نشریه مطالعات حقوق عمومی
سال پنجاه و دوم شماره 1 (بهار 1401)

According to common Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations, subsequent practice of the parties to a treaty is an authentic element in the interpretation of that treaty; whether it is a mere inter-state treaty or a constituent treaty of an international organization. Because of the growth and development in the life of an IO and originating from its subsequent practice, the constituent treaty of that organization entails a modern reading. Directing an IO in a legal and desirable way is based on Constituent treaty of that organization. To the same extent, this role can and should be expected from the organization's own subsequent practice. Legal precedent, ILC findings and legal doctrine confirm this effect. Examination the role of subsequent practice by IO's organs and practice followed by the parties of the constituent treaties of international organizations in the interpretation of that treaty, is this paper's purpose.

The theory of public choice is the study of politics based on economic principles. Today, the application of this theory has expanded into issues such as judicial behavior that has been widely accepted in the field of order. Studies have shown that the concept of general selection theory in judging has practically proved a kind of interdependence between the personal interest of the judiciary and its effects on the outcome of the lawsuit. The nature of the proceedings, the difficulty of an agreement between judges, the inequality of judges, the uncertainty in judgments and the influence of superior justices on the other judges, is one of the disadvantages of this type of judgment that is judged in the light of the structure and functioning of the full bench and specialized chambers of the Administrative Justice Court. The purpose of this study is to examine the possibility of the existence of a personal judicial interest in administrative justice. The present study, with a descriptive-analytic approach, explains this relationship and proves that these chambers are not exempt from the constent pressures and material temptations of interest groups, the non-judicial ethics and the culture of expediency stemming from the practices of the Administrative Justice Court.

Under the general rule of state immunity, each state undertakes to avoid exercising jurisdiction over the actions and property of other states. In the doctrine and jurisprudence, state immunity is often seen as a manifestation of the principle of equality of states.Today, by filing lawsuits in domestic courts of some states and issuing a warrant against foreign governments, even enforcing these rulings, on the one hand, and laying down laws and regulations to violate the immunity in the context of transnational Torts of other states in some countries( the United States, Canada …) On the other hand, it has appeared in its internal courts to deal with civil cases of foreign governments, violating this general rule of international law.The European Court of Human Right (ECtHR) explicitly affirmed the immunity of states as a general rule of international law like other international jurisprudence and on the other hand,  the rule of immunity of the State, faces the challenge with incoherent judicial procedure of the European Court of some countries (Greece, Italy), Analysing the European ECtHR’s  relevant cases and judicial procedure of  the European internal Courts, this study will investigate the effects of these procedures on the immunity rule in the context of transnational Torts in international law.

This essay examins the relationship between international standards of welfare and genderism, the share of needy women and girls from benefits of social security round  two cores of value-base and need-base in this view that  its fair development has been paved to protect the honorable life of the poor people and fulfilling their legitimate demands indiscriminately. the present writing upon international documents and procedures of the public law of governments have tried to states the process of change in the 21st century social demonstrate social security law, along with the generational transition, the demographic revolution, and escalating growth of injuries from factors and dynamics that affect to determination of the vulnerable people. indespite differences opinions in universal cultural understandings,the gender justice is a supportive base for everyone in the domestic policy-making process for accessing  to capacities and opportunities in both the employment-based  and  protection-based of the social security. The conclusion of the study indicated the fundamental usage of gender justice in eliminating the difference between the poor people and the lack of fair and up-to-date welfare indexs the social systems.

The Law concerned in this paper promulgated for regulating the originality and integrity of scientific and empirical works. In that Law the act can be treated as a crime as well as administrative or disciplinary reaction so fraud and corruption be prevented legally. The differences between production of false works and their use in research areas should be accepted so the reaction of first one is penal and other is administrative and disciplinary that the recent one should be developed and be preferable in universities. However, the effort of legislator for developing and observing the culture of intellectual property Law is acceptable which is rooted in Public Law means.

It is clear that the commission of an internationally wrongful act by a state entails the international responsibility of that state. The fact that committing such an act will impose obligations on the responsible state and create rights for the injured state has been accepted by lawyers. However, there is debate among scholars as to the possibility of succession for the responsible or the injured state as to the obligations or rights arising from such an act. In this regard, most scholars in this field believe in the traditional doctrine of "negative succession" or "absolute doctrine of non- succession". According to this doctrine, in the case of succession, the state which has committed an internationally wrongful act or the State which has injured as a result of such an act, the resulting rights or obligations prior to the date of succession will not be transferred to the successor State. Therefore, this article argues that due to the unique features of each type of succession, offering a general solution for the various types of succession is not only illogical, but also, it can be criticized and rejected in situations such as the consent of the Successor State, resort to the principle of unjust enrichment or territorial nature of internationally wrongful act. The doctrine of non-succession needs to be adjusted by reviewing the realities of international society and in accordance with fundamental principles such as protecting human rights and dignity, justice, equity and prevention of unjust enrichment. A realistic approach which is appropriate for the specific characteristics of different types of succession should be adopted.

New concepts have emerged in the international legal system that conflict with traditional concepts of international law. Human rights, as defined today, is one of those new concepts that are at conflict with sovereignty, in its traditional sense. The African continent, symbol of colonialism, dictatorship, and a geography known for violating fundamental human rights in the past, is now trying to change the situation in favor of human beings by creating judicial structures for human rights. The Judicial mechanism of Africa, with its practice and the endeavor to update the main document, is trying to improve the situation of human rights in Africa. The extensive referral to human rights literature in the international domain and the over-needed attention to European judicial mechanism are respectively the pros and cons of Africa Human rights mechanism. The lack of real sovereignty in the past and tribal definitions of sovereignty and human beings, are serious obstacles to the efficient functioning of the continental judiciary system.

The possibility of equal use of the city's resources for all its inhabitants is an issue that has now become an important demand and the main reason for this is the human and environmental problems that have arisen for the cities. One of the requirements for solving these problems is the recognition of local citizenship and the right to the city. As many cities in the world have also documented this. Is it possible for the cities of Iran to draft right to the cityAct?It needs to investigate and identify the legal nature of the right to the city. In this article, while defining and clarifying the nature of the right to the city, the most important documents, including international and domestic documents, have been investigated in this regard, and then the damage to the cities of Iran that requires identification of the right to the city is necessary. And finally, the case will be provided for the provision of this right.

In terms of  basic principles and implementation, the two concepts of due diligence and corporate social responsibility, have the capacity to interact and interchange objectively and practically. Both concepts, taking into account their raison d’être, nature, characteristics, require the establishment of a mechanism of accountability ensuring fair treatment regarding the management of multinational corporations. The present article describes and analyzes the relationship between responsibility and due diligence on the basis of international instruments, particularly UN guiding principles, and considering their interactions, propose a new definition for risk management which is based on due diligence. It also deals with how to reduce social risks and promote respect for human rights in the framework of multinationals activities. Adopting an interdisciplinary approach, the interconnection between the two categories, as a model for fair social cooperation, drawing on international human rights law, as well as, economic and sociological concepts, provides new corporate accountability mechanisms. Through the precautionary principle as a confluence point, it shows that realization of due diligence-based responsibility is necessary to manage companies' brands, while reducing harms to human rights of stakeholders.

The International Criminal Court provides children with special protection. This article aims at delimiting the scope of such a protection in light of the law and jurisprudence of the Court. The Rome Statute affords children with legal protection by criminalizing those offences specifically committed against children, including child soldiering, and those crimes adversely affect children, including attacking schools. In practice, prosecuting crimes against children takes priority for the Court Prosecution. Moreover, child victims are procedurally supported by the Court. They have a right to participate in the Court’s proceedings as both a witness and a victim. The Court lacks any jurisdiction over persons under 18, but their crimes committed after this age could be prosecuted. Nevertheless, their prior victimhood might be taken into account in determining their sentence as a mitigating factor.

The theory of legitimate expectation has been raised as one of the means of judicial review over exercising discretionary power in some European countries, including UK. This theory was initially considered by Schmidt's case, but this theory has been seriously criticized and many English lawyers and judges made serious doubts about it. In this paper, while outlining different perspectives, answers the question "What is the nature of the legitimate expectation and the challenges posed on this theory in the England Administrative Law System? Although the foundations of legitimate expectation have been based on "fairness", there is no single view on the nature and function of "legitimate expectations". Doubtful about accepting a substantive legitimate expectation in England and not accepting it in New Zealand and Australia, The concept of "prohibition of abuse of power" in the issuance of certain judicial opinions, the violation of the principle of separation of powers and rival concepts, such as the principle of proportionality, has posed legitimate expectations with serious challenges. These challenges have caused this concept to not have the characteristics of a legal principle.

The peremptory norms in any legal system lead to the formation of a hierarchy among norms and their regulation. Until recent decades, international law had not formally recognized this fundamental concept. However, there have been few references to this concept in case law, legal teachings, and doctrines. The existence of peremptory norms (jus cogens) in international law requires its acceptance and recognition by States. Therefore, the practice of states in this regard is of particular importance. Certain states, such as France, have never agreed with such a concept, and others, Iran, for instance, despite the general acceptance of the concept in international instruments and studies, expressed their own special views on the compulsory dispute settlement procedures as to jus cogens and suggesting a list of examples of jus cogens. The examination of Iran's approach to the identification of the concept of the jus cogens and related issues, particularly in the recent study of the International Law Commission on the jus cogens, is the subject of this article. Practice of Iran in this regard, demonstrates its adherence to the values of the international community and ways of interacting with it.

U.S unilateral sanctions against Iran, have reduced access to medicines and equipment during the COVID-19 pandemic and its detrimental outcomes in Iran. Such difficult health conditions require the international community to assist the affected communities such as Iran to be able to stand against such unilateral sanctions. This article aims to study the legality of unilateral sanction during COVID-19 pandemic and its impacts on states international obligations to cooperate during such a pandemic. To this end, the international obligation of states at the time of the outbreak of pandemics in order to control the disease were first examined. Then, the nature and legality of the U.S unilateral sanctions against Iran and its coverage in humanitarian aids such as medicine and medical equipment were examined. In doing so, efforts were made to review international documents and some relevant I.C.J cases. Furthermore, by looking at the U.S sanctions laws it was been concluded that U.S unilateral sanctions is contrary to the rules of international law, in particular those which relate to restriction of trade on medical equipment. And also there is no legal basis to comply with these sanctions and non-cooperation in the provision of medical equipment by third states.

Managing conflicts of interests is a means for preventing corruption and increasing public transparency, efficiency, accountability and trust. Every public agent /employee may face a conflict of private and public interest, and hence, conflict of interests does not necessarily equal corruption. These situations must be transparent and managed correctly. Many countries have laws on the management of conflict of interests but there is no special law on this matter in Iranian legal system; some general and traditional laws have, by way of combating corruption, explicit or implicit references to this concept. Recently, there is political will for management of conflict of interests situations and a Draft-bill by The Government is prepared, and, some general laws such as Code of Commerce are amended. These legal initiatives seems to be less based on rasions d etre of management of conflict of interests and its techniques and methods. Therefore, this article intends, based on comparative study, to firstly conceptualize the concept of conflict of interests and then explains theoretical foundations of it , and, finally, main areas of conflict of interests and their methods of management.

The collapse of the Soviet Union created a legal vacuum in relation to fisheries management of the Caspian Sea which resulted in the steady decline of its living resources. In particular, the Caspian Sea’s valuable stocks of sturgeon were endangered to the point of extinction. The critical situation of the sturgeon stocks led to the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention) with respect to these stocks. This convention effectively brought trade in Caspian sturgeon under international supervision. Meanwhile, efforts by the Caspian coastal states to fill the vacuum of a fisheries management regime produced the 2014 Agreement on Conservation and Sustainable Use of the Aquatic Biological Resources of the Caspian Sea. This agreement lays down a new fisheries management regime for the Caspian Sea. Furthermore, the Convention on the Legal Status of the Caspian Sea, which was signed in 2018 by the five presidents of Caspian states, adds new elements to the fisheries management regime as it will establish various maritime zones in the Caspian Sea. The main question of this paper is: what is the legal regime of fisheries management in Caspian Sea? The findings of this study suggest that the necessary legal framework for the integrated and institutionalized management of the Caspian Sea’s living resources has been established but the efficacy of the new regime depends on the adoption and implementation of effective conservation and management measures by the Caspian coastal states.

The COVID-19 pandemic has effected implementation of states' international obligations, especially in terms of international human rights law. the right to health was violated more than any other right. In addition, although quarantines, social distancing, travel and access-to-information bans were imposed to protect public health, the inefficiency of some states led to the violation of the right to freedom of movement and access to information. This article, based on descriptive-analytical method, while examining the implementation of these three rights in the COVID-19 pandemic, asks which precluding circumstances can be invoked by states to justify violations of their obligations? it seems, given the high threshold for proving force majeure, the pandemic does not meet all the requirements of this factor, such as the impossibility of materially performing obligations. But invoking distress and especially necessity is worthy of consideration. Given the differences between states in terms of the severity of the pandemic and the capacity to deal with it, these factors cannot be considered as equally applicable to all states.

The question of whether the extension of the approach of contemporary philosophers of language to the language of the law belongs to legal hermeneutics or not, depends on the definition of Legal hermeneutics and its scope. The basic question that can be articulated in this regard is that the relation between the philosophical approach of Herbert Hart, the contemporary philosopher, and Legal hermeneutics. In other words, does Hart’s view of language of law, which is discussed in the book of the concept of law and under the influence of contemporary philosopher John Langshaw Austin, has a hermeneutical background?It seems that, if we consider the scope of Legal hermeneutics in a broad sense, Hart’s interpretive approach to legal principles as well as judicial procedures that accompany with criticizing the authenticity of legal form and defense of the rule skepticism, can be regarded as one of the most prominent examples of Legal hermeneutics. Through this approach, it can be claimed that contemporary philosophy of language, by discussing the language and meaning of the law, has a significant potential for the development of hermeneutical knowledge of law.

In the early 1990s bilateral investment treaties with the purpose of development of foreign direct investment and protection of foreign investors increased dramatically. These treaties provided for arbitration as the dispute settlement method. But the provisions of the bilateral investment treaties are not always clear enough. Therefore arbitrators, in order to settle the dispute, need to interpret the treaty provisions. The proportionality standard has been applied by some investment arbitral tribunals in order to make a balance between conflicting interests of host states and investors. Some scholars challenged the basis of the proportionality standard by the arbitral tribunals. In the present article the characteristics of proportionality as a general principle of law, which has its roots in domestic legal systems and has been transferred to international law, will be examine. Accordingly, the application of proportionality for the interpretation investment treaties under the rules reflected in article 31 of the 1969 Vienna Convention on the Law of Treaties will be justified.

The recourse of states to legal methods in resolving environmental disputes creates an appropriate legal guarantee in the obligation of the members of society of international to fulfill their environmental obligations, the main purpose of which is the comprehensive protection of the global environment. Therefore, the role of international legal authorities, especially the judiciary, in strengthening the guarantee of the fulfillment of the government's environmental obligations, which are often considered as general obligations, is undeniable. This article seeks to answer the question, "What role does resorting to legal methods in resolving environmental disputes play in ensuring the implementation of the government's international obligations to reduce environmental violations?" Therefore, by examining thematic binding documents and analyzing legal methods, the role of international judicial authorities in strengthening the guarantee of implementation of environmental obligations and the need to explain the interaction of human rights regulations in the field of environment and ultimately, environmental protection against government behavior. And we find that the government's commitment to resolving environmental disputes through legal means, in addition to the development of international environmental law, leads to the creation of appropriate enforcement guarantees in compliance with the government's international obligations to the environment and the human race.

After passing the amendment of Article 157 of the Constitution in 1989 and designating one person as the head of the judiciary (instead of the Council of Judiciary), one important challenge was the judicial competence of the head of the judiciary which had proponents and opponents at the time. However after passing Article 157 the Consultative Assembly passed laws that accredited the judicial competence of the head of the judiciary. This approach led to the passing of Article 477 of the Criminal Procedure Code. By studying the negotiations of the constitutional council. This paper aims to find the intention of the constitutional legislator about the existence or lack thereof the judicial competence of the head of the judiciary and then, process the laws passed by the Consultative Assembly in the light of the approach of the Constitution in order to evaluate Article 477 of the Criminal Procedure Code as the lastest law on the competence of the the head of the judiciary. Based  on the legislative process and comments by the Guardian Council we concluded that despite the lack of the judicial competence of the head of the judiciary in Constitution, the Consultative Assembly contrary to text and spirit of Constitution and without functional justification, gave judicial competence to the head of the judiciary.

Succession of states to obligations in respect of international wrongful acts, is in the scope of succession to international responsibility which there are very different opinions about that. Here, a state should be considered in its general meaning. Applying descriptive-analytical method, the present paper is seeking to finding the basis regarding state succession to obligations in respect of international wrongful acts and in accordance with that, it explains the concept of the principle of non-transmission, as the basis on which the advocators of non-succession of states to obligations in respect of international wrongful acts have relied on it and then it addresses the principle of continuance as the basis on which the advocators of of state succession to such obligations relied on. In spite of all the dissenting views that, speccially in classsic thoughts in international law, have been issued, the article in hands, comes to this conclusion that there is no impediment in front of state succession to obligations in respect of international wrongful acts, in international law to prevent the transferring of obligations in respect of international wrongful acts. Scrutinizing these bases is the subject of the present paper.

After Iran’s acceptance of Security Council resolution 598, although the armed conflict between the Iranian and Iraqi governments ended, for many people in Iran, especially in the western border regions of the country the war did not end. The tribulations of the peoples of these areas with the mines planted by Iraq during the imposed war have been devastating. Therefore, the legal obligation of the Iraqi government to declare areas mined in Iran and clear them is one of the main concerns of the Iranian government and people. Following the accession of the Iraqi government to the Second Protocol to the Convention on the Prohibition or Limitation of the Use of Certain Conventional Weapons Which Are Highly Seductive or Blind, and the Ottawa Convention, the way for the Iraqi government to clean up  the minefields is much greater than but the initial step in this direction seems to Despite the existence of customary obligation, be to annex the Iranian government to these conventions.

As a result of the principle of the legality of tax, the statute is the main basis in the relationship between the taxpayer and the government and interpretation. Therefore, the interpretive approach to tax statutes has considerable effects on the legal position of taxpayers as well as the rights and obligations of the taxpayer and the government. Some interpretive approachs, such as literal interpretation, result in the formation of principles like restrictive interpretation and interpretation in favor of taxpayer and enable taxpayers to manage their legal position so as to avoid tax obligations. But legal loopholes resulting from the literal interpretation of tax statutes might lead to the liberal interpretation of tax statutes and giving more interpretation authority to judges on the basis of economic goals of the statute, the purpose of the statute and the intention of legislature in order to resolve the textual ambiguity in a statute. This article attemts to anayze and explain the particular elements and factors of tax statute interpretation on the basis of scholarly opinions, comparative law studies and judgments of judicial and tax authorities.

An international non-governmental organization is a volunteered self-established non-profit organization which advocates public interests. The role of non-governmental organizations' which inherently persue public interests, are significant and have been recognized at different levels such as friend of the court (amicus curiae), plaintiff and plaintiff representative. Meanwhile, according to the European Convention of Human Rights and its protocols, especially Protocol No. 11, as well as the practice of the European Court of Human Rights, which is one of the main resource of the present study, the possibility of non-governmental organizations’ participation has been accepted in three forms: plaintiff, plaintiff representative and amicus curiae. This is why one can talk about the extensive role of international non-governmental organizations in the proceedings of the European Court of Human Rights. This study aims to examine this role.

One of the main challenges facing the current Egyptian government is the challenge of the status of Islam in the structure of its constitutional law. The second principle of the last Egyptian constitution (approved in 2014) states the extent of Islam's entry into the domain of governance. This principle, which is based on the former constitutions, considers the minimum position for observance of Islamic rules and, based on the obstruction of the Ijtihad, recognizes only the definitive Islamic rules valid for conforming laws with them. The parliament and the judiciary have no obligation to observe the famous jurisprudents' opinion and are not obliged to follow a particular reading of the Islamic law. There is no statutory place for the institution to protect Islamic law and the body of the Council of elders of Al-Azhar, which was also in the former constitution, has been removed and he position of al-Azhar has been reduced to a mere scientific institution. Due to the minimal presence of people in the referendum of the constitution, it can be concluded that the Egyptian constitution has tended to secularism, contrary to the opinion of the absolute majority of the people.