The Iranian Review for UN Studies
Volume:3 Issue: 2, Summer and Autumn 2020

The judicial policy of the International Court of Justice (ICJ or the Court) towards human rights has often oscillated between judicial activism and judicial restraint. The cause of the ICJ’s oscillation is mainly rooted in the structure of international law, which is in the stage of transition from sovereignty (raison d’Etat) to international community (raison d’humanité). The question raised is that in which range of legal issues the Court has often displayed a judicial activism or judicial restraint vis-à-vis human rights. This article will endeavour to respond to this question from a critical perspective. In doing so, we will first examine a range of legal issues such as diplomatic protection and international humanitarian law in which the Court has often displayed a judicial activism. We will then analyze a range of legal issues such as jurisdictional immunities of states as well as the Court’s jurisdiction where it has often displayed a judicial restraint.

A regional value-based homogeny could lead to the formation of a regional public order constituted by certain non-derogable absolute norms called “regional jus cogens”. However, due to the absence of any footing in positive international law and scarcity of state practice, only an extremely subjective approach could determine the defining criteria for regional peremptory and its legal consequences. Furthermore, the concept of regional jus cogens conflicts with an essential element of jus cogens paradigm i.e., universality. On a practical level, regional peremptory norms could adversely affect trans-regional legal relations. However, this article argues that under positive international law (particularly regional human rights conventions), there exists special non-derogable norms (such as the prohibition of death penalty in European regime of human rights) which are capable of performing functions assigned to regional jus cogens while benefiting from a more cohesive conceptual status and entailing more plausible practical consequences. In particular, as special non-derogable norms are firmly grounded in positive international law and state practice, determining their defining criteria and legal consequences would be more objective. Furthermore, they do not entail any major disruptive impact on transregional legal relations as special non-derogable norms conceptually depart from jus cogens paradigm preventing any conflict between lex specialis nature of these norms and universality of peremptory norms of general international law.

An acronym for the Joint Comprehensive Plan of Action, the “JCPOA” paved the way for multinational as well as major and small foreign companies to invest in different potential areas in the Iranian market and infrastructure right after the United Nations, the European Union and the United States have lifted sanctions. However, these were temporary and the U.S. Administration withdrew from the nuclear deal and re-imposed its secondary sanctions against Iran. Immediately after the re-imposition of U.S. sanctions, foreign companies have terminated or suspended their contractual obligations without considering the legal consequences. Since then, the situation for Iranian companies is quite different; foreign companies are prohibited from working with Iran, and banking transactions are halted by foreign banks owing to U.S. sanctions. In fact, they cannot evade their responsibility under the withdrawal of the U.S. from the JCPOA and the re-imposition of sanctions. Contractual commitments of the parties to a contract with Iranian entities must be respected and enforced; otherwise, they must compensate all losses and damages. The Defense of force majeure cannot be invoked, particularly for European companies, since U.S. sanctions were foreseeable. European Union’s Blocking Statute, lack of good faith, and the due diligence for the fulfillment of their obligations as to humanitarian exemptions and exceptions indicating force majeure could not be upheld here too. Therefore, Iranian companies shall raise their claims based on dispute settlement clauses stipulated in their contracts with foreign parties and other legal mechanisms in order to establish a concrete procedure to deal with on-going and future situations regarding secondary sanctions.

Pandemic is the last phase of influenza viruses’ circulation which may have various impacts that threatens the maintenance of international peace and security. In its Resolution 2532, the UN Security Council described the COVID-19 pandemic as a likely threat to international peace and security. It is generally accepted that there are two approaches to security: national and human security. Both of these approaches have their own tools for managing a pandemic crisis. In the first part of this paper, the definition and various impacts of a pandemic will be discussed. The second part will address the securitization of health. In the third part, the paper will discuss how national and human security approaches would manage health crises including a pandemic. The paper recommends that in order to manage pandemic crisis as a global threat, the human-security approach would be much more effective due to its co-operation-oriented nature