Chargés d’affaires ad interim are distinct from the ‘chargés d’affaires accredited to Ministers for Foreign Affairs’ who are listed under Article 14 of the Convention as forming the third class of heads of mission. The latter are often described as ‘chargés d’ affaires en pied’, and can be traced back to the eighteenth century ‘agents’. Chargés d’affaires ad interim on the other hand derive from the ‘secrétaire de l’ambassade’ who would be left in charge during temporary absences of the head of mission. The distinction between the two offices became clear during the nineteenth century, and the chargé d’affaires en pied was given precedence on the ground that the chargé d’affaires ad interim sent no official notification of arrival and copy of credentials entitling him to acquire seniority under Article 4 of the 1815 Vienna Regulation. In some countries in Latin America, however, it seems that only a single category of chargé d’affaires was recognized.1
Page Id: 121ReferencesRèglement on the Precedence of Diplomatic Agents agreed between Austria, France, Great Britain, Portugal, Prussia, Russia, Spain and Sweden, signed at Vienna, 19 March 1815 2 BFSP 179Art.IVVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.19Art.19, (1)Art.19, (2)(p. 122) Negotiating history
A separate Article to regulate the appointment of a chargé d’affaires ad interim was introduced by Mr Bartos at the International Law Commission in 1957.2 It was generally agreed that a new Article would be helpful. The text as proposed and as finally adopted makes clear that the chargé d’affaires ad interim is not accredited to the receiving State and is not actually a head of mission—he can merely ‘act provisionally as head of the mission’. In his case the formalities of notification set out in Article 19 replace the agrément procedure required under Article 4 for heads of mission proper. Subsequent discussion, however, showed that on a number of points state practice was not uniform. The three disputed issues were the circumstances in which it was appropriate to appoint a chargé d’affaires, the method of notification of an appointment to the receiving State, and the persons who could be appointed or presumed to be in charge.
Need for appointment of a chargé d’affaires
Some States regarded temporary incapacity of a head of mission or his absence from the capital as occasion for the appointment of a chargé d’affaires ad interim, while others, including the United Kingdom and the United States, regarded the head of mission as remaining in charge so long as he was within the territory of the receiving State.3 The wording of Article 19 was left sufficiently vague to accommodate both practices. Although the International Law Commission commented that the ‘question must be answered according to the practice in the receiving State’,4 it will normally be the sending State which decides that its head of mission is ‘unable to perform his functions’, and proceeds accordingly to the appointment of a chargé d’affaires ad interim. It may be reluctant to make such a decision—for example, throughout the months in which the UK Ambassador to Uruguay, Sir Geoffrey Jackson, was held captive following his kidnapping, the UK Government did not appoint a chargé d’affaires ad interim. It would be very unusual for the receiving State to insist on an interim appointment against the wishes of the sending State.5 The receiving State can, however, refuse nomination of a chargé d’affaires as being Page Id: 122ReferencesVienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, (1972) 23 UST 3227Art.4(p. 123) unnecessary, and the United States do so if the relevant ambassador remains within the United States.6
Notification of the appointment of a chargé d’affaires
It was generally agreed that the most usual procedure was for the head of mission to notify the receiving State before his departure of the name of the person appointed as chargé d’affaires during his absence. If, however, the head of mission died or was incapacitated, the position was less clear. Mr Bartos’ original proposal to the International Law Commission contained the provision: ‘In the absence of notification to the contrary, the member of the mission placed immediately after the head of mission on the mission’s diplomatic list shall be presumed to be appointed.’ This, however, was not acceptable to a number of governments. The United Kingdom commented:
Normally Her Majesty’s Government require the appointment of a chargé d’affaires ad interim to be notified to them by the accredited head of mission prior to his own departure from the country. Should such notification be impracticable, Her Majesty’s Government require the appointment of the chargé d’affaires to be notified to them by the Minister for Foreign Affairs of the sending State. An exception to this general rule might arise in the case of an emergency caused by the death of the head of the mission, when in the absence of any contrary notification from the Government of the sending State Her Majesty’s Government would regard the charge of the mission as devolving upon the senior member of the diplomatic staff.7
The International Law Commission therefore deleted the provision for presumption of appointment. The Vienna Conference further tightened the procedure, by adopting an amendment proposed by Italy which made it clear that the chargé d’affaires ad interim could not notify his own appointment.8
Who may be appointed chargé d’affaires?
The customary rule was that only a member of the diplomatic staff could be appointed chargé d’affaires, and some countries refused to accept as chargé (p. 124) anyone holding a rank below that of second secretary.9 But where the head of mission had no subordinate diplomatic staff under him it would be necessary in case of his absence or incapacity to leave the embassy building and archives in charge of a non-diplomatic member of the staff. Denmark, in its comments on the International Law Commission’s 1957 draft and by amendment at the Vienna Conference, proposed that this practice should be formally recognized for the convenience of States unable to maintain well staffed missions abroad.10
There was some protest from States unhappy with an appointment of this nature, but it was welcomed by the smaller States. The addition of the words ‘with the consent of the receiving State’ was believed to be adequate to protect its interests, while other drafting improvements emphasized the strictly limited nature of the appointment which could be made under paragraph 2 of Article 19. The person so designated would not be entitled to represent the sending State or exercise diplomatic functions on its behalf, and would remain entitled only to the privileges and immunities of administrative and technical staff.
1 Vattel, writing in 1750, does not mention either title in listing categories of diplomatic agent. See Pradier-Fodéré (1899) vol I pp 286–7; Genet (1931) vol I pp 283–7; Satow (4th edn 1957) pp 170, 256; (5th edn 1979) paras 11.17 and 18. On the attempt by Chile to have this practice incorporated in the Vienna Convention, see Lecaros (1984) pp 78–9 and UN Doc A/Conf. 20/14 p 126.
2 ILC Yearbook 1957 vol I p 45.
3 ILC Yearbook 1958 vol I p 116 (Mr Bartos and Mr Tunkin on practice in Yugoslavia and the Soviet Union respectively); comments on 1957 draft Arts in UN Docs A/CN 4/L 75 p 9, A/CN 4/114 Add. 1 p 22, A/CN 4/116 p 28.
4 ILC Yearbook 1958 vol II p 94.
5 German practice is similar to that of the United Kingdom—see Richtsteig (1994) p 42.
6 Information supplied by State Department. It was suggested that the motive for an appointment in such circumstances was often to secure an attractive invitation for the proposed chargé.
7 UN Docs A/CN 4/L 72 p 11 (Philippines), L 75 p 10 (Australia); A/CN 4/116 p 27 (United States); A/CN 4/114 Add. 1 p 22 (United Kingdom).
8 UN Docs A/Conf. 20/C 1/L 100; A/Conf. 20/14 pp 124–8.
9 See UN Doc A/Conf. 20/14 p 125 (representative of Venezuela).
10 UN Docs A/CN 4/L 75 p 10, A/CN 4/114 p 18, A/CN 4/116 p 28; A/Conf. 20/C 1/L 170; A/Conf. 20/14 pp 124–8.