복수국적자의 외교적 보호에 관한 소고 －개정 국적법에 대한 국제법적 관점에서의 해석을 중심으로－ (Diplomatic Protection in Respect of a Multiple National -Interpretation of the Korean Nationality Act in View of International Law-)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 35호 / 137 ~ 166페이지
· 저자명 : 이진규

초록

Multiple nationality is the subject that may cause various issues in the area of international law. Especially, diplomatic protection in respect to a multiple national is a very controversial issue. It can't be asserted yet that standards of diplomatic protection in respect of multiple nationality have been firmly established. To some extent, however, the standards are being settled through being treated in many arbitral decisions and codification endeavors of ILC.
There is still support for the requirement of a close connection between States of nationality and a multiple national in case of exercising the diplomatic protection by one or all of the States of nationality against the third State. According to a majority opinion, however, any State of nationality may exercise diplomatic protection, and even jointly. This rule has more recently been followed and upheld by many cases and ILC.
Based on a traditional view, there is non-responsibility rule between States of nationality with respect to the exercise of diplomatic protection by one State of nationality against another State of nationality. This view is still considered as the principle related to the exercise of diplomatic protection between States of nationality in contemporary international law. Some arbitral decisions and codification of ILC, however, show that the State of effective or predominant nationality may bring proceedings against another State of nationality in an exceptional situation. This also makes it clear that the burden of proof is on the claimant State to prove that its nationality is predominant.
Korea allows multiple nationality by the amended Nationality Act. Although there is still a negative perception on the multiple nationality, the allowance of multiple nationalty is a revolutionary change in the legal system of nationality in Korea.
The issue of the exercise of diplomatic protection in respect of a multiple national had been discussed in the beginning of the work for amendment of the National Act. The amended Act has not finally come to include such a clause. Consequently, there is no provision to describe the factors to be taken into account in exercising diplomatic protection for a multiple national in the Act. We, however, can infer from the interpretation of the Act that such factors include the application of Korean domestic laws, legal marriage, habitual residence, special contribution to Korea, distinguished talent in various fields and military service, etc.
Korea is currently developing domestic legal system in various areas including nationality. In other words, it means that Korea should take responsibilities for nationals as subjects or objects of its legal system. Focusing on the fact that the exercise of diplomatic protection still entirely depends on the will of State, we should bear in mind that an effective protection of multiple nationals can be achieved by government's strong will to reflect the current international law in domestic legal system and to execute policies established through such endeavors.

영어초록

Multiple nationality is the subject that may cause various issues in the area of international law. Especially, diplomatic protection in respect to a multiple national is a very controversial issue. It can't be asserted yet that standards of diplomatic protection in respect of multiple nationality have been firmly established. To some extent, however, the standards are being settled through being treated in many arbitral decisions and codification endeavors of ILC.
There is still support for the requirement of a close connection between States of nationality and a multiple national in case of exercising the diplomatic protection by one or all of the States of nationality against the third State. According to a majority opinion, however, any State of nationality may exercise diplomatic protection, and even jointly. This rule has more recently been followed and upheld by many cases and ILC.
Based on a traditional view, there is non-responsibility rule between States of nationality with respect to the exercise of diplomatic protection by one State of nationality against another State of nationality. This view is still considered as the principle related to the exercise of diplomatic protection between States of nationality in contemporary international law. Some arbitral decisions and codification of ILC, however, show that the State of effective or predominant nationality may bring proceedings against another State of nationality in an exceptional situation. This also makes it clear that the burden of proof is on the claimant State to prove that its nationality is predominant.
Korea allows multiple nationality by the amended Nationality Act. Although there is still a negative perception on the multiple nationality, the allowance of multiple nationalty is a revolutionary change in the legal system of nationality in Korea.
The issue of the exercise of diplomatic protection in respect of a multiple national had been discussed in the beginning of the work for amendment of the National Act. The amended Act has not finally come to include such a clause. Consequently, there is no provision to describe the factors to be taken into account in exercising diplomatic protection for a multiple national in the Act. We, however, can infer from the interpretation of the Act that such factors include the application of Korean domestic laws, legal marriage, habitual residence, special contribution to Korea, distinguished talent in various fields and military service, etc.
Korea is currently developing domestic legal system in various areas including nationality. In other words, it means that Korea should take responsibilities for nationals as subjects or objects of its legal system. Focusing on the fact that the exercise of diplomatic protection still entirely depends on the will of State, we should bear in mind that an effective protection of multiple nationals can be achieved by government's strong will to reflect the current international law in domestic legal system and to execute policies established through such endeavors.

참고자료

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