مجله حقوقی بین المللی
پیاپی 61 (پاییز و زمستان 1398)

The International Court of Justice delivered its Judgment on 5 October 2016 in the case of Marshall Islands versus the United Kingdom, India and Pakistan, finding that, lacking jurisdiction, it cannot proceed to the merits of the case. The decision of the Court in the Marshall Islands versus the United Kingdom which is taken with casting vote of the president of the Court has a sui generis character, reflecting the new “judicial policy” of the ICJ towards the concept of “dispute”. In fact, the evolution of the jurisprudence of the Court has been the result of the ongoing change in the history of the Court’s jurisprudence. Indeed, the ICJ changes the content and the scope of legal concepts in order to adopt them with “realpolitik” of the time. By recourse to the legal formalism, the International Court of Justice in the Marshall Islands case, firstly, restrained the scope of “dispute”, and secondly, by creating the criteria of awareness as a prior procedure, formalized the concept of “dispute” in order to manage its “judicial policy” having already faced with the political matter.

Today, supporting foreign investors is considered as an instrument to achieve economic growth and development within national development plans, particularly in the developing states. Rising concerns for reasonable expectations of investors, have led to the increase of interests in investment in other countries. On the other hand and simultaneously, protecting human rights is recognized as one of the obligations of states. In some instances, human rights and environmental considerations, particularly economic, social and cultural ones clash with the obligations of host states to protect foreign investors. The question arising here is what legal mechanism may prevent such a clash? Investment-related arbitral jurisprudence demonstrates that arbitrators have avoided dealing with this conflict, recognizing it beyond the competence of investment arbitration, while the need for a reasonable effort to incorporate human rights obligations in investment treaties by way of revising them is felt more than before.

There has ever been a conflict between economic interests and environmental considerations. This conflict is more eminent in the legal system of the European Union (EU). EU was founded mainly for economic integration and the elimination of trade barriers, but other issues especially the environment were gradually placed in the organization's objectives. The European Court of Justice (ECJ) is the EU judicial body that guarantees the interpretation and implementation of EU treaties. This paper, with qualitative study and outcome analysis of several environmental cases in the European Court of Justice, following the analysis of the Court's work on the issue of conflict and the creation of a balance between these two areas has ultimately achieved a solution to this conflict. The ECJ uses tools such as the preliminary reference procedure, the infringement procedure, discriminatory test and the proportionality principle to address these challenges. Although the ECJ still urges on the economic principles of the EU, it can be concluded from its case law that the proportion of environmental measures may alter these principles.

Human trafficking is a serious organized crime. In recent years, the number of victims for various reasons has been increased and the crime has become one of the most important threats against the international community, which requires international attentions to the methods to combat this important crime, such as legislative actions in forms of certain rules and regulations. This article, first, reviews the importance of this crime in human communities and thenexamines the laws and regulations in Iranian legal system enacted to combat human trafficking in light of international human rights law. The article, in particular, studies the laws regarding the trafficking of women and children. The article also examines the measures foreseen in the law and regulations in order to prevent this crime, to punish the perpetrators, and to provide protection for the victims specifically for women and children. Finally, it concludes that the measures, though necessary, do not provide enough protection and need to be amended so that the perpetrators are being prosecuted promptly and the victims are being provided with more protection and rehabilitation.

Regarding legitimacy and requisite threshold which must be met to create the remedial secession, there is yet no consensus between the views of jurists and countries. Some countries are led to believe that the very existence of people should be threatened by the central government and genocide or crimes against humanity must be committed against them. But most of the countries and jurists including the authors  who are inspired by safeguarding clause included in the Declaration of Friendly Relations consider systematic denial in people`s participation in managing local affairs and extensive discrimination against them adequate for making the right to secession. By all means, unilateral secession should be considered as a last remedy and resort and there should be no alternative for maintaining territorial integrity. In this article, legitimacy and required threshold for achieving remedial secession will be discussed.

The concept of due diligence meaning the necessary vigilance and carefulness in fulfilling a legal obligation is one of international law principles which has significantly been confirmed and emphasized by international tribunals. Despite customary grounds of this principle's requirements, many treaties have incorporated and arranged it in contractual frameworks. The main domain of this principle is in the law of international responsibility, where implementation of states' obligations are examined, and it will be the basis for responsibility if a state fails to behave in accordance with due diligence requirements. As a matter of fact, that state does not observe the necessary carefulness in fulfilling its obligations. The importance of this principle is more tangible in state liability in  trans-boundary harms. The principle of due diligence has entered into international financial regulation, including FATF recommendations, and has created some commitments for states and financial institutions. The concept of due diligence has been used in two exclusive and general meanings in FATF regulations having some similarities and differences with its implications in international law. Despite clarifying the concept of due diligence in international law and FATF Regulations, this article deals with these functional approximations and separations and their effects.

The rendering of an arbitral award by an arbitrator does not mean the termination of the mandate. The arbitral award may involve several enforcement problems and may require some completions or corrections. Therefore, the role of the arbitrator after rendering the arbitral award is excessively significant and arises some debates such as the scope and limits of arbitrator's intervention. Is the arbitrator competent to render an additional award on subject-matters that have been neglected for any reason? What should be done with the typographical errors or misprints? In the course of arbitration, the arbitrator may make some statements in contradiction with his award and may also make fundamental mistakes in the mentioned award. It is possible that some criminal or civil liability actions being brought against the arbitrator that can lead to his conviction that will be contrary to the arbitral award. Also, the question remains whether the arbitrator is entitled to defend the validity of his rendered award and to intervene in any relevant cases for any reason. These debates and some other issues that can be faced in practice are discussed in this article.

The first step of all matters about the relationships between investment treaties and intellectual property rights starts from the concept of investment. Clarifying this matter that to what extent intellectual property rights constitute the concept of investment in investment treaties is the beginning point of all relevant matters. Although protection for investment and investors existed in other forms, the creation of investment treaties expanded the meaning of investment in international investment law. Investment treaties by evolution in the concept of investment and introducing intellectual property as investment extended the treaty protections to intellectual property rights. By considering intellectual property rights as a kind of investment, host State has to observe treaty standards for intellectual properties of foreign investors. In this article, the evolution which occurred in investment’sconcept is reviewdand then the innovations created by investment treaties in this regard are clarified.

The existence of non-state actors (NSAs) in new world’s order exposes some opportunities and threats. Humanitarian law is generally based on traditional nation-state divisions and this is acomplicated determination of extraterritorial conflicts with non-state actors. In the absence of such a precise determination, IHL provisions can not properly be implemented while a State fights against a NSA in other State’s territory. Furthermore, regarding their especial status, NSAs are faced with some problems in accomplishment of rights and duties in light of international humanitarian law. Due to the exceedmilitary operations against non‐state armed groups, some scholars and politiciansclaim that international humanitarian law as it stands was developed at another time and is not adequate for the new challenges raised by the contemporary kind of conflicts with transnational armed groups thereby justifying transgression to the international boundaries.

ISIS officially declared its presence in Iraq since 2013 and was repressed by Iraqi government in 2017. It conducted several activities during this period. The question here is that, whether these conducts done by ISIS as a defeated insurgent group could be attributed to the Iraqi government or not? This article will show that principally ISIS’ non-sovereign and criminal conducts are not attributed to the Iraqi government. However, if exceptionally there were any fault from the government in repressing and pursuing ISIS or drawing peace pact or giving amnesty to its members, it was possible to attribute the conducts to the Iraqi government. In this respect, the misconducts of ISIS are not attributed to the Iraqi government since there were no fault on the part of the government in repressing and pursuing this group and there were no amnesty given to the members for committing international crimes. But with respect to those insurgent actions that are carried out in the economic, administrative and judicial areas for the management of controlled cities, under the following triple conditions they could be attributed to the Iraqi government provided that the nature of those behaviors is sovereign, the lack of government forces was evident and the need for such actions existed.

GAP’s basic aim is to eliminate regional development disparities by raising incomes and living standards and to contribute to the national development targets of social stability and economic growth by enhancing the productive and employment generating capacity of the rural sector. Current activities under GAP include sectors like agriculture and irrigation, hydroelectric power production, urban and rural infrastructure, forestry, education and health. However, environmental implications of the GAP are rather controversial both domestically and internationally. The purpose of this article is to examine the threats and commitments of the Government of Turkey in implementing the GAP project. The present paper, through descriptive and analytical method, examines the provisions of international conventions and documents in this regard. Finally, it has been concluded that a wide range of environmental obligations that are included in various international instruments also prevail in the area of damming, which Turkey should discharge.

The national treatment commitment is one of the most important principles of the various WTO agreements, including the GATT. Nevertheless, the complexities of concluding international agreements have led to briefly codify article 3 of the GATT. The lack of definition and explanation of terms and concepts such as "similar product" and "directly competitive or substitutable product" along with the diversity of the issues referred to in various paragraphs has added to the ambiguity and generality of this article. While, the actual implementation of this commitment requires explicit, clear and complete regulations. Therefore, in the implementation of the GATT National treatment, the interpretation and explanation of Article 3 of the GATT will be essential. Although the competent authority for interpreting the provisions of the WTO is another pillar, the role of DSB (Dispute Settlement Body) in clarifying these provisions including article 3 of GATT cannot be denied. Here, it has been tried to explain the national treatment contained in Article 3 of the GATT by resorting to different DSB reports, and to present the interpretations in a coherent manner. The Practical procedure of DSB also demonstrates the importance of the explanations and interpretations in the proper application of the GATT national treatment commitment.

The history of damming as one of the largest man-made structures dates back to ancient times. Although dams play an important role in supply of drinking water, irrigation, hydroelectric power and economic and social development, their irreparable environmental impacts on the ecosystem of peripheral States should not be ignored. Today, the absence of clear and specific regulations concerning international obligations of States in the process of damming has resulted in the construction of numerous dams in the territory of a large number of States including Turkey by the help of the doctrine of absolute territorial sovereignty. This matter has led to the reduction of water resources, the subsequent droughts, population migration, and the emergence of dust storms in the neighboring countries, hence the creation of international disputes. This study, through descriptive-analytic method has addressed the legal events of the dam construction, such as the case concerning the Gabčíkovo-Nagymaros Project, GUT Dam Case, GAP Damming Project, Kajaki Dam, Doosti Dam and through these events, tries to clarify the rules governing the constructions of dams by States.

One case of violation of the rules of procedure before the ICJ is “non-appearance of one of the parties in the proceedings” that is always possible to occur in light of the principle of consent to jurisdiction. Default proceeding is the manner that through the application of article 53 of the Statute, the non-appearing party would not be able to prejudice the rights of the appearing party and preventing the proper administration of justice. In this article, in accordance with judicial precedents, it is shown that the Court continues the proceedings in whole or in part of contentious cases, with due regard to the evidence of the appearing party and informal documents of the non-appearing party in the event of non-appearance of respondent and impartially conducts its duties of determining jurisdiction and rendering judgment in favor of appearing party if the claim is established both as a matter of fact and law. Although the continuation of the proceedings may prejudice the right of non-appearing party, this is a consequence that has been accepted and therefore must be obliged.