Diplomatic Protection System Research

Diplomatic protection is an ancient and young system in International Law.It is ancientbecause of the later emergence in international law, and it is young because of thenew condification about it in the International Law Commission.The development of this system conformity with three trajectories:the first track isfrom the unwritten law to statute law development.Second track is the radiation fromthe procedural law to the substantice law.The third track is rising according fromtheory–practice-retheory-repractice,constantly forward to the end of protection. Fromthe mid-twentieth century, the international protection of human rights has developedin large range and promote the strength and scope of the protection of foreigners. Thisbrought a fundamental change in the Diplomatic Protection. But as a right of thecountry, the foundation of diplomatic protection has not essentially changed. In2006,the Draft Articles on Diplomatic Protection codified and developed the mainregulations of the contemporary regime of diplomatic protection, which reflects thelong-term accumulation and confirm the results of the regime of DiplomaticProtection.It is also reflects the future trends and directions of the institution ofDiplomatic Protection, in general it is a balance result of compromise.This Article includes six chapters:The first chapter analyzes the concept and features of diplomatic protection as well asthe differences and relations between diplomatic protection and related concepts. Thedevelopment of diplomatic protection system is in conformity with a special volume ofinternational law. Through adjustment and self-improvement, it further established andpracticed the fundamental principle and criterion of international relation andinternational law. Every step of the development of diplomatic protection is deeplyrooted in contemporary realities of international relation and material conditions indifferent countries. Thus it reflects the features and limitations of different historicalperiod adjusted by international law. Diplomatic protection has entered into a new erawith its codification in2006, and it certainly will influence future international lawextensively and profoundly.The second chapter mainly focuses on diplomatic protection in traditional internationallaw. At that time the theoretical foundation to protect private rights is based on "Vatteltheory", and it forms three traditional prerequisites in practice: nationality,internationally wrongful act and exhaustion of local remedies. Both amicable and forcible ways are allowed when conduct diplomatic protection in traditionalinternational law. In general, strong countries benefit more from traditionalinternational law when protect their interests overseas.The third chapter discusses the diplomatic protection system in the contemporary ageby analysis of Draft Articles on Diplomatic Protection. It has a feature that complieswith the globalization era, the most distinguished of which is concerns andconsiderations of personal safety under administration and protection of a country. Thecodification will face great challenges considering the customary rules of over twohundred years. Some issues arose strong controversies during codification, such as thenature of diplomatic protection, three prerequisites, diplomatic protection ofcorporations, citizens with two or more nationalities, application of the principle of"clean hands" and compensations. The International Law Commission of UnitedNations codifies and develops international law. But both traditional and contemporaryinternational law has its own limitations that we should try to avoid and overcome.The fourth chapter discusses diplomatic protections in precedent cases. As customarylaw, the most difficult thing is to confirm and prove. At that point, internationalprecedent cases are crucial. Some custom rules are confirmed by cases decided byinternational court of justice and international arbitration court, and international courtof justice is discreet about the confirmation. Besides, some other acceptable ways arechosen by state parties to settle disputes, like mediation committee, compensationcommittee and special arbitration tribunals. Those ways of settlement providereference to other countries facing similar situations.The fifth chapter discusses diplomatic protection in domestic laws, which will be thehighlight and difficulties of this article. The procedure of diplomatic protectionoriginated in and depends on international mechanism, but to determine whether aclaim is lawful and whether it should be supported by international law it highly relieson domestic law system such as law of nationality, procedure law to provide localjudicial remedies and law of treatment of aliens. It also closely related with domesticjudicial system. The principle of "exhaustion of local remedies" will inspect thedomestic administration, judicial and even the whole organization system. Diplomaticprotection systems are relatively uncertain and conservative in different countries dueto its political sensibility, complexity in practice and dependence on measures taken byother countries. The sixth chapter introduces diplomatic protection in China. Diplomatic protection andconsular assistance are not strictly distinguished in China's practice, and somediplomatic acts are usually included in consular assistance. Although diplomaticprotection in China has its own specialty, China participates in the codification of DraftArticles on Diplomatic Protection throughout and shows its own position on this issue.Along with the international integration, China has truly interacted with internationalcommunity, and has real state interests in diplomatic protection. To discover its ownway on diplomatic protection based on international law has been necessary for Chinato protect its overseas interests.In the final, this article draw a conclusion that the system of plomatic protectiondevelops along with the nineteenth century of the industrial revolution in Europe andLatin America's colonial independence movement, but until the mid-twentiethcentury,this development is still not fully mature. From the mid-twentieth century, theinternational protection of human rights in large part to further promote the strengthand scope of the protection of foreigners, it also brings some basic changes in thediplomatic protection. It is not changed for the system as a foundational right of a state.2006The Draft of Articles on Diplomatic Protection is a result of balance andcompromise.Diplomatic protection involves an extremely sensitive area of therelationship between two sovereign states, to protect its overseas citizens andforeigners in their territory, as the two sides of an issue, the two sovereign rights canget the support from the international law. Therefore, any deviation from the changesof the sensitive issues involved in the diplomatic protection will have a profoundimpact on the development of international law and its trend.