Chapter 4

STATE REPRESENTATION

§ 1 Diplomatic Missions and Embassy Property

Selection

Ambassadorial Functions

On February 5, 1977, President Carter signed Executive Order (E.O.) 11970, which established the Presidential Advisory Board on Ambassadorial Appointments. Section 1 of E.O. 11970 provided that the Board shall be composed of members appointed by the President, that the Chairman shall be designated by the President from among its members, and that the Secretary of State shall designate an Executive Secretary. The provisions concerning qualifications of those nominated for an ambassadorial post follow:

SEC. 2. (a) The Board shall, whenever requested, make confidential recommendations to the Secretary of State and the President as to the qualifications of individuals for an ambassadorial post for which noncareer individuals are being considered, and such other advice as the President shall request.

(b) In considering the qualifications of a prospective nominee, the Board shall consider such background information on the requirements of particular ambassadorial posts, evaluation criteria, and information regarding the prospective nominee which may be furnished by the Department of State; and the Board shall consider such other information as it deems appropriate in order to render an informed judgment concerning a prospective nominee's qualifications and suitability.

SEC. 3. Upon request by the President or the Secretary of State, the Board shall consider which ambassadorial posts should be filled by career people and which should be filled by noncareer people, and shall make its recommendations in confidence regarding same to them.

E.O. 11970 further stipulates that Board members may not be appointed to an ambassadorial post during the time of their service nor during the first year thereafter unless the President waives this provision and states his reasons for doing so. The Executive order terminates the Board on December 31, 1978, unless extended prior to that date.

42 Fed. Reg. 7919 (1977).

Authority

On October 25, 1977, President Carter sent a letter to all U.S. ambassadors reaffirming their primacy among U.S. officials operating abroad. Addressing them as his personal representatives, President Carter indicated that U.S. ambassadors have full responsibility for all U.S. Government officers and employees in their respective countries of accreditation except for certain personnel accredited or detailed to international organizations and personnel under the command of a U.S. area military commander. The letter stated that personnel from all U.S. agencies assigned abroad have the duty to keep the U.S. ambassador in their respective countries of assignment informed of their activities, and U.S. ambassadors have the authority to review message traffic to and from all personnel under their jurisdiction. President Carter's message also dealt with the responsibility of the Secretary of State for the overall supervision of U.S. Government activities overseas and the authority of ambassadors with regard to Department of Defense personnel.

The text of the letter follows:

Please accept my personal best wishes for success in your mission. As my personal representative, you will share with me and with the Secretary of State the responsibility for the conduct of our relations with

I want to state clearly that, as Chief of the United States Diplomatic Mission to and my representative, you have the strongest mandate possible. As P.L. 93-475 [the State Department Authorization Act for Fiscal Year 1975] states, you have "full responsibility for the direction, coordination, and supervision of all United States Government officers and employees" in your country of accreditation. This authority includes all United States Government programs and activities in that country. The only exceptions to this rule are personnel under the Chief of a United States Mission accredited to an international organization, personnel detailed to duty with international organizations, and, as stated in P.L. 93– 475, "personnel under the command of a United States area military commander." I expect you to provide positive program direction, assuring that all United States Government activities under the authority of your Mission reflect and support current United States policy, are effectively coordinated, and are economically administered.

I expect the highest standards of professional and personal conduct by the personnel from all agencies assigned to our missions abroad. As my personal representative you have the authority and my full support in taking actions required to assure that these standards are maintained. All United States Government personnel in your country of assignment should be made aware of your authority and responsibilities. It is their duty to keep you thoroughly

and currently informed about all their activities so you can effectively direct, coordinate and supervise United States programs and operations under your jurisdiction and recommend missionwide policies to Washington.

Without restricting their right to communicate on a timely basis. with superiors in their own departments and agencies, you have the authority to review message traffic to and from all personnel under your jurisdiction.

Policy guidance and instructions will be sent to you from the Secretary of State or from me. I expect you to report with directness and candor. The Secretary of State has the responsibility not only for the activities of the Department of State and the Foreign Service but also, to the fullest extent permitted by law, for the overall direction, coordination and supervision of United States Government activities overseas. There may be developments or decisions on which personnel under your authority disagree. The Secretary of State and I will always welcome the opportunity to consider your recommendations for alternative courses of action and policy proposals.

As Commander in Chief, I have authority over United States military forces. Apart from forces under the command of a U.S. area military commander and Department of Defense personnel seconded to international organizations, you shall assume responsibility for the direction, coordination and supervision of all Defense Department personnel within your country of accreditation. This includes, for example, responsibility for Defense Attache Offices, units engaged in security assistance and other military components attached to your Mission, as well as other activities by Defense personnel which may have an impact on the conduct of our diplomatic relations with the country of your assignment.

To carry out our national policies effectively, it is important that Chiefs of Diplomatic Mission and the concerned United States area military commanders as well as Chiefs of Mission accredited to international organizations, maintain close relations, keeping each other currently informed, and cooperating on all matters of mutual interest. You should report to the Secretary of State differences of view which cannot be resolved in the field.

Cutting the cost of government is of particular concern to me. The size of our representation abroad must be related to a stringent appraisal of policy and program requirements, and the number of personnel of all agencies must be kept at the minimum necessary to achieve our objectives. I consider this to be one of your most important goals. You should inform the Secretary of State when you believe that the staff of any agency or program is in excess of our needs. Routine implementing personnel actions remain the responsibility of the parent departments and agencies.

I have notified all heads of departments and agencies of the Government concerning the authority and responsibilities of the Chiefs of American Diplomatic Missions, and I have asked them to inform their personnel in the field accordingly.

You have my personal confidence as you undertake your mission. I am sure that you will represent our country with the skill, dedication and goodwill which your post demands.

Dept. of State Newsletter, No. 195, Nov. 1977, pp. 3-4.

For further information concerning the authority and responsibility of U.S. ambassadors, see 22 U.S.C. 1975 supp. § 2780a or the 1974 Digest, Ch. 4, § 1, p. 158.

Protection of Diplomats

A foreign embassy in Washington submitted to the Department of State on October 25, 1976, a diplomatic note expressing "the most resolute protest in connection with the murder of [a certain] Embassy employee...." The note states that this employee was attacked in October of 1976 by unidentified armed persons and died at a Washington hospital from gunshot wounds to the head. In a subsequent note dated January 11, 1977, the Embassy requested compensation for material losses incurred as a result of this death. The itemized listing of requested compensation, which totaled $107,474, included the cost of hospitalization, transporting the body of the deceased to the foreign capital, the funeral, a lump sum payment to the family of the deceased in the amount of three month's salary, and a pension to the deceased's widow. The compensation did not include compensation for moral damage or for pain and suffering inflicted on the deceased or on the widow.

On February 10, 1977, the Department of State responded to these two notes in a diplomatic note which began by attributing the death to a fatal wound inflicted "in an attempted robbery by private citizens of the United States in Washington. . . .”

The Department and the United States Government deeply regret the tragic death of Mr. . . . . The Department does not, however, find that the United States Government or any of its agencies was negligent with respect to Mr. . . . , or that the United States Government is liable for Mr. . . .'s death. Mr. . . was shot some distance from any [Embassy] establishment in a common street crime not politically inspired or related in any way to his status as an Embassy employee. Mr. . . .'s assailants were apprehended, prosecuted and convicted. The legal responsibility of the United States Government to the Government of the [employee] has been fully discharged.

There is no basis under the Vienna Convention on Diplomatic Relations or other international or United States law for a claim of United States Government liability in such incidents, and the Department knows of no principle of international law which makes the receiving State a guarantor of the safety of the members of a diplomatic mission.

The Department must, therefore, respectfully decline to provide compensation to the... Government or to Mr. . . .'s widow. Dept. of State File No. P77 0022-148.

Entitlement

Privileges and Immunities

In a diplomatic note dated February 10, 1977, the Department of State notified an embassy of a diplomatic mission accredited to the United States that the embassy's request to have a named individual accorded diplomatic status had been denied on the following grounds:

[I]nasmuch as [the named individual] is employed on a full-time basis as Alternate Executive Director of the International Monetary Fund, he does not qualify for diplomatic status. Criteria established for diplomatic accreditation include the requirement that a diplomatic officer must devote his official activities full-time to diplomatic duties. Although the Vienna Convention on Diplomatic Relations (Art. 5, par. 3) provides that a member of the diplomatic staff of the mission may act as representative to any international organization, the Department of State requires that, in such circumstances, the diplomatic agent must be principally engaged in diplomatic duties.

Dept. of State File No. P77 0022-136.

In the spring of 1976, the Department of State prepared answers to seven questions posed by the U.S. Senate Committee on Foreign Relations concerning U.S. practice in granting diplomatic privileges and immunities to officers and other individuals of foreign governments and international organizations. Published in 1977 as part of a study of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611-621, the answers provided by the Department of State describe, inter alia, the various categories of persons entitled to diplomatic and other privileges and immunities, report how the lists of such individuals are maintained, indicate the criteria and procedure utilized by the Department of State in granting a person privileges and immunities, and deal with related issues such as individuals with observer status, members of U.N. missions, and defendants in civil and criminal cases. The text of the questions and answers appears below:

1. Provide a summary of the various categories of persons entitled to diplomatic and other privileges and immunities, along with a list of the appropriate laws and treaties granting this immunity.

The major categories of persons entitled to diplomatic and other privileges and immunities are (1) diplomatic officers and nondiplomatic staff personnel and members of their families forming part of their households; (2) consular officers and employees and, in some cases, members of their families and (3) representatives to and officers and employees of international organizations and, some cases, members of their families.

In the case of diplomatic mission personnel and their families, the primary legal bases for the enjoyment of privileges and immunities