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M. GOTSIRIDZE, DIPLOMATIC PROTECTION OF NATURAL AND LEGAL PERSONS IN INTERNATIONAL ...
certain stage of the court proceeding, it would
be logical to conclude that probability of
changing nationality by a national is rather
high. Furthermore, attention shall be given to
the fact that often changing of nationality does
not depend on a desire of an individual and it
happens automatically, independently from
him/her. In such case individual remains without
any protection.
Principle of "Continuous Nationality" certainly
was envisaged in draft Articles by the
International Law Commission. But high qualified
members of the Commission were more
flexible and allowed some exceptions from this
rule. The Commission determined that a person
must be a national of a State continuously
from the date of injury to the date of official
presentation of the claim to the Court. 78
Though the Commission taking into consideration
that there is no agreement in international
community on necessity to retain nationality
between these two dates, decided that if
continuity can not be proved possession of
nationality on both dates will be considered
in accordance with the role on "continuous
nationality." 79 The mentioned Principle of "Continuous
Nationality" is applicable in respect to
diplomatic protection of both natural and legal
persons. 80 The Commission determined
correctly that if we recognize the Principle of
"Continuous Nationality" we shall take into
consideration the interests of persons and allow
certain fair exceptions from this rule. It is
possible to exercise diplomatic protection on
behalf of natural persons by avoiding the
present principle if the following conditions are
met: a) the person seeking diplomatic protection
had the nationality of a predecessor State
or has lost his or her previous nationality; b)
the acquisition of the new nationality is not
related to exercising diplomatic protection in
respect of this person; c) the acquisition of
the new nationality has taken place in a manner
not inconsistent with international law. 81
Here the Commission applied the rule stipulating
that a State is no longer entitled to exercise
diplomatic protection in respect of a
corporation that acquires the nationality of the
Applicant State. 82 However, the Commission in
respect with the corporations has allowed both
negative and positive exceptions. Authors of
the project took into consideration the opinion
that none of the State may exercise diplomatic
protection on behalf of the corporation
in case of liquidation of the corporation in the
State of incorporation. Consequently the Commission
allowed exception and determined a
State continues to be entitled to exercise diplomatic
protection in respect of a corporation
which was its national at the date of injury and
which, as the result of the injury, has ceased
to exist according to the law of the State of
incorporation. 83 The regime regarding the principle
on "continues nationality", established in
relation to corporations extends to non-profitmaking
legal persons by analogy. 84
CONCLUSION
At the beginning we raised a question, in
what extend the diplomatic protection is accessible
for an ordinary citizen, whose rights
were violated and injured by action of foreign
State. Abovementioned detailed analyze of the
mentioned institute certainly does not provides
for the opportunity to consider diplomatic protection
as alternative, accessible and real remedy
of satisfaction of the citizen.
In the frames of current international law,
exercise of diplomatic protection falls under
the discretion of the State, and it is the discretion
process during which a person initially is
forced to conduct negotiations and petition
with herl his own State, in order to submit the
dispute to international justice. Especially in
cases when for the violating rights a person
there is no adequate, accessible and effective
remedy, it is totally inadmissible to leave
the discretion of exercising diplomatic protection
to the State. Contemporary State practice
inclines to bind a State at least partially to exercise
diplomatic protection. Although, until
this mechanism maintains the discretionary
character, it can not be considered as an accessible
and alternative remedy for the protection
of citizens. Regrettable result which is
followed by the mentioned discretion was clearly
illustrated by NGO Amnesty International:
The States frequently sacrifice the legal rights
of the victims to those political interests, such
as maintenance of friendly relations with a
State responsible for the violation. 85
Analyse provided for by the present paper
made clear that non-existence of the obligation
of diplomatic protection is not the only
problem connected to this mechanism. Prior
to the exercise of diplomatic protection there
are numerous formal and procedural precon-
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