The Entitlement of the European Union to Exercise Diplomatic Protection: An International Customary Law Perspective

Table of Contents: I. Introduction: recent trends in the practice of the European Union concerning the protection of European citizens vis-à-vis a third State. – II. The quest for competence: arts 20 and 23 TFEU. – III. The quest for competence: the EU-UK agreements. – IV. The quest for competence: customary law on diplomatic protection. – V. Legal entitlement to exercise diplomatic protection under international law. – V.1. A functional interpretation of international law on diplomatic protection. – V.2. A functional notion of “nationality”. – VI. The EU citizenship and the bond of allegiance. – VI.1. The founding Treaties. – VI.2. The practice of the European Union. – VII. The effects of the practice of the international organisations on customary law. – VIII. The effects of the practice of the European Union on customary law. – IX. The actual scope of the effects of the practice of the European Union on customary law. – X. Concluding remarks: is there an individual right to diplomatic protection vis-à-vis the EU?

Abstract: Recent international practice of the European Union features a certain attention to the need to protect European citizens whose interests have been affected by a breach of international law by a third State. Strikingly, this practice seems to find a more solid basis in international law than in EU law. This Article explores the actions performed by the European Union through the lens of customary international law on diplomatic protection. It aims at ascertaining whether these actions prompted a development of international law which entails that, in force of the European citizenship, the Union is entitled to protect its citizens.

Keywords: diplomatic protection – international customary law – EU citizenship – international practice of the EU – external action – international organisations.

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European Papers, Vol. 6, 2021, No 3, pp. 1269-1291
ISSN 2499-8249 - doi: 10.15166/2499-8249/523

* Assistant Professor, Sapienza University of Rome, aurora.rasi@uniroma1.it.