| Economic globalization is more an opportunity than a challenge. The 21st century will inevitably be with the economic globalization.All of the countries'economic development, including China, could not be separated from economic globalization. With China entering into WTO, we have gotten more chances to take part in the international economic activities. Products made by Chinese enterprises are having been increasingly competitive in the international market. Enterprises are looking forward broader overseas investment markets. Individuals go abroad to work, study, travel, visit families and so on. All of the above had shown our confidence and courage to further inosculate with the international society. However, all kinds of overseas activities of our citizens and legal persons may encounter some administrative or legal obstacles, since various discrepancies objectively exist in the countries'politics, economies, culture and historical tradition and there are gaps in the understanding for country values and value tropism. And hence, how to protect the legal rights of overseas citizens and legal persons from infringement out of China is a critical issue that needed to be researched and resolved by the diplomatic protection legal system. So we have to study and make use of the legal system of the diplomatic protection, but current related research made by the Chinese international law academe is a little superficial and lack of system, practice and practicability. This dissertation makes efforts to construct the legal system of the diplomatic protection system to make up the deficiency in the international law academe's related research in our country. This dissertation is divided into 6 chapters.The first chapter is for introduction to the diplomatic protection. This chapter is composed of 4 sections to give entry to the diplomatic protection, that is, the concept, the history, the characteristics, the parties and the basis. Variant descriptions for the concept of the diplomatic protection are listed in the first section. Even if it is impossible to sum up everything in listed variant descriptions, we could still touch some hot topics in the field of the diplomatic protection, which would at least include the target, scope and treatment to foreigners of the diplomatic protection, exhaustion of local remedies and procedure of the diplomatic protection. And also through investigating the entire evolvement history of international law, it analyzes a variety of diplomatic-protection related institutions and regulations existing in ancient, middle-aged, modern and current international laws. The second section analyzes the character of the diplomatic protection and made 3 conclusions as follows: (1)The diplomatic protection is a state sovereign act and represents the state power. (2)The diplomatic protection is different from generic agent actions. (3)The diplomatic protection is different from the subrogation in the system of overseas investment insurance. The next section lists the targets of the diplomatic protection and especially focuses on those mentioned in the diplomatic protection framework by UN International Law Commission, including 1.natural person: (1) nationals (2) multiple nationals (3) stateless person and refugees;2.legal person: (1) corporations (2) other kinds of legal person. The last section is dedicated to the theoretic basis of the diplomatic protection, which should include state responsibility and personal jurisdiction from the view of the author.The second chapter is dedicated to the status of diplomatic protection in international law. This chapter is divided into 5 sections: that is, the comparison between the diplomatic protection and the extraterritorial asylum, the comparison between the diplomatic protection and consular protection, the comparison between the diplomatic protection and the functional protection of international organizations, and the comparison between the protection of the flag state and aircraft's registering state to sailors or aircrew, diplomatic protection and other dispute settlements. The first section compares effects, objects of the application and functions of the diplomatic agents between the diplomatic protection and the extraterritorial asylum and concluds that the diplomatic protection and extraterritorial asylum are completely different legal systems. The second section analyzes the questions of executors, objects, whether the rights could be abandoned, and contents of the diplomatic protection and that of consular protection. This part concludes that the consular protection is the preparative phase or the primary stage of the diplomatic protection. The third section proceeding with the conflict of between the diplomatic protection and the functional protection of international organizations and comparing intentions and researching areas between them, concludes that the diplomatic protection and functional protection of international organizations are different and introduces methods to resolve conflicts between them. By studying the international law theory and practice, the fourth chapter sets forth the point that the flag state may have power to protect sailors who work on its ship but do not have its nationalities. Through comparing this point with the section 292 of United Nations Convention on the Law of the Sea, this part elicits that though overlapping in some points, these two rules should not be substituted each other. The fifth chapter compares the diplomatic protection as a method of disputes settlement with other disputes settlement methods in international human rights system and international investment areas and gets the conclusion that the diplomatic protection is a traditional legal system in international law which has the character of politics and law.The Third Chapter is for the conditions under which diplomatic protection is exercised. Three requirements need to be met if the nationality state is going to exercise the diplomatic protection to protect its overseas natural person and legal person, that is, nationality principle, actual loss principle and local remedies principle. This chapter consists of four sections: nationality principle, actual loss principle, local remedies and the"clean hands"rule. Proceeding with the concept of the nationality, the first section especially analyzes the doctrine of continuous nationality and the doctrine of effective nationality. The second chapter introduces the scope and standard of the treatment of aliens and analyzes the conflict between the international standard and the national standard of foreign treatment. The third section firstly analyzes the reasonability of local remedies principle from the point of the theoretic basis of local remedies principle (i.e. state sovereign and territorial jurisdiction) and then introduces some detailed demands and exceptions and finally analyzes the future trend of the local remedies principle. The forth section firstly introduces the equity law -'clean hands'and then through referring to cases analyzes the relationship between the equity law and the conditions under which diplomatic protection is exercised and finally concludes that in current situation the'clean hands'should not be added into Drafts articles on Diplomatic Protection.The Forth Chapter is for special topic of diplomatic protection for legal person. In the area of international investment, the diplomatic protection is more complicated since generally the nationality of legal persons is different with that of stockholders. The chapter investigates three topics: (1) company's nationality (2)Protection for stockholders (3)Calvo Doctrine and the execution of the diplomatic protection. The first section mainly analyzes the way to recognize the nationality of diplomatic protection and the topic of company's continuous nationality. The second section, according to typical cases and Drafts articles on Diplomatic Protection by the UN International Law Commission, considers that protection for stockholders should mostly be implemented by company's nationality state and by shareholders'state in some exception cases. The third section, referring to the originality of Calvo Doctrine, analyzes the relationship between Calvo Doctrine and the power of diplomatic protection and deduces the trend of Calvo Doctrine.The fifth chapter is for the implementation and procedure of diplomatic protection. It mainly introduces the procedure of diplomatic protection, which consists of the peace precondition of initiating protection, the way of diplomatic protection implementation, the jurisdiction of the international court and its decisions, and the legal consequence of the diplomatic protection. Proceeding with the international conventions, the first section of this charter specifies that implementing the diplomatic protection by force is illegal, restates that peaceful settlement of the international disputes is one of the basic principles of the contemporary international law and concludes that peaceful settlement is the only way to implement the diplomatic protection. The second section introduces the ways to implement the diplomatic production, that is, aid, assistance, protest and international claims. The third section focuses on the jurisdiction of the international court and its decisions based on the international claims. The forth section analyzes the consequence of diplomatic protection—a legal issue indicating whether the state which got the compensation has the duty to pay the victim. For this topic, through analyzing practices of Britain, United States of America, French and the views of the U.N. International Law Commission, the author considerers that the legal consequence of the diplomatic protection is in the scope of the jurisdiction of the national law and should not be regulated by the Drafts articles on Diplomatic Protection for until now universal widely-accepted international custom has not been reached.The sixth chapter is for the development trend of the diplomatic protection and what may china learn from it. This chapter is divided into four sections: the status of the General Assembly's legislation on the diplomatic protection; the international environment in which the diplomatic protection develops; the development trend of the diplomatic protection; the standpoint of China on the diplomatic protection and hers practice. The first section introduces the status of the General Assembly's legislation on the diplomatic protection and makes comments on the Drafts articles on Diplomatic Protection. The author considers that the advancement of the Drafts is that it clarifies the primary rule and secondary rule of the international law and the deficiency is its failure to distinguish the international law jurisdiction from the national law jurisdiction. The author suggests that the Drafts should be named Diplomatic Protection Regulation. The second part analyzes the environment under which the diplomatic protection develops. The author considers that the diplomatic development reveals its characters and development trend under the current global background of globalization and harmonious world. On the basis of above, the third part puts forward the development trends of the diplomatic protection and points out that the trends should be that the diplomatic protection will be codified, sovereign cannot be neglected and consular protection will develop into one special kind of diplomatic protection and there is the requirement to make the Consular Protection Regulations. The forth part is talking about the standpoint of China on the diplomatic protection and hers practice and analyzes what China may learn from the trends of the development of the diplomatic protection. The author believes that under the circumstance of the economic globalization and harmonious world, our county should take part in making and studying the diplomatic protection rules actively, holds the principle of the state sovereign in practice and makes efforts to develop the consular protection system.
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