مجله تحقیقات حقوقی
پیاپی 89 (بهار 1399)

The outbreak of coronavirus is an international crisis which is unprecedented in the contemporary world. For the first time, this lethal disease was reported in china in the beginning of December 2019 and spread gradually all over the world. In the current situation, the efficiency of international law in protecting the lives of human beings as well as promoting the right to health is criticized by scholars. Importantly, in the view of the UN high commissioner for Human Rights (Michelle Bachelet), coronavirus is a criterion for testing international community in terms of guarantying Human security. The present article will analyze the reaction of international law to this crisis in three aspects: firstly, the role of WHO in reaction to this widespread disease will be analyzed. Secondly, the international responsibility of States to ensure the right to health will be surveyed. Thirdly, derogations during a state of emergency arising from the outbreak of coronavirus will be examined. In each of the afore-mentioned questions, our analysis will be focused on the efficiency of Westphalia structure of international law for coping with international crisis as well as protecting Human security. Keywords: Corona, Efficiency of international law, WHO, Responsibility of States, Emergency Situation

Some contractual obligations might without the default of either party become incapable of being performed. The reason for this might be different. It might be because of difficulties for performance, or impossibility or frustration of the contract or even financially not recommended performance. Unforeseeable circumstances may also render the undertaken obligations unperformed. The question under this Article is to show how different systems of law tackle these problems. There is no doubt that the rights and duties of the contractual parties would be affected under such situations, many big companies might run into bankruptcy and something should be done to ease the parties relations. The ideology of law makers will certainly affect the responsibilities of the parties, which is dealt with here. More important than this is to provide that every theory which firstly creates equilibrium between the rights and duties of the parties and secondly keeps the previous balances of the parties undertakings at the time of conclusion of the contract or the appearance of an act or in-act by which the obligations are created by the legislature. Contracts should be kept alive as much as possible. The civil liabilities and contractual obligations which meet these requirements should be reinforced and performed for the benefit of the parties to the disputes and the society as a whole.

AbstractChild Custody is a parent's right and duty, but the best interests of the child is a basic consideration in all decision specially in emergency conditions. In the situations such as Covid-19 pandemic, which endangers the child's physical health, courts are required to consider the child’s interest in making decision in some extent, does not threaten and endanger the child's physical integrity, health and wellbeing.This approach is in accordance with Quranic verses such as Al-Baqarah/173, Al-Maaida/3, Al-An’aam/119 and Al-Hajj/78 and the Hadith (Rafa’) quoted from Prophet Muhammad (PBUH), and some rules such as Compulsion (ezterar), prohibition of determent (La zarar), denial of distress and hardship (osr -o- haraj), and it is based on statute law and common sence, too. In the Civil Code (article 1173), Family Protection Law (1391) (atticles 41, 45 and 54), the executive regulations of this law (article 23) and as it understood of some critrians in articles 17, 33, 36 and 42, the custody right and consequently the visitation of each parent may be cancelled in emergency condition. However, such limitations will be applied in a graduated manner and based on the neccesity, and by eliminating the risks of the disease, the condition will be restored to its former state.Keywords: Emergency conditon, prohibition of determent (la zarar), custody, visitation, child, Covid-19.

Covid - 19 and Chaos TheoryAbstractNowadays, Human beings are facing events that have not only seriously threatened their collective life, peace of mind and spiritual, psychological, and social security but also have sometimes had very destructive and deadly effects. Social phenomena such as floods, fires, storms, environmental pollution, and most importantly the periodic emergence of unknown epidemics such as cholera, influenza, and AIDS, have challenged human life and the natural environment with serious and surprising risks and has made and killed thousands of people and living beings every time. The emergence of Covid- 19 in 2020, as one of the most important risks to collective life, imposed such terrible conditions and effects on human society that it made thinkers and reformers need to re-read national and international policies in various cultural and political fields. , Persuasive, economic, judicial, etc. persuaded. Despite their efforts and scientific and scientific support, the findings of criminal policy as one of the most comprehensive approaches to social and criminal phenomena on the one hand and the emergence of chaos theory on the other hand failed to improve public and social policy approaches. In this paper, assuming that one of the important factors in

One of the new ideas in protecting the victims, is the state's responsibility for compensation of the victims and the word victim includes the people who has suffered damage from a social incident because of the fault of the state. Powerful advent of the virus Covid 19 cab been seen as one of the victim maker factors that requires the state's reaction for compensation. The aim of this article is to provide a better understanding of the legal situation of Iran in responding to the victims of social event. The survey is to define the basis of the state's compensation in Iranian legal system and to introduce the reliable institutions. However, as a necessary preface it should be noticed that this matter shall be independent from the political and managerial matters. Independency of the matters related to justice is one of the requirements which is necessary especially in the financial matters

AbstractCountries usually think of ways to deal with crisis before it happens and create an efficient organization to manage crisis. In Iran, Crisis Management Law was last revised and adopted at July29, 2019. However, the capacity of this law was not used in the case of corona crisis and a new entity was established with the approval ofthe Supreme National Security Council. While executively coordinating different government agencies, this entity has made legislative interventions and restricted, specified or suspended laws and regulationswhere appropriate. It is mainly "necessity and urgency" through which National Corona Headquarters has been legitimized and its normalizations have been justified. Necessity, urgency, distress and constriction and other secondary rules and some governing rules such as principle of no harm are secondary rules that make legal systems flexible and adapt them to new and emerging conditions. Corona management, had the important lesson that state unity and government integrity are necessary for administering the country - despite the valuable principle of separation of powers and useful plurality of comments.However, the author believes that the Constitutional institution, procedures and processes should not be violated, except in very important and vital cases and if possible, the legal capacity of our country should be used

The outbreak of the corona virus has shown how weak and vulnerable humans are at the same time as authority. Failure to announce the incident in a timely manner and the lack of preparedness and lack of coordination between governments made it difficult to respond and deal with it quickly. A sharp dispute between China and the United States over the origin of the virus led to its refusal to include it in the Security Council agenda.The main focus of this research is on the global epidemic of coronary heart disease and international peace and security, and seeks to answer the question thatIs the disease a threat to international peace and security? The Council's practice and practice indicate the expansion of its competencies and its extension from military to civilian threats. The council has twice before decided on AIDS and Ebola. Both times saw the situation as a threat to international peace and security. If the Council wishes to use the same logic in describing and attaining the status of the corona, it will, as in the previous two cases, declare it a threat to international peace and security, given the extent of the spread of the disease. But he didn't, and he probably won't. However, the Security Council has taken a passive approach in this regard, and little can be expected to change, at least in the short term.

AbstractThe policies and strategies of the countries in the face of the Corona crisis are partly inspired by global policies and partly the result of national measures . The International Labor Organization (ILO) has issued recommendations to workers and businesses to help and compensate for the immediate negative consequences of the disease. In this regard, the use of financial and monetary instruments, loans, public investment in the health sector, support for businesses to maintain jobs and stay in business, and finally "emphasis on the use of social dialogue capacity between social partners (government, Workers and employers) is of serious interestIn our country, however, limited and temporary measures have been taken to provide financial support to employers and businesses that are positive and in line with global policies, such as granting deadlines for paying all kinds of expenses such as employer's share premiums, energy costs. , Leased property, government leases, low-interest loans, etc. However, inadequate economic infrastructure, which over the years has minimized the desire to enforce labor law on private sector workers, and the weakness of regulatory and inspection tools in the authorities to enforce the law, have failed many workers before the crisis. It will then get worse. Perhaps only "in the case of regulation, granting concessions and facilities to employers is conditional on maintaining the employment relationship and not dismissing employees, the only special privilege of this group compared to other members of society, which can be suspected of its practical occurrence."

Due to the outbreak of a virus from the Corona family called COVID-19, which has led to millions of infections and thousands of deaths worldwide, the question of the possibility or impossibility of civil liability of the government for infectious diseases has been raised as a global question. This debate stems from the capabilities and powers that are monopolized by the government. It is believed that a reasonable government can largely prevent the spread of infectious diseases by exercising its authority and legal power and if the government is negligent in performing its duties and responsibilities, it should be responsible for compensating the victims (damaged persons).There is a lot of, but at the same time, vague legal provisions to support the government's liability for diseases in domestic and international law and regulations. Relying on them and the legal and sometimes philosophical foundations, it should be discussed that what is the purpose of the government's civil liability for infectious diseases? In this paper, the relationship between causation and the scope of civil liability of the government for infectious diseases is examined.This study is based on the principles, rules, and limitations of the elements of civil liability and then, practical and executive solutions for our country's legal system are presented.

Protecting the Right to Health in Investment Claims Arising from PandemicsWith particular attention to Covid-19AbstractThe measures taken by the host states to control the pandemics, including Covid-19, are vital to maintaining the public health, but may lead to the numerous claims by foreign investors and payment of huge compensations, as a result of which ability of the host states to maintain the public health will be greatly limited. Given that the exception clause in respect of public health is mentioned only in a small number of investment treaties, in most claims arising from pandemics, host states cannot be exempted from responsibility under international investment law for measures they have taken to control the disease. Since restricting the host state to existing defenses in international investment law means a clear overcoming of the investor's interests over the interests of the host state and ignoring the right to health of the society, this article, adopting an explorative method, refers to the relevant documents in international law and arbitration practice to determine what defenses under international law would be available for the host state in order to maintain the right to health, if the investment treaties are silent, and what would be the requirements for the host state to assert any of such defenses.KeywordsPrinciple of police powers, Customary Defense of Necessity, Covid-19 Disease, Right to health, International Human Rights Law, International Investment Law, International Customary Law, Foreign Investment Claims, Corporate Social Responsibility (CSR), Corona Virus

Imprisonment is still one of the most notable punishments in criminal politics. In the light of this punishment, the freedom of movement of criminals for a period of time is taken away. The execution of this punishment becomes fair and criminally effective if it is supervised by a series of principles. Some of these principles are human rights and others are penological. With the outbreak of the Covid 19 virus (Corona), the implementation of these principles has been met with several challenges. Because, before that, their observance and guarantee had been done by relying on the capacities of the real environment. However, with the emergence of this virus and the challenges posed by guaranteeing the right to health and fundamental freedoms of prisoners, the rehabilitation of criminals, deterrence and criminal empowerment, the need to identify solutions to challenges as well as criminal policy review has become important. therefore, criminal policymakers must identify the technological penalties, appropriate penal policies for emergencies, and, in fact, create appropriate contexts for maintaining the goals of criminal justice and imprisonment in confronting human reality with these realities. this paper, based on the capacities of Iran's criminal policy, the principles of human rights in the implementation of prison sentences (a) and the penal principles of the implementation of prison sentences (b) are examined after the outbreak of the Cavid 19 virus (Corona). In the light of that, the challenges of the process of punishing

Covid 19 which is a member of the big family of corona viruses, has caused a widespread lock down of businesses and blockage of human activities which is unprecedented and even world wars were not able to do so. Despite the infection of more than four million people around the world and hundreds of thousands of deaths following this worldwide pandemic, there were also some positive effects for this disease in different areas such as decline in the consumption of energy, greenhouse gases and environmental damages and pollution around the world. Although there were negative effects for covid 19 like the increase of food consumption during quarantines caused by it and increase of water consumption because of hygienic purposes. Besides these consequences, there is a question about the criminal aspects of covid 19. In this respects we can mention three different topics in relation to Iranian criminal and environmental law, including the crimes related to special medical waste, transfering the virus to the animals and threatening the public hygiene.

Countless fields have been adversely affected by the consequences of worldwide spread of Covid-19 and the companies are no exception. One of the current challenges the companies are coping with these days, is convening their general meetings. In this respect, the Iranian authorities, as well as authorities in other countries, have issued orders and rendered decisions on providing the infrastructures necessary for holding virtual general meetings and restricting the physical gatherings. With a positive perspective, the spread of this virus can be viewed as a groundwork and motive for acceleration and improvement of the technical infrastructures as well as legal instruments required for convening virtual general meetings which has been a turning point in the process of digitalization of lengthy, inefficient and paper based process of general meeting convention. In this Article, following the assessment of regulators and executive authorities’ reaction toward the pandemic in Iran and other countries, the possibility of convening virtual general meetings is analysed. It furthers to conclude that the challenges as to physical gathering of shareholders in general meetings can be dealt with by way of convening virtual general meetings and employing digital signature, subject to observation of all the legal standards.

The spread of Covid-19 and the measures taken by governments to prevent the spread of the disease have greatly reduced trade in many areas of the economy, including tourism, automotive, aviation, sports, and more. The short-term consequence of this event will be a decrease in corporate income and the long-term consequence will be that many medium or large companies are on the verge of bankruptcy. To prevent such a situation, and especially from stagnating economies, countries can help firms emerge from the crisis by providing direct or indirect financial assistance.In order for such aids not to have an anti-competitive effect on the market itself, competition law systems establish special rules for the forecasting and implementation of State aids. In this article, we will examine the existing mechanisms in EU competition law and the role of European and national institutions in the forecasting, implementation and control of State aids. The system under study has been able to reconcile the principle of free competition in the common market with the need for government intervention in helping firms at risk, due to the anticipation of the principle of prohibition of government aid and various strategies for providing government aid in exceptional circumstances. Such a mechanism has not yet been properly enacted in Iran, and State aids without prior supervision could lead to inequality between public and private enterprises and the shrinking of the private sector.

The entry and outbreak of the Corona virus and the actions that the Government did in the fight were the source of various legal issues.one The most important issues can be considered by the Government in the fight against the disease are the legal framework that be appointed. The first issue whit regard to current laws and regulations reveals that the state in choosing the right legal framework in the battle with this disease could be In more conformity with of the basic and ordinary regulations and, instead of establishing the national fight against the corona, under the legislation of the National Security Council, be used of the capacities of the crisis management organization and the relevant law as well as the 79 principle of the Constitution. The use of the organization's capacities in corona emergencies, which will have limitations in society, will be possible only in accordance with Article 79 of the Constitution. In this regard, the government will be obliged to submit a bill to the parliament and obtain the consent of the legislature and the Guardian Council.

From a legal point of view, freedom is the primary principle and any restrictions are exceptions. One of the most recent examples of human rights restrictions has been the coronavirus, which has affected the right to health and many aspects of human life. Since health is conceptualized in the right, its application by the righteous is subject to self-determination, respect, free will, and self-fulfillment. The result of such an approach is that in case of illness, the person has full authority in the treatment and receipt of medical interventions and any treatment should be done with his conscious consent. The main purpose of the article, with a descriptive-analytical approach, is to examine the challenge of whether a patient has the right to receive voluntary treatment for an infectious and contagious disease such as coronavirus. The results show that in normal conditions and non-contagious diseases, due to the characteristic of the right institution, the right to receive medical interventions is completely optional and subject to the free will of the patient, but in emergency situations, impaired willpower and contagious diseases such as Covid-19, the patient's conscious satisfaction is limited to these conditions and the protection of public health.

On January 30, 2020, the Secretary-General of the World Health Organization called the Coronavirus crisis as a situation of Public Health Emergency, which has caused the international concern. On March 11, 2020, the Secretary-General described the crisis as a pandemic, which is extraordinary event under international health regulations adopted by the World Health Organization in 2005. In the positions of the states, this crisis is always considered as an unusual, serious and unexpected situation that requires immediate action by the international community. In this regard, many states have declared the emergency situation in accordance with their domestic law, and have taken steps to reduce, prevent and counter the spread of the virus, these actions have led to the violation of their treaty obligations. In accordance with the articles 61 and 62 of the 1969 Convention on the Law of Treaties, the impossibility of performance, fundamentally changing the circumstances, under the specific conditions set forth in these articles, can be cited as a basis for terminating, withdrawing or suspending the treaty and can be the cause of the exemption of the state responsibility. In this regard, it is possible to cite the rules related to the amendment of treaties. It should be noted that even if the specific situation caused by the coronavirus does not lead to the termination or suspension of the treaty, it can exempt the state from the secondary responsibility for the damages resulting from the breach of their obligations, according to Force Major.

After concluding the contract correctly, the most important discussion in the stage of effect, is the category of "performance". The contracting parties are required to perform their contractual obligations in accordance with the rule of Pacta sunt servanda; However, it sometimes happens that one or both parties, due to the occurrence of an impediment, cannot fulfill its obligations (Force Majeure) or it becomes very difficult for them to fulfill such obligations (Hardship). Force Majeure and Hardship are considered as an excuse in the performance of contractual obligations which justifies non-performance of obligations. One of the examples of excuses for non-performance of the contractual obligations is the spread of infectious diseases; a special type of which is now known worldwide as "coronavirus". Given the differences in the nature and effects of the two above mentioned justifiable impediments, it is necessary to determine exactly which of these two impediments could be justified the legal issues which raised due to coronavirus. Considering the similarity of the components and the result of the outbreak of this disease with the criteria of Hardship, the existence of similar judicial cases and also the principles governing the interpretation of contracts, it seems at first glance that the situation caused by coronavirus is one of the examples of Hardship.