从“卡翁达诉南非共和国总统案”看外交保护的另一种国家实践

Another sort of state behavior on diplomatic protection——from the standpoint of "Kaunda V.President of Republic of South Africa"

外交保护的实施过程可以区分为国内决策阶段和利用国际法向侵害本国人权利的相对国采取措施的阶段。因此,在国内决策阶段中有一种不可忽视的实践,那就是认为从国内法角度来看国家负有以一切可能方式保护本国公民的义务。但是,实际上外交是国家行为,它代表国民的整体利益。因而在具体个案中可能需要从大局出发采取和缓的方式对权益受侵害的国民进行保护或放弃保护。但,必须建立有效的机制以沟通被害者和实行外交保护的公权力机构。在对公共利益和私人利益进行取舍时,可能需要考虑相应的补偿问题。以此为出发点,对将以外交保护方式保护国民作为国家宪法义务的国家实践进行研究。

Diplomatic Protection traces its roots to customary international legal principles. Historically, it has often been misused by Western powers as a pretext to intervene in the affairs of less powerful nations for several centuries since the use of force was not yet declared unlawful at its emergence. Although there have been ample practice and precedents in respect of diplomatic protection, it remains a most controversial international legal issue. Western countries have a thorough study on it while the studies in China is still very inadequate, which lies in China’s incapability to exercise diplomatic protection in the past and insufficient state practice regarding this area at present. Under the present background of more and more Chinese citizens going abroad and being internationalized with the ongoing reform, the studies regarding diplomatic protection is also becoming extremely important. The studies methods in the present paper are mainly case study、comparative study、value evaluation and history consideration. The development of diplomatic protection are discussed from the studies on the history of diplomatic protection combined with the analysis on the typical and recent cases; The obligations of the states for diplomatic protection are also indentified by the comparative analysis and value evaluation between the public benefits and private benefits that may occur during the exercise of diplomatic protection.