Law Of Diplomatic Protection From A New Haven's Perspective

In this paper, a policy-oriented jurisprudence of New Haven School is applied to inquiries about the law of diplomatic protection, and the process of diplomatic protection is regarded as a part of the global process of authoritative decision. There are a series of questions should be discussed, such as who are the participants in the process of diplomatic protection, what are the perspectives of every participant, what prerequisites a claim State should have when it wants to participate the process of diplomatic protection, and what strategies it could used in the protection of its nationals. After these discussions, outcomes and effects of the authoritative process of diplomatic protection are presented, and the future developmental trends of the law of diplomatic protection are projected.The paper consists of five chapters.Chapterâ… discusses the participants in the process of diplomatic protection. Firstly, some ideas of policy-oriented jurisprudence were introduced, including global social process, global process of effective power, and global process of authoritative decision. Secondly, opinions of traditional jurisprudence about personalities of international law are inquired, and from the viewpoint of New Haven School, all kinds of persons who take part in the process of diplomatic protection are the participants. At last, detailed analyses are conducted on all of the participants, including claim States, defendant States, individuals, courts, tribunals and other international organizations. They have different function in the process of diplomatic protection, such as intelligence, promotion or recommendation, prescription, invocation, application, termination, appraisal, etc.Chapterâ…¡discusses the clashing perspectives in the process of diplomatic protection. Traditional Legal Schools had not correctly recognized the significance of perspectives to law, some of them overemphasizing the importance of perspectives, and ignoring practical operations of law, and the others isolating perspectives from the concept of law, however, New Haven School regards both perspectives and operations as the essential characters of law. This chapter also presents the different perspectives of Northern States and Southern States, discussing their clashing of perspectives in the process of diplomatic protection. Then, how their clashing of perspectives affects the global process of authoritative decision, and how developments of international law affect the perspectives in the process of diplomatic protection are discussed. At Last, the Calvo Clause is inquired.Chapterâ…¢discusses the nationality of claims. Firstly, this chapter talks about the relationship between States of nationality and right of diplomatic protection, and argues that the right of diplomatic protection belongs to the State of nationality, and it is a discretionary power of the State of nationality to decide whether, how and when exercise diplomatic protection. Secondly, the principle of nationality of claims is deeply inquired. Thirdly, this chapter analyzes the diplomatic protection where a person has dual or multiple nationalities, and then especially pays attention to protection of a person who is stateless and of a refugee. Finally, the diplomatic protections for corporations and shareholders are discussed.Chapterâ…£discusses the principle of exhaustion of local remedies and the "clean hands" doctrine. Firstly, this chapter recognizes exhaustion of local remedies is a generally recognized principle of international law, and then inquires what local remedies need to be exhausted. Secondly, this chapter discusses cases where the principle of exhaustion of local remedies must be applied and the character of this principle. Thirdly, exceptions to the local remedies rule are inquired. At last this chapter discusses the "clean hands" doctrine.Chapterâ…¤discusses the base values and strategies in the process of diplomatic protection. In the process of diplomatic protection, States usually decide the strategy which should be used according to the base values they have controlled. At first, this chapter spells out various strategies of States, which consist of diplomatic methods and judicial procedures, and the diplomatic methods including negotiation and consultation, good offices and mediation, inquiry (or investigation) and fact finding, and the judicial procedures including international arbitration and judicial settlement. It is argued that consular assistances do not belong to the diplomatic methods talked above. At last, this chapter discusses use of forces in the process of diplomatic protection. After analyses of the general international law about prohibition of use of forces, this chapter discusses the prohibitions put on use of forces by the law of diplomatic protection, and inquires the relationship between the diplomatic protection and the right of self-defense, eventually concluding that the tools or methods of diplomatic protection shall be peaceful.