فصلنامه پژوهش حقوق عمومی
سال بیست و چهارم شماره 75 (تابستان 1401)

One of the important principles of international water law is the Principle of Equitable and Reasonable Utilization. According to this principle, any Watercourse State is eligible for an equitable and reasonable share in the constructive use of the shared water resource. The allocation of states' rights in using shared water resources has long been based on the multi-dimensional and complex definition of fairness. The main questions to which this research intends to answer are as follows: what is the concept and realm of the principle of equitable and reasonable utilization in the international law and procedure and how was the process of its changes? This principle, as the main basis and component of the international water law system, is considered a rule of the customary international law and is included in various international instruments. The described principle, along with other principles ruling in this field, can create a lawful system for the states and control the disputes between the states in shared water resources management. In this research, by using library and internet resources and international instruments, and using a descriptive-analytical method, the concept and realm of the principle of equitable and reasonable utilization will be studied.

The states whose national security is threatened sometimes violate international law by seeking to maintain their national security. Thus, the treaty system took national security into account. Examining the provisions of the treaty system on the invocation of national security, the rule of recourse to national security was not inferred, but by analyzing the exceptions of national security in the treaty system, the two concepts of national security protection and national defense security were invoked. "Protective national security exception" is a set of rules that have been formulated to protect individuals against governments' self-centeredness in the field of human rights, and "national security defensive exception" is the authorization that international law allows countries to resort to national security. It gives self-defense against acute threats. The purpose of this research is to answer the question whether countries can ignore international law in a limited and temporary manner citing their national security. It can be confirmed that Governments can violate international law in a controlled manner without being held accountable for their self-preservation, and this violation may occur against any international entity. The sum of these two mechanisms expresses the concept of the exceptionalism system of national security. Implicit and explicit exceptions to states' recourse to national security (exceptionalism) can be summed up under the legal regime of national security.

Legal systems have taken different approaches to Copyright infringement but the ultimate purpose of them is to prevent the intentional and unjust appropriation of the rights of the creators. The proof of copyright infringement is easy when some rights such as reproduction is infringed or literal appropriation has taken place. However, it would be difficult to prove infringement when the plaintiff claims that defendant appropriated a material amount of his original work with some differences. The main question is how much similarities are too much? there is no definitive standard in the law, but courts believe that infringement occurs when the defendant’s work bears a substantial similarity to plaintiff's work and to achieve that they have introduced various tests. This article seeks to explain the concept of substantial similarity in Copyright infringement and the way to achieve it. The result of the research is the choice of one or more tests from the four available tests depending on the type and nature of the work. However, in all choices, it is necessary to separate protected from unprotected elements and dichotomy between idea and expression in the work. This article also show that qualitative similarities are more important than quantitative similarities.

"Civil disobedience" as a form of protest in socio-political activities is the act of deliberately violating a valid law for moral protest against the government. The justification of this socio-political idea has seen ups and downs in parallel with the emergence of widespread protest movements against governments in the Western world. One of the concerns of accepting this idea in religious government is philosophical justification based on the existence of a moral and political obligation to "obey the law" in law-abiding religious governments. Borrowing from the posed subjects in the legal and political literature of the West about the two mentioned doctrines, this article deals with the feasibility of combining civil disobedience and the rule of law in religious governments. The result is to prove the possibility of establishing a relative interaction between these two doctrines and accepting the degree of civil disobedience and the rule of law in religious government by separating the formal and substantive analyses of the rule of law. The research method of this writing is descriptive-analytical.

Extensive research has been conducted on expropriation of foreign investment. However, different methods of expropriating intellectual property of foreign investors have yet to be shed light on by legal scholars. Considering that issuance of compulsory licenses is one of the most important measures in this respect, this article shall focus on compulsory licensing through critical analysis of different approaches in this regard, and an attempt will be made to provide a proper response to the question whether compulsory licenses are regulatory measures or expropriation ending in compensation. The piece will make an effort to achieve this through illustration of current stance of the Iranian legal system, domestic and international regulations and pertinent legal cases. It seems that despite the initial regulatory nature of such licenses, one cannot exclude all instances of granting compulsory licenses from the expropriation provisions. Instead, adoption of a case by case approach along with due consideration of the literature of the treaty and domestic regulations in order to determine whether the measure of government in regard to issuance of such licenses is expropriation or not is recommended.

The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution cannot be the only way to achieve the desired goal of meeting the constitution with the needs of society, parties, and people on the constitution in the constitutional law. In this respect, two approaches of originality and dynamism are noteworthy. The controversy between the originalists and the dynamic constitution suggests that in addition to the formal method, constitutions can be reviewed and changed informally. In this article, the concept and principles of the dynamic constitution as a new theory, survey the limits of living constitution interaction in the face of the originalist constitution, the relationship between the living constitution and the legitimacy of the political system, and its confrontation with the rule of law are examined. The main goal of this article is to provide the basis for further research and localization of the present theory by examining the dimensions and challenges of the forthcoming issue to address the shortcomings of the Iranian constitution in the face of the current challenges of the constitution.

Misallocation of industries can cause environmental degradation and land misuse, and therefore, to control the deleterious impacts of which on the environment, it is required to use land planning besides the environmental rules on the allocation of industrial units in accordance with the environmental characteristics of land. This article, addressing the interplay between land planning and environmental law, discusses the mechanisms of land planning application in reasonable location of industries and the challenges that hinder this process. The article exercises the land planning regulation in Iran’s environmental law and concludes that land planning can pave the way for the environmentally sound location of the industries through three mechanisms: industrial development strategy designation, zoning for the industries, and their wastes. However, due to some legal ambiguities in land planning, the Iranian environmental law does not apply this instrument in the environmentally sound location of the industries appropriately. The article suggests effective enforcement of land planning in the environmentally sound location of the industries through the legal and institutional improvement of land planning rules in Iran’s environmental law.

In domestic legal systems, Joint and several liability provides the best assurance that the plaintiffs will be compensated for their loss. The rule means that when multiple defendants are found to have caused the same damage, each defendant can be obliged to pay up to the full amount of the loss suffered. It is common in international practice that several states or international organizations contribute together to the indivisible injury of a third party. Therefore, due to the fact that there are situations in which two or more international persons share responsibility for their contribution to an indivisible injury of third persons, is it possible to apply the principle of joint and several liability in the concept of domestic law regarding distribution of reparation in situations of share international responsibility? According to this study, based on the general principle of law as a source of international law in Article 38 of the Statute of the International Court of Justice and due to the relative lack of development of the rules of international responsibility in this field, comparison with domestic law is possible. Yet, the implementation of joint and several liability in the international law system will face the obstacle of the jurisdiction of international courts.

Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, so that the damage leads to its deprivation and abstraction of property from the owner. The Islamic legislator has tried to expropriate property in accordance with property rights and according to the needs of society. Therefore, measures such as the provision of the Court of Administrative Justice and the Guardian Council have been considered in order to protect private property. In this article, which has been compiled in a library method, we will be in a position to answer the question of how the Court of Administrative Justice can prevent or protect the expropriation of persons, but the result is that the Court of Administrative Justice cannot prevent expropriation alone or without legal protection or fully protect the right to property.

The right to water in investment arbitration has been one of the most contentious issues before investment arbitration tribunals in recent decades. The privatization of public services, including water and sanitation, and assigning them to foreign investors has caused the right to water as a vital benefit being repeatedly raised in investment arbitrations. However, due to tribunals’ narrow interpretation of jurisdiction and applicable law, this fundamental human right has been considered irrelevant and ignored, and this has fueled the legitimacy crises in investment arbitration. This research seeks to indicate the potentiality of more protection of the right to water through balancing the states international obligations in the two areas of investment law and human rights law. Proposed methods for integrating human rights with investment law include the correct interpretation of jurisdictional clauses and the applicable law based on the treaties interpretation principles, systematic integration and the inclusion of new clauses in investment agreements.