论外交保护的义务属性

Abstract

Diplomatic protection is traditonaly considered to be the sole right of the state, and the state has absolute discretion and does not asume any obligations under international law. This originated from the national characteristics proposed by Vetel. However, after the Second World War, the world showed a trend of multi-polarization, and economic globalization has exerted more and more influence. International law has shown an increasingly strong humanistic trend. Traditonal views on the nature of diplomatic protection rights are increasingly being questioned by academics. The recent failure of Chinese private claims against Japan also required the government to provide diplomatic protection. In particular, for the isue of “comfort women”, the victims and the bereaved publicly demanded that the government asume responsibilty for diplomatic protection in 2017.The Chinese government has also repeatedly stated its positon of resolutely safeguarding the interests of our citzens and defending basic human rights. This makes us to re-examine whether diplomatic protection is stil the absolute discretion of a government. In view of this, this article hopes to explore the obligations of diplomatic protection. This article first defines the diplomatic protection through the introduction of preconditons and comparison with other similar systems, and briefly introduces the traditonal theory. Secondly, the author tries to find the contradictions betwen the existing legal framework and traditonal theories from the national characteristics of diplomatic protection, preconditons and domestic and foreign dimensions .Then it tries to find the theoretical basis of the diplomatic protection obligation atribute from the change of personal status in international law, the change of China's foreign policy and the trend of humanization of international law and the new concept of responsibilty of sovereignty. After that, it hopes to discus what kind of limited obligation shal the country of nationality fulfil under certain circumstances through the development of clasic cases and to link theory with practice. At least in terms of procedures, there should be an obligation to give due consider￾ation to the posibilty of diplomatic protection; In substance, when the human rights of nationals are seriously violated, there is an obligation to take concrete action for diplomatic protection. Finaly, based on China's positon and the historical background and the change of state role in modern times, sugestions are made from the perspective of the nature of diplomatic protection obligations. Today, the number of Chinese citzens who go abroad is increasing, and the increasing security risks are everywhere. Strengthening the protection of overseas Chinese citzens is an urgent task. Today, when people-oriented diplomacy becomes the ruling idea, the thinking on the nature of diplomatic protection obligations has important signifcance both in theory and in practice.