外交的 保護權에 대한 새로운 비판적 考察

A new & critical Approach to Diplomatic protection The purpose of this paper is to present from a new & critical view the destiny of diplomatic protection and the its direction to have to go. In Accordance with prevalent practice and opinion, ‘Diplomatic protection’ is to be understood here as the protection given by a subject of international law(ex: State) to individuals, i.e. natural or legal persons, against a violation of international law by another subject of international law. However, traditional diplomatic protection is not only based on the complete fiction that damages to a national amount to those to its State, but also it faces many practical problems, including those related to individuals without nationality and with dual nationality, refugees etc. Lots of developing countries are also coping, through diverse methods, with its abuse by developed countries. The development of international Human right system made individuals capable to sue for themselves without its State’s help. With the development of international economic law, foreign corporations come to acquire rights to sue States for damages in international arbitral institutions. In order to adapt to these new circumstances, it’s necessary that diplomatic protection has new logical basis and new purpose. The main subject of this paper can be divided largely in four parts. First part describes the traditional structure of diplomatic protection. Second part indicates problems in logical basis of traditional diplomatic protection. Third part points out the practical crisis which diplomatic protection faces. Fourth part presents a new logic basis through which such problems and practical crisis are able to be overcome.