The establishment within the United Nations framework of the International Law Commission opened the way to comprehensive codification to confirm what were accepted as well-established – if not universally respected – rules of international law.
More influential was the Draft Convention drawn up in 1932 by the Harvard Research in International Law.
Codification among States of immunities and privileges of diplomatic agents did not begin until the Havana Convention of 1928 drawn up among the States of the Pan-American Union – but this did not well reflect current practice either in its terminology or its rules. Until then precedence – which guaranteed direct access to the receiving sovereign as well as ceremonial honours – had caused numerous and bitter disputes. The first international instrument to codify any aspect of diplomatic law was the Regulation adopted by the Congress of Vienna in 1815 which simplified the complex rules on the classes of heads of diplomatic missions and laid down that precedence among heads of missions should be determined by date of arrival at post. These rules of customary international law were described in detail by early writers such as Grotius (1625), Bynkershoek (1721) and Vattel (1758). By the time of the Congress of Westphalia in 1648, permanent legations were accepted as the normal way of conducting international business among sovereign States, and over the next century detailed rules emerged in relation to the immunity of ambassadors and their accompanying families and staff from civil as well as criminal proceedings, the inviolability of their embassy premises and their exemption from customs duties and from taxes. Diplomacy in the modern sense revived with the Renaissance and during the sixteenth century – a period of violent religious strife – the special protection and immunity from criminal jurisdiction even for ambassadors suspected of conspiracy against the sovereign to whom they were accredited became established in practice among sovereign rulers. The personal inviolability accorded to envoys, for example among the ancient Greek cities and among the states of ancient India, became of less importance with the rise of the Roman Empire and later of Byzantium – both of these intent on subjugation rather than co-existence. Until it was accepted – originally as a matter of religious scruple – that the herald or emissary could pass safely in order to negotiate terms of truce or agreements to settle quarrels, there could be no peaceful international relations or rules on questions of substance. Historical ContextĪmong all peoples who wished to engage with each other on a basis other than that of conquest and subjugation, it was practice from the earliest times that the person of the envoy or intermediary between them was sacrosanct.
Its success is due not only to the excellence of the preparatory work by the International Law Commission and the negotiating skills of State representatives at the Conference, but also to the long stability of the basic rules of diplomatic law and to the effectiveness of reciprocity as a sanction against non-compliance. In terms of near-universal participation by sovereign States, the high degree of observance among States parties and the influence it has had on the international legal order, the Vienna Convention on Diplomatic Relations may claim to be the most successful of the instruments drawn up under the United Nations framework for codification and progressive development of international law.
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