| Diplomatic protection is a traditional legal system in international law. According to the current document, the diplomatic protection can trace its legal practice of nations back to 18th century. In spite of so, comparing with the law of sea and territory law, diplomatic protection is still a kind of relatively new business in international law and is unclear and full of disputes in many aspects. With the time going, although countries have more and more choices to settle disputes, diplomatic protection, as the one of the most basic and important methods for nations to protect their citizens overseas, is still significant in the new historical environment. Thus, the International Law Commission of United Nations passed the Draft articles on Diplomatic Protection (Second Reading) in its 58th assembly in 2006. Meanwhile, as a big developing country, China needs to strengthen its theoretical researching on the diplomatic protection since Chinese interests abroad will increase rapidly with its expansion of comprehensive national strength and further opening up.Under this background, this dissertation aims to analyze and make comments on the basic theoretical questions in the legal system of diplomatic protection, focusing on the particulars of the conditions of its implementation. The dissertation consists of 5 chapters (16 sections), about 250 thousand characters and English words, covering all the basic issues and main cases of diplomatic protection. This dissertation is constituted primarily with discussion while description is subsidiary in order to emphasize the analysis and comments.The part of introduction is divided into purposes and the point of view of the paper, the current situation of research home and abroad and the main methods of research. The author believes that it is the time for us to reinforce the relevant research in the evolution of the legal system and also that it is realistically important to China. After comprehensive analysis of the outcomes of domestic and foreign research, the author considers that the research of foreign countries is stepping ahead of China a lot and the systemic research of the International Law Commission of United Nations is the aggregation of relevant theories and of great significance. This article studied cases, texts, history and also made comparison and statistic analysis.The first chapter"the summary of the legal system of diplomatic protection"means to make it clear the basic theoretical framework of the system, which is the basis of the subsequent deliberately analysis of the conditions of the diplomatic protection. Born in the time of colonialism, the diplomatic protection contained the factors of hegemony and discrimination in a long time. In spite of so, the system was becoming stable gradually 100 years after its birth and became a kind of civilized method of protection in 20th century, especially after the World War Two. But there is still no relevant international convention up to now. For long, there are many ways to express the definition of the diplomatic protection. After analysis of the opinions, the author thinks that the definition put forward by the Draft Articles of Diplomatic Protection is sound. But it is better for this definition to take consider of the requirements of exhausting local remedies. The method of diplomatic protection is either diplomatic actions or legal proceedings, both of which are peaceful. Theoretical foundation is Vattel fiction that since a person is not the subject of international law, it is necessary to take the loss of a person as the loss of a country in order to protect the person. Vattel fiction is however criticized more and more for the time going. The author thinks that the fiction is not perfect but the modern society can not go without it. Hence, under the new historical environment, the diplomatic protection still has vibrant vitality and realistic value. Although many the domestic laws of nations ask the governments to protect the citizens abroad, it is the right of the country to use diplomatic protection as far as now. Consular protection is special and important to China and independent from the legal system of diplomatic protection. Consular protection and diplomatic protection is compatible with each other and could be used cooperatively in practice.The second chapter"the nationality requirements of diplomatic protection for natural persons"first analyzed the reasons of the disputes on the topic. In sum, the reasons can be concluded that on one hand, the word"nationality"is different in international law and domestic law, which inevitably leads to conflicts; in the other hand, in the diplomatic protection, although the nationality of a person is determined by the law of his country in principle, the restriction from international law should also be considered. But the restriction is very primitive and is featured with being unclear and indirect. Double or multiple nationalities is the difficulty and core of the diplomatic protection for natural people. Although the traditional opinion which is opposing against double or multiple nationalities has been changed a lot, we are still in the transition from the refusal to acceptance of the double or multiple nationalities. Hence, it leads to us to coordinate different nationalities when we are dealing with and analyzing such problems. When one country of nationalities claims its right against the other, the traditional non-responsibility doctrine should be improved and the uprising predominant nationality doctrine should be used. It means that when the relationships between the person and the nationality countries are similar, the non-responsibility doctrine should be applied and when the relationship between the person and one country is much closer than the other, the predominant nationality doctrine should be applied. When nationality countries claim their rights against one non-nationality country, neither the principle of effective and substantial relationship nor the predominant nationality doctrine can be applied since there is no reason in principle to prohibit these nationality countries to claim their rights commonly. Diplomatic protection requires persons to have the nationality of protection country continuously. The dies a quo (start day) is the time when the harm takes place and the dies ad quem (expiry day) is the time the claim is put forward rather than the time claim is resolved. Besides, unless there is opposing evidence, the status of the nationality could be considered continuous if the person has same nationality both on dies a quo and dies ad quem. It is hard to establish that the continuous nationality doctrine be abolished. But this doctrine has exceptions as compromise that a State may exercise diplomatic protection in respect of a person who is its national at the date of the official presentation of the claim but was not a national at the date of injury, provided that the person had the nationality of a predecessor State or lost his or her previous nationality and acquired, for a reason unrelated to the bringing of the claim, the nationality of the former State in a manner not inconsistent with international law. In spite of so, diplomatic protection shall not be exercised by the present State of nationality in respect of a person against a former State of nationality of that person for an injury caused when that person was a national of the former State of nationality and not of the present State of nationality. Generally speaking, it is permitted that the right of claim is transferred from one person to the other both of who have the same nationality. Regardless of the controversy, it is definitely prohibited that the right of claim is transferred to the person who have the nationality of respondent country. It is reasonable to some degree that diplomatic protection can be applied to stateless person and refugee, but the excessive expansion of diplomatic protection is dangerous and worth attention.The chapter three"the nationality requirements of diplomatic protection for legal persons"explained the difficulties of determining the nationality of corporations and then analyzed advantages and disadvantages of the traditional criterion (incorporation place) with clue of Barcelona Company case, which leaded to the conclusion that this rigid criterion can not satisfy the need the modern society and the future criterion should consider both the incorporation place and genuine link. The logic and the advantages and disadvantages of the seven projects put forward by Dugard, the special rapporteur of the International Law Commission of United Nations and the project put forward by the Article 9 of the Draft Articles of Diplomatic Protection proves that the incorporation place and genuine link should be considered one by the other, which means that the country of incorporation place should be allowed to protection first while the country having the genuine link with the person should also be allowed to do so if some conditions are satisfied. The traditional rule set up by Barcelona Company case gives the right of diplomatic protection only to country of corporation nationality while the country of shareholder nationality can not do so generally. But under the pressure of the environment, the country of shareholder nationality can have the right in exceptions. These exceptions mainly are that the corporation has ceased to exist for a reason unrelated to the injury and the corporation had the nationality of the State alleged to be responsible for causing the injury, both of which should be specified. Comparing with natural person, succession of states has special status in the continuous nationality doctrine legal person. But even in such succession, the claim against the country of former nationality can not be taken as the exception of the doctrine. When the corporation has ceased to exist for a reason related to the injury, it is the country of corporation nationality to protect. But if this country give up or does not use this right in reasonable time, the country of shareholder nationality should be allowed to protect. In diplomatic protection, rights of claim both of the country and the person can be transferred. But the personal right of benefit can not be guaranteed now. Although insurance companies are special, they should obey the continuous nationality doctrine.The chapter four"the requirements of diplomatic protection to exhaust local remedies"first made analysis on the legal status of the rule. In spite of controversy, exhaustion of local remedies as international custom will stay active. There are substantial theory and procedural theory on the nature of the rule. In fact, if the accused action only disobeys the local domestic laws, the rule is substantial. If the action disobeys the international convention or international custom, or at the same time this action also disobeys local domestic laws, the rule is procedural. The main methods of exhaustion are judicial and administrative, which is confined to the necessary legal procedures. In case the person may shorten the time of local remedies maliciously, the evidences and opinions put up in the domestic procedure can not be changed in the international procedure. Exhaustion of local remedies only applies to the situation of indirect-injury to country. In practice, criterion of main factors is feasible to make difference between the direct and indirect injury to country. The article 15 of the Draft Articles of Diplomatic Protection gives 5 exceptions of the rule."There is undue delay in the remedial process which is attributable to the State alleged to be responsible"and"The injured person is manifestly precluded from pursuing local remedies"can not be taken independently. The former needs to be listed as an item but latter does not. It is reasonable to some degree to be consider as an exception that"There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury", but as far as now, such idea lacks foundation, needs to be specified, leads to controversy and infeasible."There is no reasonable possibility of available local remedies to provide effective redress"and"The State alleged to be responsible has waived the requirement that local remedies be exhausted"is well established as exceptions, but they need to be specified further. Born for the reason that the diplomatic protection was colonial and overbearing in early days, Calvo doctrine and Calvo clause is an important part of the research on the exhaustion of local remedies. Although Calvo clause is not effective completely, it does restrict the right of country to protect in some instances. The spiritual essence of Calvo doctrine is equality and its historical rationality should be understood. With the historical environment changing, radical Calvo doctrine fell into a decline in modern international law but it is still alive. Meanwhile, mild Calvo doctrine is coming into being in modern rules.The chapter five"the requirements of diplomatic protection for State responsibility"first made sure that the existence of state responsibility is one of the conditions of the diplomatic protection since the aim of diplomatic protection is just to affix the responsibility of the state. But only the forming conditions of state responsibility is relevant directly. The forming conditions of state responsibility are essentially the same with international wrongful acts. There are two elements for international wrongful acts: first, subjective factor, that the country should be responsible for the harmful action; second, objective factor, that the country does against the obligation it should obey. But in some instances, the unlawfulness could be remitted such as consent, self-defense, countermeasure, force majeure, distress and state of necessity, which excluding the so-called"clean hands"doctrine.To make relevant discussion more complete and compact as well as to avoid excessive reiteration, the part about China is divided and put into the five chapters while an index for China part is attached to the article for easy-finding.China has not relevant case about diplomatic protection up to now, but China delivered its opinions six times in the General Assembly of United Nations. Generally speaking, China means to limit the scope of the protection, which should be changed to draw on advantages and avoid disadvantages. China agrees on the definition put forward by the Draft Articles of Diplomatic Protection. Despite the constitution of China ask the government to protect citizens overseas, our country does not burden the obligation of diplomatic protection in international law. Relevant cases and documents prove that consular protection is independent from diplomatic protection.Although China correctly support that the nationality generally depends on domestic law, it is unreasonable for China to consider"the law of host nation has different rules"as an exception. China does not recognize the double nationalities and put forward that the predominant nationality doctrine be taken place by the doctrine of the most significant relationship, but the two doctrines are essentially the same. As far as the multilateral protection for the people of double nationalities, China correctly thinks that if one or several countries have already commonly protected a person, other countries can not do so again for same injury. China recognizes that refuge and stateless people can benefit from diplomatic protection and they should continuously have legal and habitual residence in protecting country.China supports to use the criterion of incorporation place to determine the nationality of a corporation and considers the criterion of genuine link is needless. In fact, the genuine link is inevitably important. China thinks that it is for the country of corporation nationality to protect rather for the country of shareholder nationality. This opinion is reasonable to some degree, but the protection provided by the country of shareholder nationality could be taken as exceptions. On the exceptions, firstly, China thinks that the criterion to determine whether the company ceased to exist is the legal personality. Secondly, China thinks that the difference between the rights of a company and its shareholders depends on the law of the country where the company incorporated, but in fact it is better to depends on the law of nationality country. Thirdly, China correctly points out that even if the company has the nationality of the country accused, the local remedies should also be used first. In spite of recognizing that diplomatic protection is the right of country, China also thinks that countries should consider the right of a person to benefit.China thinks that exhaustion of local remedies should have specific conditions and worries about that the article 15 of the Draft Articles of Diplomatic Protection will inevitably lead to abuse these exceptions. In fact, such anxiety is unnecessary. China correctly points out that whether there is no reasonable possibility of available local remedies to provide effective redress should depend on whether local remedies manifestly or seriously violates local laws in practice. China also opposes to take"There was no relevant connection between the injured person and the State alleged to be responsible at the date of injury"as an exception. China thinks that if countries want to waive the requirement that local remedies be exhausted, they should express so definitely. Such opinion is reasonable to some degree and lacks legal foundation. China stresses that it is fundamental for the host nation to protect while supplementary for the nationality country to protect, which is same with the mild Calvo doctrine.China recognizes that state responsibility is one of the conditions of diplomatic protection and diplomatic protection also based on the existence of international wrongful act. But China thinks the realistic loss is indispensable to international wrongful act. Such idea is correct in the scope of diplomatic protection. As many other countries, China opposes to take so-called"clean hands"doctrine as an excuse to remit the unlawfulness of state act.
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