Conference Proceedings : Managing Threats? Citizens and disasters abroad – EU policy responses

Conference Proceedings

Seminar

Managing Threats? Citizens and disasters abroad – EU policy responses

10th December 2007

Centre for European Policy Studies, CEPS

Prepared by

Florian Geyer and Miriam Mir

The Justice and Home Affairs Section at the Centre for European Policy Studies (CEPS) held the Seminar «Managing Threats?: Citizens and disasters abroad – EU policy responses» on the 10th of December 2007.

The Seminar received the financial support of the COST Action 24 «The Evolving Social Construction of Threats» and CHALLENGE (The Changing Landscape of European Liberty and Security), a research project funded by the Sixth Framework Programme of the Directorate General for Research of the European Commission.

The right to diplomatic and consular protection of EU citizens on the one hand and the concept and practices of EU civil protection on the other are two areas of EU policy which are rarely brought together. Substantially and institutionally different legal regimes govern these fields. Yet, crisis situations and disasters outside EU borders, like the Tsunami in South-East Asia in 2004 or the Lebanon crisis in 2006 have highlighted the close link that exists between providing assistance to third countries and at the same time protecting EU citizens and their families in these third countries. As a consequence, not only in the Barnier-Report of May 2006 («For a European civil protection force: europe aid»), but also in the latest update of the EU Counter-Terrorism Strategy (Factsheet of May 2007) consular and civil protection have become increasingly interlinked at EU policy level. However, while efforts in these two fields had been stepped up considerably in the last years, both are traditionally located within member states’ competence and the skepticism member states have shown towards further EU involvement underline a continuing reluctance.

In this seminar we presented and addressed latest developments and future perspectives of EU civil protection and the protection of EU citizens by diplomatic and consular authorities. The main questions resolved around recent steps aiming at managing threats abroad and how the dispersed fields of civil and consular protection can be brought together. Furthermore, how EU policy responses in the area of threat management abroad may affect foreign policy and international relations. To what extent the citizen at risk abroad - by his very construction as an EU citizen and related citizenship rights - is in fact perceived as a threat to state sovereignty in international relations. But also, what are the innovations likely to be brought about by the Lisbon Treaty.

The event brought together a wide set of speakers which included academics - among them two COST members - experts, EU officials, member state representatives, as well as civil society actors. The audience - around 35 participants - included inter alia officials from national, European and international levels, stakeholders, practitioners, NGOs, civil society actors and the general public. It offered a perfect opportunity to exchange views on this critical aspect of EU policy and to test and develop the thinking in the field.

Programme of the Seminar

09:30 – 10.00 Registration

10:00 – 10.15 Welcome & opening remarks byElspeth Guild(CEPS / Radboud University of Nijmegen / Kingsley Napley, London) and Jef Huysmans (Open University).

10:15 – 11:45 PANEL I:Disasters abroad and EU civil protection

Chair: Elspeth Guild

Christopher Allen (DG ENV, European Commission), European civil protection beyond EU borders

Françoise Krill (ICRC Delegation to the EU and NATO), Legal framework for civil protection intervention in armed conflicts

Tiago Marques(Institute of International and Social Studies at Tallinn University), For a ‘humanitarian power Europe’: The role of civil protection in implementing a coherent EU strategic culture

Discussion

11:45 – 12:00 Coffee Break

12:00 – 13:30 PANEL II:Citizens abroad and the right to diplomatic and consular protection

Chair: Jef Huysmans (Open University)

Monika Ekström (DG JLS, European Commission), The Commission’s strategy for ensuring effective diplomatic and consular protection of EU citizens

Giorgio Porzio(Secretariat General, Council of the EU) EU member states’ conception of the right to diplomatic and consular protection of Union citizens

Simon-Pierre Nothomb(The Europeans throughout the World), Strengthening the EU acquis on diplomatic and consular protection: a citizen’s perspective

Kevin Laue (REDRESS), Latest developments in the UK on the right to consular assistance

Discussion

13:30 – 14:30 Lunch

14:30 – 16:00 PANEL III: Practical and institutional questions

Chair: Elspeth Guild (CEPS)

Patrick Lachaussée(French Ministry of Foreign Affairs),The newly adopted Lead-State-Concept as a means of ensuring consular cooperation in times of crisis

Philippe Willaert(DG Relex, European Commission), The role and competences of EU delegations in the protection of EU citizens abroad

Juliet Lodge(Leeds University), The Example of a Shared Consular Office – the prospects for joint consular services

Florian Geyer (CEPS), Diplomatic and consular protection: mere public policy or a real citizens’ right?

Discussion

16:00 – 16:45 Concluding Roundtable: Summing up the day

Chair: Florian Geyer

Jef Huysmans

Elspeth Guild

Tiago Marques

Discussion

Conference Proceedings

Welcome & opening remarks byElspeth Guild(Centre for European Policy Studies – CEPS and COST member) and Jef Huysmans(Open University).

Elspeth Guild welcomed the audience and gave a brief introduction of the CHALLENGE project and COST Action 24. She highlighted the topicality of the meeting following the Action Plan of the Commission on consular assistance, issued just five days before the meeting. She recalled that citizenship of the Union and its external dimension was introduced into the Maastricht Treaty in 1993. However, as regards diplomatic protection and consular assistance until recently there has not been too much EU activity, she stated. It was only over the past year that a major discussion started, initialled by the Commission’s Green Paper of November 2006 that eventually led into the Action Plan of December 2007.

She underlined that civil protection and consular assistance are intertwined. The fact that the professional personnel involved in providing the help might differ, is only secondary, she stated. She furthermore highlighted that the issue touches upon questions of sovereignty, formulated by foreign and interior ministries of EU member states.

Jef Huysmans, Chair of COST Action 24, joined Elspeth Guild’s welcoming remarks and provided additional information of Action 24 and its three working groups.

PANEL I:Disasters abroad and EU civil protection

Chair: Elspeth Guild

Christopher Allen (DG ENV, European Commission), European civil protection beyond EU borders

Christopher Allen presented the EU’s involvement in civil protection activities outside its territory. In his initial remarks he highlighted that civil protection assistance to third countries is as such nothing new. The innovation, however, is the determination to obtain European added value, he explained. This European added value, he continued, involves: 1.) Avoiding duplication, 2.) Maximising efficiency, 3.) Providing one contact point between EU member states and the affected country, 4.) Coordination at headquarter level and 5.) Coordination on site.

In the second part of his speech, Mr. Allen described how EU Civil Protection actually functions and explained the structures and working methods of the Monitoring and Information Centre (MIC). The incidents in which EU civil protection assistance was provided to third countries in the years 2003-2006 was the focus of the third part of Christopher Allen’s presentation. He went on to outline the agreed framework for civil protection and humanitarian assistance. In particular he mentioned the dedication to humanitarian principles and close cooperation with UN-OCHA. The recourse to military means must be a last resort, he said. As regards the legal framework at EU level, Mr. Allen welcomed the changes that would be introduced by the Reform Treaty. It would provide for qualified majority voting in the Council and a co-decision procedure, as opposed to the current unanimity requirement under article 308 TEC. He made reference to two new/reviewed instruments: the civil protection financial instrument and the Community civil protection mechanism. The latter foresee the setting-up of so called civil protection modules. He explained that the necessary technical frameworks had been finalized for 13 of these modules, including e.g. water pumping and purification, aerial fire fighting and medical assistance, including evacuation.

In his concluding remarks Christopher Allen stressed, that civil protection has a traditional and recognized role to assist third countries. This constitutes an expression of European solidarity, he said. Furthermore, civil protection capabilities are constantly improving.

Françoise Krill (ICRC Delegation to the EU and NATO), Legal framework for civil defence intervention in armed conflicts

Françoise Krill gave an introduction into the legal framework for civil defence interventions in armed conflicts. She explained the structure and mission of the International Red Cross and Red Crescent Movement and highlighted that the ICRC is neither an NGO nor an intergovernmental organization, but a sui generis international organization provided with a specific mandate directly in the Geneva Conventions. She added that ICRC, as an impartial, neutral and independent organization has the exclusively humanitarian mission to protect the lives and dignity of victims of war and internal violence and to provide them with assistance. It also endeavours to prevent suffering by promoting and strengthening International Humanitarian Law (IHL) and universal humanitarian principles. She furthermore gave information on the definition and development of IHL from the 1864 First Geneva Convention until the 2005 Third Additional Protocol. After having provided an overview on the types of conflicts (international, non-international, internationalized), she explained the applicability of the Geneva Conventions and its protocols in these types of conflicts.

Turning then to the matter of civil defence in IHL, Françoise Krill highlighted some misunderstandings as regards the notions of «classic civil defence» versus «modern civil protection». It seems as if the term «civil defence» is no longer used in EU member states, she said. An entire chapter (articles 61-67) of the 1977 Additional Protocol I to the Geneva Conventions is dedicated, however, to «civil defence», she highlighted. In these articles «civil defence» is defined via a functional approach, referring to 15 humanitarian tasks with 3 objectives (Protecting the civilian population against the effects of hostilities or disasters; Helping the civilian population to recover from the immediate effects of hostilities or disasters; Providing the conditions necessary for the survival of the civilian population). She went on to explain who is entitled to carry out these «civil defence» tasks (civilian or military organizations) and provided further details on this aspect. She concluded this part of her presentation stating that, in spite of the changes of time, experts consider that these rules remain sufficiently realistic and still valid in modern war and that efforts must be made to implement them.

In the subsequent part of her presentation she addressed the issue of the use of military and civil defence assets in disaster relief as framed in the so called «Oslo Guidelines». In this context she highlighted the evolving environment (e.g. increase of internal armed conflicts; blurring lines between civilians and combatants; targeting of humanitarian aid workers) and current challenges (e.g. risk of instrumentalisation and rejection, the need to cooperate while being distinct from the military) and highlighted situations in which particular concerns with the use of military or civil defence assets in the light of this evolving environment and challenges arise (e.g. when civilian and military actors operate with the same material in the same area for both relief and combat missions).

She concluded her presentation by recalling the ICRC’s modus operandi and its seven fundamental principles.

Tiago Marques(Institute of International and Social Studies at Tallinn University), For a ‘humanitarian power Europe’: The role of civil protection in implementing a coherent EU strategic culture

«Is an EU strategic culture evolving in which civil protection as a foreign policy practice plays a major part?» was the question posed by Tiago Marques at the beginning of his presentation. In answering this he initially referred to the European Security Strategy of 2003 in which the EU started paving the way towards establishing a more prominent role for itself as an actor in the international arena, he said.

Yet if the EU aims at being a coherent provider of global public goods, he continued, it needs to decide if it wants to remain a soft power or a transformational one. Building on this Tiago Marques then asked whether the EU is faced with having to choose between soft and hard power approaches to its foreign and security policy? Do values and interests really merge and does the EU acknowledge what enlightened self-interest stands for? He answered this question in the affirmative. Referring hence to the works by Sven Biscop, Marques explained that the EU’s strategic culture is strongest when it comes to the long-term, more permanent policy of stabilisation and prevention. And this area, he said, is the one in which civil protection as a central component of an EU foreign and security policy would fit in.

In the second part of his presentation Tiago Marques analyzed some central elements of the 2006 Barnier Report «For a European Civil Protection force: europe aid». Marques argued that, in practical terms, the call for capability projection as a means to deal with severe crises in far-off countries, and the request for improved coordination between the EU, member states and civil protection agencies is not only welcome but timely. At the same time, he said, the Barnier report follows an institutional line inasmuch as it serves as a companion guide to some of the expected innovations present in the Reform Treaty, namely by making reference to the need for swift implementation of some of the key measures. (e.g. the solidarity clause, the article on a European policy on the prevention of natural disasters and on civil protection and EU action on humanitarian aid and EU public health policy). It also makes reference to the possibility of providing for enhanced cooperation for those member states wishing to take things further, thus mimicking the provisions already set out in EU defence policy, Marques highlighted. A European civil protection force, however, would need to address the issue of double subsidiarity located between the UN and member states’ levels. Yet, Marques remarked that the creation of a standing EU civil protection force may require less subsidiarity and more delegation of powers to the supranational level. He conceded though, that some member states prefer having the EU play the role of facilitator and not as a fully fledged actor in civil protection assistance.

In his concluding remarks, he argued that a coherent EU strategic culture must be based on a «humanitarian power Europe» with civil protection assistance at its core. In the end, that is where values and interest really start to merge, he said.

PANEL II:Citizens abroad and the right to diplomatic and consular protection

Chair: Jef Huysmans (Open University)

Monika Ekström (DG JLS, European Commission), The Commission’s strategy for ensuring effective diplomatic and consular protection of EU citizens

Monika Ekström presented latest developments in the Commission’s strategy for ensuring effective protection for citizens abroad. She started by referring to article 20 TEC which constitutes the main legal provision in this respect. She said that although this article was introduced as early as 1993 by the Maastricht Treaty and in spite of the efforts undertaken by the Council Working Group COCON, not too many citizens are aware of its existence (23% according to a Eurobarometer survey). Since 2005, however, the issue became more and more important and in November 2006 the Commission launched a very ambitious Green Paper on protecting citizens abroad. Monika Ekström continued by presenting this Green Paper in more detail and presented some results of the consultation process. The Commission received some 50 replies, she said, which were largely positive. However, among member states the picture was mixed with some taking a more critical view. Following this public consultation, the Commission sent a questionnaire to member states in order to obtain further facts, Mrs Ekström stated. Inspired by the outcome of the consultation and the results of the questionnaire, the Action Plan of 5 December 2007 was drafted, which she continued to explain in the second part of her presentation.

She highlighted that the title of the Action Plan has changed in comparison to the Green Paper. It concentrates on consular assistance and leaves diplomatic protection aside for the time being. She underlined however, that this does not mean, that the Commission would not advance the latter issue in the future. Mrs Ekström then emphasized that the EU’s contribution in this field aims at assisting member states - not at competing - and that the matter rests within member states’ responsibility. While member states are already applying high standards, the question should be where things can be done better, she said. She then provided some figures and statistics contained in the Action Plan before explaining its structure and the core proposals. As regards information, the Commission proposes inter alia to print article 20 in passports of member states, to launch an information campaign, to create a website and to set up an EU telephone number on consular protection, Monika Ekström stated. Under the headline «Scope of protection for Union citizens», the Commission intends to assess existing differences in the interpretation of article 20 TEC and examine possibilities to ensure a coherent understanding of the provision (inter alia the possibility of ensuring consular protection for third-country national family members of Union citizens). As regards structures and resources, she explained, that the Commission intends to examine the possibility of setting up as a pilot project common offices of several member states co-located with the Commission delegation in a third country. Finally as regards the consent of third countries, Ms Ekström clarified that in order to enhance legal certainty a consent clause should be inserted in future international treaties with third states.

Giorgio Porzio(Secretariat General, Council of the EU) EU member states’ conception of the right to diplomatic and consular protection of Union citizens

In his introductory statement Giorgio Porzio underlined two important aspects of article 20 TEC. First, that it is a non-discrimination article that aims at preventing Member States from treating other Member States’ citizens differently than their own nationals and, second, that the drafters of the article carefully avoided using the word «right». There is therefore no «right» to consular protection in the Treaty, he stated. Member States have been discussing in order to find solutions for burden sharing and to avoid consular shopping, as it is known that some Member States are more generous than others.

He furthermore explained that article 20 TEC provided just a general frame and that detailed rules are laid down mainly in Decision 95/533 of 19 December 1995.

Giorgio Porzio then went on to clarify that it was as early as 2000 that Member States had drafted a first set of guidelines to further enhance the protection of Union citizens foreseen in article 20 TEC and that these guidelines are systematically applied. Further steps had been taken since then, Mr. Porzio explained, with France and the UK developing and promoting i.a. the so called consular lead-state concept which was adopted by the General Affairs Council in June 2007. He furthermore explained that when talking about consular protection and assistance it is necessary to distinguish between «normal» consular cases, like e.g. lost or stolen passports, on the one hand, and cases of major consular crises on the other.

He pointed out that expectations of citizens concerning consular assistance by Member States had risen, yet he underlined that among Member States’ authorities there is a general principle that Union citizens themselves are first and foremost responsible to care for themselves and to provide for the necessary insurances, and act responsibly and with the necessary precaution when travelling abroad.

In the final part of his presentation, Mr. Porzio also mentioned the latest initiatives by the Commission. The Green Paper and the Action Plan, he said, contained some interesting ideas. However, as regards the proposal to print article 20 TEC in passports, Member States have not reacted very positively, to his knowledge. He added that the wording of article 20 TEC is quite subtle and printing it without any further comment might lead to confusion rather than providing guidance. Concerning the use of posters in order to enhance citizens’ awareness, Mr. Porzio stated that the Council had printed over 600,000 consular information brochures in all EU official languages, and that the guidelines already contained the idea of information management chores for the General Secretariat. As regards the protection of family members who are not EU citizens, Mr. Porzio warned that this may lead to diplomatic difficulties.

Concerning common offices he provided a cross-reference to the External Action Service as foreseen by the Lisbon Treaty. This, he said, involves some big issues which will have to be prepared even before the entry into force of the new treaty.

Simon-Pierre Nothomb(The Europeans throughout the World), Strengthening the EU acquis on diplomatic and consular protection: a citizen’s perspective

Representing the association «The European throughout the World», Simon-Pierre Nothomb criticized the European Commission as well as the CEPS’s Policy Brief on consular protection for putting too much emphasize on the EU citizens that travel as tourists abroad. Too often, he stated, are we forgetting the European expatriates working and living permanently in third countries. Their exact numbers are not known, yet the expatriate community is in any case very large, he explained. It consists of businessmen, engineers, scholars and many more. It must be in the European interest, he stated, to keep them close to Europe in order to prevent a permanent brain-drain away to the US, Canada, Dubai, Australia, etc.

Mr. Nothomb went on to mention France, Finland and Greece as member states which have a very good system of keeping in touch with their expatriate citizens and critized that the EU as a whole is not pre-occupying itself enough with this issue. In this respect, he brought the idea forward that in order to enhance EU citizenship of expatriates one day a Member of the European Parliament could be elected by the European diaspora. In this respect he argued that the notion of citizenship should be adapted to the needs of the diaspora and that the role of education in this process must be taken into account.

In his concluding remarks, Mr. Nothomb shared further insights into the problems and experiences of the European diaspora. Among others, he confirmed, that help to citizens living abroad has been better and most effective when it was coordinated among member states.

Kevin Laue (REDRESS), Latest developments in the UK on the right to consular assistance

Introducing the UK based non-governmental organisation REDRESS and recalling that on the very same day of the seminar, the «International Human Rights Day» was celebrated, Kevin Laue started by providing an overview on the UK’s response to the Commission’s Green Paper. There, he stated, the UK government drew attention to the difference between consular assistance and diplomatic protection and also clarified that UK nationals have no legal right to consular assistance. As he reported, the UK government furthermore underlined that article 20 TEC is a mere non-discrimination clause and that it believes that one of the most effective ways of helping citizens is to provide accurate and timely travel information. Mr. Laue continued by pointing out that the UK government did not perceive the consolidation of consular standards within the EU necessary and that it considered that the Commission involvement in this area should be a rather limited one.

In the second part of his presentation Kevin Laue provided some key figures on the UK consular service. It is one of the largest in the world he explained, producing costs of around one hundred million pounds per year; costs which are mainly funded by levies on passport fees. In 2005/2006 27.000 cases of consular assistance had been handled with some 5.7000 cases of detentions of British nationals abroad, he added. He went on to underline that there is no obligation on the side of the Foreign Office to provide help in the event of serious human rights concern. Instead, receiving assistance is a mere privilege and not a right, Mr. Laue highlighted. As a consequence, he said, the standards that are applied remain largely unlegal, in spite of official promises to introduce written UK consular law. REDRESS, he stated, is arguing in favour of a legal consolidation of this issues. Under the current structure, he said, the level of assistance can vary considerably, without this being linked to the political situation.

In the third part of his presentation, Mr. Laue concentrated on recent UK case law on the matter and mentioned the Abbasi as well as the Al-Rawi cases, in particular. In Abbasi the court found that the UK executive was obliged to consider a request for diplomatic protection raised by a British national. In contrast, the Al-Rawi case concerned a long-term resident of the UK who did not hold British nationality. Non-nationals have no right to diplomatic or consular protection, the court stated here, as Kevin Laue explained.

In his concluding remarks, he reported about perceptions of torture survivors that REDRESS frequently received during their work. Insufficient prior warnings, delayed visits by consular officials, failure to access lawyers, failure to take up complaints, failure to obtain medical information, failure to provide proper information in general, were some of the points often reported, Mr. Laue said. He reiterated REDRESS’s support for common, consolidated standards and in a particular a code of activity in torture cases.

PANEL III: Practical and institutional questions

Chair: Elspeth Guild (CEPS)

Patrick Lachaussée(French Ministry of Foreign Affairs),The newly adopted Lead-State-Concept as a means of ensuring consular cooperation in times of crisis

Patrick Lachaussée structured his presentation in four sections in which he reflected on the importance of crisis management and presented the Lead-State concept, proposed by France and the United Kingdom.

The reasons to put forward Lead-State concept were two, according to Mr. Lachaussée. First of all, the aim was to improve the French consular cooperation in third countries when a crisis occurs. Taking a role in a crisis as the Lead State on behalf of other EU countries would be voluntary and require an active support and participation of all member states, he explained. The second element aims at preparedness, addressing the necessity to plan ahead and to organize all the procedures before a crisis actually occurs. From Mr. Lachaussée’s point of view, in order to manage a crisis effectively, it is necessary to have information on the number of concerned European citizens, about their localization, about the diplomatic and consular network in the concerned country, etc. Due to this fact, Mr. Lachaussée approached the idea of creating a European contingency plan.

In the second part of his presentation, Mr. Lachaussée stated that it is the Lead State’s responsibility - in close cooperation with the EU Presidency - to take the appropriate actions in order to respond effectively to a crisis. It will alert other member states on the need to send reinforcements if the situation requires so, will facilitate cooperation on the ground between member states, will assess the financial consequences of assisting nationals of other member states, and will also inform other member states of the conclusions and lessons learnt after the crisis.

Concerning the time schedule for the implementation of the concept, Mr. Lachaussée explained, that it will be taken in two phases. The first phase will implement the Lead State framework in countries with two or more missions. Then, the second phase will assess the progress in the Lead State framework and establish next steps. Nonetheless, Mr. Lachaussée enhanced that without waiting for these deadlines, it is necessary to go already further. Particularly he mentioned three ways to reinforce cooperation: improve intelligence sharing; know the different legal systems of each member state (consular rules); and finally, hold training sessions in the presence of consular agents from each member state.

To conclude, Mr. Lachaussée highlighted that the risks are every time more acute and more global. He therefore enhanced the necessity to cooperate between member states, the Commission, the General Secretariat of the Council and all other European institutions. Finally, he stated that although this will take time, in the field of crisis management, it is urgent to move ahead.

Philippe Willaert(DG Relex, European Commission), The role and competences of EU delegations in the protection of EU citizens abroad

Philippe Willaert focused his presentation on the role of the EU in the protection of the EU citizens abroad and on the response of the EU institutions in a crisis situation. At the beginning of his presentation he stressed the fact that the competence for consular protection lies with member states. He considered, however, that the EU institutions should also act in crisis situations in accordance with their obligations towards EU citizens.

In case of a crisis abroad, he explained that in practice the EU is already involved and they have to be involved in order to contribute to the actions. Mr. Willaert stressed that the best is to support member states in their efforts to protect their citizens, as it is stated in article 20 TEC.

As regards the instruments available for a crisis response, Mr. Willaert exposed that when a crisis takes place it is not just a diplomatic crisis, it needs to be considered as a global matter which includes humanitarian aid, pool of human resources, etc. In the situations of a crisis, there is the possibility to use funds to directly finance actions of member states, Mr. Willaert said. He explained that a good way to support member states’ actions is to make use of the communication systems of the European institutions, its accommodations, or/and deploy personnel. It could be in a multiform, depending on the country. According to Mr. Willaert, the EU can help the Presidency, the member states or the Lead-State depending on the available technical resources.

Concerning the internal organization, Mr. Willaert mentioned the figure of a crisis platform. This platform aims at ensuring the coherence of EU intervention and to facilitate the flow of information into the EU as regards the citizens abroad. Moreover, as regards basic documents, Mr. Willaert pinpointed the Solana Report on consular protection (2006), which stated what the delegations can deliver in a crisis situation.

To conclude, Mr. Willaert stated that the European Commission is trying to reinforce its capacities as regards the network of delegations in order to react faster in times of crisis.

Juliet Lodge(Leeds University), The Example of a Shared Consular Office – the prospects for joint consular services

Having placed the Common Consular Instructions (CCI) and development of common consular cooperation within the context of the Hague and Lisbon programmes, Juliet Lodge was stressed that realising a common consular space requires high level political commitment, local cooperation, mutual trust and cooperation among diplomatic and consular staff at all levels, and a shared understanding and commitment to facilitating this. The egovernment dimensions and challenges to effecting the exchange of personal data within administrations or in shared or pooled bilateral consular offices put technological demands on data administration and processing, she said. It is imperative, in her opinion, to set up simple, robust against abuse systems and management practices respecting the principles of availability and accountability, data and purpose limitation.

Juliet Lodge then examined the issue of proving that you are who you claim to be. It was shown that consular offices were to have a roll in the enrolment and processing of information for visa applications, including the taking of biometric data such as fingerprints. This posed logistical, human resources, financial and technical problems, especially in those posts which had gained a reputation for relatively fast processing times (such as the French embassy in London), Mrs. Lodge explained. Consular posts often lacked the technical equipment and space to process applications swiftly, even in the best organised ones it was becoming increasingly difficult to meet target processing times. Juliet Lodge illustrated this with reference to a 25% rise in applications, especially among the Chinese in the UK seeking to travel to France, to the 70% of Schengen visas processed in the French embassy in London, the particular problems posed by spouses of Schengen and non-Schengenland nationals using London based visa services as a transit point to other EU states, and processing targets of 3-6minutes for ‘simple’ applications compared to longer required for challenging ones requiring longer face-to-face interviews. The goal of a one-stop online shop that some states have is going to be difficult to attain without greater sharing of resources and effort, she stated. All visa posts are alert to the need for them to play their role in combating and detecting fraud, multiple passport use, bogus applications using genuine documents (which can lock fake IDs into fraudulently obtained documents) and in providing a range of common, mundane services to EU citizens. Problems of fraud arise particularly with a number of third country states including India, Pakistan, the Ivory Coast, Algeria, South Africa and Nigeria, Mrs. Lodge explained. Against the need to make efficiency gains and savings by pooling services that can be delivered in common, the issues of the risks and advantages of outsourcing were discussed, with states being divided over the sagacity and security of doing so. It was noted that EU states are not universally well represented across the world, with the exception of Moscow, Peking and the US. 8 million EU citizens travel to or live in places where there is no representation by any EU member state. The logic of unintended consequences of securitising digital space using digital means was presented and the implications assessed for the idea of developing local consular cooperative alliances (as had been announced in Vilnius on December 5). The concept of ‘lead states’ seems logical in view of the Big States’ traditional wider involvement around the world but problematic in relation to determining the impact on the European External Common Action Service, national sovereignty, the presumption of the equal status of all member states and the implications for agenda setting and priority determination (and budgetary consequences thereof) within the EU. Juliet Lodge concluded by asking is the reality one of a future of inequality given different regimes (SIS II –VIS-Prum, readmission agreements), variable agency access, variable standards, procedures, resources in consular offices, and the implausibility of some political claims. She noted that consular cooperation on the ground in practice relies on lead state champions, and warned of the dangers of loss of control and accountability as ICTs become embedded and central tools in processing and protecting personal data, exchanging and storing data. The Challenge book ‘Are you who you say you are: the EU and biometric borders’ provides further illustrations of many of the arguments put forward.

Florian Geyer (CEPS), Diplomatic and consular protection: mere public policy or a real citizens’ right?

Florian Geyer’s presentation was based on a Policy Brief he had recently written for CEPS. Building on this, he focused on the questions that were mainly left unanswered in the Action Plan, in spite of them being addressed in the earlier Green Paper. Those questions were: Are we talking about a consular assistance and/or diplomatic protection?; Are we talking about a right or mere public policy?; Are we talking about a right enforceable in Court?

Concerning the first question, Mr. Geyer explained that the existing acquis (decisions of 1995 and 1996) are limited to consular assistance only, and that also the Commission’s Action Plan concentrates solely on consular assistance. In order to clarify the differing concepts of consular assistance and diplomatic protection Mr. Geyer described consular assistance as a preventive measure provided to citizens in distress. Diplomatic protection on the other hand is an interstate intervention by one state against another «on behalf» of the citizens as a result of an internationally wrongful act. He explained that in this respect the language versions of art. 20 TEC actually differ For example, the German, Czech and Polish versions explicitly use the term «diplomatic protection», while the other versions use «protection by diplomatic authorities». Mr. Geyer stated that the Constitution would have changed the wording and inserted in article III-127 a common usage of «diplomatic and consular protection». However, this clarification does not find itself in the Lisbon Treaty as everything new is added to existing wording of art. 20 TEC. Therefore the divergence remains, Mr. Geyer stated. He highlighted, however, that in the new article 17 of the Treaty on the functioning of the Union the word «right» will be added. This will be a new aspect that feeds directly into the discussion of the second part of his presentation. As regards international law, he explained that third states are not obliged to accept diplomatic protection by other states than the one of nationality. Nevertheless, this does not justify limiting the scope of art. 20 TEC as those third states can legally accept the exercise of diplomatic protection by these other states (arts. 45 b, c and 46 of the Vienna Convention).

Going to his second point, Mr. Geyer said that whether we are talking about a right or a policy, is in fact one of the most crucial questions. For, if the Commission intends to raise awareness of article 20 TEC, it is necessary that member states will actually respond in a consistent manner should citizens actually turn up at consulates and rely on that provision. «Right», however, should not be understood as a citizens’ entitlement to oblige the state to act in exactly the way, the citizen wishes. Instead as an enforceable right that can be limited or restricted depending on the circumstances. Yet, the state’s response to a request must be bound by law and subject to judicial review, he clarified. In this respect he referred to the differing conceptions of member states and addressed some of the recent developments in international law (Cases of LaGrand and Avena).

Mr. Geyer argued that there is evidence that art. 20 TEC is in fact conceived as an individual right. He rejected the idea that the content of article 20 TEC is a mere non-discrimination clause as this would allow member states to empty the provision entirely by simply refusing the right to consular assistance at national level. As far as article 20 TEC is about non-discrimination, he said, it refers to the details of the state’s response but not to the question whether to respond at all.

Concluding Roundtable: Summing up the day

The Concluding Roundtable was composed of Jef Huysmans, Elspeth Guild and Tiago Marques. The aim was to sum up the day and highlight the main ideas that emerged during the Seminar.

Among others, Jef Huysmans reflected that – from his point of view – providing assistance seems to be a quite technical approach for the people involved; it is about capacity building, networks, means, etc. Civil and consular protection seems also to go together. The merger of the two was very interesting from a political point of view, however. In this regard, Mr. Huysmans exposed some open questions, like who can claim to be a European citizen? What is it to be a European citizen? And how do protection and assistance practices define a distinction between ‘good’ and ‘bad’ European citizen? To conclude, he underlined that the relation between issues of security, protection and assistance are becoming a central issue in the EU. He finalized his intervention by posting the question «what conception of citizens is the EU ‘creating’ in intertwining security, assistance and protection of EU citizens living and travelling abroad?» Tiago Marques affirmed that security and protection is becoming a central issue at EU level. From his point of view, the European Security Strategy had put every time more emphasis on the issue of the possibility to protect. Therefore, consular protection confronts diplomatic protection. Finally, Elspeth Guild highlighted the fact that in this seminar citizens, crisis response and civil protection have been seen in different angles and from different institutions and disciplines. Therefore, she stressed that after listening to all the presentations there should be a series of questions arising, like which institution should be responsible for the management? Which measures should be applied, etc.?

Mrs. Guild concluded the roundtable - and the Seminar – thanking all the speakers for their participation, for exposing real issues and creating a real debate, and for the distance and honesty taken along the discussions.