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M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
force a State to exercise his/her protection in
international law regime. Furthermore, "should
the natural or legal persons on whose behalf
[the State exercise diplomatic protection] consider
that their rights are not adequately protected,
they have no remedy in international
law" 13 However, in this respect the positive trends
in contemporary practice of the States shall
be underscored. Some members of the international
legal community believe that individual
should be entitled to request a State to
exercise diplomatic protection as a matter of
right on their behalf. Although limited, there is
in fact some State practice to support this
view. 14 Constitutional provisions in a number
of States recognize the right of individual to
receive diplomatic protection for injuries suffered
abroad. 15 Among these States is Georgia
as well. In accordance with Article 13 of the
Constitution of Georgia: "Georgia shall protect
its citizens irrespective of their location."
In spite of the abovementioned positive
trends, the fact remains that traditional principle
on the right of a State to the exercise diplomatic
protection still maintains binding force
in international law. International Law Commission
refused the proposal on the recognition
of limited obligation of a State on exercising
diplomatic protection. 16 However, it could not
neglect absolutely these positive trends. Commission
in the draft Articles on diplomatic protection
included Article 19(a) 17 , which somehow
recommends a State to not leave without
the State protection especially that citizens,
who suffered by the significant damage.
3.2. Beneficiaries of the Mechanism
of Diplomatic Protection
Nationality is a bound between the State
and injured person, which provides the basis
for exercising diplomatic protection. 18 In this
case the term national includes as natural as
well as legal persons. In defining the nationality
of natural and legal persons, we face certain
characters for each of them, for that reason
this two groups are discussed separately.
Natural Persons. Historically it was a prerogative
of a State to define who its nationals
were. Permanent Court of International Justice
on the case "Nationality Decrees in Tunis
and Morocco" defined that questions of nationality
wera in principle within domestic competence
[of the States]. 19 Provision of the same
content was included in the Convention "on
Certain Questions Relating to the Conflict of
National Laws" of 1930. 20
Although the exclusive right of each State
to determine who are its nationals was recognized
in the context of international law, the
case is not so simple, as it is seen. In the
frames of international law mentioned right of
a state to determine the nationality of a person
is limited. 21 In particular, following to the
international law all those persons who under
the jurisdiction of a State are recognized as
its nationals, in this case for the purpose of
diplomatic protection, may not be considered
as nationals of this country at all.
As Article 4 of draft Articles formulated by
the International Law Commission, recognizes
the right of a State to determine who can
be its national, at the same time establishes
the limitation of this right in frames of international
law. 22 The Article provides for non-comprehensive
list of methods of nationality which
complies with international law. Nationality acquired
by birth, descent, naturalization, succession
of State totally corresponds to the grounds
of acquisition of nationality in the scope of international
law. However there are also such
forms of acquisition of nationality, which are
totally acceptable under domestic law, but are
unacceptable under international law; For example,
automatically acquisition of the nationality
by a spouse as a result of marriage. 23
Thus, a person being a national of a State
with full rights in accordance with the domestic
legislation, has a political and legal bound
with it, performs its national obligations in a
good faith, pays taxes, etc, will not be able to
enjoy State protection, unless its nationality
falls under the definition of "national" following
to international law.
Legal Persons. According to the customary
international law on diplomatic protection
and international practice on this issue, also
Articles of draft Articles elaborated by the International
Law Commission of the UN, diplomatic
protection covers not only natural but
legal persons as well. Diplomatic protection
of Legal persons is very important and diverse
area. Here we have to distinguish protection
of corporations and non-profit-making legal
persons. Furthermore, not only corporations
enjoy diplomatic protection but also their
shareholders.
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