From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 09 December 2022
- Diplomatic immunity — Diplomatic missions — Diplomatic relations
(p. 38) Appointment of Head of the Mission
During the nineteenth century the practice of seeking confidential approval from the receiving State of an individual who the sending State proposed to appoint as head of its diplomatic mission began to harden from a general practice into a customary rule. In 1928 the Havana Convention on Diplomatic Officers provided in Article 8 that: ‘No State may accredit its diplomatic officers to other States without previous agreement with the latter.’ States Parties were not obliged to give reasons for their decision on agrément.1 In 1931, however, Genet continued to state of agréation: ‘Ce n’est d’ailleurs qu’un usage pur, et non une obligation rationnelle.’2
The most conspicuous dissenter from state practice in this regard was the United States. In 1885 the United States appointed Mr Keiley first as Minister to Rome, where the King of Italy declined to receive him on account of a speech he had made at a meeting in Virginia of Roman Catholics at which there had been protest at the annexation of the Papal States. Mr Keiley was then appointed to Vienna, which led to the Austro–-Hungarian Minister at Washington being instructed:
to the effect that since, as at Rome, scruples prevailed against this choice, he was to direct the attention of the United States Government, in the most friendly way, to the generally existing diplomatic practice to ask, previously to any nomination of a foreign minister, the consent (agrément) of the government to which he is to be accredited. It was added that the position of a foreign envoy wedded to a Jewess by civil marriage would be untenable and intolerable in Vienna.
The Austro-Hungarian Government also objected to the public statements of Mr Keiley. The US Secretary of State was, however, not prepared to accept either that it should seek advance consent for appointment of a head of mission, or the grounds of the Austro‐Hungarian Government’s refusal to accept Mr Keiley, and the US Legation was left for some time in the hands of a secretary as chargé d’affaires.3
At the beginning of the twentieth century the United States raised some of its legations to the status of embassies and began to seek agrément, though only for the appointment of ambassadors. In 1932 the Harvard Draft Convention adopted the principle of requiring agréation before appointment of a head of mission as reflecting contemporary (p. 39) international customary law as well as being conducive to the smoother functioning of diplomacy, but commented: ‘While engaging in a practice now become universal, the United States has never apparently, claimed it as a right or acknowledged it as a duty.’4
The United Kingdom had also, at an earlier date, been a reluctant convert to the practice of agréation. In 1832 Tsar Nicholas I of Russia refused to receive Sir Stratford Canning as British Ambassador on the ground that his appointment had been made by Lord Palmerston and officially gazetted some days before the matter was mentioned to the Russian Ambassador in London. The British Government claimed to be free in its choice of ambassadors, and responded to the refusal by leaving the embassy vacant for three years. Although subsequently Britain conformed to the practice on agrément, it expected reasons to be given for a refusal. In 1917 Satow stated that:
It is a matter of dispute whether a refusal must be accompanied by a statement of the grounds on which it is made, but it can be safely asserted that if in such a case the reasons are asked for, and they are not given, or if it appear to the Government whose candidate has been refused that the grounds alleged are inadequate, that Power may refuse to make an appointment, and prefer to leave its diplomatic representation in the hands of a Chargé d’ Affaires.5
The temptation for the more powerful States to take for granted approval of a proposed appointment has persisted. In 2004 both the United States and the United Kingdom made public announcements of the names of those it intended to send as ambassadors to Iraq before sovereignty was restored to Iraq giving it the international capacity to accept or reject these individuals.
Differences in the International Law Commission and at the Vienna Conference arose not over the content of the modern practice but over the method of codifying it. The Rapporteur’s original draft for the Commission did not specify that the receiving State need not give reasons for refusal of agrément, but in the same draft article it was stated that the power to declare the head of mission persona non grata could be exercised ‘without stating its reasons’. It was objected that this implied that in the case of refusal of agrément reasons were required. The Commission then answered this criticism by removing the explicit words ‘and without stating its reasons’ from the provision relating to declaration of persona non grata.6
At the Vienna Conference, however, Argentina moved an amendment to make explicit in the text the generally agreed principle that there was no obligation to give reasons for refusal of agrément. The amendment was resisted unsuccessfully by the United Kingdom on the ground that there could be implied from it an obligation to give decisions in respect of related decisions—for example, under Articles 5, 6, 7, and 8. It is, however, clear that such an implication was not intended by the Conference. Any argument to that effect could be resisted by reference to the provision in the Preamble ‘that the rules of customary (p. 40) international law should continue to govern questions not expressly regulated by the provisions of the present Convention’.7
A number of States attempted at the Conference to require the receiving State to communicate its decision within ‘a reasonable time’. Genet, writing in 1931, had suggested that after a long wait for a reply, the sending State was entitled to assume that no objection would be taken to the person proposed—or at least could not be made without giving offence—and that the appointment could be made.8 Such an assumption would now be contrary to the explicit terms of Article 4 paragraph 1. The true position was set out by the representatives of Yugoslavia and the Soviet Union—that the sending State should ‘draw the necessary conclusions’ from a long silence and take it as a polite form of refusal.9
Scope of agrément
Article 4 is an exception to the general rule in Article 7 of the Vienna Convention which permits the sending State freely to appoint the members of the staff of the mission. The justification for the requirement lies in the particular sensitivity of the appointment of a head of mission and the need, if a head of mission is effectively to conduct diplomacy between two States, for him to be personally acceptable to both of them. It follows that the need for agrément is limited to heads of mission. Chargés d’affaires ad interim, who unlike chargés d’affaires en titre are not heads of mission, are not covered by Article 4. Articles 14 and 19 of the Convention make this clear, and amendments to spell the position out further in Article 4 were therefore resisted both in the International Law Commission and at the Vienna Conference.10
Procedure for agrément
Since the essence of the agrément procedure is its informality, the Convention prescribes no form or method for requesting or granting agrément. The approach may be made by the head of mission who is about to take his leave, it may be made through the embassy of the receiving State in the sending State or it may be made directly by one head of State or of government or Minister to another in a third capital or at the United Nations headquarters in New York.11 It is usual for a curriculum vitae to be supplied. While the receiving State is not legally precluded from making public the fact of or the reasons for its rejection of a possible head of mission, it is international practice for it to observe discretion. Thus when Mr Khrushchev in the course of conversation with foreign diplomats in 1962 expressed highly critical opinions on a number of possible candidates for appointment to the post of Ambassador to Moscow from the Federal Republic of (p. 41) Germany—and this when agrément had not been sought for any of them—the remarks were regarded in diplomatic circles, as well as in Bonn, as tactless and contrary to usage.12
Agrément may be revoked after it has been given, provided that the new head of mission has not yet arrived in the territory of the receiving State. If he has, the appropriate options available to the receiving State would be a declaration of persona non grata or a request for withdrawal of the head of mission, and the head of mission would be entitled in this event to privileges and immunities by virtue of Article 39.1 of the Convention.13 In May 1979 the Government of Iran, having already given agrément to a new US Ambassador, asked for his arrival to be delayed and subsequently asked for the appointment to be withdrawn. The reason related to passage of a Resolution by the US Senate concerning reports of secret trials and summary executions by Iranian revolutionary courts. The US Government, while complying with the request, made clear that it was not conducive to a constructive relationship between Iran and itself. The event predated by only a few months the seizure of the US Embassy in Tehran.14 Another example occurred in 1968 when King Faisal of Saudi Arabia withdrew agrément to the appointment of Sir Horace Phillips as Ambassador on the ground that the Saudi Government had become aware that he had Jewish origins which had recently been made public in the British press.15
Reasons for refusal of agrément
Since the receiving State is not required to give reasons for the refusal of agrément, there are no legal constraints on its discretion in the matter. It is only if the procedure does not work as is intended that reasons for a refusal may become public, and many of the cases cited in the literature where the reasons have become public antedate the establishment of the rules now codified in Article 4 of the Vienna Convention. In general practice it is accepted that reasons for refusal of agrément should relate to the proposed head of mission personally rather than to the relations between the sending and the receiving State. Where, however, the reason for refusal relates to public utterances by the proposed head of mission in meetings or legislative debates in his home country, this distinction may be a fine one. In 1891, for example, the Government of China refused to accept Mr Blair as US Minister to China because of the part he had played—said to have included bitter abuse of China—in the US Senate when advocating the Exclusion Act 1888. The Chinese Foreign Office indicated that if the Exclusion Act were to be repealed, they would be prepared to receive Mr Blair.16
In 1977 Greece held up agrément for Mr William Schaufele as US Ambassador on account of remarks made by him during his confirmation hearing before the Senate Foreign Affairs Committee about the dispute between Greece and Turkey in the Aegean. The State Department maintained that these remarks had been mistranslated.17 Remarks made to a Senate confirmation hearing also led to the US candidate for Ambassador to Venezuela, Larry Palmer, being rejected in 2010 by the President of Venezuela, Hugo Chavez. (p. 42) Mr Palmer had alleged that the Government of Venezuela was giving support to Colombian revolutionaries, and that morale in the Venezuelan army was low. The Venezuelan President proposed alternative candidates (more supportive of his regime), but the US refused to back down and left its Embassy for several years under a chargé d’affaires.18
A proposed head of mission may be rejected in the light of his previous postings. The provisional French Government in 1944 refused agrément to a proposed nuncio put forward by the Holy See on the ground that he had previously been accredited to the Vichy Government. In 1983 Kuwait refused agrément to a head of mission proposed by the United States who had served for three years as Consul-General in Jerusalem.19 Religious affiliation of the proposed head of mission or members of his family may also play a part, as in the cases of Mr Keiley and Sir Horace Phillips described above. In 2002 Iran rejected the proposed appointment of David Reddaway as British Ambassador on the ground that he was ‘a Jewish spy’. The British Government made clear that Mr Reddaway was neither Jewish nor an intelligence officer but was married to an Iranian and had previously served twice in the British Embassy in Tehran, and they responded to the rejection by downgrading the status of the Iranian Ambassador in London. An alternative candidate was accepted by Iran some months later.20 In 2009, it was reported that Caroline Kennedy, Roman Catholic daughter of President Kennedy, had been rejected as US Ambassador to the Holy See on the grounds of her ‘liberal views on abortion, stem-cell research and same-sex marriage’.21
Suspicion of involvement in criminal including terrorist activity, or in serious violations of human rights, would in democratic States at least always be a reason for refusal by the receiving State of agrément for a proposed head of mission.22 In 1984 the United States rejected the nomination as Ambassador for Nicaragua of Nora Astorga who while active six years earlier on behalf of the Sandinista revolutionaries had lured a general of the National Guard of Nicaragua and adviser to the then President of Nicaragua to his assassination in her bedroom.23 A further possible reason is the likelihood that the head of mission intends during his posting to continue professional or commercial activities for personal profit. In 1853, for example, the United Kingdom objected to receiving a chargé d’affaires from New Granada on the ground that he was ‘engaged in commercial pursuits in this City’.24 This will be further considered below in the context of Article 31.1(c) and Article 42.
On the selection of ambassadors and other diplomats by sending States, see Satow’s Diplomatic Practice.25
1 UN Legislative Series vol VIII, Laws and Regulations regarding Diplomatic and Consular Privileges and Immunities (‘UN Laws and Regulations’) p 420, Art 8; 26 AJIL (1932 Supp) 176.
4 26 AJIL (1932 Supp) 72–3.
5 (1st edn 1917) vol I p 189, (5th edn 1979) para 12.5; cp. Pradier-Fodéré (1899) vol I p 353; Genet (1931) vol II pp 278–80.
6 UN Doc A/CN 4/91, Art 2; ILC Yearbook 1957 vol I p 13 (Sir Gerald Fitzmaurice).
7 UN Docs A/Conf. 20/C 1/L 37; A/Conf. 20/14 p 87 (Committee of the Whole), p 10 (Plenary). Emphasis added.
8 Genet (1931) vol II p 275.
9 UN Docs A/Conf. 20/C 1/L 43 (Italy and the Philippines), L 28 (Ceylon) ‘with the least possible delay’; A/Conf. 20/14 p 86.
10 See UN Doc A/Conf. 20/CN 4/L 72 p 8 (SR 509, para 10); ILC Yearbook 1958 vol I p 100 (Mr Sandstrom, Sir Gerald Fitzmaurice); UN Doc A/Conf. 20/14 pp 60, 86, 87 (Spain, United States).
11 Salmon (1994) para 219.
13 Richtsteig (1994) p 25.
15 See Dickie (1992) pp 178–80.
18 The Times, 7 January 2010, 20 December 2010, Latin American Herald Tribune, 26 September 2013.
19 1984 RGDIP 244. See Salmon (1994) para 223.
20 The Times, 24 September 2002.
21 The Times, 15 April 2009. She was later appointed US Ambassador to Japan (The Times, 25 July 2013).
22 See Salmon (1994) para 223 and UK Government Report on Review of the Vienna Convention on Diplomatic Relations and Reply to ‘The Abuse of Diplomatic Privileges and Immunities’ (Review of the Vienna Convention), Cmnd 9497, para 20.
23 Obituary of Nora Astorga, Washington Post, 15 February 1988. Information confirmed by State Department.
24 VII BDIL Phase One 574–5.