On The Institution Of Diplomatic Protection

It is the starting point and goal for the searching of protecting methods to the legitimate rights and interests of the Chinese overseas in the system of international public law. So I start to explore international law for this purpose. The inner-rules of things are the basement of the legal mechanism, so according to this logical requirement, I must go to analyze the essence of the issue of overseas Chinese firstly. Certainly I should use theory of historical materialism as my guiding principle during this process. Then my second analysis should begin from considering what the existing form of diplomatic protection in the international law is. And at last my conclusion is that the form of international custom law of and the ethical values in the diplomatic protection reflect such attempt of international community to keep the balance between the intentions of Human rights protection and securing the independence of state's sovereignty , which are the two fundamental justice pursuits of the modern international law system , and such attempt i provides enough space for states to decide and locate their options in"two optional directions"model positively . The developing tendency in the content of Diplomatic protection is to take the human rights protection as it's only ground, and breaking out the nationality principle that has been thought as the only identifying pre-condition for the states , who want to protect certain people , is a necessary step in it . So, only if their intentions and methods are in accordance with the international jus cogens, especially in the field of basic human rights protection, the institution of diplomatic protection will provide enough freedom for them. At the same time, the institution of diplomatic protection is an enforcement mechanism of international law used by equal state to another one. So, the forcible actions or methods are necessary. Even the peaceful methods also having this character. The existence of state responsibility is the pre-condition under which other states can use forcible action, including military deterrence or attack, according to the jus cogens in international law system. Therefore, the diplomatic protection is limiting the scope of state sovereignty and encouraging state to positively secure the international security and peace. So far , this international law strategy also exists in the UN collective security mechanism,humanitarian intervention,self-defense and universal jurisdiction . The UN security mechanism is a main method as the enforcement of international law, which has enough democratic basement and enough powers. But there are also the disadvantage factors from other state in legal term, so the possibility of over-delaying in time is unavoidable. So, we can not give up diplomatic protection for this reason, we can carry out these two methods at the same time under positive environments. The humanitarian intervention is pointed to and confined to such environment when certain state is abusing or mistreating its people under the suspicion of international crime, such as genocide, and if without timely interference, the reality must be disaster. So, the scope and pre-condition of humanitarian intervention, by the contrast with diplomatic protection, are limited. But, we can see that the former is one possible step of the latter. The nationality principle still has the role in identifying whether international crime on foreign people can be decided as aggression to another state when it want to exercise the right of self-defense in signal or collective form . So, for China, it's denial to the double nationality of overseas Chinese is an obstacle to protecting them through self-defense. The universal jurisdiction of state is confined in the scope of state sovereignty, so we can take it as an optional method of diplomatic protection. In international political field, China should understand this objective rule that the union need the guarantee from necessary struggle all the time. The essence of the resolution of overseas Chinese is to protect minority nation against national-oppression out of Chinese territory in political view, and also to fight against international crime for secure the international peace and security in international law view. And we all know, the international law depends on state's action to fulfill its justice purposes into practice under their will, so if one rule rigidly limited state, then it must be abolished by state practice and the common will of international community ultimately. So, diplomatic protection is a legal and efficient method to protect overseas Chinese practically.