فصلنامه پژوهش حقوق عمومی
سال بیست و سوم شماره 74 (بهار 1401)

Measures taken by governments during armed conflict to safeguard their essential interests sometimes cause damages to foreign investors. The investors thus affected seek remedies in the arbitration tribunals invoking breach of host government obligations to protect investments. The host government also usually attempts to assert as defense non-precluded measures to prove its irresponsibility, or if it proves responsible, justify it by resorting to circumstances precluding wrongfulness in the customary international law. But since different courts do not consider the same requirements to invoke these rules, there is no certainty that the parties to the lawsuit will be able to invoke them and, as a result, the scope of government's obligations to protect the foreign investor during the armed conflict is obscure. To clarify the scope of the host government's obligations to protect the foreign investor during armed conflicts and balance the interests of the investor and the host government during the investment disputes arising from the armed conflict, this article explores the possibility and requirements of invoking circumstances precluding wrongfulness and non-precluded measures and the relationship between them.

According to the prevailing opinions on interpreting Article 64 of the Constitution of the Islamic Republic of Iran, religious minorities’ members consisting of the Zoroastrians, the Jews, the Christians (north and south Armenians, Assyrians and Chaldeans) are not augmentable in Iran’s parliament. The main goal of this article is to clarify the allocation of these five seats and its position within the scope of the principle of equality, which was done by describing-analyzing method and collecting library-documentary information. The research suggested that five members are guaranteed at a minimum and there are no limitations. It is changed in statute and parliament election also has established significant discrimination through the election system of the religious minorities that appear during the process of enrolment, qualifications, the structure of supervisions, provincial and central, voting and dividing election centers.Finally, positive discrimination has changed into a negative one. The solution is to correct the acts and regulations. So we suggest amending the laws in secondary fields and voting centers, and also the participation of minorities in control boards, and increasing minorities members in parliament.

The citation of constitutional principles in judgments of the courts is one of the issues related to the evidence of the verdict. It is obvious to cite the principles of the constitution in the constitutional courts, but in ordinary courts, i.e. criminal, legal and administrative courts, not all the principles of the constitution can be cited, and only some of the principles can be invoked. The inviolability of a country's constitutional principles in court rulings depends on the type of system of compliance of the statutes of parliament with the constitution, the extent of the constitutional principles, the substantive and formal principles contained in the constitutions, and the training and morale of judges in invoking constitutional principles. Due to the different effects of these factors from one country to another, the amount of citation to the principles of the constitution in the courts of different countries is not the same and is different. In Iran, due to the non-acceptance of judicial supervision in accordance with ordinary laws and the Constitution, most cases of citation to the Constitution in court rulings are related to principles such as Articles 37 and 49 that the Constitution in order to constitutionalize rights and other reasons, accepts citable principles.

Sometimes foreign investors after the dispute have arisen or when it is predictable and with the intention of bringing the dispute to arbitration, change their nationality or acquire new nationality. The phenomenon called Nationality Planning eases foreign investors’ access to a desirable treaty and increases the chance of bringing disputes against host states.So host states try to avoid these disputes by raising objections to Ratione Temporis or claiming abuse of rights. Arbitration tribunals’ approach towards their Ratione Temporis and abuse of rights is material in host states’ success in limiting Nationality Planning. So the question to be answered is that what requirements are considered by arbitrations in determining Ratione Temporis and abuse of rights and how these two are different. Arbitral precedent shows that these tribunals make distinction between cases of nationality planning contrary to their Ratione Temporis and cases that are considered as abuse of rights. However, in practice their strict approach results in limited acceptation of objections to Ratione Temporis or abuse of rights claims.

Immigrants are among the most vulnerable to Coronavirus pandemic conditions due to limited access to health care. Therefore, any action by governments must address the needs of vulnerable groups, including migrant women. Increasing the rate of women's migration; raises concerns about safety, health, and wellness issues, and makes it inevitable to pay attention to review existing laws and policies. One of the aims of this article is to study the right to health of immigrant women in Coronavirus crisis situations with a descriptive-analytical approach and seeks to answer the main question: what are the harms caused by the corona pandemic in the field of right to health of immigrant women? The results show that there are major challenges to the right to health of migrant women in the coronavirus pandemic. Indifference to the feminization of immigration leads to the lack of relevant policies and awareness in the countries of origin and host, and the protection of the rights, safety, and mental health of immigrant women in a difficult crisis. paying attention to the complexities of gender and immigration in programs and policies reduces the health costs of immigrant women. Cooperation at the international and national levels by emphasizing the Global Compact on Migration and other international instruments, allocating sufficient resources and empowering migrant women by removing barriers and facilitating access to services can be effective and helpful.

Discrimination in law is defined on the basis of separate identity grounds such as gender or race, etc. Critical law theorist, Kimberly Crenshaw, challenged the single-axis approach to the discrimination with the introduction of the concept of intersectionality in 1989, and since then, the intersectional approach has rapidly expanded into different fields and disciplines under different ways and methodologies. In this article, three basic critiques of intersectionality with anti-discrimination law, including legal essentialism and the experience of discrimination, a single-axis framework of discrimination, and additive approach and multiple discrimination are debated. So, Intersectional discrimination is defined as unequal positions based on social categorization shaped in the complex power relations according to context and in conflict with social justice. The approach of this article is a descriptive-critical approach and the method of the article is to explain each of the criticisms of intersectionality based on the judgments of Iranian Supreme Court.

Since non-compliance with human rights at sea is not tangible to what is happening on land, it doesnot receive much attention from the international community. While human rights must be taken into account at sea as much as they are on land. Given the fragmentation in international law, the relationship of human rights and law of the sea has provided the necessary grounds for the humanization of the law of the sea. One of the reasons for the fragmentation in international law is the creation of self-contained regimes. Undoubtedly, among these systems are human rights and law of sea, each of which has its own resources and mechanisms, and the collision of these systems with each other in the international system is inevitable. The interaction of the law of the sea with human rights can be seen as an opportunity to develop international law in order to further develop the rule of law. The purpose of the law of the sea is to regulate the relations of states at sea, but our intention is to go in the opposite direction and write about the relation between individual and state in this arena and the interaction between human rights and the law of the sea.

The tax regulation related to Article No. 219 of the Tax Code, is the manifestation of the interaction between taxation affair organization and its taxpayers. In the new regulation, a considerable number of rules are reviewed and amended. From the study of the aforementioned Code, one can understand the new approach, which the tax affairs organization has applied when encountering tax payer’s rights. This research is conducted using scientific and research methods. As well, the subject is to review the two vital principles of functus officio and res judicata in terms of tax payment matters. Contrary to its precedent, the referred Code allows the “head of taxation affair administration office” not only to provide the ‘tax report’, and issue ‘tax assessment’, but they are authorized to proceed with the ‘taxpayers’ objection’ in that regard. The possibility of the reconsideration by the issuer, not only increases the likelihood of corruption, it is in inconsistency with the taxpayers’ rights. The said regulation has further allowed the tax affair administration offices to proceed with a so-called “review” procedure against the taxpayers’ matter after the proceeding had been finalized. Whereas, Article No. 239 and No. 270 of the Direct Taxation Act acknowledge the ignorance of res judicata principles as a violation of the taxpayers’ rights. As such, the approach of the above-mentioned regulation is considered a violation of functus officio and res judicata principles, and therefore wrongful.

Increase in Legislation leads to inflation of laws. Certainly, this problem causes inefficiency of laws. So, codification seems to be necessary. Despite 110 years of history of legislation in Iran, the first act of codification was enacted about 60 years ago. The legislative power should be the main legal entity that is responsible for codification. By the way, there are other legal entities –such as of the Vice Presidency for Legal Affairs - that prepares the process of codification. This deputy has published its codified laws in various forms like books, sites and applications. In this paper we tried to evaluate this collection, using the analytical-descriptive method. In conclusion, we saw two kinds of problems in this case: implementation problems and theoretical problems. Between these dual problems, implementation problems contribute more. In another way, this office is a few steps ahead of other similar institutions. Also, it has been able to apply the principles of codification equally to all laws.

On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation was carried out to eliminate the terror of terrorism and self-defense, given that the use of force in international relations today is prohibited by international law and the UN Charter, this article examines the legitimacy of the use of force by Turkey and examines the behavior, goals and feedback resulting from its actions by citing the principles and rules of International law as well as some international jurisprudence, determines that Turkish government has violated the important principle of the prohibition of the use of force which is explicitly stated in paragraph 4 of Article 2 of the Charter, and the reasons given by the authorities of that government, including the fight against terrorism and legitimate defense, cannot justify a violation of this fundamental rule.