There is enjoyment to be found in the playground spat between the Foreign Office and the European Union about the status of the EU’s representative to the UK. Joao Vale de Almeida, a career Eurocrat, has been the representative of the European Union, inhabiting the old Conservative Central Office in Smith Square, since February 2020. A charming, urbane man, mulled in the wine of Brussels for most of his professional life, he had assumed that he would be promoted from the EU’s Representative to its Ambassador with the realisation of Brexit. This, in turn, would give him the right to present himself at the Court of St James, (though, right now, more likely presenting himself by Zoom).

The Foreign, Commonwealth and Development Office is having none of it. The prime minister’s spokesman said, “The EU, its delegation and staff, will receive the privileges and immunity necessary to carry out their work in the UK.” However, Peter Stano, the EU’s foreign-policy porte-parole was peremptory in his response, “The EU’s status in external relations and its subsequent diplomatic status is amply recognised by countries and international organizations around the world, and we expect the United Kingdom to treat the EU delegation accordingly and without delay”.

More seriously, it would also mean that the employees of the EU in the UK would get privileges and immunities afforded to diplomats under the Vienna Convention. They, and their families, would not be liable to any form of arrest or detention. They would be immune from civil or criminal prosecution unless the EU stated otherwise.

Most seriously of all, it would be that the UK would be recognising the EU as a state, rather than a legal construction.

Though the spat is entertaining, it is not trivial. Despite being described by both unnamed Commission sources and by Tobias Elwood as “petty”,  it is of huge significance.

The EU has, hitherto, eschewed explicitly claiming statehood

Yes, for the last decade or two – out of good manners – the Representative has been accorded the courtesy title of Ambassador. However, just look at the Diplomatic List and the Diplomatic Order of precedence (HE Khaled Al Duwaisan GCVO of Kuwait tops this list. He has been in the role for a full 27 years). It is clear: Mr. de Almeida is not the Ambassador and never has been.

The significance of the issue is this. Over the Brexit debate, the EU and its advocates spent a great deal of energy trying to pretend that it was not a state. After all, only snaggle-toothed little Englanders thought that the EU was a country. Dismiss the trappings of nationhood, the parliament, the flag, the anthem, the court, and the nascent military forces, only a paranoid Faragist could ever presume that the EU was a country.

Sometimes this denialist mask slips. I was in the room in 2007 when the then European Commission president, Romano Barroso, did rather let the cat out of the bag when he described the EU as the world’s first, “non-imperial Empire”.  In 1997, the EU was at the school gates pushing its Let’s Draw Europe Together colouring book where it explicitly states, “Europe, my Country” and has funded other youth movements to use this slogan.

However, by and large, the EU has shied away from describing itself as a state. This has been mainly to assuage the existential angst that it would cause those in Paris, Berlin and elsewhere. In the legacy capitals they still describe themselves as nations. In Brussels, mind you, they are not described as such, but as member (not nation) states. A little too much reality might hurt a lot of brittle, chauvinistic, national pride. At a time when the EU’s Covid strategy has national governments coming-out with their own vaccination plans, to be forcibly reminded of their real status might not be overly welcome.

What is the legal status of the EU’s demand? Well, the generally accepted definition of a state is that promulgated by the Montevideo Convention on the Rights and Duties of States 1933 (in force from 1934).

Article 1 sets out the criteria:

Article 1
The state as a person of international law should possess the following qualifications:
a.            a permanent population;
b.            a defined territory;
c.             government; and
d.           capacity to enter into relations with the other states

We can all agree that point a). is clearly the case with the EU. The fact of the UK leaving does not alter the nature of its permanence. As to point b)., the territory occupied by the EU is (with some very minor niggles) well-known and settled. With point c)., who can but accept that with the existence of The Council and The Commission, the EU has what all would describe as a “government”, the European Court of Justice, and the panoply of acronyms?

But as to point d)., now there is the problem. The position of the High Representative and the fact that the EU routinely enters into relations in its own right, demonstrates that it clearly has the ability to enter into foreign relations.

If the EU is now demanding that it has a standing equal to any nation state and that its ambassador should be treated as if it was such, is that not an assertion of statehood?

If this is so, it might properly be argued that each of the 27 individual embassies of member states are otiose and have no standing, their powers having been subsumed, under Lisbon, into the “common foreign and security policy”.

The EU has, hitherto, eschewed explicitly claiming statehood. Have they, miffed at their “ambassador” being – figuratively – shown to the tradesman’s entrance, almost accidentally asserted statehood?

If so, should not the embassies of the 27 member states be downgraded to the status of “representative offices”? The ramifications could be huge. What price would you give for France’s seat on the UN security Council?

Thinking about it, Mr. Raab, you should hurry Mr. de Almeida along to St James’s post-haste. There are 27 rather fine pieces of prime real estate in central London that might just become vacant very quickly.