role of such a figure with reference to the diplomatic one, in the connection with the progressive affirmation of the modern State . The same picture can, therefore, already, show a first result for which, also before than the modern State’s birth, an “administration” not performing its activity according to the link between the public power and its territory - as it will happen for the public offices within the same State, in the following centuries - (and that does not implement only the State’s law, but considers also different legal provisions, for one hand, concerning the commercial practices and, for the other, regarding the international law) exists and develop an important part of the public funtcions . Such a circumstance shows that the identity between the State and the administrative law is relevant only in the following doctrine’s “dogma”, but is not an original feature within the public law . Zourek, in particular, has dintiguished three phases in the described evolution .

During the first stage and in the second one, the Consul, often, evolves and is completed by the "ambassador"’s figure, that will configure, after the Westfalia peace (1648), a separate sphere of functions in the activities directed to represent the State’s external relations . The same period, in particular, after the XVI century, in general, appears connoted by the modern State’s affirmation and is important in the public administration’s evolution deputed to manage the external relations, introducing, in such a picture, as we have said, the “ambassador”’office (later, Diplomat), charged to more generally representat the State’s foreign policy . The external relations’ evolution, anyway, can be followed, until a particular period, on the base of the consular functions’ history. In the first of the indicated phases (until the XVI century), the Consuls exercise their activities, mostly, through the jurisdictional powers . In a second stage (in the XVII century), they develop their functions, so to cover also administrative matters, while the diplomacy starts to act as separate body . The Consuls, in particular, act as "envoye' officiel du gouvernement" and represent the State also with reference to more general and political interests (functions that will be, later, exclusively attributed to the Diplomats) . The following phases are characterized by the definitive administrative separation between the Consuls and and the diplomacy: in the same framework (encouraged also by the Aquisgrana Peace in 1668), the first office comes back to the original functions , for one hand, to represent the commercial interests, for the other hand, to defend the persons, belonging to a same State, in the specific emergencies' situations. The Consuls, in that period, diminuish their importance and looses the big part of the jurisdictional competences, with the exception of the Asia's areas, with reference to the relations between the Islamic peoples and the Christian ones . The European doctrine, then, comes to study the diplomatic function and consular one, with a specific attention to the first activity, that becomes the most significant within the State’s external relations’ functions . The matter, therefore, starts to be ruled, first, by the national law and, in the following phases, by the international one. It is interesting, in that perspective, the consular functions’ example, first ruled in the Netherlands (1658), then in France(1681) - by the "Ordinance de la Marine" - that will influence the following national disciplines -, then in Portugal (1789), therefore in the United States (1792), so in Russia (1820). The bilateral international legal provisions start to affect the matter, by the Convention between Spain and France (1769) and by the Convention between France and United Kingdom (1860) . According to such an evolution, in particular, the diplomatic protection concern the State’s rights’ defense of toward the activities engaged by another State: the individual rights, in this case, are regarded only in a mediate way, as a condition for the State's sovereign powers’ exercise; in the consular protection, the State, instead, is directed to immediately grant (as first scope of the activity ) the individual rights (in the forms that we will evidence later on), so that, in the same circumstance, the State exercises sovereign powers, but they move from the the individual rights’ direct protection . The described picture concerns the traditional approach (to the examined matter), that is, partially, influenced by the recent international case law and by the European Union (EU)’ experience, that we have, then, to better study and comprehend . The consular function is, then, generally, developed by some administrative acts . We will focus, therefore, in the following part of the research, mainly, on the consular protection: it is, in fact, for the reasons that we shall explain, more adequate, to show in which way the international (and the supranational) law affects, in general, the matter and allows us to understand all the implications of the same matter for the public law’s studies. The consular activities, finally, can be, better, defined as the way of being that the relations between two States assume because of the existence, in the territory of one of them, of “bodies” of the other, directed to exercise (within the host State’s land) functions governed by the international law and producing their effects in the first public Authority’s legal system, involving the international relations between these subjects .

3. The consular relations within the international law: in particular, the 1963 Vienna Convention

It is, in particular, in the XX century, and thanks to the United Nations (UN), that an attempt to codify the consular law has been realized. The UN’s General Secretary, already, in 1949, had noted that the moment to enact a code to collect the international law for that matter was ready . This attempt went on in the activity realized by the Commission appointed to enact an international law cod. An important role, into this Commission, was played, for the consular law, by the general "rapporteur" (Jarouslav Zourek) . The Vienna Convention on consular relations is adopted, following these works, in 1963. The same Convention concerns the consular function with reference to their nature and to the connected organization . Art. 5 sets out, in the first perspective, two types of activity, characterized by the different content . The letters a, b, c and m mention, in the same article, in fact, the functions with a general nature, directly linked to implement the State’s political address, expression of which is the higher level of the consular administration . The other parts relate to the activities with an administrative nature. The first letter, in particular, sets the protection of the State’s and of citizens’ "interests" in the "State of residence" (letter a) and the action directed to protect the first State’s economic and commercial interests (letter b).

The other group, instead, concerns the matter of the "passports" and of the "travel documents" for those citizens (letter d); the general "relief" and the "assistance" to the citizens themselves, natural or legal persons (letter e); the functions of "notary and civil registrar", in accordance with the law in force in the State in which these activities are performed (letter f); the protection of "minors" and "incapable" in line with the local regulations (letter h); the representation and protection of these citizens - at the courts or the local Authorities - for the guarantee of their legal standing (letter i); the consular acts concerning the transmission of the "court documents" or of the "non-judicial" ones or the "letters of rogatory", according to the international law, or to the local one (letter j); the exercise of the functions of "inspection" and "control" on the "maritime boats", on the "riverboats" and on the aircraft (also with reference to its "crew") with the "citizenship" or registered in the State of dispatch (letter k); the assistance for the just mentioned properties (letter l) .

Article 8 provides for a dissociation between the consular functions’ exercise and the link between the public administration (deputed to exercise them) and the State on whose behalf the same functions are exercised: "upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State" : in this case, the derogation with reference to the traditional way in which we consider the public and administrative law (according to the idea for which the State can exercise the administrative functions within its territory and for its citizens) is double, as, for one hand, these functions are developed outside from the territory in which the State’s sovereign powers can be implemented and, for the other hand, the same functions are exercised on behalf of citizens of a different State (so to break the traditional link between the citizenship’s notion and the public – administrative – functions).

The consular functions, in particular, concern, according to the cited Vienna Convention, two activities: a first group regards the assistance’s functions (overally, exercised by some administrative acts); the second part concerns the protection’s functions, that have, as their base, an administrative act, but are manifested through material actions, directed to effectively grant a legal standing affected in specific emergencies' situations. The abovementioned Convention, for that concerns the organizational profiles regarding the consular functions, locates the "consular post" with reference to any consulate-general, deputy consulate or consular agency (Article 1, c. 1, letter a) . The heads of consular posts can be general consul, consuls, deputy consuls or consular agents: these offices shall carry out the mentioned functions according to the principle of "non discrimination", pursuant to art. 72 . The same rules are, therefore, extremely general and remit to further acts the specific determination concerning other aspects .

An important role, to implement the same provisions, shall be fulfilled by the supranational Courts’ case law, which, in view of its significant competence to define some rights (or of certain subjective legal standing), relevant with reference to the administrative activity, has defined the current contents of the mentioned principles . The international law, then, in the consular protection’s example, rules the organization and the way of exercise (with the following intervention of the internal public and administrative law) of some administrative functions, developed and attributed to the States and exercised for their citizens. The breach with reference to the traditional relationships between the international law and the internal public one are three: the indicated functions are exercised outside from the territory in which the same State exercises its sovereignty; the international law can directly attribute, to the private (legal or physical) – sometimes public – persons, a legal standing (or a right) in front of the public power; sometimes (in the event of the art. 8 of the cited Vienna Convention), the State, through this mechanism, can exercise those functions on behalf of citizens of different States. The international legal order, anyway, leaves opened some questions concerning crucial aspects about the concrete implementation of the same legal discipline, with reference, for example, to the nature, of legitimate expectation or of right, of the legal standing defined by the international law for the consular protection’s matter .

4. The theoretical questions posed by the consular and diplomatic relations, with particular reference to the discretionary power attributed to the public administration in the national legal systems: the “Acte de gouvernement” in France and the "atto politico" in Italy

The consular protection is, moreover, an example about a peculiar and interesting way by which some specific administrative functions are exercised. The same feature poses this matter in a furtherly original position within the public law’s studies. To understand, in a deeper form, that assumption, we can consider two particular public acts’ categories, that some European legal systems have defined and that can determine this peculiar aspect that we have recalled. To come to understand in which way the described picture is able to show a particular interesting kind of public administration and of public powers' activity's exercise (whose main implications will be indicated in the second part with reference to the European law), we can start to exam two concepts, that are crucial in the same described framework.

These concepts, derived from different (but similar for the common origin with reference to the administrative law's model) legal systems, in particular, show in which way the legal standing involved by the consular protection’s exercise is affected by the way in which the internal legal orders qualify the discretionary administrative activity deputed to exercise the same protection . We will examine, on this point, two theories derived by the Italian law and by the French one . The first kind concerns the "atto politico" (or political act) in Italy, the second category regards the "acte de gouvernement" in France. The "atto politico" has reference to some acts excluded by the judicial control, according to the art. 31, R.D. 26 - 6 - 1924, n. 1054 (disciplining the "Consiglio di Stato"', consultive and judicial body for some matters concerning the public administration’s activity), then, transposed in the art. 7, c. 1, d.gs. 2 -7 - 2010, n. 104 (“code of the administrative process”) . Such a category is important, because some public decisions concerning the consular and diplomatic protection can be inserted just inside the same category . That protection’s activity, in fact, is developed by an administration’s office, that is in charge to represent the State's foreign relations, that is, a State's function, which is - for it's traditional configuration -, strictly, connected to the same Sate's sovereignty .

The activities developed by the consular and diplomatic offices, for these reasons, - although of an administrative nature – are, strictly, connected to the political level, that is responsible to address the State's foreign relations. The acts issued by the same administrative branch are, therefore, connoted by some aspects that pose them in a border line between the administrative level and the political one, for example, according the category called, in some legal systems, as act of “high administration”. Such a category, in Italy, has been mostly studied in the first half of the XX century . The doctrine has distinguished the "atto politico" from the "atto di alta amministrazione" (or act of strict “high administration”). For the "atto politico", we find some theories, with reference to its effects for the judicial control, while other distinctions, within the same doctrines, concern the objective or the subjective base of the "atto politico" .

A first theory, with the purpose to limit, as more as it is possible, the exclusion configured by the cited art. 31,R.D. n. 1054/1924, has affirmed that the "atto politico" is a measure - for its same definition - legitimate and for this reason the law excludes the judicial control on the same act . For such a theory, therefore, the "atto politico" does not realize an exclusion of the judicial control toward an administrative - although political - act (in contrast with the rule of law, according to the European countries’ tradition), but is, then, a public decision that, according to the Authorities that enact it, is always legitimate . It means also that we are not in front of an "atto politico", but of a traditional administrative measure, if an act, that can have the appearance of the first cited category, presents some vices (according to the traditional administrative law's doctrine), like the incompetence or the "detournement du povoir" . For another theory, the extension of the "atto politico" has to be limited, according to the idea for which, in the Italian constitutional framework, the figures within which this category could be inserted have been subtracted from the Government's and public administration's competence (for example, with reference to the most relevant public order questions) and have been attributed to the Parliament (or are, anyway, within the competence of a political Authority and have not the administrative act’s vest): the "atto politico" should, therefore, be a residual category (of not relevant importance) of subtraction of some administrative acts from the judge's control’s area .

The "atto politico", in Italy, has been located in a residual space, also as an effect of the case law, that has reduced the matters within this category; the same judges have, for example, stated that the decision by which the President of the regional Government ("Presidente della Giunta regionale") appoints and revoke the members of the same government (thery are called "assessori") is not an "atto politico" , while the Ministries’ appointment can still be considered as an “atto politico” (of constitutional relevance) . A part of the Italian doctrine has indicated the category of the acts of strict “high administration” (or "atti di alta amministrazione"), as distinguished from the "atto politico" . Such a category does not import, according to the Italian law, any limitation for the judicial control toward the implied administrative decisions, although this group of public decisions has to be examined, since many of the consular and diplomatic acts can belong to such a category . A particular theory has considered the acts of “high administration” as measures distinguished from the political ones, that should be identified with the acts free in the indication of their same aims, while the discretionary acts should be free only in the determining the ways of the procedure, being the purposes derived by different - for example, normative - measures: the acts of “high administration” are, therefore, discretionary administrative decisions, connoted by a general "level", that makes them (in a specific meaning) similar, but different, with reference to the political acts .

All the public administration’s acts on the general administrative address (for example, the Ministers’ directives about the activity of the their Ministries) concerning a public administration’s branch should be, then, according to this theory, acts of “high administration”. In Italy, that category has lost a normative acnowledgement: it was provided for by the Italian R.D. 21 - 12 - 1850, n. 1122, that attributed, to the Council of Ministers, the adoption of particular administrative acts connoted by the assumption of a general administrative responsibility ; a particular procedure for this kind of acts was provided for by the R.D. 14 - 11 -1901, n. 466 . To complete the picture that we have defined, it appears, moreover, useful, to recall the other national theory relevant with reference to the particular administrative powers exercised by the public administration competent for the consular protection’s exercise and it can be, then, opportune to consider the French debate about the “acte de gouvernement”, that configures in a peculiar way the administrative discretionary decisions adopted by the public administration in some particular matters .

We have, first of all, to remember that the doctrine has underlined that the “acte de gouvernement” have a "charactere anachronique" and contrary to the administrative law’s fundamental principles . The same notion has its legal framework in the loi organique du 3 mars 1849. The “acte de gouvernement” is intended as an administrative decision justified by the higher interests of the state, "revendiqué comme tel par le pouvoir exécutif" . That measure, for these reasons, should not be included in the ordinary control (on the public acts) exercised by the French judges. The doctrine has interpreted the notion in three directions. The "théories négatrices" refuse the conceptual autonomy of the “acte de gouvernement” and consider it as a simple administrative act . The hétérodoxe" thesis " justifies the removal of that measure by the judge’s control’s sphere, because the Parliament’s members (or the Constitutional Council) might check the same acts, that belong to the category of the "discrétionnaire" act . It 's an interesting variant of these theories that one for which the “acte de gouvernement” should be judicially unchallengeable, only if it is adopted in the implementation of the international law (which, in France, comes into force within a dualistic type of mechanism), so to configure an administrative decision belonging to a different legal order and that the national Courts could not control . The “acte de gouvernement”, for another thesis ("fonctionelle"), is an expression of a different Authority, anyway, administrative and, for example, identifiable in the diplomatic offices: these acts could not, therefore, be checked by the administrative judge .

The currently prevailing theories, however, seem to agree on the idea for which the “acte de gouvernement” is an act with a peculiar judicial control, linked (in connection to the"separation of powers“ principle) to the "higher interests of the State", legitimizing the same measure . It 's interesting to remember that the doctrine (in virtue of the just remembered qualification) believes that the exclusion of the judicial review in respect of the indicated acts should be mandatory and, expressly, recalled by the law and has divided the same concept into two categories, “actes du Président dela République” and “actes pris par d’autres membres de l’exécutif” . It seems appropriate to dwell on the “acte de gouvernement” considered "tournès vers l'ordre international" (belonging to the second above indicated category), which also covers, for some matters, the field of the consular and diplomatic assistance. The French Courts have differently treated the diplomatic protection’s and the consular assistance’s cases. Only for the first, in fact, the concept of the “acte de gouvernement” has been applied. The judges explained that, for example, if it’s, in general, possible to comprehend, within the indicated notion, the State’s international policy’s acts (with particular reference to the preparation, or to the implementation, of the international agreements), the measures taken in the diplomatic function’s exercise cannot (in the application of the recalled principles) be syndicated by the administrative judge .

In 1988, the “Conseil d'Etat” dismissed the appeal, brought by a company, against a decision of the “French Ministre des Relations Extérieures”, with which it responded negatively to a request from the same company to start the diplomatic negotiations (or to refer to the “Cour Internationale deJustice”), to oblige a Spanish Court to implement a judicial French pronounce, in which the Spanish counterpart had been declared obliged to refund some damages: the Conseil d'Etat founded its decision just qualifying the same measure (of the “Ministre”) as “acte de gouvernement” . Such a notion has, however, evolved, so that, for one hand, the judicial control’s refusal has been attenuated with reference to the international relations (for example, for the international treaties’ implementation) , and, for the other hand, the indicated judicial “rejection” was excluded for the administrative measures concerning the consular matters. The connected acts, in fact, for the judges, cannot be qualified in terms of “actes de gouvernement”, but as public decisions "purement commerciales sans implication sur les relations internationales" ; the “Conseil d'Etat”, therefore, has extended its control toward the measures that have refused the consular protection’s exercise : the same Court, in this perspective, has checked the legality of the acts regarding the consular assistance .

5. The consular and diplomatic protection for the European citizens and the European External relations

The research, within the attempt to comprehend the most significant profiles of the consular administration for the public law, has, now, to consider the experience defined by the EU law for the matter that we are examining. The study will focus on the questions raised by the European rules connected to the Articles. 20, and 23 TFEU. The art. 20, par. 2, let. c, in particular, provides for the European citizens’ general right with reference to the consular protection by the consular administration of any member State: the “citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties” and “have (…) inter alia (…) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State” (art. 20, par. 2, part 2). The art. 23, then, clarifies that “every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State”.

The same provisions indicate also that the “member States shall adopt the necessary provisions and start the international negotiations required to secure this protection”, while “the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection”. These articles pose some problems, that have to be preliminary examined, in the attempt to define the particular consular administration individuated by the EU law (in the interaction between the international law, the supranational one and the national legal systems). In particular, are these provisions referred both to the consular protection and to the diplomatic one? Which kind of legal standing does the same articles recognize for the European citizen? How can the same legal provisions be referred to the international law, that, as we have seen, recognizes, only in an exceptional case (provided for by the cited art. 8) the possibility that the consular protection is exercised with the benefit of a subject with a citizenship different than that one of the State to which the requested consular administration belongs? Which is the relation between the European administrations and the national ones for the same rules’ implementation?

The answer to these crucial questions can be, better, obtained considering the different steps that have brought to recognize such a protection into the European legal order. The first step has been represented by the Commission's proposals to adopt an uniform passport and to harmonize the legislation concerning foreigners, so to abolish the border controls between the European States. In the first sense, we remember the Resolution 23-6- 1981, which was interpreted by some authors as, for itself, appropriate for introducing the possibility of the Community to act in protection of an European citizens damaged by the breach of international agreements concluded with the Community by the third countries. A similar protection, in the third States, according to the mechanism currently provided for by the art. 23, is, for the first time, invoked by the “Adonnino report” , that was implemented, for such an aspect, then, in 1990 in the war between the Kuwait and Iraq. The following acts have been adopted, in this regard, by the art. 8C, TEC, by the Decision of the Representatives of the Governments of the Member States - meeting within the Council – in the Decision 95/553/EC and by the Decision 96/409/CSFP, by the art. 46 Charter of Fundamental Rights of the EU .

We have to recall also some “soft law” acts: the “Communication from the Commission to the Council and the European Parliament. Implementing The Hague Programme: the way forward” (2006) , the “Green Paper. Diplomatic and Consular Protection of Union Citizens in Third Countries” (2006) , the act entitled “Communication de la Commission du 5 décembre 2007 au Parlement européen, au Conseil, au Comité économique et social européen et au Comité des régions: Pour une protection consulaire effective dans les pays tiers: the contribution de l'Union européenne - Plan d'action 2007-2009” (2007) , the “EU guidelines on the implementation of the consular Lead State concept” (2008) and the “Communication from the Commission to the European Parliament and the Council. Consular protection for EU citizens in third countries: State of play and way forward” (2011) . A proposal of Directive, in the present matter, is in phase of exam by the “Proposal for a COUNCIL DIRECTIVE on consular protection for citizens of the Union abroad” . Art. 8C was introduced, in 1992, by the Treaty on EU (TEU) in the rules relating to the "European citizenship" (according to a content substantially similar to the current art. 23) , following a number of proposals, including the Spanish one - October 1990 (Hacia a ciudadanía EU) -, in which the protection was conferred upon the Union or the Member State, the citizen being able to decide (regardless of whether there was the presence of the citizen’s State’s consular administration in a third country) to which of the two subjects of international law it was opportune to require such a protection .

According to the Decision 95/553/EC (Article 1) this protection was, then, referred: to the death; to events relating to accident or serious illness or those of arrest or detention, to the assistance to victims of acts of violence; to the assistance for the repatriation of distressed citizens of the Union . Art. 6 of the same Decision provides (par. 1) that (with the exception of the emergency‘s cases) the consular administration, requested for such a protection, cannot afford any financial advance or help and cannot sustain charges for the requiring citizen, without the consent of the State to which the same consular administration belongs; the same art. 6 provides (par. 2) that these possible expenses have to be refunded by the requesting citizen, with the addition of the possible consular tax required by the administration intervened for such a protection. The cited Decision enacted in 1996 established a provisional travel document able to provide effective assistance to the Union’s citizens in difficulty, so as to demonstrate “the practical advantages (...) arising from the quality of” European “citizen”. The consular protection, in particular, is considered, in the cited European acts, with reference to the: assistance in cases of death; identifying and repatriating remains; assistance in cases of serious accident or serious illness; assistance in cases of arrest or detention; assistance to victims of violent crime; the relief and repatriation of distressed citizens; natural disasters; terrorist acts; - pandemics; military conflicts .

6. The European Treaties and the connected Acts with reference to the consular law

To give a more complete answer to the above posed questions (also through a deeper exam of the soft law acts), it is necessary to better analyze the indicated artt. 20 and 23 . The first provision, as we have seen, poses the general right, of the European citizen, with reference to the protection granted by the consular and diplomatic Authorities, for one hand, in the third States’ territory and, for the other hand, at the condition that, in this territory, the State of citizenship is not represented, according to the international law. The art. 20 establishes, therefore, a bridge between the international law (that poses, through the Vienna Convention, the rules on the consular and diplomatic Authorities functioning and for the reciprocal acknowledgment between the States) and the European one, that defines a supranational legal system, different both than the national legal order and the traditional international one. This coordination, between those orders, happen, as we shall see, in a peculiar way. The art. 23 clarifies that, for one hand, the member States adopt any measure to negotiate the Treaties’ modifies on the consular functions, to adapt them with reference to the indicated art. 20, for the other hand, the same matter can be ruled by the Council’s Directives (after having consulted the Parliament), so to harmonize the implied national law. The protection indicated in the same artt. 20 and 23, according to our opinion, can be referred only to the consular sphere.

The art. 20, in fact, has reference, not to the diplomatic and consular protection, but to a general protection; the diplomatic matter’s mention happens, in the same provision, only with regard to the generally competent Authority to exercise the diplomatic activities, circumstance that is not in contradiction with the international law, that allows the diplomatic Authority to exercise, in some cases, consular functions. The protection indicated by the art. 20, then, has to be considered consular , because, for one hand, as we have said, the diplomatic protection concerns the State’s general political interests, while the same art. 20 has, immediately, reference only to some individual rights; for the other hand, in the diplomatic matter (including the citizens’ protection as part of State’s interests’ general diplomatic protection) the more adequate instrument, in the EU, seems that one of the “European External Action Services” (EEAS) – that look as mainly deputed to build an European diplomatic system -, that are provided for by the art. 27, TFEU, as means of the activity exercised by the “High Representative for Foreign Affairs and Security Policy”, that is Deputy President of the Commission and President of the “Council of the Foreign Affairs Ministers”. For that concerns the individual legal standing considered by the EU consular law, the cited artt. 20 and 23 attribute a right to the European citizen. The text of the same provisions, in this direction, appear clear, so to induce to consider in contradiction with the European law the national rules assuming (as we have seen in the French legal order), in the terms of a “legitimate expectation”, the legal standing connected to the State’s foreign relations’ activity. For that regards, finally, the efficacy, for the third Countries, of the cited European legal provisions, we can remember that the international law allows (as it happens by the cited art. 8, Vienna Convention) the consular protection from a third country only in some exceptional cases: it means that, for the not European countries, obliged only by the international law, the cited artt. 20 and 23 can, therefore, be without any effect.

The art. 23, par. 1, for these reasons, requires that the member States open negotiations to introduce, in the multilateral international acts -engaged with other State –, the appropriate modifies. Such a measure, in our opinion, cannot, anyway, be considered necessary, if we agree with the interpretation for which, in the international legal order, the consuetudinary law becomes part of the same legal system and has to be interpreted according to the “opinio juris” : so, we can reckon that the existence of a citizenship referred to an Authority different than the traditional State, as it happens for the European citizenship, is – thanks to the wide and consistent action of the EU – a profile (and an aspect) of the current international relations, able to configure a consuetudo, that can bring to refer the cited Vienna Convention (textually posed for the States) also to the international subjects (and to their relations with their “citizens”) with the EU features. After these preliminary distinctions, it is possible to define the concrete discipline posed by the same art. 20 and 23 through the indication contained in the soft law acts In the cited 2006 “Communication”, about the Hague Program, the consular (and diplomatic) protection, in particular, was indicated as a fundamental right and as the crucial legal standing recognized by the EU within the European citizenship .

The “Green Paper”, however, identified five reasons for which the renewed interest in the topic should take place . After the Treaty of Maastricht, according to the same “Green Paper”, new EU acts on this matter, in fact, would have been introduced, or the period within which similar acts should be introduced would have expired : it would be, equally, large and growing the number of the Europeans, in each year, moving to, or residing, in third countries, while it is relatively small the number of such countries in which each Member State has its own consular post . For the “Green Paper”, yet, in the light of these considerations, on the one hand, there would not be a common knowledge, among the European public, on the existence and about the content of the cited right ; the positive law, on the other hand, should be, still, limited to the above indicated European Decisions . The mentioned soft law acts, therefore, proposed to adopt: measures for a better information of the citizens in relation to the cited right; a legislation that better define its scope; some regulatory measures which will identify the solutions in terms of administrative law and financial procedures necessary to ensure the effective implementation of that European law; the opening of negotiations with the third countries in order to provide bilateral agreements . The aspect concerning the negotiation, as base for the effective force of the indicated right, is, therefore, in the “Green Paper”, important . It, under the first aspect, proposes: instruments for a general information; a specific information from each Member State and addressed to its own nationals with regard to the third countries in which the same States do not have their diplomatic missions or consular posts; the adoption of a Recommendation which requires the Member States to ensure that EU citizens' passports mention the right to a consular protection; the implementation of the Decisions providing for the establishment of a network among the States, in order to achieve cooperation, coordination and exchange of information relating to risks able to jeopardize the personal safety and the health of the European citizens (travelling in the third countries), so as to include an appropriate communication to the same citizens on the possibility of obtaining consular protection by a public administration relating to a different European State .

The “Green Paper” also recommends the publication of each (administrative or regulatory) measure able to implement the above cited provisions, intended to grant such a right . With reference to the scope of the discipline, these documents ask the inclusion (in the agreements concluded with the third countries) of legislative provisions to protect the European citizens working in the third States, pursuant to Decision 88/384 / EC, and an amendment to the Decision 95/553/EC, in order to extend that protection to the European citizens’ "family" members . It is recommended, then, both to define better the rules about the identification and the repatriation of remains from the consular Authorities, as part of the indicated artt. 20 and 23, and the simplification of the administrative proceedings for the financial assistance of the European citizens, even with the use of a common "centralized" office, shared by the Member States in the third countries . The “Green Paper”, on the administrative organization’s side, in addition, in the first place, insists on the establishment of joint offices between the European consular Authorities in these countries, secondly, suggests, for the competent State’s personnel and for that one belonging to the EU, appropriate "training" activities, so to prepare for to the most significant cases of possible jointed exercise of consular functions . The above-mentioned document, finally, suggests that the EU States initiate negotiations with the third countries, to enter into new agreements on the consular matter or to modify the existing ones . The cited “Communication from the Commission to the European Parliament and the Council”, then, present a summary of the questions connected to the cited European rights implementation .

The same document, in fact, focuses on two aspects, concerning, on the one hand, the increased power of the direct European rules in the examined matter, with respect to which the same document underlines the importance of this right in the context of European citizenship , on the other hand, the importance of the regulatory (or administrative) measures taken by the EU, to insure the European citizens’ "awareness" on the content and the potential value of the European law concerning the consular protection . The examined provisions delineate, therefore, an interesting model of a consular administration, both based on the indirect, or shared, between the different national States, administration and founded on a perspective of the bigger integrations between the same offices, for example, through the “Lead State”’s model. The consular and the diplomatic administration show, in the EU law, in a clearer way, its peculiar features. The international law, in fact, poses the general rules for that matter. The international consuetudines, then, modify the international legal provisions through the activity of an original model of a supranational organization (the EU), so to include also the same EU (therefore, a not State subject) within the subjects entitled to claim the right to exercise the consular protection. The concrete effects for the administrative acts adopted, into this system, are produced by the interaction between the same international law, the European one (with a supranational nature) and the national legal order, that is crucial to insure the full efficacy to the so defined complex administrative model.

7. Some final remarks on the role of the public law’s studies on the consular and diplomatic protection

The history and the examined current features concerning the consular protection, also with reference to the EU, have evidenced the specific importance of that matter for the public (and administrative) law’s studies. The same exam, first of all, has shown that the public law knows, at least since the modern State’s origin, “bodies” (and procedures) in which the public activity is not connected, strictly, to the territory where the public sovereignty, according to the internal and international law, can be exercised : that element contradicts, for the reason that we have above explained, one of the main assumption of the modern administrative law . Such a matter, then, puts in evidence, in the European experience, the international (and supranational) legal provisions’ tendency to influence the internal public law, directly attributing rights to the individuals, in front of the international, supranational, or national Courts . The same European experience, moreover, proofs that the other traditional concepts, on which the modern State and its public law have been built, are, partially, overcome just by the supranational legal order, where the link between the citizenship and public function (for example, that one connected to the foreign relations in the consular protection) is broken by the affirmation of a right, generally, recoignized to the European citizen . The consular law, finally, as we can understand by the examined European documents, represents an important example of a (problematic) indirect administration and shows the questions faced by the administrative implementation of the European legal provisions, in connection to the particular (and concretely adopted) models of relation between the national public administration and the European one.

The studies on the consular and diplomatic protection, usually, reserved to the international law, have, therefore, to be discovered, again, also by the public law’s scholars and represent a significant and interesting theme within the researches on the international administrative law

1. For the main studies in the international law with reference to the consular and diplomatic protection we remember C.S. Blaga, Évolution de la diplomatie, Paris, 1938, F. De Callières, De la manière de négocier avec les souverains, Amsterdam, 1716, L.J.D. Fraud-Giraud, Etats Et Souverains: Personnel, Diplomatique Et Consulaire, Corps de Troupe: Navires Et Quipages, Personnes Civiles Devant Les Tribunaux Étrangers, vol. II, Paris, 1895, J. Irizzary y Puente, Traité sur les fonctions internationales des consuls, Paris, 1937, A. Maresca, Le relazioni consolari, Milano, 1966, J.I. Puente, Extraterritorial Powers of the Consular Office, California Law Review, 1931,, C. Wolf, Institutiones juris naturae et gentium, New York, 1972.
2. G. Biscottini, Console, Enc.Dir., Milano, 1961, pp. 357 and ff., C.S. Blaga, L’evolution de la Diplomatie, Paris, 1939, F. D’Amoja, Diplomatici agenti (storia), Enc.Giur., Milano, 1964, pp. 571 and ff., H. Gherari, L’institution consulaire entre tradition et modernite, in Societe Francaise pour le Droit International (ED.), Journee d’etudes de Lyon. La protection consulaire, Paris, 2006, pp. 7 and ff.

ABOUT THE AUTHOR: Vincenzo Ferraro
Vincenzo Ferraro has been, in 2008/2009 Professor in the Law Faculty at the Università degli Studi di Siena for Diritto dei Servizi Pubblici; he has been Professor in some Masters - or in courses post lauream, like, for example, the Seminario di Studi Parlamentari S.Tosi; Vincenzo Ferraro has developed research activity in France (Paris, 2010), Greece (2008 and 2009) and in the United Kingdom (Southampton, 1997 and London, 2010); the current scientific interests concern the consular administration.

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