نشریه مطالعات حقوق عمومی
سال پنجاه و یکم شماره 2 (تابستان 1400)

The power of States to alter their laws and regulations in a way that no harm is inflicted on foreign investor's rights, has always been one of the challenging issues under international investment law. One the one hand, the foreign investor expects that the laws and regulations of the host State remain unchanged in the course of his investment, but on the other, the efficient administration of society requires the amendment of laws and regulations based on the society's ruling circumstances. The interplay between the two above-mentioned trends, is subordinate to various factors. Hence, this article deals with the question that what role, the legitimate expectations of an investor, play with regard to the consistency of the laws and regulations of States. Applying analytical and descriptive method and by examining treaties and the awards rendered by investment arbitral tribunals, attempt is made to demonstrate that the legitimate expectations of investor may have a direct impact upon the host State's legislation discretion and entitles the investor to certain rights.

The legal consequences of cultural diversity vary depending on the person it addresses. Given the fact that there is a huge difference between human rights and citizenship rights in international and national laws, accepting cultural diversity at the level of international law can be interpreted as fundamental human rights which needs an international agreement for its implementation; as a citizenship rights, however, cultural diversity can be identified based on the national and domestic laws, each of which (international/national dichotomy) has different requirements and consequences. One of the major legal consequences of identifying cultural diversity to be among the human rights is to agree with a fixed and equal value attached to every human culture at the global level, and to consider States to be obligated to preserve cultural diversity in the same way that they preserve biological diversity in nature. Such a hypothesis leads to the rejection of relativity of cultures, which is unnatural per se. Considering cultural diversity to stand among citizenship rights, however, leads to the fact that cultures are practically relative.

Subject-matter jurisdiction of the International Criminal Court includes only four major crimes and under the present rules of the Rome Statute, crime of drug trafficking is not among them. The ICC is not a court of general jurisdiction, it has jurisdiction only over the crimes enumerated in the Rome Statute and since drug trafficking is not among them; it falls outside the court's subject matter jurisdiction. On the other hand, drug trafficking is common in large scale around the world and so it is concern to the international community as a whole. So, the article aims to consider whether under the current statute rules or if amended, the jurisdiction of ICC could be extended over the crime of drug trafficking. Present paper that written in analytical-descriptive method, aims to consider why and how ICC's jurisdiction can be extended over the crime of drug trafficking in order to combat impunity of major drug traffickers.

Today, the jurisdiction of the constitutional judge does not limit to constitutional review of legislation; they have widespread competence in protecting the constitutional rights of individuals, so that they can be called judges of constitutional rights. The constitutional complaint that was foreseen for the first time in the German legal system, gives all persons the "right" to sue all forms of actions by public authorities (including the laws of the parliament) which violated their fundamental rights at constitutional tribunals. This paper examines the general capacities of the constitutional justice to support fundamental rights and enumerate the essential elements of the constitutional complaint and then describes the developments in France (after the 2008 constitutional amendments) and the United Kingdom (after the adoption of the human rights law in 1998), which seems to have been dramatically inspired by constitutional complaint by a comparative approach.

The review of the contents of the Universal Declaration of Human Rights from a legal and philosophical point of view, helps us to better understand the process that led to the compilation of this Declaration. In this context, one important point is to find out what foundations and theories the Declaration is based on, or, in other words, what is the worldview of the Universal Declaration. The most important question in this regard is whether the Universal Declaration essentially defines human beings and, if so, how is this definition. This article will describe the characteristics which Universal Declaration of Human Rights enumerates for humankind, and then explain how such a definition of man's nature has been shaped through the dialogue between different viewpoints. We will find out how to interpret the definition of the Universal Declaration of Human Rights from human beings. The Universal Declaration of Human Rights introduces human beings as a being of wisdom and conscience that is born free and equal and enjoys an inherent dignity which is the basis of man's enjoyment of human rights. This view is a result of the conceptual agreement between representatives of various legal and philosophical schools.

The confiscation of property that is derived from crime in various criminal procedures has always been used as an effective weapon, and, with the development of domestic and international criminal law policies, it has made varieties of ways to spend this kind of property. Procedures such as establishing special crime victim funds or re-social using from funds derived from the confiscation of property derived from crime have been seen in domestic and international instruments. The important point that should not be neglected in this process is the need to adapt these practices to human rights, which has been mentioned in both judicial and internal documents as well as in international instruments. The need to strike a balance between spending confiscation interests of crime-related property in ways that empower victims of crime, such as terrorist operations or the empowerment of societies that are mostly targeted at criminals in the domestic or transnational scope and respecting the rights of third parties with good faith and distinguishing between legal and illegal property must always be considered in the confiscation proceedings.

Protecting installations containing dangerous forces in armed conflicts against reprisals is one of the challenges of recent decades. Since the destruction of the whole or a part of these installations could result in the release of dangerous forces and causing irreparable damage to civilians and civilian property, it seems necessary to establish customary and contracting international rules to protect them against reprisals. Article 56 (4) of the First Additional Protocol of 1977 to the Geneva Conventions of 1949, and rules 6.8 and 1006.9 of the Red Cross model manual on the law of armed conflicts for armed forces of 1999, without any conditions, prohibit reprisals against workshops and installations containing dangerous forces, but these actions in armed conflicts are still observed. Article 85(3)(c) of the First Additional Protocol of 1977 in certain circumstances condemns the attack on works and installations containing dangerous forces as a serious violation and considers it a war crime. In this article, attempts have been made to analyze and evaluate the attacks on works and installations containing dangerous forces in the framework of the reprisal system.

Referral of the US sanctions situation by the government of Venezuela to the International Criminal Court poses the question of whether economic sanctions may fall within the ICC jurisdiction as crimes against humanity. It is the first time that the issue of sanctions is brought before an international criminal tribunal and therefore the response could not be found in the jurisprudence. Nevertheless, by analyzing the law and practice of the Court this article proves that the category of other inhumane acts as referred to in Paragraph K of Article 7 of the Rome Statute include those economic sanctions that cause great suffering and serious harm to the health of any civilian population, provided that are carried out in furtherance of a State policy against ordinary people. In establishing this proposal, the US sanctions against Iran is analyzed as a case.

In legal systems, in order to realize values such as the rule of law, the protection of human rights and freedoms and the realization of justice, various measures are considered to ensure the independence of the professions associated with these values, in particular, the judicial independence. Independence of legal profession is, of course, also considered to be of lesser importance than judicial independence. The present paper focuses on the definition of the realm of the independence of legal profession and with the knowledge of the lack of comprehensive researches in domestic literature in this regard, by presupposing legal profession as a public service.  Considering the legal profession as a public service and in accordance with its legal and managerial requirements, the concept, basis and scope of this independence can be considered in relation to the duties that the State has in providing public services. Of course, such an approach is not based on the reduction of the value and importance of the independence of legal profession, but it places that in a logical context based on the nature of the functioning of the State, especially in the legal system of our country.

In most cases before the International Court of Justice (ICJ), the respondents in accordance with the Rules of Court, raise a preliminary objection to the jurisdiction of the Court, the admissibility of the application or other objections. Upholding a preliminary objection in a particular field prevents the Court from exercising its jurisdiction in that field.“Non-existence of dispute” has been one of the most important grounds for preliminary objections to the jurisdiction of the International Court of Justice from the past to the present. Accordingly, the respondent claims that, essentially, there is no dispute between parties in the case at hand. This article examines definition, importance, nature, and requirements of “dispute”. Then the basics of the existence of dispute will be discussed, such as the subject-matter of the dispute (real dispute), its relevance with parties, its determination and objectivity, concurrence and awareness requirements, prohibition of increasing and changing the dispute, threshold of existence of dispute and the burden of proof, in the light of Articles (79), (79bis) and (79ter) of the Rules of Court, its Statute and judicial procedure.

Sustainable development has become a widespread discourse at the international level, and with the adoption of the Sustainable Development Goals at the UN Summit in 2015, it has become a comprehensive program at the State level in different dimensions. The operation of the world's States dealing with this issue has been an interesting development in recent decades. Sustainable development in international politics and law has gained some importance, although questions and ambiguities remain. The purpose of this article is to present current position of sustainable development in international law concerning the function of States. In this paper, we try to demonstrate through the descriptive, analytical approach that sustainable development today has gone beyond the mere concept and entered into some aspects of soft international law and in some cases even difficult law.

Legal certainty is one of the important disciplines in a legal system. Although, the issue of legal certainty is supposed to be a society-specific issue, however, it is challenging and doubtful concept in international law. However, largely, challenges and criticisms in international law due to the existence of legal certainty are remarkable, this does not imply ignoring the legal certainty within the structural dimension of the system. The principal assumption of this article is assuming the international community and to prove the relative "legal certainty " inspired by it in substantive and structural dimensions. In this paper, we try to seek and explain the appropriate terms of legal certainty and then understanding it in international legal system, nature of subordinate and structures and international community as an important issue. In conclusion, it has been shown that UN Charter, Four Geneva Convention and Human rights instrument are indications of existence of legal certainty.

Carl Schmitt as one of the most important legal thinkers of the twentieth century has a complex and difficult thought. On public law, Schmidt has spoken differently about both its foundations and concepts. The Constitution as one of the key concepts of public law is one of those that Schmidt has spoken about. He did not accept the common and modern understanding of the Constitution as a superior and written document and by dividing the Constitution and the constitutional laws, he concentrated his theory on the concept of constitution and spoke of four types of absolute constitution, relative constitution, positive constitution, and ideal constitution. His most disagreed with the relative constitution, that is, the prevailing conception of the Constitution, which he regarded as a departure from the true meaning of the constitution. The constitution in his thought is precisely related to the concept of constituent power and the people and plays an important role in uniting people. This article attempts to explain this concept in Schmitt's thought.

The concept of jus cogens entered into international law through the law of treaties and today has become one of the most important and effective rules of international law. The principal and recognized function of the jus cogens is to invalidate any treaty which is in conflict with it. Some States resort to unilateral acts to achieve their goals and to avoid the limitations imposed by the  jus cogens, because given the lacuna in international law, they consider those acts to be outside the influence of the jus cogens. In recent years, we have seen the functional development of the jus cogens in areas other than the law of treaties. This article, examines the function of jus cogens in the field of unilateral acts of States, to determine if unilateral acts of States, where they conflict with a peremptory norm, produce any legal consequences, and if the jus cogens has any impact on such acts, is its function in the field of unilateral acts similar to that of the law of treaties or does it has a different function.

Separating "Anfal" from other examples of public property and as a result, making difference in the rules governing these two (duality theory) and the competing theory that believes in unity of all instances of public property and consequently the unity of the governing rules (oneness theory), has not been limited to a jurisprudential dispute at the theoretical level and has had numerous practical effects. The issue under consideration is, which one is more similar with foundations of Iranian basic law and dynamic Ijtihad methods? Research outcome which has been done in a practical way is that «the theory of public property dichotomy» practically leads to dichotomy and diversity in legislative, financial, taxable, organizational structures and these results don't fit «progressive Velayate Faghih system as an institution based on order and discipline», «the philosophy of the Constitution and drawing the legitimized structures in it», «dynamic Ijtihad methods» and «legal State standards».

The International Criminal Courts for the Former Yugoslavia and Rwanda, respectively, were established by the Security Council in 1993 and 1994, according to resolutions 827 and 955. Extensive costs, complex missions, and slowness of proceedings have led to a decision to create strategies to complete the Court's mission by 2010. The Council issued a resolution of 1966 to establish a new mechanism to speed up the completion of the trials and fight against the remaining fugitives. The Mechanism with a small, low cost and temporary structure; however, having two branches in two separate continents, has attempted to complete and continue the multiple functions of the Courts, while still having its own challenges and problems in structure and operation. In the present study, it has been tried to answer the question with a precise evaluation of the structure and functions of the Mechanism that the Mechanism is merely a substitute for the Courts, or is a new model created in criminal proceedings. By studying the founding documents of this institution, it can be seen that the new structural mechanism in the international criminal justice system. Other courts can use it to handle different situations.

International criminal justice is one of the fundamental goals of international community that considered as the subject of deferent actions in national, regional and international levels. Although regional mechanisms were delayed to combat the impunity compared to international and national courts and this process is very slow in Asia and America. In fact, regional judicial implementation of international norms is relatively common in the fields of international human rights and there are attempts to create a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. But the importance and the necessity of these courts and their relationship to ICC are the new legal challenge. Generally, the case is admissible before the ICC if the State which has jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution. However, the important issue is: how do regional tribunals fit with the principle of complementarity in Rome Statute? The answer to this question requires the proper understanding of the legal relationship between states and regional tribunals and the contextualized application of the principles of treaty interpretation enshrined in the Vienna Convention.

One of the traditional ways which are used to support the production of domestic goods and services, drafting and implementation of the local content requirement. The government’s intervention in the market through obliging the persons to utilize the domestic products has been reflected in different laws and regulations and independently has been enacted in 1997, 2012 and 2019 in Iran. In this article, it will be discussed that the ideal legislation on this matter is subject to which requirements. This article concludes that using legal instruments for obliging persons to utilize the local products is subject to existence of social and economic justifying reasons. In case of existence of such reasons, the law shall be drafted in such a manner that while meeting the requirements of the rule of law, on one hand, the problem of quasi domestic monopoly is prevented from being formed, and on the other hand, it does not give rise to a situation in which the local producers can supply their occasionally-poor goods and services at the cost of the whole economy and at the same time, lose their ability to compete with the foreign producers.

The fair and equitable treatment (FET) standard has recently become an indispensable element for international investment treaties and consequently in investment arbitrations, but its definition, content and scope have been the subject of controversy. Some factors have relied upon by tribunals to find a violation of the FET, such as Non-discrimination, proportionality, reasonableness, due process and stability of regulatory framework. But a number of possible elements, such as transparency have generated concern and criticism. Thus, the main question is the role and effect of transparency in interpretation of the FET. The survey shows that transparency has been often considered as an element of the FET by tribunals and it has a significant role in interpretation of the FET. Transparency issues were among the first to be considered by tribunals concerning the FET standard and it is an important element that authors and tribunals understand as forming part of the FET standard.

Indirect interference of the host State with the investor's right to property has made it very difficult to decide whether the usual restrictions resulting from government intervention are considered expropriation or not. On the one hand, the exceptions to the right of the State to exercise public interest are expanding and on the other hand, the investor seeks economic benefits and stability. The question is what is the most achievable criterion for establishing a balance between the right of the State and the interests of the investor? The present study, after reviewing and analyzing existing theories and justifying the need to amend investment treaties and then review the domestic legal systems, concluded that, in the perspective of international investment, this is slow but decisively rotating towards a new generation of treaties, with emphasis on the right of States to regulate as an inherent right in the State sovereignty, it also creates an attractive space for investment. Therefore, recognizing the right of regulation as a starting point in any treaty can be a framework for creating bilateral or multilateral investment treaties that has not been very successful so far.