7.1 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 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. 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 (p. 82) posts abroad.1 Posts in the British Diplomatic Service are restricted to British citizens and there are also requirements for recent residence in the United Kingdom.2
7.2 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.
7.3 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 an officer the duty of defending the interests of his country in places not of his own choice, where he must be prepared to withstand the erosion of his health by uncongenial climates. He must also withstand the moral attrition to which he may be exposed in the front line of international politics while displaying the standards and values which his sending State seeks to uphold and to promulgate abroad.
7.4 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 in truth an excellent example of the dangers for a diplomat of joking in a language which is not his mother tongue (since the ambiguity in the English word ‘lie’ did not exist in the Latin translation used by Sir Henry) and when reported some eight years later to King James led to Wotton never being employed by the King again. 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 (p. 83) 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.3
Selection of Heads of Mission
7.5 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 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.
7.6 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.
7.7 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 sovereign 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 found favour as chosen (p. 84) 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 well reflects the variety of its political relations with other States.
Agrément for Heads of Mission
7.8 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 long-standing state practice which—with some resistance from the United States and 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.
7.9 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. 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.
7.10 Delay in giving agrément or rejection of a proposed appointment may relate to previous postings, conduct, or personal characteristics of the individual, 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 where there had been protest 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’. (p. 85) 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.4 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.5 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 spy. The British 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.
7.11 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.6
Appointment of the Staff of the Mission
7.12 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.
(p. 86) 7.13 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.7 The sending State may also as a general rule determine whether each member of its mission staff should be classified as diplomatic staff, administrative and technical staff, or service staff. 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 request that an individual be re-assigned to a more appropriate category. The sending State is also 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. Particular difficulty was caused by Libya which in 1979 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.8
7.14 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 will be further considered below in those contexts) 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.
(p. 87) Nationality of Diplomatic Staff
7.15 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.
7.16 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 practice is particularly common among States which are members of the British 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.
7.17 It should be stressed 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 10 below. 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.
7.18 As explained in Chapter 6 above, 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 (p. 88) 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.9 Both forms of multiple accreditation have 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 acquiescence.
7.19 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).
7.20 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 below (p. 89) in Chapter 27, paragraph 27.16. Proposals in the Treaty of Lisbon for a European Union external action service which would work in close co-operation with embassies of Member States are described below, in paragraph 27.28.
Control of the Size and Location of Diplomatic Missions
7.21 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 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 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.10
7.22 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.11
7.23 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 (p. 90) embassy numbers in order to limit abuse of diplomatic immunity,12 the power has in fact been little used.
7.24 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 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 Myanmar (Burma) have all done in recent years. 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.
Classes and Precedence among Heads of Mission
7.25 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 rank such as high commissioner in the case of (p. 91) 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.
7.26 The question of classes of envoy and precedence among them was in fact the first area of diplomatic law to be codified—in the Regulation of Vienna signed in 1815 by what were then the greatest Powers — Austria, Spain, France, Great Britain, Portugal, Prussia, Russia, and Sweden.13 At this period only monarchies and republics of equivalent political standing exchanged ambassadors and there was a proliferation of lesser titles for heads of diplomatic missions, such as ministers, envoys, agents, residents, chargés d’affaires. Even at the time of the death of Queen Victoria in 1901, Britain sent ambassadors to only eight capitals—Vienna, Paris, St Petersburg, Constantinople, Berlin, Rome, Madrid, and (from 1893) Washington. 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.
Article 14 of the Vienna Convention sets out the three classes of heads of mission as:
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 representative within the French Communauté or a high commissioner within the British 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.14 They may be given diplomatic privileges and immunities as a matter of courtesy but they are not strictly heads of mission.
(p. 92) 7.28 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.
7.29 Precedence among heads of diplomatic missions is now determined by the date of their taking up their functions. The taking up of their functions 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. 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.
7.30 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.
7.31 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 indicated above, 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.
(p. 93) 7.32 Chargés d’affaires ad interim, who are not formally accredited either to heads of State or to ministers of foreign affaires, 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 government declined for presentational reasons to appoint a chargé d’affaires ad interim.15
7.33 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 or be entitled to diplomatic privileges or immunities.(p. 94)
1 Public Law 96-465, 22 USC 3901.
3 (2nd edn, Oxford University Press, 1939). On the systems of selection in the United Kingdom see, in particular, J Dickie, Inside the Foreign Office (Chapmans, 1992) ch II ‘The Professionals’.
6 J Dickie, Inside the Foreign Office, 178–80.
8 See (1980) DUSPIL 286; UK House of Commons Foreign Affairs Committee 1st Report, 1984–5 paras 69–72.
9 Hansard HL Debs. 5 February 1992 col 271.
10 See J Dickie, Inside the Foreign Office, ch IX ‘Spies and Diplomacy’ at 203–8.
12 See in particular the 1985 UK Government Review of the Vienna Convention on Diplomatic Relations, Cmnd. 9497, at paras 28–32.
14 H E Cardinale, The Holy See and the International Order (Smythe, 1976) 136–50; J-C Noonan Jr, The Church Visible: the Ceremonial Life and Protocol of the Roman Catholic Church (Viking, 1996) 92–3.
15 G Jackson, People’s Prison (Faber & Faber, 1973).