نشریه مطالعات حقوق عمومی
سال پنجاه و دوم شماره 3 (پاییز 1401)

Settling the disputes between Iran and the United States regarding the interpretation and enforcement, the Algiers declarations is within the competence of the Iran-United States Claims Tribunal (the Tribunal) as an international ad hoc arbitration institution. Interpretation is the intermediary between a legal rule and the event to which it is applied. As such, in order to correctly connect the rule to the event, the Tribunal is allowed to resort to general principles of law, custom and implied obligations. In this regard, the Tribunal has attempted to issue awards that establish a coherent case law within the framework of the international law of treaties. Such decisions motivate the governments of Iran and the United States to adhere to the principles and rules of the international law of treaties. This paper intends to study how the law of treaties has been develped by the awards of the Tribunal.

From the perspective of the [Iranian] Constitution, social justice cannot be achieved through near reliance on pension funds, since such funds are based on principles of profitability, stability, and providing services to the insured. This is so while the purpose of the constitutional legislator in paragraph 12 of Article 3 of the Constitution is to promote welfare and fight poverty in order to achieve social justice for everyone. Therefore, the subject of this paper is about the extent of government intervention in pension funds in order to achieve social justice. The present study aims to examine the principles governing a successful social security plan along with government intervention in pension funds. In this regard, the [Iranian] Social Security Pension Fund has a special place on which the study is focused using documentary-library data with emphasis on the content analysis of the [Iranian] Constitution. The hypothesis of the research is that exercising executive-branch authority in order to implement paragraph 12 of Article 3 and Article 29 of the Constitution should be regarded as undue interference in the way pension funds, and in particular the [Iranian] Social Security Fund invest their capital.

Adequate housing is a basic human need on which the realization of other fundamental rights depends. The right to adequate housing has been recognized in many national, regional and international instruments. However, the mere recognition of a right does not suffice, and enforcement as well as the right of action are necessary. The issue raised is whether the right to housing is justiciable in international and national legal systems. In terms of international human rights law, this matter has been resolved with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in 2008. The government of the Islamic Republic of Iran is a member of the said covenant but not its additional protocol. As such, it will establish its own policies on this issue. The present study aims to evaluate the justiciability of the right to housing in international human rights law and Iran's legal system.

According to numerous international and regional human-rights instruments, states are obliged to respect and preserve the right to education equally and without any discrimination. Gender discrimination deprives girls and women of the right to equal education. The prohibition of gender discrimination has been directly and indirectly enshrined in regional and international instruments, and states have been called upon to provide equal access to education for all human beings. The main question of this article is about how to demand the implementation of the right to equal education from states in case of its violation. Based on this research, which has been conducted using and citing international and regional instruments, it will be argued that victims of gender discrimination can claim their rights through judicial, quasi-judicial, and non-judicial mechanisms at the regional and international level from the states.

The process of interpretation needs an interpretive theory more than it needs methods and schools of interpretation. A theory that responds well to the essential question of the nature of interpretation and legitimizes the interpretation provided by the interpreter. This paper, using a descriptive-analytical approach and utilizing library resources, attempts to respond to the question of what constitutes the correct interpretive theory and what its elements are. For this purpose, it will introduce the “ijtihadi” (scholarly effort) interpretation theory. This theory considers interpretation as  part of the legal system and its response to the issue at hand. Furthermore, considering the two important pillars of any legal system namely the principles and goals of the system, this theory believes that correct interpretation is an interpretation that from an existential point of view is based on the foundations of the legal system and from a functional point of view fulfills the objectives of the legal system.

Financial transactions within the economic life of various societies have never been confined to formal methods approved by states. To the contrary, based on the economic needs of individuals in every society, parallel to the formal mechanisms, other methods are employed for transferring funds and credit. Nonetheless, these alternative remittance systems, in addition to meeting legitimate needs, have sometimes been used by criminals for committing crimes such as money laundering and financing of terrorism to the effect that tracing and prosecuting the crimes becomes more difficult.International instruments such as the United Nations Convention against Corruption International Convention for the Suppression of the Financing of Terrorism, recommendations by the Financial Action Task Force, as well as Security Council Resolution 1373, have sought to encourage states to implement measures to combat such abuses. In recent years, the Islamic Republic of Iran has likewise made a considerable effort to ensure that its national legal system meets the standards laid down in international instruments, even as these endeavors require increased revision and update.

Despite the principle of the rule of law, sometimes administrative agencies, in exercising their authority, make decisions that are contrary to the law although such decisions take a legal form like other lawful administrative decisions. This paper seeks to answer the question whether such decisions are invalid and ab initio void, or they are valid and merely voidable. Among the various theories presented, the principles of the rule of law and ultra vires support the theory of nullity of illegal administrative decisions at the time of their adoption. On the other hand, the principles of acquired rights and legal certainty support the theory that such decisions are valid but voidable. Nonetheless, although the principle of the rule of law is in conflict with fairness to individuals, maintaining order and the rule of law requires that an illegal administrative decision be considered invalid ab initio, and in order to protect the rights of individuals, the prescription of action for judicial review of such decisions, as well as reparability and a compensation system should be provided. The case law of the [Iranian] Court of Administrative Justice seems to advance both theories. The Court’s chambers, however, tend to favor the invalidity theory while its general council prefers the voidablility theory.

Individuals have an exclusive right to their image about which they can make decisions. The Iranian legal system mainly uses criminal sanctions to ensure respect for the right to image. However, civil liability seems to be a more effective remedy for the injured party and the restoration of his/her situation to before the violation. The European Court of Human Rights also uses civil liability law to compensate damages caused by the violation of the right to image. In the present article, using the library research method, an attempt is made to study the elements of civil liability for the violation of the right to image and the appropriate compensation for such a violation in the Iranian legal system. Overall, it can be argued that considering the effect of the violation to the injured party and depending on whether and which financial or non-financial rights are harmed, both financial and non-financial methods can be used for compensation. As in the practice of the European Court of Human Rights, these two methods can be used in the Iranian legal system, depending on the circumstances of the case.

With the expansion and development of international law and consequently human rights law, the world system is gradually transforming from a state-centered system into an individual-centered one. Therefore, the necessity of presenting views which are focused on the sovereignty of the people is becoming more apparent. Recognition of states is one of the issues the world is facing today. The keyword of people's sovereignty is a neglected subject. After thoroughly examining the two basic theories of proclamation and creation, this study will present their respective advantages and disadvantages, along with an extended concept of sovereignty. A rational solution to the age-old problem of state recognition will also be presented in accordance with international law based on justice.

Freedom of the media guarantees the right to freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. However, it is frequently challenged and restricted due to government action. In this research, a descriptive-analytical method has been used to study media censorship as opposed to media freedom by emphasizing media activities in the United States. The question is how to distinguish the prohibition of censorship from the imposition of legitimate restrictions. It is proven that in a democratic society, the media enjoys rights and freedoms but it also has duties and responsibilities. Concepts such as national security, defamation, war, hate speech, and obscene content are considered reasonable basis upon which media freedom can be restricted. In determining media restrictions, the principle is freedom of the media and limitations should be interpreted strictly. Despite the fact that Congress is prohibited from limiting freedom of expression under the First Amendment to the US Constitution, both the federal and state legislators, as well as the US Supreme Court, have sought to impose reasonable restrictions on the media by setting precise criteria. In conclusion, restrictions on freedom of the media in the United States are precisely defined, and such restrictions make the media responsible.

The International Law Commission (ILC) which itself codified and developed peremptory norms, has adopted a flexible approach in its recent reports to the doctrine developed by legal scholars and judicial bodies over the years. On the one hand, under Article 53 of the Vienna Convention on the Law of Treaties, the Commission has based jus cogens on the acceptance and recognition of the international community of states as a whole and the will of States. On the other hand, the Commission has recognized peremptory norms the have features such as universality, superiority, and protection of fundamental values of the international community which can impose restrictions on the will of States. This paper will analyze the ILC and its special rapporteur’s report in 2016 addressing this important question: on which theoretical foundations are jus cogens based and what are the core elements of these rules? The difference between this article and other papers published in Persian is analyzing and critiquing the latest ILC report from a new perspective considering theoretical evolutions on the topic since 1969.

Confronting various issues in the international community, international law does not always function in the same way. This is because behind this legal system, like any other system, there are human agents who each understand and interpret the norms and rules of international law according to their own hypotheses and presuppositions. In the meantime, states as the main subjects of the international legal system try to maximize their ‘national interests’ with a special understanding of international law. The present article attempts to analyze the factors involved in such state policies in order to achieve peaceful settlement of international disputes through the concept of ‘foreign legal policy’. The present paper also shows how this policy directs the international dispute resolution system in general and the decisions of the International Court of Justice in particular, and conversely, the Court’s legal policy, in turn, affects the legal policy of the disputing states.

The purpose of this article is to analyze gender as the main criterion in gender justice, and figure out the relationship between gender justice and the important criteria in theories of justice which are fairness, needs, and merit. Feminists have also added a new dimension, namely gender equality. The present article will answer what is meant by gender and gender justice as an evolving concept and how they relate to the criteria in theories of justice. Accordingly, the purpose of this article is to scrutinize the concept of gender, to know what the relationship between criteria in important theories of justice with gender is. The method is to collect data and then analyze their content. The results of this study are as follows: Theories of justice have neglected gender as a criterion, as their main source is economics and political science. Feminists have disregarded the basic theories of justice, as little attention has been paid to gender in these theories. Only John Rawls's theory and his writings have alluded to key feminist concepts; to him women are as important as other weak classes in society, such as the disabled and the poor. Other theories are more committed to micro-thinking than to theories of group issues such as women. Although feminists have tried to maintain their connection with theories of justice in some way, they seem only to be committed to equality. Therefore, gender justice is in fact a feminist reading of the theory of equality in outcomes and has been considered as a strategy in the transition phase to gender equality.

Common Article 1 of the 1949 Geneva Conventions and the First Additional Protocol, open a new chapter on the concept and nature of states obligations to respect and ensure respect for humanitarian law in the occupied territories and impose binding obligations on occupying states. The present research, aims to answer the following question: the responsibility of the Israeli occupying forces to fight and prevent the spread of COVID-19 in the occupied Palestinian territories are organized and justified on what legal and intellectual foundations? Using a descriptive-analytical method, the paper provides a legal analysis of the existing facts. It is believed that despite the commitments of the occupying Israeli forces to ensure respect for international humanitarian law under Common Article 1 of the Geneva Conventions in terms of preventing and fighting COVID-19 as a vital example of the right to health and the protection of public health of the inhabitants of the occupied Palestinian territories, ensuring the actual implementation of these fundamental human rights faces serious challenges.

Various expressions are used in international law for reflecting different types and levels of normativity, such as rules, guidelines, statements, codes of conduct, standards, etc. Although some of them have clear meaning and obligatory scope the others such as “standards” are vague and uncertain. Standards are set by states and non-state actors but in both cases they create some kind of commitment. Some standards are reflected in obligatory international law structures especially in regard to environmental protection. This paper will illustrate the status of international standards and especially private standards, their normativity power and the capacity of standard setters in international law sphere. In this paper, analytical method and social phenomenology have been used. To conclude, the result of assessments shows that private standards practically have binding powers to some extent.

Although the property transfer tax has been studied from an economic-financial point of view, its legal aspects need further consideration. The Iranian Tax Code has categorized property transfer tax as a kind of income tax. However, a transfer tax could be considered a kind of lump-sum tax which can have positive effects on the tax assessment procedure. Verifying the transfer of property title is subject to its notarization and official registration. But in many cases there is a legal possibility of taxing transfers of property done through non-notarized conveyance deeds, which of course depends on the fulfillment of certain conditions. Also, the transfer of property can take place in various legal forms, including sale, rent on condition of ownership, settlement (solh) against consideration, gift (heba) against consideration, exchange, etc. the taxation of which is done under the law valid at the time of transfer. The method used in this research is descriptive-analytical.

Succession of states to obligations resulting from international wrongful acts is related to the broader topic of succession to international responsibility about which there are very different opinions. Applying a descriptive-analytical method, the present paper is seeking to explain the basis of state succession to obligations in respect of international wrongful acts. Moreover, it explains the principles of non-transmission and of continuance which the advocates of non-succession have relied on. In spite of all the dissenting opinions, especially in classical scholarship, this article comes to the conclusion that there are no impediments in international law to prevent the transfer of obligations in respect of international wrongful acts. Scrutinizing this proposition is the subject of the present paper.

The concept of fragmentation of international law entered legal literature about 150 years ago. It represents the interaction between the proponents of plurality and unity in international law. The establishment of various international courts and tribunals has led to the plurality of interpretations in the realm of norms (the normative aspect of fragmentation) as well as jurisdictions (the institutional aspect of fragmentation). It also reflects the concern over incoherence in the development and interpretation of international law. The consequences of international-law fragmentation have ensued in international human rights law too. This article attempts to compare identical norms on international criminal responsibility which have acquired different meanings under different regimes or mechanisms. It deals with changes to human rights treaty norms in the realm of international individual responsibility. The paper will also examine the effect of international-law fragmentation on the development of human rights standards.

Governments set the main goals of their economic system on encouraging people to engage in economic activity and use resources fairly, but the achievement of these goals has been hampered by the formal and substantive shortcomings of private law in the field of contracts. Legal systems use competition law as a public and regulatory tool to respond to these shortcomings, relying on theories of justice at various levels from the constitution to statutory law, so that minimal government intervention leads to efficiency and optimal resource allocation. This article uses descriptive-analytical methodology to answer existing questions about the approach of the legal system governing competition law based on theories of justice and examines the change of approaches based on theories of justice in the Iranian legal system.

The International Labor Organization (ILO) is one of the oldest international organizations and with its unique tripartite structure, was established a century ago. The strategic purposes of the ILO, as the first UN specialized agency, have been to promote international labor standards (ILS), to pave the way for attaining decent work, to improve social security, and to strengthen tripartite bodies and structures. The ILO has adopted more than 200 Conventions. Despite its success, the ILO has received thousands of complaints on non-observance of the ILS. These complaints raise the question: what are the obstacles to observing the ILS? This research paper is based on the thesis that some challenges restrict the implementation of ILS. These challenges mainly relate to the extent of ILO jurisdiction, the lack of universal ratification of ILO Conventions, globalization, complexity of certain ILS and also their supervisory system. This paper, using a descriptive – analytical method, examines these challenges and suggests mechanisms to remove them.

The attribution of actions by terrorist groups to states is a controversial and important issue that has undermined international peace and security. The author has conducted a descriptive-analytical study on this subject using library research methods. The results show that between the two theories of overall and effective control the former provides a much better basis regarding the responsibility of states for supporting terrorist groups. The theory of overall control was established by the ICTY’s Appeals Chamber in the Tadic case, which argued that the effective control criterion provided by the International Court of Justice was contrary to the logic of state responsibility. Of course, the theory of overall control is facing challenges in terms of explaining the attribution of terrorist groups to states. Firstly the relationship between supporting states and terrorist groups such as ISIS is so complicated that it is not easy to examine the extent to which governments support such groups, as they try to keep their ties to these groups completely secret. Secondly, in some cases even overall control over terrorist groups such as ISIS does not exist. In other words, despite the fact that these groups are supported by states, they operate independently. In addition, there is no unified case law in this regard, and this makes it difficult to attribute the activities of terrorist groups to states.

Assuming the principle that citizens have a right to the architecture of the city, the question arises as to how these rights are implemented and realized. One of the ways by which these rights can be realized is to determine the nature of the responsibility of those tasked with implementing these rights. In order to clarify the nature of responsibility, scholars categorize rights into negative, positive, and group rights. Although this categorization is controversial, examining it in terms of concept, nature and elements can be a good guide in facilitating the realization of these rights. The focus of this article is on clarifying the relationship between citizens' rights and the architecture of the city, and consequently to clarify the responsibility of urban designers and planners with respect to these rights. In this study, the methods of documentary research and qualitative content analysis and logical reasoning have been used. The results suggest that citizens' rights to urban architecture are divided into three main categories, namely: negative rights, positive rights and group rights. The duty and the role of urban planners and designers is not to interfere with the first category, to secure the second category, and to participate in and cooperate for the realization of the third category. Of course, this separation does not mean the supremacy of one group of rights over the others. Rather, it concern how these rights are implemented and realized.

Due to the destructive effects of natural disasters in our time, protecting the environment has become necessary to ensure the stability and security of human society. Ensuring environmental security requires prevention of environmental degradation and natural disasters. Therefore, a kind of academic and practical interaction has emerged between environmental law and natural-disasters law that help them reinforce each other. Environmental law, with its mechanisms to prevent environmental degradation and adaptation to environmental change, contributes to the prevention and reduction of the adverse effects of natural disasters. It is also contributes to the growth of the natural-disasters law. By providing legal rules for emergency situations, natural-disasters law can improve the enforcement of environmental law by making it necessary to ensure environmental security. This paper will examine how environmental security can be ensured through preventing natural disasters and transforming environmental law by the implementation of legal rules on emergency situations. The implementation of such rules in environmental law through legislation and regulation can ensure environmental security. It can also prioritize the protection of vulnerable ecosystems.

General principles of law provided in Article 38(1) (c) of the Statute of the International Court of Justice are considered as one of the applicable legal sources to international litigations by the International Court of Justice. Contrary to treaty and custom, there is no consensus on the nature of general principles of law and how they should be implemented. The Court has taken two main approaches in this regard. The question of this research, which is based on a descriptive-analytical method, is how the Court operates in regard to identifying and applying general principles of law in cases involving human rights and humanitarian issues. The conclusion is that when it comes to matters involving inter-state relations the Court relies on general principles of law recognized by the major legal systems, while in terms of human-rights and humanitarian-law issues, it recognizes general principles specific to international law, which are applicable even without explicit consent from states and arise out of the requirements of international law.

When the capitalist system first emerged, workers' participation was proposed as a way to reform capitalism, but the new approach is that workers' participation is also necessary for flexibility in worker-employer relationship in response to rapid changes in the labor market including the emergence of new technologies, globalization, the free movement of capital globally, and issues related to the so-called "future of work". The question of the present essay is whether the participation of workers in the management of the workplace can be used as a solution for flexibility in labor relations in response to new labor-market challenges? In this paper, data has been collected through library research, and the results have been analyzed with a descriptive method. The conclusion is that the International Labor Organization, in response to labor market developments, has always offered social dialogue as a solution. Decent work, equitable globalization, the application of an anthropocentric view of the labor relationship, and the resolution of issues related to the future of labor require the participation of workers in the management of the workspace. Without workers' participation, future labor relations will lead to inequality, the spread of poverty and economic insecurity.