فصلنامه پژوهش حقوق عمومی
سال بیست و دوم شماره 70 (بهار 1400)

Military force of Turkey and Turkey-backed Syrian forces attacked Northeastern Syria on 9 October 2019. The concept of "safe zone" has been used in different terms in International Humanitarian Law. In this article, the legal status of the formation of a safe zone on Syria's Northern borders with Turkey is examined in the light of international law. The main question of this study is that under what conditions, the safe zone is acceptable in international law. Given the fact that the Syrian central government was opposed to the Turkish military invasion and the creation of the zone, and that there was even military conflict between the parties, and regarding the lack of authorization of the Security Council to establish a safe zone in Syria, Turkish military invasion and establishing such a safe zone was contrary to Article 4(2) of the United Nations Charter. On the other hand, Turkey's attempt to resettle Syrian refugees in the claimed safe zone, displaced from other parts of Syria, is being done to the detriment of the Kurdish population of Northeast Syria, and is in violation of international human rights and International criminal law.

Nowadays, issues non-related to investment have been entered in foreign investment law. Investment may bring about human rights and environmental challenges. Sustainable Investment emphasizes on the necessity of observing environmental and social standards in foreign investment process. While international instruments which are related to foreign investment do not contain legal necessity on foreign investment to conform with sustainability paradigm, foreign investment insurer organs –especially MIGA- provide that the continuance in supporting the project is subject to environmental and social considerations. It is mentioned through MIGA’s Policy on Environmental and Social Sustainability that the agency is obliged to consider environmental issues before deciding to guarantee the project. Importance of protecting the environment is also emphasized by classifying the activities according to environmental and social basis. Emphasis on foreign investment sustainability which is indicated in MIGA’s instruments, regulations and practice encourages investors to conform investment projects to environmental regulations.

This article is an analytical study of Clauses C and D of Article 80 of the Administrative Justice Court Act that requires persons that request voiding of regulations (voiding regulations due to contradiction with Islamic law) to express causes of law and related reasons with clarified remedy and finally refusing the application. In this study, it is revealed that Clauses C and D of Article 80 of Administrative Justice Court Act leads to violating timetable of effect of voiding due to violation of principles 166 and 167 of the Constitution and associated clauses. In practice, analyzing the precedent of jurists of Guardian Council in 2 fields of Islamic control of laws and regulations in the years 1982 to 2016 is not described as documentary and plausible. Thus, the contents of aforesaid Clauses are illegitimate limitation over fair trial and the issue of Islamic Judgment and Islam shall be eliminated from aforesaid Clauses.

The right to self-determination is amongst the most fundamental rights enumerated in human rights law. In the human rights approach, the wise man has free will and autonomy and the right to self-determination. according to the constituent power theory, the sovereignty of generations of a nation in self-determining cannot be limited in the political - legal structures created by the will of the nation. In this research, it is sought to identify the nature of the right to self-determination in the Constitution of Iran. In this regard, two points were considered: a view based on the supremacy of religion on the political will of the nation and the other one is based on the non-limitation of the will of the nation on right to self-determination. The first viewpoint is not consistent with the readings of the right to self-determination under human rights law. Although the second point is based on the human rights approach, in practice, due to the fact that constitutional principles and political structure of Iran is faced with some challenges, it is necessary for them to be resolved. Otherwise, the right to self-determination is admitted only in theory and there will be no practical effect.

Constitutional review is one of the important concepts of constitutional law that, although begun in the nineteenth century and in the United States, grew worldwide in the twentieth century. Initially European countries and gradually other countries around the world also adopted this system.but According to their political system and history; countries have provided many models for it. This theory was founded in the twentieth century by Hans Kelsen in Austria and Germany, and the European tradition first stood against it. The most important criticism of Kelsen was provided by the great German lawyer Carl Schmitt. He believed that this system was contrary to the principle of democracy and did not correspond to the space and history of European countries. If the constitution is to be guarded, the president himself will suffice as a symbol of all people. This article attempts to examine Schmitt's most important critics to constitutional review and his foundations and solutions by looking at Germany at that time. Schmidt's critiques to date have been one of the most important critiques of constitutional review and have been revisited in many ways in many countries.

The attributability of actions to states within the context of investment treaty disputes and to focus on the roles played by international and domestic laws in such attributions have caught the attention of jurists in recent years. The ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, and particularly, article 3 points to the main outcome of this debate, where it does not consider domestic law irrelevant in internationally wrongful acts and stipulates that the issue is subject to international law and it will take into account the relevance of domestic law. Thus, although the characterization of an act of a State as internationally wrongful is an independent function of international law and such characterization is not affected by the characterization of the same act as lawful by domestic law, it does not mean that domestic law is irrelevant to such description; on the contrary, it may be related in various ways. The present article attempts to examine the challenging junction of domestic and international law with regard to the attributability of actions taken within the framework of investment treaties, specifically by state-owned and para-statal entities that exercise elements of state authority.

Governments and governmental organizations have special privileges in concluding contracts to provide the public needs and protect the public interests. One of the privileges that is often addressed in Common Law systems and Commonwealth countries, and it stems from the sovereign power of the government to serve the public interests, is the “doctrine of executive necessity”. The doctrine embodies that, the government may terminate the contract without paying compensation due to some necessities such as policy changes in safeguarding public interests.  By singling out the doctrine of executive necessity from similar concepts such as termination by convenience, nationalization, expropriation and force majeure and with having an analytic view in government contracts institution in legal system of Iran and by examining related Acts and Regulations, the existing gaps will be revealed and a proposal will be made to legalize government activities under the contract.

The Constitution must be regarded as one of the elements of a larger order, and the political system based on it, and the "text of the constitution" is just one of these elements. The relationship between political forces and their balance, as the context in which the constitution is flowing, directly affects its life and expands it. In this article, we will draw a conception in which the constitution is not just a text but it includes also a bunch of non-written rules, which play a role in the political system. We are trying to find a fundamental notion on which this distinction is based. Legality and legitimacy are our criterions for such a distinction. We are trying to identify the moments in the political life of Iran in which these two conceptual couples (legality and legitimacy) have been revealed.  For, we will identify these categories in the system of constitutional law in Iran, and show the importance of researching them. Research on the constitutional law in Iran, with lack of these rules, cannot provide a true picture of the Constitution.

Cities contain more than half of the world's population. Urban sprawl and environmental degradation would cause irreparable damage to the cities and their citizens. A considerable number of the urban population suffer from the lack of human rights in the cities. Fundamental principles ought to be respected in order to achieve the desired standards of living, Human dignity and the well-being of citizens. The right to the city is an idea, recently having drawn social movements and urban designers' attention to the fact that preserving the fundamental human rights in the cities is of the essence to the extent that some countries have recognized this right in their internal documents. It is true that the community of engineers has allocated a part of their studies to the right to the city and its importance. However, such human right is not confined to the urbanization rules and it should be considered legally binding. This Article Interprets the Right to The City from legal dimension and the responsible organizations for protecting and preserving it.

The prohibition of use of force is one of the primary obligations of States under Article 4(2) of the United Nations Charter. No violation of this principle is permitted except in the case of self-defense under article 51 of the Charter or the authorization of the Security Council under chapter VII of the UN Charter. The Intervention by invitation is one of the controversial concepts in legal doctrinal debates partly because it has not been included in the Charter. Based on the latest Security Council’s practice in the case of the Gambia (invitation by an elected President who has never had effective control), the research provides new analytical findings on the theoretical self-sufficiency of the principle of intervention by invitation. The results of the survey support the argument that a President-elect, who is unable to gain power due to electoral riots, may request intervention with the explicit or implicit confirmation of their legitimacy by the SC without any reference to UN Chapter VII Resolutions.

In the modern era, the Administration is assumed to be a service institution that should, in the ordinary and extraordinary circumstances, deliver public services. This cannot be achieved unless under the principle of the rule of law, its jurisdictions are defined. The present study, emphasizing on the crisis of COVID-19, has attempted to discuss the jurisdictional competence of the Administration in a crisis situation in Iran. Therefore, this question is addressed: regarding COVID-19 outbreak, what is the position of the Iranian legal system regarding the powers of the Administration in times of crises? to answer this question, using the descriptive-analytical research method, it is concluded that, first, the constitutional legislator does not have a clear understanding of the concept of crisis and Articles 79 and 176 are ambiguous. Second, the legislator has taken an "isolated" and "partial" attitude in expressing the crisis. As a result, it has failed to enact a comprehensive law on the state of emergency. Third, jurists have been unable to make laws in crisis due to being under the shadow of the ruling atmosphere. Therefore, "lawmaking in crisis" is a missing link in Iranian legislative system. Accordingly, dealing with the COVID-19 crisis faces serious obstacles in Iran.

The international organizations have independent legal personality which makes them responsible for their own wrongdoings. Therefore, member states of these organizations, are not responsible due to their mere membership. The European Court of Human Rights' decision in the Bosphorus Case can be considered as a key case in the context of the Member States' responsibility for the actions of international organizations. In this case, the European Court of Human Rights sought to determine when member states were responsible for actions carried out in the European Union. The doctrine of equivalent protection which first introduced in the case-law of the European Court of Human Rights, and in particular in the Bosphorus case, undermines the independent personality and separate responsibility of the international organization and made an exception to it. Under this doctrine, EU member states will be internationally responsible if they do not protect fundamental human rights at a level equal to the European Convention on Human Rights. In other words, when a state transfers its competence to an organization, it is necessary to ensure that it fulfills its other international obligations. This article analyzes how the European Court of Human Rights monitors the European Union's performance in the scope of human rights.