Não mate o mensageiro: imunidades diplomáticas e a continuidade consuetudinária no direito internacional

Abstract

In this work, International Relations Theory and Diplomatic Law are analyzed to argue that Public International Law is not an exclusive creation of the Modern Era or the Late Middle Ages, but rather a continuous cultural heritage, inherent to the interaction between civilizations. The study demonstrates how the principles for the protection of diplomatic agents have remained constant from Antiquity to contemporary codification. The research is based on bibliographic and documentary review, employing a method of Aristotelian essentialism to seek historical continuity in interstate relations. The first chapter establishes the theoretical bases, highlighting the origin of immunity in the Greco-Roman tradition of Ne Nuntium Necare and discussing the concepts of State and Legal-International Sovereignty. The second chapter carries out a comparative analysis of historical cases, with the study of Al Ghazal's mission to the Viking court demonstrating the application of the Functional Necessity Theory and State Reciprocity in a medieval context. Also in the second chapter, an analysis of Track 2 Diplomacy as a mechanism of Soft Power is conducted, with examples such as Marco Polo in the Mongol Empire and Dennis Rodman in the United States, revealing the strategic and perennial use of non-state agents to circumvent hostility and ensure channels of communication. Finally, the third chapter addresses the positivation of customs, detailing the overcoming of the Representative and Extraterritoriality Theories and the normative culmination in the Vienna Convention on Diplomatic Relations of 1961, which enshrines the Functional Necessity Theory and maintains the applicability of customary norms, confirming their fundamentality and the historical continuity of Diplomatic Law. It concludes that the respect for these customs, translated into norms, reflects the legal essence of the human necessity to seek peaceful communication and international stability.