نشریه مطالعات حقوق عمومی
سال پنجاه و دوم شماره 2 (تابستان 1401)

At present, Iran has a two-round electoral system whereby the candidates compete with each other within the framework of the Act on Electoral District Boundaries. After the sixth legislative session, the Iranian parliament passed various bills in order to reform the electoral system with the focus on expanding the constituency from regions to provinces and change the election mechanism from absolute majority to relative majority or mixed (majority-proportionality) system. However, none of the proposals has received the Guardian Council's final approval. In the proposed systems, there is a posibility that a candidate not elected by people enters the parliament as their representative. The objections are mostly aimed at the absolute majority system while in this system the election results are clear and unambiguous. In the view of a constitutional judge, if the election is to be held at a provincial level, the proposed model has to provide a mechanism by which the elected candidate obtains the majority of the votes both in provincial and regional constituencies (Article 6). Moreover, attention will shift to densely populated areas by changing the electoral precincts, which will adversely affect voters' participation in sparsely populated areas (Article 3). Furthermore, provincial elections are not compatible with some of the clauses of the General Policies Of Election (Article 110, paragraph 1). Moreover, with the implantation of this plan, the costs of holding elections will increase, which is against the principle of revenues and costs balance (Article 75). According to Article 85, the elected candidates have the right to comment on trans-regional issues. Establishing a balance between regional and national interests is a prerequisite to any fundamental changes in the electoral system.

Transparency is considered as an  important principle of good governance in many countries. Transparency in public affairs means the free flow of information about public affairs and the availability of such information to all. Creating transparency in public affairs can achieve different goals, including increasing public trust in the government. To be sure, it would be difficult to advance a country's plans without the assistance and cooperation of the people and non-governmental organizations. On the other hand, by increasing public engagement in government plans as well as building trust between government and citizens, the government will face fewer challenges. Given these points, the importance of discussing public trust and the need for promoting it, is clear. This paper, while emphasizing the importance of public trust, will show the impact of transparency on gaining and promoting public trust. Furthermore, the place of transparency in the Iranian legal system will be discussed. To this end, while Iranian laws and regulations on transparency are briefly reviewed, the Bill on the Act on Transparency will be evaluated insofar as it is seen as the most important step in creating public transparency in terms of gaining public trust.

The Impartiality of the judges of the International Court of Justice (ICJ) is one of the requirements of its judicial independence. The procedure of electing ICJ judges is an important factor in ensuring their impartiality. The main purpose of the UN Charter’s provisions on the election of ICJ judges is to prevent the interference of governments in the process in order to ensure the integrity of the Court. This is done, in the first stage, by nomination of the candidates through the national groups of the Permanent Court of Arbitration and a dual election system involving the General Assembly and the Security Council, in the second stage. The involvement of these two organs reflects a compromise between the thinking and interests of powerful states in having their own judges in the Court and the interests of other states who wished to be on an equal footing with the great powers. This article examines each of these steps in the process of electing judges, and seeks to answer whether the system of electing ICJ judges and its functionality is such that it can prevent the political interference of governments, and consequently, ensure and maintain the impartiality of the judges.

Federalism is a special way of organizing the state, which distributes and fragments political power within a country. In Germany, we have seen administrative federalism, which has three distinct characteristics: first, that legislation is done at the federal level and implementation at the state level; second that this form of federalism is cooperative; third that the states participate in the federal legislative process as well as the administration of the federal government. Conversely, in Iraq the dominant discourse of dictatorship and lack of political, economic, social and cultural background have prevented the establishment of a stable federal system. The experience of Iraq after the fall of Saddam Hussein shows that what is called federalism is a continuation of conflict in the three ethnic and religious sections of Iraqi society. The present study aims to examine administrative and ethnic federalism in Iraq and Germany with a comparative view and has concluded that the failure of federalism in Iraq and its success in Germany is directly related to the level of economic development, and the political culture of these two countries. The study’s findings indicate that federalism is of no value per se. It is merely a tool that might have different effects from one country to another.

The rule of law and liberty are key subjects of legal philosophy that have received serious attention in Iran  since the 1905 Constitutional Revolution. In this connection, the dispute over establishing a relationship between secular and sharia aspects of life and its relevance to achieving individual freedoms has been the subject of Iranian public-law philosophy.This article examines some of the theories that have been formulated on this issue since the Constitutional Revolution, and attempts to critically analyze efforts to establish the rule of law in Iran. The main question of the paper is how have theological and legal theories on the relationship between secular and religious matters developed during the past hundred years in Iran? The main hypothesis of the paper is that jurisprudential theories have evolved from law-sharia dualism to the centrality of sharia law.

Peremptory norms can preserve the order, values, and objectives of a legal system. If a legal system contains peremptory norms, they indicate its advancement. Since the conclusion of the 1969 Vienna Convention on the Law of Treaties, there has been a great deal of criticism regarding the ambiguity of and contradiction in the definition of peremptory norms. Many jurists and schools of international law have developed various theories on the concept of jus cogens that tie its non-derogable characteristic to different foundations. In this article, the writer, applying pure legal techniques, will study the peremptory norms’ recognition elements and will try to reconcile different legal theories regarding the basis of jus cogens, using a dialectical method. Eventually, a comprehensive criterion for recognition of peremptory norms will be presented.

The explanation of human behavior in the practical wisdom of tradition is teleological. From Aristotle to Islamic scholars, despite their differences, human actions are considered to be aimed at perfection, and since they attribute the form and truth of behavior to its purpose, they judge its decency or indecency based on the purpose of the behavior through a normative approach. However, with the beginning of the modern era, the basis for explaining human behavior evolved to a mechanistic approach. This change of approach appeared in Descartes' philosophy, expanded with Hobbes, and culminated with Spinoza. In modern mechanism, human behavior is explained within the framework of a mechanical view of the world and the forces that govern it. Accordingly, the explanation of criminal behavior changes from the traditional teleology of practical wisdom to the perception of criminal behavior as a chain of causal and necessary relationships in human nature. This  approach is the starting point for the the economic identity of crime in the modern era.

Despite the importance and undeniable place of the principle of  public trial in human rights and domestic law, its realization still remains one of the concerns of the Iranian judicial system. The reason must be sought in the obstacles and challenges that prevent the implementation of this important principle. Given that the theoretical and legal barriers to the establishment of this principle have been examined in previous studies, the present paper, using a descriptive-analytical method, will examine some of the other barriers to the the principle, including religious, judicial, structural and cultural ones. The findings of the study will show  that due to its sharia basis and lack of contrary jurisprudence, no religious barrier to the principle of public trial in criminal proceedings can be conceived. In addition, by reforming judicial procedures and structures,  appropriate oversight of judges, allocating the funds needed to rebuild the courts system, creating the appropriate cultural context and providing public education, systemic and cultural barriers to public trilas can be removed.

The abuse of human rights at sea is a critical problem that has often been ignored. Since violation of human rights at sea is not as tangible as it is on land, it has not received enough  attention from the international community. Governments are certainly committed to respecting human rights within their territories including their territorial waters, but there are no clear rules about protecting human rights in other marine areas especialy the high seas.On the other hand,  due to the expansion of marine activities, there might emerge a conflict between the law of the sea and other fields of international law especially human rights law. The contrast between human rights and the law of the sea can be seen as an opportunity for developing international law in order to stregthen the rule of law. Human rights and the law of the sea are connected in many cases. The Hirsi Jamaa case is a notable example. The Law of the Sea aims to govern uses of the sea, but the purpose of this research is to examine the relationship between the individual and the state in the maritime space, and thus the humanization of the law of the sea.

The purpose of this paper is to suggest a new policing strategy that improves the police-citizen relationship, is compatible with democracy and has the capacity to promote human rights, and is applicable to any democratic environment regardless of the specific legal system. The methodology of this research is descriptive-analytical in that the elements of good governance (participation, consensus, anti-corruption, transparency, rule of law, equity, accountability, efficiency and effectiveness) are briefly defined, while each element is evaluated as an independent variable in relation to policing strategy as a dependent variable. Moreover the indicators of each element are found and their feasibility is studied. The result of this study shows that good governance elements can be applied as policing strategy and are compatible with new approaches to policing, such as community-based policing, preventive policing and problem-based policing. If these elements are applied at the same time, without undue preference or delay, democracy and civil rights will improve. The relevant laws and regulations show that the Iran’s police force is result-oriented; applying process-oriented elements of good governance, which  optimize police-community relations, guarantees public acceptance of police actions and decisions, and ultimately enhances its efficiency.

Constitutionalism in criminal procedure implies that the principles and frameworks of criminal procedure are determined by the Constitution with which other statutes and regulations should comply. In this context, the Constitution involves both codified and uncodified constitutional rules. Because of the constitution’s place  in the legal system, constitutionalism in criminal procedure, protects basic human rights and prevents the criminal justice system from abusing its powers. Judicial independence, legislative independence and constitutional review are mechanisms by which constitutionalism in criminal procedure is ensured. Based on various principles enshrined in the Iranian Constitution, it could be argued that constitutionalism in criminal procedure has been accepted in Iran's legal system.

Herbert L. Hart considers the rule of recognition as the ultimate criterion for the validity of a legal system and its rules. Doubts about the validity of a rule in a primitive legal system-which has only primary rules- due to lack of a formal and valid criterion for recognition, leads to the “uncertainty issue”. But in a matured legal system, secondary rules – rules on recognition, change, and supervision – remove the system’s uncertainty, instability and inefficiency. The purpose of this research is to analyze and identify the rule of recognition as a criterion for determining the validity of other rules in a legal system. Criticisms of the recognition rule have been divided into four categories; the first critique is related to the essence of the legal system meaning that its scope determines its autonomy. The second critique is lack of normative features in the rule of recognition. The third critique is its incompatibility with the ultimate criteria of legal validity. Finally, the fourth critique is hermeneutical. However, some, using Hart's positivist methodology, believe that the rule of recognition lacks the characteristics of a rule and suggest "the idea of recognition" instead.

Today, corruption is considered as one of the main challenges to realization, development, and protection of human rights and fundamental freedoms. Corruption not only leads to discrimination and lack of  equality, it also seriously threatens the rule of law as the backbone of democracy. Corruption intensifies the distance between the state and the people. It also intensifies citizens’ dissatisfaction. The states’ commitment to observe fundamental rights and freedoms provides the conditions for citizens oversight of the states’ activities. Moreover, enhancing the rule of law and placing the state in its rightful position as the supervising institution will increase the state’s authority and strengthen national sovereignty. In the process of combating corruption, factors such as public participation, a strong civil society and raising public awareness, are crucial. The states’ lack of commitment to fundamental rights and freedoms undermines public trust, and makes it impossible for citizens to control the state. In this study, conducted by descriptive-analytical method, we intend to prove the  hypothesis that observance of human rights and respect for the notion of fundamental freedoms of citizens by the government,  is the most effective tool for fighting corruption.

According to Article 31 of the the Monetary and Banking Law of Iran, banks may only be incorporated as public joint-stock companies with registered shares. Moreover, according to Article 36 of the Law on Permanent Provisions of Economic, Social and Cultural Development Programs, all public joint-stock companies are required to register with the Iranian Security and Exchange Organization (SEO) as the custodian and supervisor of the capital markets. Thus, establishment of any banks requires initial public offering of banks' shares and conducting secondary transactions needs registration at Tehran Stock Exchange or Iran FaraBourse Co. (IFB). Consequently, all banks are necessarily considered issuers of securities and therefore they are under the supervision of the SEO and subject to the regulations approved by the Securities & Exchange High Council and the rules set by the relevant stock exchange. The purpose of this paper is to examine the institutions that oversee the capital market, the scope of their powers and how they monitor banks, and their compliance with the principles of public law, including transparency and efficiency. To this end, after examining the issue from the perspective of monitoring securities transactions, disclosure of information and corporate governance as three main areas of bank supervision, the study’s findings suggest that the oversight of the banks by the capital market supervisory institutions, leads to transparency in the performance of banks and the protection of of investors interests. However, due to the overlapping jurisdiction of the regulators of the money market and the capital market over banks, in some cases oversight can disrupt the banks efficiency.

Today, climate change and its adverse effects - such as glacial retreat, sea-level rise, and desertification - are increasingly evident around the world. Such adverse effects may continue to occur despite the implementation of the climate change legal regime, namely: the obligations under the UN Framework Convention on Climate Change 1992, the 1997 Kyoto Protocol and the 2015 Paris Agreement. As a result, from the time of the 1992 Convention’s adoption, the issue of “loss and damage associated with the effects of climate change impacts" was emphasized by its member states, especially the developing countries. Despite the efforts to turn "loss and damage" into a basis for reparation and international responsibility/liability for climate change, this concept has taken on a special character. Consequently, international instruments and legal literatue on climate change are unclear about meaning of “loss and damage”. Furthermore, these terminological, legal and technical ambiguities overshadow its interaction with the international responsibility/liability system and make the current and future status of international responsibility for climate change controversial.

Non-governmental organizations (NGOs) are among the influential institutions whose participation in reforming the judiciary will increase its efficiency and thus increase public trust in the judicial system. In other countries, the groundwork has been laid for the entry and participation of NGOs in the judiciary, and these organizations have been able to remedy many shortcomings in the judiciary. The NGOs have been involved in such activities as academic interactions with judges, supporting prisoners, fighting corruption, effective participation in the judicial process, monitoring the functioning of the judiciary and crime prevention. For this purpose, the NGOs have been developing programs and implementing them with the help of the government. With respect to Iran, however, despite the recognition of the role of NGOs in various laws and regulations - especially the Guidelines on the Participation and Interaction of NGOs with the Judiciary in which the participation of NGOs in the judicial process, combating corruption, and prevention of crime have been provided - in practice, the influence of these organizations in the judicial system is limited. Indeed, the rights of the NGOs have remained unimplemented, and the two sides have  been unable to interact for the purpose of improving the judiciary.

The right of people deprived of freedom is one of the fundamental human rights that was considered in article 10 of the international covenant on civil and political rights for the first time. Due to that deprivation of freedom makes a person specially vulnerable and exposes his dignity and rights to violation, this right is absolutely necessary for respect to people`s inherent dignity. But international documents have not defined it and have only expressed the obligation of “prohibition of torture and other cruel, inhuman and degrading treatment or punishment“. However, this prohibition is just a minimum duty of respect to human dignity and human treatment in situations of deprivation of freedom. Realization of human treatment of the deprived of freedom needs a higher level of duties and active actions from governments.

This article analyzes the crisis of secession in the Catalan region of Spsin in terms of  the right to self-determination in international law. The focus of this paper is on the application of this rule to non-colonial situations. While applying the right to self-determination in colonial situation is well-established and the people of these lands can create their own government under this rule, serious doubts have been raised about the right of self-determination outside the colonial situations. There is no consensus about the right to remedial secession under international law. This article tries to examine the customary law and the most important international instruments dealing with the right to self-determination, in particular the right of Catalan ethnic minority in Spain to form a new state. It is concluded that the Catalan authorities’ reliance on this right for declaring independence faces serious legal difficulties.

The "negation of domination” rule is one of the principles that has had great impact on decisions and policies in Islamic society. The negation-of-domination rule significantly influences relations between the government of an Islamic state and foreign states as it effevtively bans any relationship that leads to foreign dominance over Muslims. Nonetheless, this rule has exceptions that allow a Muslim state to have relations with the international community. The Iranian legislature, for its part, has used the negation-of-domination rule to prevent foreign dominance. As for the compatibility of this rule with international standards such as the principles of non-intervention or sovereign equality, it should be noted that there are sometimes apparent contradictions between this rule and the said standards. In such cases the non-dominance of foreigners over Muslims prevails.

The riddle of international law being ” law” has consistently been one of the primary challenges international law has encountered, even in its relatively more modern branches. In response to authors like Austin who contended that international legal norms are not law but morality, some scholars asserted that despite the uneven distribution of power among states, the weakness of sanctions in a legal order does not mean that it does not exist. Also, the notions of sovereignty and the will of states, as the basis of international relations, are legal conceptions and so, international law literally does exist. In fact, the unique elements of the international society and hence international law need to be thoroughly digested. Furthermore, a functional approach leads us to the legal quality of international law. Undoubtedly, all society-based relations and the collective struggle of society members to gain common interest require some sort of law. In other words, it is inevitable that the international community needs international law.

One of the problems in the field of employer-employee relations is the phenomenon of mobbing. In this descriptive-analytical study of the mobbing phenomenon, the mobbing refers to abusive activities, including intimidation and humiliation, intended to harass, and thus expel a worker from the workplace. Mobbing can cause severe physical and mental injuries, and enormous personal and social costs which demonstrate the necessity of combating it. In the Iranian legal system, combating this phenomenon can be justified on the basis of respect for human dignity and the employer’s obligation to safeguard workers’ health as well as the principle of freedom of work. Nonetheless, specific rules against mobbing have not been established. Therefore, until the enactment of special regulations, it is possible to sue or prosecute the perpetrators of mobbing under general rules of civil and criminal liability but this is not enough to support victims.

Testing nuclear weapons can be a cause of environmental pollution in the outer space and consequently the Earth. Article 9 of the 1967 Outer Space Treaty stipulates that the environment of the Earth should not be polluted resulting from the introduction of extraterrestrial matter but Article 4 of this treaty only prohibits the deployment of weapons of mass destruction in space and has no rules for banning nuclear weapons testing. Despite the prohibition of nuclear weapons testing in outer space by the 1963 Nuclear Test-Ban Treaty, it lacks verification mechanisms. The Comprehensive Nuclear-Test-Ban Treaty prohibits nuclear testing and nuclear explosions in all environments, but has not yet entered into force. This article by using a descriptive-analytical method analyzes outer space, environmental and nuclear instruments to establish the obligations of states when testing nuclear weapons in the outer space. Given the diverse interests of states capable of conducting these tests, modifying current legal instruments on the outer space is unattainable. Therefore, it seems that the method adopted in the 1959 Antarctic Treaty can be used and an Additional Protocol including environmental behavioral guidelines can be annexed to the Outer Space Treaty .

Under Article 83 of the Iranian Constitution, the transfer of governmental buildings and properties is subject to special conditions and regulations such as: the principle of non-transferability of government buildings and properties including national treasures as well as the absolute non-transferability of “unique national treasures”. It can be argued that the idea underpinning the said principles is linked to the cultural, economic, and moral values of Iran. As such, the rather stringent approach of the constitutional legislator in Article 83 seems reasonable. Nonetheless, lack of a clear definition of governmental buildings and structures, specially the so-called “unique national treasures”, puts the issue of transferring such buildings and structures in a vague frame and makes it quite challenging. The present study, by focusing on Article 83 of the Iranian Constitution, intends to explain the rules on transfer of government buildings and properties in the Iranian legal system.

With the development of technology and the interconnection of economies, the use of unilateral sanctions by powerful states, as a tool to exert pressure on the target country, has both increased and acquired a different function compared to the past. The most detrimental effects of unilateral sanctions can be seen on the fundamental rights of ordinary citizens of the target countries, including the right to health and the right to access food.  Thus, the question arises as to the extent of the sanctioning state’s responsibility for the violation of such rights. This paper will study the factors influencing the increase in the impact of economic sanctions on the sanctioned country, and will examine how, under international and human rights law, the sanctioning state can be held responsible with respect to the fundamental human rights of the sanctioned country’s people.

The concept of law, in its modern sense, entered the Iranian intellectual discourse more than two centuries ago, and from the very beginning became a rival to sharia which was the ultimate legal order of Iranian society since the dawn of Islam. Many Iranian scholars tried to resolve the conflicts between the two. One of the most prominent works on this topic is Mirza Yousef Mostashar-Al-Dawlah’s “Risalah Yek-Kalameh”. Reading this book is at once easy and difficult, so much so that there have been many interpretations of the author’s intentions. This study will attempt to critically analyze the three major interpretations of “Risalah Yek-Kalameh”. The results of the study indicate that Mirza Yousef Khan failed to solve the conflict between sharia and law, because he did not understand the exact meaning of those concepts and their limits.