7.1  While the right of the papacy to fix the order of precedence among sovereigns had been recognized for centuries (though not always accepted without demur),¹ the precedence of the Pope above all other potentates was assumed as a matter of course. Next in order came the (Holy Roman) Emperor; then the King of the Romans, who was the heir-apparent of the latter (by election).

(p. 95) 7.2  The first place being conceded to the Pope, and the second, with universal assent, to the Emperor, up to the fall of the Holy Roman Empire in 1806, the question was precedence among the others. Gustavus Adolphus of Sweden asserted the equality of all crowned heads, Queen Christina maintained it at the Congress of Westphalia, and in 1718 it was claimed for Great Britain on the occasion of the Quadruple Alliance. But until the matter was finally settled at the Congress of Vienna in 1815 constant disputes arose.

7.3  In 1633,² Christian IV of Denmark having proposed to celebrate the wedding of his son, the Crown Prince, a dispute arose between the French and Spanish ambassadors, the Comte d’Avaux and the Marqués de la Fuente. The Danish ministers proposed to d’Avaux various solutions of the difficulty, and among these that he should sit next to the King, or next to the Imperial ambassador. To this he replied: ‘I will give the Spanish ambassador the choice of the place which he regards as the most honourable, and when he shall have taken it, I will turn him out and take it myself.’ To avoid further dispute, de la Fuente, on a plea of urgent business elsewhere, absented himself from the ceremony.

7.4  A more serious dispute took place in London on 30 September 1661, on the occasion of the state entry of the Swedish ambassador. It was the custom at such ‘functions’ for the resident ambassadors to send their coaches to swell the cortège. The Spanish ambassador, de Watteville, sent his coach down to the Tower wharf, from where the procession was to set out, with his chaplain and gentlemen, and a train of about forty armed servants. The coach of the French ambassador, Comte d’Estrades, with a royal coach for the accommodation of the Swedish ambassador, were also on the spot. In the French coach were the son of d’Estrades with some of his gentlemen, escorted by 150 men, of whom forty carried firearms. After the Swedish ambassador had landed and taken his place in the royal coach, the French coach tried to go next, and on the Spaniards offering resistance, the Frenchmen fell upon them with drawn swords and poured in shot upon them. The Spaniards defended themselves, mortally wounded a postilion and dragged the coachman from his box, after which they triumphantly took the place which no one was any longer able to dispute with them.³ Louis XIV, on learning of this incident, ordered the Spanish ambassador in Paris to quit the kingdom, and sent instructions to his own representative at Madrid to demand redress, consisting of the punishment of de Watteville and an undertaking that Spanish ambassadors should in future yield the pas to those of France at all foreign courts. In case of a refusal a declaration of war was to be (p. 96) notified. The King of Spain, anxious to avoid a rupture, recalled de Watteville from London, and despatched the Marqués de la Fuente to Paris, as ambassador extraordinary, to disavow the conduct of de Watteville and to announce that he had prohibited all his ambassadors from engaging in rivalry in the matter of precedence with those of the Most Christian King.⁴ The question was finally disposed of by the ‘Pacte de Famille’ of 15 August 1761, in which it was agreed that at Naples and Parma, where the sovereigns belonged to the Bourbon family, the French ambassador was always to have precedence, but at other courts the relative rank was to be determined by the date of arrival. If both arrived on the same day, then the French ambassador was to have precedence.⁵

7.5  Similar rivalry manifested itself between the Russian and French ambassadors. The latter had instructions to maintain their rank in the diplomatic circle by all possible means and to yield the pas to the papal and imperial ministers alone. On the other hand, Russia had not ordered hers to claim precedence over the French ambassador, but simply not to concede it to him. At a court ball in London, in the winter of 1768, the Russian ambassador, arriving first, took his place immediately next to the ambassador of the Emperor, who was on the first of two benches arranged in the diplomatic box. The French ambassador came in late, and climbing on to the second bench managed to slip down between his two colleagues. A lively interchange of words followed, and in the duel which arose out of the incident the Russian was wounded.⁶

7.6  Pombal, prime minister of Portugal, in 1760, on the occasion of the marriage of the Princess of Brazil, caused a circular to be addressed to the foreign representatives, announcing the ceremony and acquainting them that ambassadors at the court of Lisbon, with the exception of the Papal nuncio and the Imperial ambassador, would thenceforth rank, when paying visits or having audiences granted to them, according to the date of their credentials. Choiseul, the French Minister for Foreign Affairs, when the matter was referred to him, maintained that ‘the King would not give up the recognised rank due to his crown, and his Majesty did not think that the date of credentials could in any case or under any pretext weaken the rights attaching to the dignity of France’. He added that though kings were doubtless masters in their own dominions, their power did not extend to assigning relative rank to other crowned heads without the sanction of the latter. ‘In fact,’ said he, ‘no sovereign in a matter of this kind recognises powers of legislation in the person of other sovereigns. All Powers are bound to (p. 97) each other to do nothing contrary to usages which they have no power to change … Pre-eminence is derived from the relative antiquity of monarchies, and it is not permitted to princes to touch a right so precious … The King will never, on any pretext, consent to an innovation which violates the dignity of his throne.’ Nor did Spain accord a more favourable reception to this new rule of etiquette, while the court of Vienna, though the imperial rights had been respected, replied to Paris that such an absurdity only deserved contempt, and suggested consulting with the court of Spain in order to destroy the ridiculous pretension of the Portuguese minister.⁷

7.7  Matters remained unresolved until the beginning of the nineteenth century. At the Congress of Vienna the Plenipotentiaries appointed a committee which after two months’ deliberation presented a scheme dividing the Powers into three classes, according to which the position of their diplomatic agents would be regulated. But as it did not find unanimous approval, especially with the rank assigned to the greater republics, they fell back upon the simple plan of disregarding precedence among sovereigns altogether, and of making the relative position of diplomatic representatives depend, in each class, on seniority, i.e. on the date of the official notification of their arrival. And in order to do away with the last relic of the old opinions that some crowned heads ranked higher than others, they also decided that: ‘[d]ans les actes ou traités entre plusieurs puissances qui admettent l’alternat, le sort décidera, entre les ministres, de l’ordre qui devra être suivi dans les signatures’.⁸ (An English translation would be: ‘In acts or treaties made between a number of powers who accept the alternat, the order to be followed among ministers [that is, those with authority to sign the instrument] in appending signatures will be decided by lot.’)

7.8  The alternat consisted in this, that in the copy of the document or treaty which was to be given to each separate Power, the names of the head of that State and his Plenipotentiaries were given precedence over the others, and his Plenipotentiaries’ signatures also were attached before those of the other signatories. Thus each Power occupied the place of honour in turn.⁹

7.9  The Holy Roman Empire came to an end in July 1806, as a consequence of the establishment by Napoleon of the Confederation of the Rhine, and the precedence over other sovereigns formerly enjoyed by the Holy Roman Emperor (p. 98) disappeared and could not be claimed by the Emperor of Austria, whose title in 1815 was only 11 years old. Nor was France at that time in a position to reassert her claims to rank before the rest of the Powers. From this date the equality in respect of rank of all independent sovereign States, whether empires, kingdoms, or republics, has been universally accepted, and it appears unlikely that there will be any refusals of the alternat in connection with treaties, though in the case of multilateral treaties the more convenient method of signing a single instrument in the alphabetical order of the participating countries has more recently replaced former methods of signing several originals according precedence to each in turn. (See Chapter 30, paragraphs 30.16–30.17 and Chapter 31, paragraph 31.13 (for signature texts) and Chapter 34, paragraph 34.4 (for exchange of ratifications).

7.10  In the Treaty of Versailles and other peace treaties resulting from the Peace Conference of Paris in 1919, the five principal Allied and Associated Powers took precedence over all other States ranged against the Central Powers.

7.11  Dr J B Scott¹⁰ relates that at the First Peace Conference at The Hague in 1899 the United States’ representatives took their place at the table under the letter É (États-Unis), but at the Second Peace Conference of 1907 under the letter A (Amérique), it having in the meantime been remembered that United States of America was the official title; and he observes that this happy philological discovery enabled the United States delegates at the latter Conference to claim the benefit of the first letter of the alphabet, and to take precedence over other American States.

7.12  As with Heads of State, the titles and precedence of heads of mission were topics of great importance in earlier centuries. The reasons were that the choice of title agreed between two States reflected the political importance of the States as well as the diplomatic relations between them and also that the title of the envoy as well as his precedence within that class determined his right of access to the receiving sovereign and therefore his power to influence or to protest. Since 1945 with the growing acceptance, at least in theory, of the sovereign equality of all States as expressed in the Charter of the United Nations, the distinctions between envoys of different rank have largely disappeared and almost all heads of mission are now ambassadors (or have titles of equivalent (p. 99) rank such as high commissioner in the case of Commonwealth States or nuncio in the case of the Holy See). Precedence retains some importance in protocol and ceremonial contexts but it no longer determines the level of reception of an envoy or the weight accorded to his representations.

7.13  The 1815 Vienna Regulation reduced the classes of envoy to three and provided that precedence should be determined by the date of arrival in the receiving State. These rules were accepted in international practice and they are now reflected in Articles 13 to 18 of the Vienna Convention on Diplomatic Relations.

7.14  Article 14 of the Vienna Convention sets out the three classes of heads of mission as:

1. (a)  that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;

2. (b)  that of envoys, ministers and internuncios accredited to Heads of State;

3. (c)  that of chargés d’affaires accredited to Ministers for Foreign Affairs.

The title of nuncio denotes a permanent diplomatic representative of the Holy See. Formerly the Pope sent a nuncio only where his representative was automatically given the status of dean, or doyen, of the diplomatic corps, but since 1994 this is no longer the case. The term ‘heads of mission of equivalent rank’ indicates a high commissioner within the Commonwealth. The Pope may also despatch apostolic delegates, but these are not accredited to the Head of State or minister of foreign affairs but to the Church and the Catholic population in a specified region.¹¹ They may be given diplomatic privileges and immunities as a matter of courtesy but they are not strictly heads of mission.

7.15  In the years following the adoption of the Vienna Convention, appointment of heads of mission other than ambassadors became very rare and usually resulted from some historical anomaly or coolness in relations. In 1972 the United Kingdom and China, in the context of a wider political settlement, agreed to upgrade their representation from chargés d’affaires to ambassadors and in 1996 the UK and Albania also upgraded their level of representation from that of chargés d’affaires to ambassadors. The last UK Legation sent to the Holy See was, in 1982, replaced by an embassy.

7.16  Nowadays, as discussed earlier, no formal precedence is recognized among nations. Precedence among heads of diplomatic missions is now determined by the date of their taking up their functions. The taking up of their functions (p. 100) may—in accordance with the practice in the receiving State—be determined either by the date of presentation of credentials or by notification of arrival accompanied by presentation of a true copy of the ambassador’s credentials to the ministry of foreign affairs of the receiving State. The order of formal presentation of credentials must now be determined by the date and time of the arrival of the ambassador—so that if a receiving State determines the taking up of functions by reference to presentation of credentials it is not permitted to manipulate the date of this ceremony so as to alter precedence. Seniority in post thus determines precedence and the holding of the office of dean of the diplomatic corps, though in some Roman Catholic and other countries, e.g. Italy and Ireland, the representative of the Holy See takes precedence regardless of his date of presenting credentials (see Chapter 10, paragraph 10.2). In Washington in April 2008 the position of dean of the diplomatic corps was held by the ambassador of Djibouti who had been in his post for 20 years. In London in 2016, the position of dean was held by the Kuwaiti ambassador who had been in post since 1993 and had been dean since 2003.

7.17  In the case of special representatives sent to attend, for instance, coronations or state funerals, precedence is generally the same as that applying to the resident representatives of their countries. But where there is doubt, the rules of protocol of the host government, or court, are conclusive. The modern law on precedence derives from the Vienna Convention on Diplomatic Relations and in particular Articles 13 and 16.1.

7.18  The precedence of members of the diplomatic staff of each embassy is determined by the sending State and must be notified to the ministry of foreign affairs of the receiving State.

7.19  In the United Nations there are two orders of precedence, the precedence between delegates and officials and the precedence between member countries. As regards the first, the President of the General Assembly is held to be the most senior, followed by the Secretary-General and the President of the Security Council in that order. There follow the Chairman of the Economic and Social Council, the Vice-Presidents of the General Assembly, and the Chairmen and Vice-Chairmen of the Assembly Committees. The Secretariat maintains a protocol department to assist delegates, officials, and others with seating arrangements at formal occasions. This department is responsible for determining the general order of precedence for occasions when delegates, officials, and other high dignitaries attend together.

(p. 101) 7.20  As regards precedence between delegations, this derives from the arrangements agreed for the order of seating and roll-call voting in the General Assembly. Each year, a country is chosen by lot to take the first seat to the left in the front row of the Assembly and the remainder follow in English alphabetical order from left to right in each row of seats. This order of precedence is used in respect of all delegates and advisers of equivalent rank who do not hold any office (e.g. Chairman or Vice-Chairman). The only variation is at Security Council lunches, where representatives are seated in the order of seating which they have in the Security Council itself. The principle of precedence based on the date of presentation of credentials does not apply at the United Nations.

7.21  The initial selection of its ambassadors and, below them, the members of the staff of a diplomatic mission, is a matter for the law and practice of each State. Most States entrust the conduct of their diplomatic relations with other States, at least below the rank of ambassador, to a professional diplomatic service. The law and practice varies between different States on such matters as whether diplomatic posts are open to persons of other nationalities and on the personal requirements for appointment. Formerly it was common for States to maintain specialized services for consular and commercial matters and the United Kingdom, for example, maintained regional services such as the China Consular Service and the Levant Service for posts in the Middle East. The modern practice however is usually for States to maintain a unified diplomatic and consular service with, at least in theory, complete interchangeability in regard to personnel, functions, and geographical area of work. (Foreign affairs and trade officials have been amalgamated in the same ministry for some years in the Canadian, Australian, and New Zealand departments of foreign affairs and trade.)¹² Requirements as to educational or specialized professional qualifications and as to character are common, but laws against discrimination in many countries ensure that selection to diplomatic posts cannot be limited on grounds of race, religion, or sex. Restricting appointment to nationals of the appointing State however, since it serves as some guarantee of allegiance and loyalty, remains extremely common, and in some States it is a constitutional or legal requirement. In the United States, for example, the Foreign Service Act 1980 provides that only US citizens may be appointed to diplomatic posts abroad.¹³ Posts in the British Diplomatic Service are restricted to those who are British citizens, or have dual nationality as long as one of those nationalities is British and have been resident in the UK for at least two of the last 10 years.¹⁴

(p. 102) 7.22  Beyond these formal restrictions, States are likely to apply tests of aptitude for a diplomatic career in such matters as administrative capability, negotiation and drafting skills, and resilience under stress. Extensive language skills are in some countries no longer a prerequisite, since training can be provided, but aptitude for learning difficult languages may well be assessed and many European diplomatic services continue to require extensive knowledge of two foreign languages, one invariably English. Entry to a diplomatic career is in most States highly sought after so that searching tests may be used for purposes of selecting the best qualified and most suitable candidates. In highly developed countries the process of recruitment for overseas service is kept under almost constant review in the light of the changing needs of the State.

7.23  Bismarck provided a concise summary of what is expected of a diplomat in saying: ‘His work consists of practical intercourse with men, of judging accurately what people are likely to do in given circumstances, of appreciating accurately the views of others, and of accurately presenting his own.’ And as to the qualities of character sought when selecting from candidates for a diplomatic service it must be stressed that diplomacy is not a career for the compliant. It often imposes on officers the duty of defending the interests of their country in places not of their own choice, where they must be prepared to be resilient both in the face of unhealthy climates and when in the front line of international politics.

7.24  Sir Henry Wotton, ambassador of King James I of England to Venice, is perhaps best remembered among diplomats for his witticism that ‘[a]n ambassador is an honest man, sent to lie abroad for the good of his country’. The story is an excellent example of the dangers of joking in a language which is not the diplomat’s mother tongue (since the ambiguity in the English word ‘lie’ did not exist in the Latin translation used by Sir Henry). When King James heard a report of the remarks some eight years later, he never again employed Wotton. Sir Henry himself later advised a prospective ambassador that ‘to be in safety himself and serviceable to his country, he should always and upon all occasions speak the truth’. Sir Harold Nicolson in his book Diplomacy maintained that the qualities of an ideal diplomat were truth, accuracy, calm, patience, good temper, modesty, and loyalty.¹⁵

7.25  Ambassadors and other heads of mission are in many States selected not only as being the best qualified on personal grounds for appointment to a particular diplomatic post but also for political reasons. This is most apparent in the case (p. 103) of the United States where Article II Section 2.2 of the Constitution provides that the President ‘by and with the advice of the Senate, shall appoint ambassadors, other public ministers and consuls’. There is a long tradition of appointing political supporters of the party whose nominee has been elected President, and the practice has continued at least in regard to senior and hence more desirable appointments such as the main European and other Western posts. Under President Reagan it was said that 40 per cent of senior diplomatic posts were held by political appointees, leaving many senior professionals within the State Department frustrated at being assigned to the most uncongenial posts as ambassador or in playing second fiddle to a political appointee.

7.26  In the United Kingdom such political appointments are by contrast rare but not at all unknown. In 1940 in the early stages of the Second World War the former Foreign Secretary, Lord Halifax, was appointed as ambassador to Washington and remained in that post for six years. In 1961 Lord Harlech was selected by Prime Minister Harold Macmillan as ambassador to Washington because of his close relationship with President Kennedy and in 1968 Prime Minister Harold Wilson sent Sir Christopher Soames, a former cabinet minister, to Paris. In 1977 the new Foreign Secretary David Owen recalled a career ambassador from Washington and replaced him with the son-in-law of the then Prime Minister James Callaghan and more recently two former UK cabinet ministers have been sent to Pretoria and Canberra.

7.27  Given the nature of the duties and functions of an ambassador and the special need in many cases to appoint an individual who not only best represents the sending Head of State but has personal links to the head of the receiving State, there can be no standard way for States to select their ambassadors. In different ages and in different countries, advocates and actors, priests and noblemen, merchant princes, cultured scholars, and men of wealth have all been chosen as ambassadors. A modern diplomatic service is staffed with many supporting professionals from linguists and lawyers to cipher clerks and security officers. But at the level of ambassador the flexibility permitted to each State in its choice reflects well the variety of its political relations with other States.

7.28  Article 4 of the Vienna Convention on Diplomatic Relations requires a sending State to ensure that the agrément of the receiving State has been given for the person it proposes to appoint as head of its mission to that State. If the receiving State refuses agrément, it is not obliged to give reasons. Both rules reflect longstanding state practice which—with some resistance from the United States and (p. 104) from the United Kingdom—was accepted as customary international law by the 1930s. The requirement is justified by the need for a head of mission, in order effectively to conduct diplomatic relations between two States, to be personally acceptable to both of them.

7.29  The request for approval is normally made confidentially through the most convenient diplomatic channel—most usually by the retiring ambassador to the head of the receiving State’s protocol department or foreign ministry, though occasionally by the minister of foreign affairs of the sending State to the ambassador of the receiving State, or rarely and directly by one Head of State or minister to another in a third State or at the United Nations in New York. It is usual for a curriculum vitae to be supplied for the proposed ambassador. Very occasionally a sending State may supply more than one name and leave the choice to the receiving State. Refusals are usually given orally and are not made public, but the receiving State is not legally precluded from making the fact or the grounds of its rejection public.

7.30  Delay in giving agrément or rejection of a proposed appointment may relate to previous postings, conduct, or personal characteristics of the individual; or it may be a sign of strained relations between the two States or occasionally to a combination of both those factors. In 1885 the proposed United States envoy to Rome, Mr Keiley, whose case was important in the establishment of modern practice, was first rejected by the King of Italy on account of the political implications of a speech he had made at a meeting of Roman Catholics in Virginia protesting at the annexation of the Papal States by Italy. Subsequently his appointment to Vienna was rejected by the Austro-Hungarian government as advance agrément had not been sought by the United States, because of his public statements and also because the fact that he was wedded to a Jewish wife by civil ceremony would make his position in Vienna ‘untenable and intolerable’. In 1977 Greece delayed agrément for Mr William Schaufele as United States ambassador because of remarks he had made during his confirmation hearing before the US Senate relating to the dispute between Greece and Turkey in the Aegean Sea.¹⁶ Kuwait in 1983 rejected the proposed appointment by the United States of a head of mission who had previously served for three years as consul-general in Jerusalem.¹⁷ Suspicion of involvement in criminal and in particular terrorist activity, in espionage, or in violations of human rights may also be a ground for refusal. The Iranian government declined agrément to David Reddaway, the British nominee for the post of ambassador to Tehran in 2002, accusing him of being ‘a Jew and a member of MI6’, i.e. a spy. The British (p. 105) government however stated publicly that Mr Reddaway was not Jewish and was not an intelligence officer and responded by downgrading the status of the Iranian ambassador in London—so this rejection should properly be regarded as a sign of the difficult relations between the two States.

7.31  Even if agrément has been given, it may be withdrawn if the proposed head of mission has not actually arrived in the territory of the receiving State. In 1968, for example, Saudi Arabia withdrew its agrément to the appointment of Sir Horace Phillips as United Kingdom ambassador on grounds of his Jewish origins. The government of Saudi Arabia had in fact been aware of Sir Horace’s Jewish origins and its change of heart resulted from these being made public in the British Jewish Chronicle.¹⁸

7.32  By contrast with the position of heads of diplomatic missions, the general rule is that no advance approval from the receiving State is required for members of the staff of the mission of whatever rank. Article 7 of the Vienna Convention on Diplomatic Relations provides that the sending State may ‘freely appoint the members of the staff of the mission’—but there are exceptions in the case of multiple accreditation, in the case of staff who are not nationals of the sending State, and where the staff of the mission exceeds what is ‘reasonable and normal’. These exceptions are discussed below. The receiving State may also, under Article 7, require the names of defence attachés (military, naval, or air) to be submitted in advance for approval.

7.33  The right freely to appoint diplomatic staff is taken to include the right for the sending State to dismiss such staff, and the right of mission staff to challenge dismissal or discriminatory treatment by the sending State is shown by court cases in many countries to be extremely limited.¹⁹ The sending State as a general rule indicates whether each member of its mission staff should be classified as diplomatic staff, administrative and technical staff, or service staff. But since this classification has important implications for the privileges and immunities of individual staff members, some States—in particular the United States—have made efforts to scrutinize individual appointments by reference to the known duties performed and in case of suspected abuse to require that an individual be reassigned to a more appropriate category. In the UK, Protocol Directorate (not (p. 106) the sending State or its mission) decides whether a mission member should be a diplomatic agent, administrative and technical, or service staff. This determination is made on the basis of the job description supplied by the mission for its member of staff. The sending State is entitled to choose the title accorded to particular members of staff, and although these titles usually conform to standard diplomatic practice (minister; counsellor; first, second, and third secretaries; attachés are the usual ranks among diplomatic staff) there are exceptions. Libya caused particular difficulty when in 1979 it announced that its diplomatic missions would be designated as ‘People’s Bureaux’ and that members of its staff were no longer diplomats. This decision led to prolonged exchanges in a number of capitals as a result of which Libya accepted generally that foreign governments were entitled to make their own determinations, classifying Libyan People’s Bureau staff for purposes of conferring appropriate protection, privileges, and immunities on them.²⁰

7.34  Under Article 10 of the Vienna Convention on Diplomatic Relations there are extensive requirements to notify the ministry of foreign affairs of the receiving State of the appointment, status, and final departure of members of a diplomatic mission. These notifications are used by the ministry of foreign affairs in the context of establishing entitlement to privileges and immunities for individuals (and are dealt with in Chapter 12) and also in order to compile a local Diplomatic List and in some capitals to issue diplomatic identity cards. Neither entry on the Diplomatic List nor the possession of a diplomatic identity card are conclusive evidence of entitlement to privileges or immunities, but they have social and practical uses for individual members of diplomatic missions.

7.35  As already explained, it is highly unusual for a State to propose for a diplomatic appointment a person who is not one of its nationals, but international law does permit such an appointment. Article 8 of the Vienna Convention on Diplomatic Relations says merely that ‘Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.’ The appointment of a diplomat who is a national of the receiving State requires under Article 8 the consent of that State which may be withdrawn at any time. States are also permitted to reserve this right of veto with regard to nationals of a third State who are not also nationals of the sending State—though it is very unusual for this to be done.

7.36  In practice, most appointments of persons having the nationality of the receiving State are of dual nationals who are also nationals of the sending State. This (p. 107) practice is particularly common among States which are members of the Commonwealth. The United Kingdom government has made clear that it sees no problem in such appointments. Appointments of diplomats having only the nationality of the receiving State are by contrast highly exceptional—though this is mainly due to the restrictions usually applied by appointing States rather than to refusal of permission by receiving States. The UK government also permits members of staff of a Commonwealth diplomatic mission or the Embassy of the Republic of Ireland and their private servants who are citizens of the UK and are citizens of the sending State to have privileges and immunities to which they would have been entitled had they not also been citizens of the UK.

7.37  It is worth underlining that the question of whether such diplomats may be appointed and accepted is a separate question from the privileges and immunities to which they are entitled if appointed, which are described in Chapter 12. It should also be made clear that the limitations on appointment of nationals of the receiving State apply only to diplomatic staff and not to junior staff of the mission. The appointment of local nationals to embassy posts such as administrators, clerks, translators, cooks, and drivers has many advantages in terms of their familiarity with the local language and customs as well as reduced costs for the sending State and it is in practice extremely common. Staff in such positions are not normally dealing with sensitive information or carrying out political functions where their loyalty to the sending State might cause difficulties or risks.

7.38  Where permanent missions are not established between two States, one of the alternatives which may be chosen on grounds of security or lower cost is multiple accreditation. This may take the form of sending a single ambassador or diplomat to more than one State (Article 5 of the Vienna Convention on Diplomatic Relations) or the sending by two or more States of a single ambassador to one receiving State (Article 6 of the Convention). When the United Kingdom and Mongolia agreed in 1963 to exchange ambassadors, the UK head of mission to China (then chargé d’affaires en titre) was also appointed as British ambassador to Ulan Bator. The Mongolian ambassador to Poland was also accredited as Mongolian ambassador to the United Kingdom. Following the recognition by the United Kingdom in 1992 of a number of former Soviet Republics as independent States, eight of these were initially covered by cross-accreditation of the UK ambassador in Moscow.²¹ Both forms of multiple accreditation have (p. 108) long been in use in diplomatic relations. The first presents no special problems, since ambassadors are not required to reside continuously in the receiving State and are permitted to establish a mission headed by a chargé d’affaires ad interim in each capital where they are non-resident. The sending State must under Article 5 give due notification of the proposed arrangement to both, or to all receiving States, and each of them may expressly object. Silence may however probably be taken as an indication of assent.

7.39  It is also permissible for an ambassador or diplomat concurrently to act as representative of his sending State to an international organization and this is common in Rome (where some ambassadors to Italy are also representatives to the Food and Agricultural Organization), in Vienna (concurrent representation to the International Atomic Energy Agency), and in Brussels (concurrent representation to the European Union and/or to NATO). And in London many diplomats are also their country’s representative to the International Maritime Organization.

7.40  For practical reasons the second form of multiple accreditation is used much less frequently. The arrangement can only work well where the States sending a single ambassador have close political relations since otherwise the ambassador will find it difficult to act in the interests of both and the diplomatic message sent may be confusing. There may well be problems of confidentiality of archives and of information reported and—except where the arrangement is a merely temporary one—there may be a fear among the participant States of loss of sovereignty or prestige. Sharing an ambassador may however offer advantages of economy in the case of small States which are close both geographically and in political outlook—there is for example in London a diplomatic mission which represents a number of separate Eastern Caribbean States. European Union Member States in a number of capitals outside the Union have what are termed co-location projects in which premises as well as certain functions of reporting and protection are shared, but these do not involve the appointment of a single ambassador. These joint enterprises among Member States are described in Chapter 22, paragraph 22.105. Details of the European Union External Action Service which works in close cooperation with embassies of Member States are described at paragraphs 22.27 et seq.

7.41  A further possible limitation on the right of a State freely to appoint staff of its diplomatic mission is the right of a receiving State, under Article 11 of the Vienna Convention on Diplomatic Relations, to require that the size of the mission should be limited to what it considers ‘reasonable and normal, having (p. 109) regard to circumstances and conditions in the receiving State and to the needs of the particular mission’. Specific agreements between States as to the size of the mission are highly exceptional, and the power to limit the size of a mission is in practice used only where relations with the sending State are strained or there is concern about abuse such as espionage. One well-known case was the ceiling imposed by the United Kingdom in 1971 on the embassy and other agencies of the Soviet Union following the expulsion by Sir Alec Douglas-Home, then British Foreign Secretary, of 105 Soviet diplomats and other officials for ‘inadmissible activities’ (the standard euphemism for espionage). The UK maintained that the Soviet Union had no ‘need’ for staff beyond the numbers who were left after the expulsions since those expelled had not been performing diplomatic functions, and on each subsequent occasion when a Soviet official was expelled for ‘inadmissible activities’ the ceiling was reduced by one. This action was followed by the placing of reciprocal limits on the British embassy in Moscow.²²

7.42  The United States Congress also sought in 1985 to place a ceiling on the Soviet diplomatic mission in Washington so as to achieve parity with the numbers in the US embassy in Moscow. On this occasion however the Soviet Union responded to the US expulsions by requiring the removal of junior staff who were Soviet nationals, so that the US were forced, in order to comply with the new ceiling, to send US nationals as chauffeurs and cleaners to Moscow instead of as diplomatic staff.²³

7.43  The likelihood of retaliation together with the unpredictability of the form which it may take has therefore meant that in spite of publicly stated determination by a number of States to make more use of the power to place ceilings on foreign embassy numbers in order to limit abuse of diplomatic immunity,²⁴ the power has in fact rarely been used.

7.44  A further possible control of foreign embassies lies in the prohibition on the sending State, under Article 12 of the Vienna Convention on Diplomatic Relations, from establishing offices forming part of the mission in ‘localities’ away from where the mission is established unless prior express consent has been given. The general practice is for embassies to be set up in the capital or seat of government of the receiving State and to follow it if it moves. Where the government of the receiving State is situated in more than one city (for example The Hague and Amsterdam in the case of the Netherlands), embassies (p. 110) will normally follow the location of the ministry of foreign affairs because of the requirement that they should conduct official business with that ministry unless there is special agreement otherwise. There may be political or geographical restrictions on embassy location (as, for example, with Jerusalem and with the Holy See). There may be local requirements—for example where the receiving State moves its capital as Brazil, Nigeria, Germany, and Burma (Myanmar) have all done in recent decades. The United States permits foreign embassies to maintain in New York a single commercial or financial diplomatic officer in offices forming part of their mission premises. In large States there are of course likely to be foreign consulates in cities outside the capital and there is no bar under international law to other States setting up commercial offices, information offices, tourist offices, cultural centres, or libraries in other cities or towns in the receiving State—but these will not be accepted as part of the diplomatic mission except with express consent.

7.45  A distinction must be drawn between chargés d’affaires accredited to ministers of foreign affairs, already mentioned as forming the third class of heads of mission under Article 14 of the Vienna Convention on Diplomatic Relations, and chargés d’affaires ad interim who are appointed to act provisionally as head of a mission. The former were sometimes known as chargés d’affaires en pied or as chargés d’affaires en titre and, as already indicated, they have almost vanished from diplomatic practice as the appointment of ambassadors has become entirely general. An exceptional example of this generally obsolete practice however took place in the Federal Republic of Yugoslavia in 1992 where as a sign of displeasure at that State’s role in the break-up of Yugoslavia, many States withdrew their ambassadors from Belgrade and replaced them with chargés d’affaires en titre.

7.46  Chargés d’affaires ad interim, who are not formally accredited either to Heads of State or to ministers of foreign affairs, are by contrast frequent appointments. Article 19 of the Vienna Convention specifies that they should be appointed when the post of head of mission is vacant or the head is unable to perform his functions. It is usual diplomatic practice for an ambassador to take his leave and for there to be a gap before the arrival of his successor during which a chargé d’affaires ad interim will act as head of mission, and a chargé may also be appointed when the ambassador is recalled home for consultations or is abroad on leave, seriously ill, or even held hostage. When in 1971 the British ambassador to Uruguay was kidnapped by the Tupamaros guerrillas, however, the UK (p. 111) government declined for presentational reasons to appoint a chargé d’affaires ad interim.²⁵

7.47  The appointment of a chargé d’affaires ad interim must be notified to the ministry of foreign affairs—usually by the departing head of mission but, if he is unable to do so, by the ministry of foreign affairs of the sending State. The post may be held only by a member of the diplomatic staff. If no member of the diplomatic staff is present in the receiving State, the Vienna Convention permits a member of the administrative and technical staff, with the consent of the receiving State, to be in charge of the administrative affairs of the mission (for example securing the embassy premises, property, and archives). Such an individual would however not perform diplomatic functions. An unusual example of this occurred when a member of the administrative and technical staff took over as chargé d’affaires in the British embassy in Tirana in 1997 having sent the memorable telegram to the Foreign Office, ‘Chargé has been stabbed. I have assumed charge.’

7.48  The form of credentials used in the United Kingdom in the case of foreign sovereigns is that of a Lettre de Cabinet,²⁶ in the following terms:

Sir My Brother and dear Cousin/Madam My Sister and dear Cousin/Your Highness,

Being desirous to maintain without interruption the relations of friendship and good understanding which happily subsist between the two Crowns, I have selected My Trusty and Well-beloved xx to proceed to the Court of Your Majesty in the character of My Ambassador Extraordinary and Plenipotentiary/Envoy Extraordinary and Minister Plenipotentiary.

Having already had ample experience of xx’s talents and zeal for My service, I doubt not that he/she will fulfil the important duties of his/her Mission in such a manner as to merit Your approbation and esteem, and to prove himself/herself worthy of this new mark of My confidence.

I request that You will give entire credence to all that xx shall have occasion to communicate to You in My name, more especially when he/she shall express to Your Majesty/Your Highness My cordial wishes for Your Happiness, and shall assure You of the invariable attachment and highest esteem with which I am,

Manu Regia

(p. 112) Sir My Brother/Sister

Your Majesty’s/Your Highness’s

Good Sister

Elizabeth R.

Buckingham Palace

May 2015

To My Good Brother/Sister the King/Queen of [Country]

His/Her Highness [Country]

7.49  Or, in the case of a republic, a Lettre de Chancellerie,²⁷ in such terms as these:

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

To His/Her Excellency,

President of the Republic of xxx.

Sendeth Greeting!

Our Good Friend! Being desirous to maintain, without interruption, the relations of friendship and good understanding which so happily subsist between Our Realm and the Republic of xx, We have made choice of Our Trusty and Well-beloved xx. to reside with You in the character of Our Ambassador Extraordinary and Plenipotentiary.

The experience which We have had of xx’s talents and zeal for Our service assures Us that the selection We have made will be perfectly agreeable to You; and that he/she will discharge the important duties of his/her Mission in such a manner as to merit Your approbation and esteem and to prove himself/herself worthy of this new mark of Our confidence.

We therefore request that You will give entire credence to all that xx shall communicate to You in Our name, more especially when he/she shall renew to You the assurances of the lively interest which We take in everything that affects the welfare and prosperity of the Republic of xxx.

And so We commend You to the protection of the Almighty.

Given at Our Court of St. James’s, the ...... xx ......... day of xx ............. Two Thousand and Fifteen in the Sixty-Fifth Year of Our Reign.

Your Good Friend,

(Signed) Elizabeth R.

7.50  The language of such documents is a matter of ‘common form’. The heritage of elaborate phraseology has been retained in the formal usage of the United (p. 113) Kingdom and of some other European countries, where it is felt to express with clarity and due emphasis ideas which have remained basic to diplomacy throughout the centuries. But while each country will tend to evolve its own characteristic style of address and some prefer simpler forms better reflecting contemporary moods and customs, the final phrase asking that credit may be given to all that the agent may say in the name of his sovereign or government is of universal application. This is what constitutes the essential part of a Letter of Credence.

7.51  Letters of Recall may take the form of a Lettre de Cabinet as follows:

Sir My Brother/Madam My Sister and dear Cousin

Having need elsewhere for the services of My Trusty and Well-beloved xx, who has lately resided at Your Majesty’s Court in the character of My Ambassador Extraordinary and Plenipotentiary/Envoy Extraordinary and Minister Plenipotentiary I cannot omit to inform You of the termination of his mission in that capacity.

Having Myself had ample reason to be satisfied with the zeal, ability, and fidelity with which xx has executed My orders on all occasions during his/her Mission, I trust that Your Majesty will also have found his/her conduct deserving of Your approbation and esteem, and in this pleasing confidence I avail myself of the present opportunity to renew to You the assurances of the invariable friendship and cordial esteem with which I am,

Sir My Brother/Madam My Sister,

Your Majesty’s Good Sister

Elizabeth R.

Buckingham Palace

July 2015

To My Good Brother/Sister and dear Cousin The King/Queen of [Country]

7.52  Or of a Lettre de Chancellerie, as follows:

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith.

To the President of the Republic of xxx.

Sendeth Greeting!

Our Good Friend!

Having need elsewhere for the services of Our Trusty and Well-beloved xx, who has for some time resided with You in the character of Our Ambassador Extraordinary and Plenipotentiary, We have thought fit to notify to You his/her Recall.

We are Ourselves so satisfied with the zeal, ability, and fidelity with which xx. has executed Our orders on all occasions during his/her Mission that We trust his/her conduct will also have merited Your approbation, and in this pleasing confidence (p. 114) We avail Ourselves of the opportunity to renew to You the assurances of Our constant friendship, and of Our earnest wishes for the welfare and prosperity of the Republic of xxx.

And so We commend You to the protection of the Almighty.

Given at Our Court of St. James’s, the ............... day of ............... Two Thousand and Fifteen in the Sixty-Fifth Year of Our Reign.

Your Good Friend,

(Signed) Elizabeth R.

7.53  A number of concrete examples of credentials etc appearing in earlier editions of this work have been omitted. Their value as guidance to present-day practice has expired and they took up a lot of space. This is also true of the following Lettre de Chancellerie but it would be a pity for such a jewel to be lost sight of.

Par la Grâce dc Dieu,

Nous Alexandre III, Empereur et Autocrate de Toutes les Russies, de Moscou, Kiow, Wladimir, Novgorod, Tsar de Casan, Tsar d’Astrakhan, Tsar de Pologne, Tsar de Sibérie, Tsar de la Chersonese Taurique, Tsar de la Géorgie, Seigneur de Plescow et Grand Duc de Smolensk, de Lithuanie, Volhynie, Podolie et de la Finlande; Duc d’Estonie, de Livonie, de Courlande et Semigalle, de Samogitie, Bialostock, Carelie, Twer, Jugotie, Perm, Viatka, Bolgarie et d’autres; Seigneur et Grand Duc de Novgorod-inférieur, de Czarnigow, Riasan, Polotzk, Rostow, Jaroslaw, Beloosersk, Oudor, Obdor-Condie, Witepsk, Mstislaw; Dominateur de toute la contrée du Nord; Seigneur d’Ibérie, de la Cartalinie, de la Cabardie et de la province d’Arménie; Prince Héréditaire et Souverain des Princes de Circassie et d’autres Princes montagnards; Seigneur de Turkestan; Successeur de Norvège, Duc de Schleswig-Holstein, de Stormarn, de Dithmarsen et d’Oldenbourg, etc., etc., etc.

A la Très-Haute et Très-Puissante Princesse Victoire I^ère, par la Grâce de Dieu, Reine du Royaume-Uni de la Grande-Bretagne et d’Irlande, Impératrice des Indes, etc. salut!

Très-Haute et Très-Puissante Reine, très-chère Soeur et très-aimée parente! Nous avons jugé à propos de rappeler Notre Conseiller Privé et Chevalier Baron Arthur Mohrenheim du poste de Notre Ambassadeur Extraordinaire et Plénipotentiaire qu’il a occupé jusqu’ici près Votre Majesté. En informant Votre Majesté de cette détermination, Nous La prions de vouloir bien congédier gracieusement Notre susdit Ambassadeur, étant persuadé, qu’en se conformant dans l’exercice de ses fonctions aux instructions que Nous lui avons données, il aura déployé tout son zèle pour entretenir les liens qui subsistent entre Nos deux Cours, et aura su meriter la bienveillance de Votre Majesté. Sur ce, Nous prions Dieu qu’Il ait Votre Majesté en Sa sainte et digne garde.

Donné à Pétersbourg, le 8 février, 1884, de Notre Règne la troisième année.

De Votre Majesté l’affectionné Frère et Cousin,

Alexandre.

(Countersigned) N. Giers.

(p. 115) A Sa Majesté la Reine du Royaume-Uni de la Grande-Bretagne et d’Irlande, Impératrice des Indes.

7.54  A diplomatic agent to whom a particular negotiation is entrusted for the conclusion of a treaty or international agreement, or to take other formal action in respect of the treaty or agreement, requires as a general rule a special authorization, called a Full Power,²⁸ from the head of the State whom he represents; or, it may be, from its government, if the proposed treaty arrangement is to be between governments.

7.55  The use of Full Powers has a long history going back through the Middle Ages to the Roman plena potestas conferred on a procurator for legal transactions. It became in due course an established rule that only the bestowal of Full Powers gave an ambassador authority to commit his sovereign. The object of conferring them was to be able to dispense, as far as possible, with the long delays needed in earlier times for referring problems back to higher authority. Their use today is a formal recognition of the necessity for absolute confidence in the authority and standing of the negotiator.²⁹

7.56  In the case of a bilateral treaty, it is usual for the Full Powers of each signatory to be exhibited at the time of signature; in the case of a multilateral treaty, the duty of examining the Full Powers devolves by default upon the host government, viz, that of the State where the treaty is signed, or upon the international organization under whose auspices the treaty is concluded. It is not, however, always the case that an actual exchange or deposit of the original documents will take place. In some circumstances an inspection will suffice, and certified copies (p. 116) will be retained, for example where the agent is operating under a general Full Powers not limited to the particular negotiation. Normally Full Powers, where given ad hoc, having served the purpose for which they were intended, are left with the government of the State, or with the international organization, where signature of the treaty takes place, and in this event they are preserved with the signed treaty in the archives of the State or organization concerned.

7.57  Today the Full Powers issued to representatives for such purposes as the negotiation and signature of a treaty vary greatly in form, according to the particular constitution or the settled practice of the country which issues them. The form used in the United Kingdom for the signature of a treaty or convention between Heads of State is that of Letters Patent, as shown in paragraph 7.58, and the wording follows in general that of the past. Many countries adopt a similar formal style; in the case of others it may be simpler, and the phraseology employed may vary considerably, although a template for Full Powers is provided by the United Nations Treaty Secretariat and many States follow this model. Differences may exist also according to the degree of importance ascribed to the treaty, or whether it is to be concluded between Heads of State or, on the other hand, between governments. The essential feature of all such documents is that they should show by their terms that the representative to whom they are issued is invested with all necessary authority on the part of the State concerned to take part in the negotiations pending, and to conclude and sign, subject if necessary to ratification, the treaty instrument which may result from these negotiations.

7.58  An example of the form of special Full Powers issued by the Court of St James’s for the purpose of a treaty or convention between Heads of State is as follows:

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., To all and singular to whom these Presents shall come,

Greeting!

We hereby invest Paul Spencer Hailston, a Policy Officer in the European Union Department of the Department for International Development with Full Powers to sign, on Our behalf in respect of Our United Kingdom of Great Britain and Northern Ireland, the Agreement amending the Partnership Agreement signed in Cotonou on 23 June 2003 between the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part.

In Witness Whereof We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

Given at Our Court of Saint James’s, the first day of July in the Year of Our Lord Two Thousand and Five and in the Fifty-fourth Year of Our Reign.

(p. 117) 7.59  The following is an example of the form of a general Full Power such as is at present held³⁰ by the Secretary of State for Foreign and Commonwealth Affairs, ministers of State, parliamentary under-secretaries, and the permanent representatives at the United Nations and the European Union in order to enable them to negotiate and sign any treaty on behalf of the United Kingdom:

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., To all and singular to whom these Presents shall come,

Greeting!

We hereby invest The Rt. Hon. The Lord Maude of Horsham, Our Minister of State for Trade and Investment, with Full Powers to sign, on behalf of Our United Kingdom of Great Britain and Northern Ireland, subject, if necessary, to ratification, acceptance or approval, all treaties and other international instruments.

In Witness Whereof We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

Given at Our Court of Saint James’s, the thirty-first day of July in the Year of Our Lord Two Thousand and Fifteen and in the Sixty-fourth Year of Our Reign.

(Signature) Elizabeth R.

7.60  In the case of an agreement between governments, an example of the form of Full Power issued by Her Majesty’s Secretary of State for Foreign and Commonwealth Affairs is as follows:

Nic Hailey, British High Commissioner to Kenya is hereby granted Full Powers to sign, on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Kenya Concerning Defence Cooperation.

In Witness Whereof I, Philip Hammond, Her Majesty’s Principal Secretary of State of Foreign and Commonwealth Affairs, have signed these presents.

Signed and sealed at the Foreign and Commonwealth Office, London, the thirtieth day of November, two thousand and fifteen.

(Seal)

(Signature of Secretary of State.)

7.61  French examples of Full Powers issued for the purpose of a treaty:

Le Président de la République Française,

Vu l’article 52 de la Constitution

Autorise

(p. 118) Monsieur Pierre Sellal, Ambassadeur, Représentant permanent de la France auprès de l’Union Européenne à Bruxelles,

à signer

l’Accord de partenariat économique APE) entre les Etats de l’Afrique de l’Ouest, la CEDEAO et l’UEMOA, d’une part, et l’Union Européenne

d’autre part,

Fait à Paris, le 6 janvier 2015

(Seal)

(Signed) François Hollande

Président de la République française:

Le Premier Ministre,

(Signed) Manuel Valls

Le Ministre des Affaires étrangères et du Développement international,

(Signed) Laurent Fabius,

And

Le Président de la République Française,

Vu l’article 52 de la Constitution

Autorise

Madame Sylvie Bermann, Ambassadrice de France en Chine,

à signer au nom de la République Française

Le Traité de l’OMPI (Organisation mondiale de la propriété intellectuelle)

sur les interprétations et exécutions audiovisuelles, lors de la Conference diplomatique sur la protection des interprétations et exécutions audiovisuelles,

Fait à Paris, le 25 juin 2012.

(Seal)

(Signed) François Hollande

Président de la République

Le Premier Ministre

(Signed) Jean Marc Ayrault

Le Ministre des Affaires étrangères,

(Signed) Laurent Fabius

7.62  A United States example:

I invest Strobe Talbott, Deputy Secretary of State, or in his absence, John C. Kornblum, Assistant Secretary of State for European and Canadian Affairs, with full power and authority for and in the name of the Government of the United States of America to sign the Treaty Between the United States of America and the Republic of Latvia on Mutual Legal Assistance in Criminal (p. 119) Matters, together with any related documents, the said Treaty to be transmitted to the President of the United States of America for his ratification by and with the advice and consent of the Senate of the United States of America.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Department of State to be affixed at the city of Washington, in the District of Columbia, this tenth day of June, 1997.

[signature Madeleine Albright]

Secretary of State

[SEAL]