نشریه مطالعات حقوق عمومی
سال پنجاه و سوم شماره 1 (بهار 1402)

The outbreak of the Corona Virus in China has led to a global pandemic which caused adverse effects on economic, social and humanitarian aspects of the international community. The statute of the World Health Organization (WHO) and the International Health Regulations (IHR) approved in 2005 are two main legal instruments aimed at preventing, responding and controlling widespread infectious diseases. These instruments oblige WHO members to notify and inform the organization about the outbreak of infectious diseases without delay and in the most efficient way. Since the right to health and the right to life, two fundamental human rights, are endangered by a pandemic, it seems that timely notification by the origin country has become a customary rule, which is reflected in United Nations Security Council resolutions. The Chinese government as a party to the above-mentioned instruments has violated its treaty and non-treaty obligations by not informing the WHO of the outbreak, as well as threatening those who tried to do so. Therefore, its international responsibility can be invoked, which will be examined in this paper. The possibility of filing a lawsuit with the International Court of Justice will also be analyzed.

Regulating pharmaceutical advertisements, due to its effects on public safety and health, has highlighted the importance of government intervention and its regulatory methods in this sector. Regulating pharmaceutical advertising is very difficult because of the dynamic nature of the pharmaceutical industry, the distinction between prescription and non-prescription (over-the-counter) drugs, and the dual advertising environments, namely, public/ professional. Today, governments cooperate with other economic and social actors to regulate various sectors of the economy. However, in view of the direct relationship between health products and citizens' health, when it comes to such products, governments should exercise adequate supervision over the relevant regulatory bodies. Therefore, this paper will examine the task of the government to regulate pharmaceutical advertising. Then, with a qualitative method and a descriptive approach, the mechanisms by which different countries regulate pharmaceutical advertisements will be studied. We conclude that despite the availability of various regulatory methods, governments are trying to play a standard-setting role, even in self-regulatory systems, to monitor the industry in order to support the interests of pharmaceutical firms while also preserving public health.

In the current international system, several entities both possess elements of the state and also effectively exercise sovereignty over a territory but have not been recognized by the international community as states. This article introduces these states and examines their legal status. The main questions of this article are:  what are the specific examples of de facto states in the present international community? What are the reasons for the legitimacy of these entities from their own point of view?  Why the international community has so far refused to accept and recognize them? The author hypothesizes that there are cur rently seven de facto states .The reason for the lack of recognition of many of these states is that their establishment is seen as violation of the rule against the use of force. In some cases, fears of the domino effect of separatism or political considerations about the important position of the mother state on the world stage have prevented recognition of these states. We will study this issue on the basis of analytical-descriptive method and using library resources.

As the monitoring body of the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee (HRC) has always enjoyed a prominent position among treaty bodies which monitor the implementation of human rights treaties by states parties. One the functions performed by the HRC is the issuing of so-called General Comments on the ICCPR. A General Comment is a document whereby the HRC provides its interpretative commentary on one of the rights recognized by the ICCPR or other topics related thereto. As such, the General Comments are considered as a prime examples of treaty interpretation. The question to be answered in this respect is, given the various methods of interpretation, which Interpretive method or methods is used by the HRC in its General Comments? To answer this question, the present paper adopts an inductive approach so as to use statistical data about the subject. The results indicate that the teleological method is pervasive in the General Comments of the HRC.

The right to political participation is a fundamental human right that derives from self-determination. This right is set out in important instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and etc. One of the obvious aspects of the right to political participation is the right to vote. The views of these instruments on voting are a rights-based view towards citizens and a commitment-based view towards governments. However, in some countries there is an electoral system in which voting and participation in elections is a civic duty and not doing so is liable for punishment. In this study, using a descriptive-analytical method, while reviewing the views of institutions such as the Human Rights Committee and the European Commission on Human Rights, we are seeking to answer this question: is compulsory voting in conflict with human rights instruments? The findings of the study indicate that what is mandatory in a compulsory voting system is merely the presence of the voter at the ballot box and casting a vote. As such, the observance of the principle of secret voting prevents the violation of human rights such as freedom of thought, freedom of opinion, freedom of conscience and freedom of speech. Therefore, compulsory voting, provided that voting is secret, does not conflict with human rights.

Intervention by invitation is a rule of customary international law, which is occasionally invoked by states despite it not being prescribed by the Charter of the United Nations or other legally-binding instruments of international law. France’s 2013 intervention in Mali was justified under this legal concept. Intervention by invitation is related to such principles of international law as the prohibition of intervention, the right to self-determination and, according to some, the prohibition on the use of force. Therefore, it is crucial to investigate this doctrine’s nature and its dimensions based on the crisis in Mali. This paper has an analytical-descriptive method, and is based on library resources. In order to evaluate French intervention in Mali, first the status and terms of the intervention-by-invitation rule in international law will be examined, and then it will be analyzed whether French intervention in Mali was legal. We will also examine the French government’s other justifications for the military action, i.e., self-defense and Security Council resolutions.

The causal link is of great importance in international investment disputes, as it acts as an intermediary between the liability of the host state and the evaluation of damages. This paper, seeks to identify the factors that can be considered as the sole cause of the investor's loss despite the commission of a wrongful act by the host state, and, on the other hand, seeks to identify an accurate test for establishing the causal link in case of concurrent causation. Concerning factors affecting causation, the paper concludes that the incorrect business decisions of the investor, the general economic situation of the host state, and bona fide third parties can be regarded as factors that can break the causal link between the wrongful act and loss. Regarding the criteria for establishing factual causation, considering the possibility of human intervention betwixt the breach of the investment treaty and investor's loss, it is recommended that in case of concurrent causation, arbitral tribunals employ the NESS test instead of the but-for test, since the former can better help the tribunals in determining the factual causes of harm.

Explaining the restrictions of rights and freedoms helps to maintain public order. It also guarantees the legitimate rights of individuals against the state. As in other legal systems and in international law, restrictions on freedom of gatherings and demonstrations have been officially recognized in the Iranian legal system. Article 27 of the [Iranian] Constitution and the Act on the Activities of Political Parties have addressed this issue. Using an analytical-descriptive method and based on library sources, this paper seeks to answer the question of what is the nature of these restrictions in the Constitution and the said Act. It is clear that “carrying weapons” removes the peaceful nature of an assembly, and “disruption of Islamic principles” means any action that weakens people's belief in religious requirements, including religious principles, rules, and ethics. In addition to explaining the relationship between the requirement of licensing in the Act on the Activities of Political Parties and the Constitution, the paper expounds that, according to the new Act, the scope of licensing for demonstrations has become more limited and has some ambiguities.

The Constitutional Revolution introduced new concepts to the Iranian society that created a conflict between tradition and modernity. One of the most important confrontations involved the concept of equality. Due to its historical nature, the analysis of this conflict depends on the use of documentary sources from that era. These sources suggest that one of the most challenging issues in period of the Constitutional Revolution was the subject of Article VIII of the Supplement to the Constitution, which provided for "the equal rights of the Iranian people". The adoption of this article caused a controversy that became known as the “jurists’ dispute”. In the traditional Iranian legal system, equality in its new meaning with the distinction between "equality before the law" and "equality in the law", did not exist. As a result of this semantic evolution, legal scholars faced a new concept. Some tried to reduce the new concept of equality to the old meaning of equality, i.e. equality before the law, and called it a result of Islamic rules. On the other hand, traditionalist jurists, referring to the inequality of the rights of Muslims and non-Muslims, considered equality inconsistent with the rules of Islam. In the end, both groups were unable to find the right answer to the question.

After the Second World War, human rights greatly affected the international law. Among the structural changes resulting from the emergence of human rights was the major change in the system of international responsibility of states. Traces of these changes can be found in the decisions of international courts and the Draft Articles on the Responsibility of States for Internationally Wrongful Acts adopted in 2001. By examining these sources, three categories of changes in the system of international responsibility can be discerned: first is change in the elements of international wrongful act; the second is change in the relationship between offending and aggrieved states; and third is countermeasure by non-aggrieved states. In the first case, the mere breach of an international obligation was sufficient to establish an “internationally wrongful act” and on this basis “material damage” was removed as a constituent element of a wrongful act. In the second case, the mutual relationship between the offending and aggrieved states, in some instances, gave way to the relationship between the offending state and the international community as a whole. In the third case, following the disappearance of the first two, the right to “countermeasure by a non-aggrieved” emerged

Since the 1950s, three movements have been formed to explain the relationship between the legal system and the various levels and dimensions of development, following the discourse of "law and development". However, various aspects of this relationship are still relatively unknown and somewhat neglected despite its gradual growth and development over the past four decades. For example, how the law affects development in different social, economic, political and cultural contexts in a normative and structured framework, regardless of specific spatial and temporal conditions. Accordingly, this article, discusses how the law affects development (with emphasis on economic development). The effectiveness of these mechanisms in the context of privatization in Iran has been analyzed. The results showed that more attention to these mechanisms is necessary for the effectiveness of laws and regulations of facilitating privatization in Iran.

The end of the Cold War has led to profound developments in the sphere of thought, in particular, political concepts such as the principle of non-interference in internal affairs, the principle of sovereignty and the protection of human rights. Since the early 1990s, states have controversially resorted to the use of armed force to stop the blatant violation of humanitarian and human rights, namely humanitarian intervention. Accordingly, this paper seeks to answer the question whether humanitarian intervention can be justifies on the basis of Aquinas's "just war" doctrine? The hypothesis of the present paper is that the thought of Aquinas intervention is not rejected and has some legitimacy based on concepts such as legitimate authority, just cause, true intention and the principle of proportionality of the intervention. Due to the changing nature of the conflict and the concept of "military humanitarianism", it analyzes the doctrine of Aquinas' legitimate war and examines the legitimacy of humanitarian intervention within the context of Aquinas's theory of war, and the current understanding of the moral, legal, and political conditions of war.

Due to the increase and development of international investment arbitrations, investors have abused procedural tactics to increase their chances of winning in these arbitration proceedings. This undermines the credibility of international arbitration as one of the effective means of resolving international disputes. Abuse of processes in investment arbitration takes place when an investor exercises his right in a way that is contrary to the aim and purpose of that right. It happens when chain companies and subsidiaries owned by a parent company or shareholders of a chain company with different nationalities seek the same relief against the host at different arbitral tribunals in parallel or simultaneous lawsuits. Therefore, the host state will face multiple claims from multiple investors and is required to pay multiple damages. The principle of abuse of process is an expression of the more general principle of good faith, a fundamental principle of international law, as well as investment law. So, ICSID tribunals will often invoke the principle of abuse of process in their cases.

Sustainable development has become the epicenter of collective international policy-making. As such, foreign direct investment, as the empowering engine for SD, has attracted much attention. It is believed that sustainable development cannot be achieved without foreign investment. Traditional international investment agreements have been criticized for protecting foreign investors who deviate from the requirements of sustainable development. This has led to changes in these treaties, which are the subject of the present article. It seems that in the light of the plurality of references to sustainable development in new investment agreements, a balance has been created between the goals of sustainable development and the protection of foreign investors.

In Islam’s financial system, the most important financial resources of the government are zakat, khums, jizya, kharaj, and anfal. In the modern era, apart from fixed financial taxes, governments are obliged to levy non-fixed and variable taxes. The question is, whether or not it is permissible for an Islamic government to levy such taxes? The present study will attempt to answer the above-mentioned question by describing and analyzing the teachings of various schools of Islamic jurisprudence on this topic. The results of the study show that the government is permitted to levy new and variable taxes on the people as a so-called secondary rule. This is verified by significant reasons including Quranic verses, Prophet Muhammad’s sayings, and actions of the infallible Imams. Most scholars of the Islamic jurisprudential schools have issued fatwas confirming this form of taxation.

The outbreak of the COVID-19 pandemic became the biggest health crisis of our time. Biotechnology research companies have begun a new era in overcoming the disease by using genetic modification techniques. The findings of the present study, with a descriptive-analytical method, indicate that the COVID-19 vaccine based on genetic modification technology faces two main challenges. First, the relatively strict regulatory approach to genetically modified organisms that exists to protect the environment and human health; compliance with these regulatory requirements may make the evaluation process for the production of the vaccine a lengthy one. Second, companies active in this field seek legal protection for their intellectual property. Critics of intellectual property protection, however, believe that this type of protection of the COVID vaccine could potentially affect its accessibility and cost-effectiveness. In the legal system of the European Union and the United States, special legal measures have been adopted to address the above challenges. However, due to the emergency situation caused by the spread of the disease in the Iranian legal system, we still face Legal vacuum.

Disrupting or deactivating the reproductive power in humans due to biological agents is called biological sterilization. In this type of sterilization, which is an irreversible process, people become deprived of the ability to have children forever. Since biological agents are used to sterilize people, it is also called a bioterrorist action because the deliberate use of biological agents as a weapon in terrorist activities is called bioterrorism. In this bioterrorist action, the life, health and safety of human beings is endangered through biological agents for specific purposes, so it can also be considered a clear violation of human rights and a crime against humanity. The purpose of this article, which uses a descriptive- analytical method, is to prove that under the Statute of the International Criminal Court, the use of biological agents (bioterrorism) for sterilization due to their dangerous characteristics and harmful effects can be considered a crime against humanity.

Under various principles of the [Iranian] Constitution, especially Article 12, the use of the word "minority" is only valid when used to describe non-Muslim religious groups. Article 13 only recognizes some religious minorities, and article 14 obliges the Islamic state and Muslims to respect the human rights of non-Muslims, without referring to a specific minority. Therefore, the Iranian legal system is faced with two categories of religious minorities, namely "recognized" and "unrecognized" minorities. Despite the legal recognition of rights in the Constitution, their implementation is ambiguous. Much of this ambiguity is due to the lack of a clear religious jurisprudential basis for the fundamental rights of these minorities. In this paper, using an analytical-descriptive method, it has been concluded that the use of “aman treaty” in Islamic jurisprudence can resolve many issues concerning religious minorities in Iran. After explaining the various Islamic jurisprudential institutions, including "dhimma”, “hudna”, and "aman", it will be concluded that the situation of religious minorities in the Islamic Republic, both recognized and unrecognized, conforms to the institution of "aman".

International environmental law faces pluralism in both normative and institutional aspects. Some view the existing plurality with a pluralistic or specialization approach, arguing that not only it is not harmful, but that it is useful. Inspired by Kant's unitarianism, the opposite view leads to normative integration and institutional centralization. The present article, through a descriptive-analytic method and by means of content analysis, aims to illustrate the desired outlook in this field and propose an appropriate model, taking into account the existing conditions. Taking into account some managerial and sociological aspects of the topic, the paper concludes that the actual pluralism needs to achieve unity and centralism, in some sectors, so that the positive effects of specialization can manifest themselves.

The Nagoya-Kuala Lumpur Supplementary Protocol to the Cartagena Protocol on Biosafety was adopted in 2010 to establish international rules and regulations on liability and redress for damages to biosafety resulting from the transboundary displacement of genetically modified organisms in order to protect sustainable use of biodiversity. Based on strict liability, the protocol holds the operators responsible for their activities, merely by establishing a causal link between the damages incurred and the genetically modified organisms without the need to prove any fault. The protocol also provides two general approaches to prevent and redress any harm to biodiversity: the administrative and the civil liability approaches. This article's main question is how to define the administrative approach and its differences with the civil liability approach? The research hypothesis, which has been proven by a descriptive-analytical method, indicates that these two approaches are not inherently different as regards the necessity to allocate and redress loss. However, with an administrative approach, there is no longer a need for lengthy trials, as it provides a more efficient system for biodiversity protection. The international liability system for genetically modified organisms provides a standard set of legal provisions that helps the Biological Diversity Convention's member states to safely produce, distribute, and transport genetically modified organisms by adopting a strict liability basis and an administrative approach for redress.

Regulatory governance is inextricably linked with the two terms: regulatory state and regulatory institutions. The role of the state as a transitional regulator is more prominent in the modern sense. Due to the move towards the postmodern regulatory state, the role of government as a regulator has diminished and regulators are increasingly addressing this. In this paper, using library sources, the mutual obligations of the regulatory state and regulatory institutions to each other have been collected. Then, with a descriptive-analytical method, each of the obligations is analyzed. The purpose of this study is to show the need for balanced interaction by looking at the gaps in the structure of Iran's regulatory governance. The research findings indicate that: first, to understand the regulatory state accurately, one must go through the external description stage and dissect the organ-like function of its internal components; second, the realization of regulatory governance in Iran requires the separation of the government from regulatory institutions. Finally, a unified legal plan in Iran that adequately guarantees the reciprocal obligations of regulatory bodies and the government is essential.

Concerns about the detrimental effects of money on elections and the diversion of the electoral process to the benefit of the wealthy and exclusion of meritorious from the electoral system have prompted various legal systems to resolve this problem or minimize its effects. But limiting election spending can also be a prelude to challenges such as the restriction of freedom. Therefore, the election finance system should be formulated in such a way that while freedoms are protected, the uneven influence of money on the elections is restrained. This article attempts to identify the relationship between election finance and concept of freedom, including freedom of expression, by applying the principles of electoral taxation and examining the fundamentals of electoral spending reductions. The equalization of election campaign spending amounts to emphasizing a strategy, not solely based on numerical equality and a form of electoral expenditure, but on the basis of substantive equality between candidates in the field.

The plurality of norms in some areas of human rights with poor enforcement guarantees, on one hand, and the interpretation of international security in the domain of national interests, on the other, have kept disrupting the international relations of states regarding human rights. Inevitably, it will require the identification of a new approach to international law-making that leads to a focus on a system of cooperation between states in the field of legal norms and political equations, which, of course, is difficult. In this research, using a descriptive-analytical approach, we seek to provide an overview of the need for international cooperation between states and to critique the challenges that it faces in implementing human rights law. The findings of this study suggest that strengthening the mechanism of enforcement by international institutions and developing mechanisms to institutionalize the cooperation of states, not in the form of political responsibility but in the form of legal responsibility that would be desirable solutions.

The International Criminal Tribunal for Rwanda tried many civilians who played a significant role in the 1994 Rwandan massacre while the civilian superior responsibility was not prescribed in the tribunal's statute. The current study employs a descriptive-analytical approach to examine the Rwandan tribunal's approach to the challenge of applying the doctrine of commander's responsibility to civilians and how this approach has influenced the Rome Statute. The findings of this article show that international criminal tribunals have generally accepted that the commander responsibility doctrine can be applied to civilians. Furthermore, the judicial reasonings in the Yugoslavia and Rwanda tribunals have served as a foundation for the contents of Article 28 of the Statute of the International Criminal Court.

Family is regarded as the main cell of society. In order to facilitate, maintain and strengthen the family, the Iranian Constitution states standards, and ignoring these standards harms the family. The purpose of this article, which is done by descriptive-analytical method, is to the examine how the standards laid down in Article 10 of the Constitution, have been applied in upstream documents, policies declared by the Supreme Leader and the existing laws on family. The findings indicate that rules and factors discussed in Article 10 of the Constitution were all considered as a requirement in upstream documents, such as General Policies on the Family notified by the Supreme Leader in 2015, the Act on the Facilitation of Youth Marriage passed in 2006 by the parliament, the Civil Code and the Family Support Law passed in 3013, etc. However, high divorce rates, filing of lawsuits in family courts, including subsistence alimony, marriage portion, divorce and, most importantly, reduction in marriage rates, indicate defects due to the lack of full attention to General Policies and the incomplete implementation of existing laws in the country's judiciary and lack of supervision by those in charge. Moreover, it is suggested that an appropriate and clear pattern for families be presented.