نشریه مطالعات حقوق عمومی
سال پنجاه و یکم شماره 1 (بهار 1400)

The principle of direct effect of the European Union law in the domestic law of the member States has been institutionalized in the European Court of Justice ́s (ECJ) case law by way of two judgments: Van Gend en Loos and Costa. The principle, which has emerged through the implementation of EU law in the domestic law of the member States and the possibility of invoking those laws in the domestic courts of the member States, has also been extended to international agreements. It means that the provisions of international agreements concluded by the EU can be invoked under the domestic law of the member States. In order for international agreements to have direct effect, a number of criteria have to met. The EU must first and foremost be bound by those agreements, and the organization should have concluded them in accordance with the powers conferred on it by the founding treaties. Those agreements must be capable of conferring rights on individuals directly. The terms of those agreements must be clear and unconditional. The provisions of the international agreements should not be contrary to the primary rules and fundamental law of the EU. Furthermore, the agreements should not have deprived the ECJ of its jurisdiction to review their direct effect. Finally, the direct effect of international agreements must not be contrary to their own object and purpose.

In the process of reforming the country's employment system on the one hand, comparative studies and experiences of other developed countries had to be exploited, and on the other hand, given the capacities and situations within the country, a desirable and native pattern of public employment was achieved. This is achieved in general level on 3 levels; first, determination the purpose and approach that is expected of the system, which can be described as "economic efficiency and employment justice". Second, Implementation of these goals and designing the structure of the public employment system, and third, optimal guarantee of employment rights via adopt appropriate regulations through administrative and judicial mechanisms. The present discussions can be considered at the second level which forms the basis of the public employment system. Therefore, the outline of the structure depends on explaining the three components of the institution, system and type of employment that is proposed and presented as an innovative title of the "Triple Model". As will be seen in this text, the aforementioned items are in a triple bond with each other. On the other hand, the theories and ideas around the aforementioned model can be considered as part of the functions related to the economic management of human resources and employment in public organizations of the country.

People who have experienced different physical, psychological, and social harms may have challenges other than health threat to face due to various reasons. Challenges that despite treatments and medical interventions may cause the affected individual to be incapable of returning to the society and necessitate further processes for returning to normal life. This topic relates to disability in rehabilitation science. In spite of developments of rehabilitation science in recent decades, from a legal and especially human rights perspective, legal gaps in relation to rehabilitation exist. Thus, in this article with human rights in mind and considering the hypothesis that access to rehabilitation services is a human right and from an analytical descriptive aspect we answer the question that whether access to rehabilitation services could be recognized as a an independent human right?

According to the normative quiddity of the general policies of the regime, there is no doubt in necessity of efficient supervision to implementation of the general policies of the regime. Although there are disagreements about manner of this supervision and their sanctions between lawyers, It seems one of consequences of normative quiddity of the general policies is acceptation of legal sanctions to implementation of this policies in different grades of norms. On the other hand second clause of Article 110 of the Constitution mentions competency of leader to supervision to implementation of the general policies. Therefore this question has been raised what is the relation between competency of leader and competency of other supervisory organizations? In this research is tried to answer this question with descriptive- analytical method. Finally with analysis will of constitutional legislator is confirmed the hypothesis of this research that is identify simultaneous competency of leader and other supervisory organizations. If an authority has original competency to supervision to implementation of general policies in Iranian legal system, It can and must applies this task in its jurisdiction and competency of leader don’t restrict their competency.

The State is a legal institution that acts through persons like its organs and representatives. When more than one State or international organization takes part in act that is breach of international duties, the attribution of conduct is of material importance. An International Law Commission drafts on responsibility doesn’t include any express rules as to attribution of conduct in situations like sharing responsibility of international actors. So the main question for this essay is: in sharing responsibility situations, whether the exclusive attribution of wrongful conduct is presumed or multiple attributions of conduct are acceptable. This essay is seeking to clarify and examine rules of attribution of conduct in shared responsibility situations in the light of current rules in international responsibility drafts and through this examine its requirement and consequences

The General Assembly of the Administrative Justice Court from the beginning of the formation of that Court has been the competent authority to deal with the request for oversees government regulations. In this research, it was tried to prove that in the form of descriptive-analytical research, that, regardless of comparative studies, the pattern used to oversee government regulations through the General Assembly of the Administrative Justice Court does not have strong foundations, and the current composition in the exercise of this competence, due to "disproportionate to the particular work of that board", "delay in judicial review", "contrary to the principle of specialization of jurisdictions", "The impossibility of fully implementing the principles of fair trial with the current composition" and "the need for the separation of the authority to issue unanimity votes and the establishment of procedures with the issuance of factual opinions" has several problems. Therefore, in order to solve these problems, it was suggested that, in the ordinary course of business, consideration of governmental regulations at the initial stage should be within the competence of the revision branches in the specialized areas of the Court, and the possibility of reconsideration of them in the "relevant specialized boards" should be foreseen. In addition, in the important cases, the Court will use the combination of the heads of the divisions of court of appeal as a trial court and the composition of the specialized board with a number of high court judges as a court of appeal. Also, in special and non-restricted cases, the court uses the "instant prosecution" or "short trial" methods with a simpler combination.

International law as domestic legal systems may not has a codified constitution, but it can use constitutionalist approach in reading and interpretation of its rules. This paper studied how can recognize this approach, its hidden values and legal consequences, then introduce various tools and shows that natural law has an important role in strengthening constitutional approach, also international courts can apply rational intuitionist approaches to recognize constitutional norms. This study by descriptive research method concludes that recognition of constitutional values and norms is by rereading contractual and customary norms, and it affects general reading and understanding of legal order.

According to Article 103 of the UN Charter, obligations arising from the UN Charter has priority over other obligations of the members of the United Nations. There is much evidence in practice of governments, international instruments, and judicial decisions in the post-Cold War which indicate the obligations arising from binding decisions of the UN Security Council are within the scope of the UN Charter obligations. So, in the event of any conflict between these obligations and any international agreement priority is given to Article 103 of the UN Charter. However, it seems for solving the said conflict in such cases, the national courts and European Court of Justice have been based on different approaches and consequently, they have adopted three judicial approaches as following: "conformity", "separation" and "harmonization". The variety and diversity of the mentioned approaches will affect not only the rights of individuals, but also the coherence of international law.

The use of quarantine to control communicable diseases has always been controversial because such strategy raises political, moral, economic and legal challenges and requires a precise balance between public interest and individual rights and discussion on the scope and foundations of government involvement in the field of public health. It is necessary to determine precise measurements in order to apply this method. The legal systems of the countries within the framework of the constitutions and the ordinary laws and regulations have provided the quarantine for the prevention of the communicable diseases. Although we do not have a specific law on quarantine in Iran, the principle 79 of the Constitution can be used to legitimize it. Also, given the emergence of emerging diseases, there is a need for a specific legal framework, including a comprehensive quarantine law which contains regulation about how to enforce it, how it will be implemented, the authorities in charge, the extent of the quarantine, guarantee of breach, and how to recover the effects thereof.

Today, Arbitration is, without any doubt, turned into the most common method of dispute settlement in international investment disputes and most BITs, MITs or contracts between investors and host states contain an arbitration clause. Nevertheless, arbitral tribunals in international investment disputes, even in institutional arbitrations (such as ICSID etc.), are ad hoc-based and establish for each specific case and will be dissolved after settling the respective dispute. In recent decades, this has led to the issuance of conflicting or even contradictory awards from different arbitral tribunals, in several instances, in which different judgments have been rendered for almost same legal or factual issues. The increase in issuance of such conflicting awards is considered, by some legal scholars, as a threat to legal security and consistency of the system, which also compromise trust of the players in this field. One proposal for resolving the problem is establishing a Multi-National Court of International Investment, which is the main subject of study in this article.

The religious freedom of every citizen finds a limit in the freedom and rights of others which one of them is freedom of religion and conscience. In other words, religious freedom of a person ends where others' freedom of religion and conscience begins. Finding a balance between these two principles for legal systems is not simple, but in multi-ethnic societies and with different religions such as Council of Europe Member States, it is a fundamental thing to guarantee peaceful coexistence between people. One of the issues that in recent years have attracted the attention of the jurists is the question of the presence of religious symbols in public spaces, which has a direct impact on freedom of religious and conscience of citizens. In this article, we will discuss one of the specific aspects of the topic i.e. the question of the presence of the crucifix in public spaces with particular attention to the jurisprudence of the Italian courts and the European Court of Human Rights in the “Lautsi v. Italy” case.

Renaissance thinkers have pristine ideas since they were the manifestation of a new era. Mirandola (1463-1494) despite being obscure in the history of philosophy, played a role in Western thinking. His view of the issue of human dignity and its place on this fundamental issue in the history of Western intellectual makes study his thinking so meaningful. So, he can be considered one of the most influential thinkers on the issue of human rights in the present era. With the help of the narrative of Miranda's thoughts, we will explain Western thought on human dignity and human rights. Accordingly, our central question in this study is: "What is the basis of human dignity in the thought of Miranda, and what does the relationship of this basis with the human right?" To find out the answer to our question, we focus on Gadamer's Philosophical Hermeneutic approach to discussing the texts of Mirandola. Mirandola speaks on a chameleon man who has the right to legislate and determine his own destiny. This perspective has direct implications on human rights and is a chain that connects contemporary human rights thought with the thought of Mirandola.

Since human rights involve the relationship between individuals and governments, it sometimes interacts with individuals and directly relates to the issue of the sovereignty of States. The question is what is the impact of human rights on the sovereignty of States in the post-Cold War era? In response, it can be argued that, with the expediency of determining the structure of the international system, the communication and information revolution, and changing the human's understanding of its environment, which has accelerated the process of globalization of human rights culture, human rights cannot be restricted to the internal jurisdiction of the sovereignty. But increasing awareness of human beings and the growth of national and international NGOs, the pressure and sensitivity of the international community, it could definitely be said that the direction of human rights have been removed from national sovereignty. Acceptance of the principles of sovereignty and international protection of human rights are not inconsistent. The research method is descriptive-analytic.

Despite vast advances in the fields of science and medicine, numbers show that infectious disease is still a serious threat to global health. Since, microbes know no boundaries, fighting infectious disease has long been a subject of international cooperation between States. But the question remains that how fighting infectious disease can relate to human rights? There exists a twofold relationship: On one hand, States have responsibility to protect, respect and enforce the right to health, therefore they are obligated to take necessary actions to prevent and control infectious disease. On the other hand, securitization of this fight caused mainly by emerging and re-emerging infectious disease, globalization and its affects on people's life style has resulted in human rights breaches while fighting these diseases. Nevertheless, it is argued that international law is capable of striking a balance between these two apparent contradictory faces of the global fight against infectious disease.

To protect human dignity, human rights, maintenance of justice, order, peace, security and salvation, seeking the design of a legal and political well-organized society has been always the axis of the intellectual and practical efforts of thinkers throughout the course of history. The main purpose of the current research is analysis of the foundations and constituent ingredients of legal-political utopia regarding the previously mentioned approach. Synthesizing data in the field of the philosophy of ethics, politics, law and utilizing a descriptive-analytic method, article has addressed the role of the deontological ethics, neutral State approach and democracy (structural approach) in realization of the Utopia. By producing the motivations and behaviors emanating from the practical rationality and binding law, essential deontological ethics initiates unified, harmonious and neutral treatments among the citizens and governors. Subsequently, the manifestation of such State, specifically in light of the neutral State approach and democratic mechanisms, can be harbinger of the world politically, legally, ethically best system for guaranteeing right and justice in utile governing. By designing such a paradigm for managing the socio-political life, the legal-political Utopia in the field of human rights and public law undoubtedly would be crystallized.

Humanity has a common share in space exploration. The fundamental documents of space law support this claim. Although spatial technology has progressed greatly, space law is ambiguous in this regard. High cost and potential benefits of space exploration raise the question of whether spatial mighty countries share their discoveries with other countries? The important point is that developing countries are committed to allocating the interests of space exploration for economic development, while industrialized countries are less committed to economic development than developing countries. So these countries have more control over their own space programs, and their programs have more economic value. This article argues that powerful space-based nations have certain legal obligations about sharing the interests of space exploration that are ambiguous in some respects. Developing countries need to fair share of these interests as high as possible. The system of sharing interests only succeeds if helps the interests of the space nations; both developed and non-developed countries.

Espionage has been exercised throughout world history. By the new advancements in technology and emergence of the phenomenon of terrorism and taking necessary measures against it, however, it has gained its particular complexities and leading to many international disputes. International law distinguishes between peacetime and wartime espionage. In peacetime, it applies principle of separation of national and international jurisdictions and consequently that of State equality. Therefore, any intervention including through espionage entailing aggression against State national jurisdiction is considered as unlawful. The principle of equality of States implies non-intervention by States in each other’s affairs. Nevertheless, in new international legal order there exist certain instances of justified interventions including through espionage such as interventions permitted by the UN Security Council when collective peace and security of the world demands; intervention for self-defence; intervention by invitation; and intervention for humanitarian and human rights purposes. In war time, under certain circumstances, espionage is recognized as a legitimate ruse of war. There is an urgent need to have a world document for codification of provisions governing espionage and its new forms including cyber espionage and espionage violating the individual’s privacy. Espionage has become a global issue and therefore a new treaty can identify the instances of legitimate and illegitimate espionage.

Jean-Jacques Rousseau has explained the transition from natural to civil status under the theory called "general will". The root of the theory must be sought in the subjectivity and the fundamental change in the relation of man and the world, which has begun under the influence of the post-Renaissance atmosphere. This article, through a descriptive-analytical method attempts to describe how subjectivity affects Rousseau's theory of general will. In the framework of subjectivity, the subject is the foundation of the universe and everything else is considered the object of the subject, and it is the subject that determines everything else. Accordingly, in Rousseau's view, the conventional society depicted by public will (manifestation of the subject), replaces "nature" in its traditional sense and the social reason replaces traditional practical reason. In this conventional society, “the general will” arising from the social reason, determines the law. Basically, the law is the manifestation of autonomy and self-determination of the human will, which teaches citizens to act in accordance with their conscience and not to be constantly in conflict with themselves. There is no supreme power above “the general will” and people following the law, do not follow anyone except their will.

Soft law is one of the new topics in international law and the scope of its influence is expanding. Perhaps today fewer institutions can be found that do not use this tool in order to reach their goals. One of these institutions is the International Court of Justice. This paper attempts to examine the status and function of soft law in the practice of the International Court of Justice in a legal dogmatic way. The International Court of Justice has dealt with the issue of soft law in numerous cases. The Court, on the one hand, expresses the criterion of separation of soft law from the hard law and on the other hand, shows the ability to cite soft law. For this purpose, the court has, in many cases, enjoyed soft law to reinforce its arguments and to assert the opinio juris of international custom.

The social security system of countries is the field of activity of numerous institutions, each with a specific purpose in this system. In this system, retirement funds should be given special attention because any disturbance in their performance may undermine the right to social security in its special meaning (i.e., social insurance). However, despite the importance of international documents on the role of retirement funds in achieving social security, these institutions are struggling with many problems in the social security system of Iran, so that over the past two decades in Iran, the financial crisis and bankruptcy of the retirement funds are discussed and the reasons for it are expressed. This article has been formed from three separate sections that are trying to review and specify the most important structural problems related to retirement age and the supervision of retirement funds and the independence of these large financial institutions. Finally, legislative solutions are the best way to come over the problems in this field.