The decision to not grant diplomatic status to the EU ambassador is a political one. Legally there is no automatic need to do so, but at the same time it is legally no problem for the EU and UK to agree on such a status. If both parties want to do so, that is.The current suggestion of the UK to not grant the EU ambassador diplomatic status and to treat the EU like an International Organisation instead sends a strong political signal of how the UK envisages the standing of the EU in comparison to other international partners.
The international status of the European Union was a difficult issue for many years, due to the EU not being a federal state. Since the Lisbon Treaty in 2020 the EU has legal personality in international affairs, which means that it can sign treaties as an entity. Before the Lisbon Treaty, it was just the European Community or the EU member states who could sign treaty for the EU.
In diplomatic representation, the situation is a bit more complicated for the EU. The Vienna Convention on Diplomatic Relations from 1961 regulates diplomatic relations between states. The European Union – because it is not a state – cannot be party to the Vienna Convention. That is why the EU always negotiates separate international agreements with third countries that grant the EU representatives (so the “EU ambassador” and the diplomats working in the EU delegations) diplomatic status.
The EU is accredited to 134 third countries where such agreements have been negotiated. In regard of diplomatic representation there was a step-change in 2010 with the Lisbon Treaty: the EU now has EU delegations in third countries headed by an “EU ambassador” that represent the EU diplomatically towards third countries.
Before 2010 the representation of the EU in third countries was more complicated. The diplomatic representation was done by the EU member state holding the rotating presidency in the Council of Ministers, or in case they were not present, one member state was asked to do so. The representation of the European Union in terms of exclusive and shared competences was done by the European Commission offices in third countries.
This means that already before 2010 the EU had European Commission offices in third countries. Actually, this question of external representation was a big debate right from the start of the EEC and the ECSC in the 1960s. And it was indeed in London next to Washington DC where the European Coal and Steel Community and later the European Communities had their first representation office, with the argument that closer cooperation with the UK will be necessary. 1960 there were 13 such missions, by 1972 85 European Commission offices. Already in 1983 the European Communities had negotiated with third countries that the head of the European Commission offices could use the courtesy title of “ambassador”, and from 1985 onwards they had the right to fly the EU flag in front of their buildings.
It is indeed a political decision, and it might seem like a small detail but in international politics the standing of the ambassador matters. In international politics the diplomatic status of a political entity matters. The UK refusing to grant the EU diplomatic status sends a very strong message of how it wants the EU to be perceived: not as equal partner with the same diplomatic standing like the UK, but as second-class entity as international organisation.
The UK also knows quite well that this need to agree bilaterally on the EU ambassador´s diplomatic status is the Achilles heel of the European Union, as a similar incident with the Trump administration had showcased just two years ago in January 2020. It remains to date unclear why the state department had decided to downgrade the EU ambassador without notifying the EU, but it restricted the ability of the EU ambassador who then was not treated the same as the ambassador of any other third country.
The challenge for the EU is that this points to its peculiar standing in international politics: it is recognised as more than an international organisation, but legally the Vienna Convention on Diplomatic relations does not apply automatically. Therefore, the EU needs to negotiate the granting of diplomatic status for its ambassador separately, and for this it needs the courtesy and goodwill of the partner country.
It is interesting to put this incident also in light of the current status of the EU-UK talks on its future relationship. Discussions on foreign and security cooperation post-Brexit had been excluded from the latest Brexit talks in the second half of 2020, and many experts considered this as a sign that the UK does not intend to discuss foreign and security policy with the EU but rather with single member states bilaterally.
The UK refusing to give the EU representation in London the same diplomatic status like the representation of EU member states can indeed be interpreted as a political signal that it intends to foster bilateral ties with single EU member states directly instead of interacting with them through the EU framework.
Analysis by Peter Foster (FT): https://twitter.com/pmdfoster/status/1352278479463731200
Analysis by Simon Usherwood (University of Surrey): https://twitter.com/Usherwood/status/1352171584203730949