Untitled

MARIAM GOTSIRIDZE
DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS
IN INTERNATIONAL PUBLIC LAW
1. INTRODUCTION
At the current stage of globalization nobody
is astonished with the fact, that people are leaving
the States of their origin and nationality and
are moving to the foreign States for work, education
or other purposes; the legal persons
founded in one State through their branches and
representations are performing their activities
on the territory of the other State; multinational
industries are indeed playing the leading role in
rather important global process of the world
economy. Therefore, the possibility for the legal
and natural persons to become the victims of
violation of law, infringement of rights or appear
as objects of property or non-property damage
on the territory of foreign State is extremely high.
Although, a State protects its citizens
through its diplomatic and consular representations
irrespective of their location and also
in all democratic countries aliens are enjoying
the same rights to apply to domestic courts
and other institutional remedies for restitution
of violated rights, it is interesting what is the
way out when the solution of the present issue
is impossible under the domestic law
In accordance with contemporary international
law the State shall be liable for the damage
caused to aliens by its action or inaction.
Diplomatic protection is the mechanism
through which the State of nationality may protect
the rights of its citizen on international level
and obtain the relevant legal satisfaction or
compensation for him/her.
The aim of the present paper is to define,
to what extent it is possible for a State to protect
its Citizens in international courts in the
scope of contemporary international law. Herewith
the present paper will endeavor to determine
both definition of mechanism of diplomatic
protection and to what extent is the mentioned
mechanism real and accessible for ordinary
Citizens, in a view of restitution of violated
rights in international law through the State of
own nationality.
The first part of the paper provides for
analyze of international law on the diplomatic
protection. In order to define the principle of
the mentioned mechanism precisely, the attention
is drawn both on the aspects of historical
as well as international law. Further chapters
provide for detailed description of constituent
elements of the mechanism of diplomatic
protection and the legal analyze.
2. THE GIST OF MECHANISM OF
DIPLOMATIC PROTECTION
Establishment of mechanisms of diplomatic
protection was based on historic principle,
stipulating that the damage caused to the national
of one State in another State was considered
on international level as the damage
caused to the State of nationality. In accordance
with well known words of Emrikh De
Vetel, the damage caused to a national is an
indirect damage caused to a State. 1
Mechanism of the diplomatic protection is
established in contemporary international law
as the customary norm. 2 There is no treaty
instrument of general law in the contemporary
law, which would regulate the legal aspects of
mechanism of diplomatic protection. Throughout
the years its content was defined through
subsidiary means for the determination of main
sources. 3 Attempt of codification of existing
base of international law on the diplomatic
protection was carried out by the International
Law Commission of the United Nations
(Hereafter – International Law Commission or
Commission). Text of the draft Articles on diplomatic
protection (Hereafter- draft Articles or
237