نشریه مطالعات حقوق عمومی
سال پنجاه و سوم شماره 2 (تابستان 1402)

Sustainable development is an approach to development whereby economic, social and environmental considerations are taken into account in order to ensure that present as well as future generations continue to enjoy the benefits of development. This approach is directly related to the realization of human rights in the development process. Non-conformance to environmental considerations in the process of development has adverse effects on human rights. However, a human rights-oriented approach to development will provide the necessary basis for ensuring environmental considerations in economic development. Although the exercise of full sovereignty by states over their natural resources and national development programs is accepted by the international community, this approach has some adverse trans-boundary environmental effects, which impact the human rights of affected communities. Restricting the absolute sovereignty of states in the exploitation of their natural resources, as well as in the formulation of their national development plans in line  with environmental considerations, is necessary so as to guarantee the promotion of human rights in the development process.

The sovereignty of the Zionist Regime [Israel] over the Golan Heights - which was part of Syrian territory before it was occupied by Israel - was recognized by the President of the United States, in a proclamation on March 27, 2019. While this proclamation can be examined from many perspectives, this paper will attempt to consider its legality and consequences from an international-law viewpoint. Based on the findings of this research, which was carried out in a descriptive-analytical way, this action by the United States violates customary international law which prohibits recognition of situations arising from the use of force. It contradicts resolutions of the UN General Assembly and the Security Council, especially Resolutions 242 of 1967 and 497 of 1981. It also violates Syrian national sovereignty and territorial integrity. From the point of view of international law, not only this proclamation will fail to formalize the separation of the Golan from Syria, it will entail the international responsibility of the United States. As such, the US government is obliged to end the said illegal situation as soon as possible and remedy the Syrian government for this decision.

Examining the relationship between Islam and human rights in the human cognitive system is one of the most important intellectual adventures. One of the areas that observe this thinking is the analysis of the proportional dimensions of the two by philosophers of science and religion. In Islamic countries, including Iran, the proportionality between human rights and Islam and the principles and rules of religion. , it has a sober tradition that this proportionality has been proposed within general frameworks such as the ratio of Sharia and law, the ratio of reason and religion, or the ratio of tradition and modernity. Examining the remaining works of the pioneers of theorizing shows that the various approaches that have been proposed in this regard, basically try to answer these concerns: whether Islam and human rights are the same reality. Do you have an opinion? Are Islam and human rights contradictory or complementary? Therefore, the main question of the article is, what approaches can be seen in the relativity between "human rights" and "Islam" in the works of advanced theorists? The research with a descriptive--analytical method and by examining the evolution of human rights foundations such as freedom, equality, justice, dignity, in the intellectual system of Iranian pre-constitutional thinkers, has introduced the relativistic approaches of Islam and human rights. The most important result of the research is that the interaction approach has a more solid logic compared to the comparison, interference and confrontation approaches. Those who say the interaction approach accept differences of opinion, but at the same time do not reject commonalities.

Longstanding disputes over general principles of law as enumerated in Article 38 of the ICJ Statute has led some to consider these principles as an independent source of international law while others reduce their function to mere gap-filling in non-liquet situations. Nevertheless, international investment law and investor-state arbitrations have proved to be a fertile ground for the influence of general principles. This seeming evolution of the role and functions of general principles as regards international investment law is the subject of this paper.

Following the characterization of the COVID-19 outbreak as a pandemic by World Health Organization, it was discovered that one of the early sources of the virus spread was a cruise ship. The peculiar nature of the coronavirus and the unique characteristics of cruise ships proved to be a major barrier to disease prevention and control. Due to the current international legal framework, the pandemic left negative impacts on the fundamental human rights of travelers and crews, including right to health, right to life and repatriation. The high costs of medical treatment, flag of convenience, port and coastal state conflict of jurisdiction, the self-centered approach of states to prioritize their citizens’ health and national security, and lack of cooperation between cruise-industry stakeholders caused an unprecedented crisis at the beginning of the COVID-19 pandemic. The pandemic defined a new threshold for international health crisis, so any future cooperation should be at the international level and based on solidarity between all stakeholders in order to be effective.

Positive discrimination implies any action such as admission to universities, employment, public contracts, commercial loans, and the right to buy or sell land on the basis of membership in a particular group for the purpose of fostering greater equality. These actions go beyond anti-discrimination policy. Their existence may be a result of constitutional requirements, administrative laws and regulations - such as requirements for public contracts court orders or voluntary action. The goal of positive discrimination is to counter social behaviors that reproduce group inequality even in the absence of intentional discrimination. This descriptive-comparative study is intended to examine the experience of positive discrimination in higher education in the United States, India, and Iran. The paper will argue that positive discrimination programs in the field of higher education, regardless of the terms that are supposed to eliminate them over time, will create double discrimination.

The concept of sexual crimes in times of armed conflicts has provoked a very serious debate in international criminal law. At the same time, the jurisprudence of ICTY and ICTR on issues such as victim’s consent has led to more progressive definitions of rape and other forms of sexual violence in the context of armed conflict. Nevertheless, the diversity of opinions delivered by the different branches of the two tribunals has foreshadowed further development in formulating coherent definitions of war-time sexual crimes. This study aims to address the developments underscoring sexual crimes in the jurisprudence of ICTY and ICTR. Employing an analytical descriptive approach, the paper argues that the silence of the tribunals' statutes on the question of sexual crimes has caused a qualification of these offenses under such headings as war crimes or crimes against humanity. Whether this is a welcome development or not, will be further discussed in this paper.

Cross-sectoral conflicts, such as environment-trade disputes, are generally multi-dimensional and interwoven. Thus, a single dispute, with the same facts and same disputing parties, can undergo parallel proceedings before competent courts and tribunals under diverse technical regimes and end up contrasting judgments. Given that under general international law there is no legal principle to determine which international body has the main or exclusive jurisdiction in parallel proceedings, cross-sectoral dispute settlement can be challenging for international law system. In the researcher’s viewpoint, regulating and modifying the jurisdiction of dispute resolution courts and tribunals against one another, via sustainable development as the Common Good of international community, can be a solution to this challenge. In this regard, the present article, in a descriptive-analytical research, intends to elaborate on the capability of sustainable development in the accomplishment of this issue.

Credit institutions are one of the most important actors in the money market that have developed their activities in the legal frameworks. However, many unauthorized credit institutions are also involved in depository activities and have expanded significantly in recent years. The main legal reasons for the disorderly state of the credit institutions are the ambiguity in the [Iranian] Central Bank’s authority to monitor credit institutions, challenges in enforcing the 2004 Act on Regulating the Unorganized Monetary Market, and the Acts relating to fifth and sixth Five-Year Development Plans. This situation has resulted in various problems such as deviations from monetary and banking policies of the state, as well as non-compliance with expansionary and/or contractionary monetary policies. In addition, the Central Bank is responsible for the deposit insurance of the credit-institutions clients, therefore these institutions can cause bigger crisis in the long term. This article seeks to examine the legal reasons behind the emergence of unauthorized credit institutions and the resulting challenges of leaving them unregulated. It also aims to provide some solutions to tackle these challenges.

While the origin of Covid-19 is a controversial issue, there is no doubt that accountability for its outbreak requires incorporation of environmental aspects to international crimes. This paper aims to establish the relationship between the Covid-19 pandemic and international criminal justice by analyzing the content of international instruments and legal authorities. It will be argued that pandemics are related to violations of fundamental human rights and systematic poverty and that international criminal justice must address the underlying factors of the pandemic, although it presently lacks the ability to achieve this important goal. Regarding the impact of Covid-19 on the process of transitional justice for victims of international crimes and violations of human-rights and humanitarian law, it will be observed that the efforts of the relevant governments are somewhat shaky and the implementation process has been slow and constrained. In order to achieve criminal justice as regards Covid-19, the intervention of the International Criminal Court is worth considering, as the court's efforts to fulfill its mission of combating the impunity of international crimes are becoming increasingly conspicuous.

Following the request from the Sub-Regional Fisheries Commission (SRFC) for an advisory opinion, the International Tribunal for the Law of the Sea (ITLOS) addressed its advisory jurisdiction. This paper aims to examine this aspect of the ITLOS Advisory Opinion of 2 April 2015. The research method is  descriptive – analytical and the information has been collected through library sources. The paper will explain that with a functionalist approach and an evolutionary interpretation of Article 21 of the ITLOS Statute and Article 138 of the Rules of the Tribunal, ITLOS established that the full Tribunal has jurisdiction to give the advisory opinion requested by the SRFC and this authority is not merely for the Seabed Disputes Chamber. This advisory opinion paves the way for other bodies to obtain an advisory opinion from the Tribunal as regards the international law of the sea. It can rightly be considered a new way for the Tribunal and lead to the development the law of the sea.

One of the country's most pressing problems is the inattention of state institutions - especially the executive and legislative branches – to the “sound implementation of the general policies of the system" as promulgated by the Grand Leader. This issue can, in the long run, disrupt the stability of the system and the ability of the Leader to discharge his functions and to ‘ensure that institutions do not deviate from their original Islamic duties’. The present research, based on a descriptive-analytical approach, seeks to find out how the legal sanctions of the “general policies of the system” can be strengthened through constitutional-law capacities. Since it is imperative for the general policies of the system to be implemented by the three branches and the public institutions, the most important factor for their realization is to use a variety of efficient and effective sanctions. In this context, some legal and political sanctions that can be proposed in the face of the neglect of the ability to properly implement policies will be stated.

The proliferation of international decision-making authorities have led to developments in terrorism as regards its concept, extension, relationship with the law of armed conflict as well as human-rights law. The authorities have taken significant steps to define terrorism. For instance, the Security Council has defined terrorism for the first time, and has affirmed the possibility to recourse to self-defense against terrorist activities. Compared to the ICJ, the approach of the Security Council seems to be more advanced. Indeed, the Council has established a law-making function for its self. This is unprecedented in terms of international law and the practice of the United Nations. With respect to the necessity of observing human rights for persons accused of terrorism, the judgments and resolutions of different authorities articulate that UN member states are not free to take any action in the name of fighting terrorism. It will be argued that the proliferation in international decision-making authorities, such as the ICTY and the ICTR, as well as regional authorities such as the European and American human rights courts, has had a positive impact on the concept of terrorism in line with human rights standards.

Joint venture is a contract whereby two or more business partners participate in the execution of a specific economic plan and invest in that plan through cash or non-cash. Joint venture is among the international contract models that can be and is used in the oil industry. In Iran, this contractual method was permitted under Oil Act of 1957 but the law was changed. First the use of this method was limited in the "upstream operation" of the oil industry by the Oil Act of 1974 and then the Oil Act of 1987 prohibited the use of any type of cooperative method in the oil industry. Although a law passed in 2011 amended the provisions of the 1987 Act. The main question this paper is the following: is it allowed to use this contractual model under the new rules in oil and gas industry? With the introduction of new oil contracts in the post-JCPOA and in view of the fact that one of the country's top priorities is attracting foreign investment, it seems new laws have explicitly or implicitly permitted the use of this model of contract in the oil contracts.

Emphasizing the Kuhnian theory of paradigms and applying a transcendental approach focused on the theoretical basis and theory-laden theory will result in a contextual understanding for law and legal propositions. Therefore, this study begins with addressing constitutive elements of Kuhn's doctrine and applying his method to law and legal propositions. By elaborating different ideas regarding the very concept of paradigm, we will conclude that what we mean by legal paradigm is neither a mental context, nor simply epistemological, anthropological, normative, and methodological foundations of the legislator which can be chosen arbitrarily. On the contrary, the legal Paradigm is an epistemological context that has a hidden, vivid, inclusive, influential, and harmonizing reality. Finally, and based on the notion of paradigm, we try to pursue the paradigmatic doctrine in Iranian civil law and specifically in legal contracts. This paper concludes that importing incommensurable modern west's presuppositions and propositions has led to a deficient paradigmatic shift in Iranian civil law and specifically concerning the legal contracts. It shows the sovereignty of two parallel (opponent and incommensurable) paradigms. Emphasizing the semantic system of the paradigm in Cohen's thought, and of course with a transcendental view, focused on theoretical foundations and with a theoretical tone, results in a contextual understanding of law and its propositions.

Freedom of expression means that human beings, due to their inherent dignity, have the right to present rational findings arising from this dignity in the form of speech, writing, artwork, commercial advertising, and so on. Freedom of expression violations by states have led individuals to turn to international institutions to enforce their rights after being failed by domestic judicial institutions. Among international bodies, the European Court of Human Rights and the Human Rights Committee, which have jurisdiction over individual complaints, are able to protect individuals against states. The main question of the present paper is how has freedom of expression been reflected in the jurisprudence of the European Court of Human Rights and the Human Rights Committee? This paper using a descriptive-analytical method and library findings including a review of existing instruments concludes that the jurisprudence of the European Court of Human Rights includes  both limited and expansive protection of freedom of expression. Also in the practice of the Human Rights Committee, sometimes due to insufficient evidence, unfair decisions have been made which do not guarantee freedom of expression in a desirable way.

The international human-rights system includes a wide range of civil, political, economic, social, and cultural rights (about 40 different rights) that are enshrined in a number of international instruments, general and particular, regional and global. This dispersion implies a kind of separation and division within human rights. It also corresponds to a kind of hierarchy and prioritization between different rights with different content and principles. By explaining James Nickel's theory of indivisibility and interdependence of human rights, this paper seeks to answer whether it is possible to separate and hierarchize human rights, or whether all rights are interrelated and interdependent. The main purpose of this study is to explain the inter-relationship of human rights under the doctrine of indivisibility and interdependence of human rights with special emphasis on the theory of James Nickel. This theory leads to the finding that depending on the effect of one right on other rights in terms of necessity or usefulness, their relationship is either indivisible (based on the principle of necessity) or interdependent (based on the principle of usefulness).

The right to innocent passage is a right conferred by international law on ships of all states to pass through the territorial waters of costal states. The 1982 UN Convention on the Law of the Sea (the LoS Convention), subject to certain conditions, has recognized this right for both nuclear powered ships and ships carrying nuclear substances. However, in the national law and practice of some states, including Iran, these ships are either deprived from the right of innocent passage or their passage is subject to conditions and/or restrictions in excess of the terms of the LoS Convention. In view of such laws and practices, it would seem that the LoS Convention’s provisions on innocent passage of nuclear powered ships and ships carrying nuclear substances  cannot be considered as general international law and their applicability is limited to the states parties to the LoS Convention.

The term "interests of justice" in articles 53(1)(c), and (2)(c) of the Rome Statute of the International Criminal Court is one of the most controversial ambiguities in the statute. Some argue that this term should be interpreted extensively and include spheres such as the "interests of peace" and "amnesty", etc. Others, on the other hand, believe that a restrictive interpretation, within the criteria set out in article 53, is correct. Considering that the severity of crimes committed in Afghanistan by the warring parties is substantial and has had profound effects on the victims, the ICC prosecutor called for an investigation into the crimes committed in that country, but the ICC pre-trial chamber rejected the request, citing the interests of justice. Subsequently, the Appeals Chamber authorized the prosecutor to conduct an investigation by rejecting the arguments given by the pre-trial chamber. In this paper, we intend to define and explain the concept of interests of justice as set out in article 53 of the ICC Statue, and then analyze and review the situation in Afghanistan in view of the criteria provided in article 53(1)(c), and (2)(c) as well as the considerations taken into account by the ICC pre-trial chamber.

With the adoption of the European Union General Data Protection Regulation (GDPR) on personal data protection in 2016 and its entry into force in 2018, all EU member states are required to provide maximum protection of personal data to individuals. The maximum protections of this regulation are expressed in various provisions, which are clearer, stricter and more practical compared to previous legal frameworks of the EU and other countries. One of the most important aspects of personal data protection is the flow of different rights to the data-subjects. In several articles, the EU regulation refers to the rights of data-subjects for the effective protection of their personal data. Given the importance of personal data and data-subjects protection and citizens’ rights to such protection, the need to examine this issue is also felt in regard to the Iranian legal system. In this paper, by explaining the said European regulation, it will be shown that although under Iranian law some rights of the data-subjects are protected, not all of these rights are provable and the existing rights are not without flaws. Therefore, there is a need for legal clarification on this subject.

Explaining and examining the principles of constitutionalism in Iran is one of the most basic topics in public law, political science and jurisprudence. The [1905] Constitutional Revolution was a seminal legal, political and social event. Contemporary Iranian thinkers have focused on various dimensions and angles of the revolution and presented different readings of it. One of these readings is that of Sheikh Ismail Mahallati, a constitutionalist jurists and the author of the treatise "Al-Laali al-Marbutah fi Wujub al-Mashrutah". This paper, using a descriptive-analytical method, seeks to describe the principles of constitutionalism and duties of the sovereign from the perspective of Mahallati. This paper’s findings suggest that Mahallati, using the Book [the Qur'an] and Sunnah [the sayings of the Prophet], believed that the principle of shura (consultation) is a Qur'anic principle and considered reason and the la-zarar (no-harm) principle as the justificational basis of constitutionalism. In addition, in his view, the sovereign is limited to executive affairs and cannot interfere in determining its instances, because from  Mahallati’s perspective, the exercise of sovereignty is a matter of representation during the absence [of the twelve Imam in the doctrine of Twelver Shi’ism].

While the legal validity of unilateral acts of states has been subject to various challenges, in the actual practice of states such acts have long existed as regards their daily ordinary relations, so much so that the development of customary international relations regarding them can be examined. Unilateral acts matter both as a common way by which states operate in international relations, and as a recognized source of law in scholarship and jurisprudence. This paper, in a descriptive-analytical way and using library resources, examines the situations in which the practice of the state leads to the termination or revocation of unilateral act. Thus, the question is under what preconditions are states able to end or withdraw their unilateral action? Based on the comparison between the legal effects of unilateral acts with those of treaty obligations, it could be argued that the right to revoke such acts may be subject to the consent of beneficiary third parties. Nonetheless, the International Law Commission’s approach of merely imitating the rules of treaty law on this subject seems problematic.

In today's era, human activities at sea are not limited to areas under national jurisdiction, but have also extended to areas beyond national jurisdiction, and the destructive effects of such activities has led to increasing concern in the field of ocean health and biodiversity. Clearly, the loss or damage to the body of biodiversity poses serious challenges to the survival of human life on Earth, and addressing this important concern will require immediate action to preserve and sustainable use of it. Therefore, it is necessary to implement ecosystem-based projects such as the creating marine protected areas that can improve the environmental management of the seas. Accordingly, the purpose of this paper is to examine the conceptual analysis of these areas by examining existing international documents and then to evaluate regional initiatives and related international regulations in this area and the challenges in achieving this important goal.

The benefits of comparative study of different legal institutions have been identified by legal experts. Although Iranian administrative law has been largely influenced by the French legal system, there have been few comparative studies on Arab countries whose legal systems are also modeled on French law. Comparative-law research on administrative contracts is still mainly focused on comparing French and Iranian legal systems. Despite difficulties in accessing primary sources, the authors have undertaken a comparative study of administrative contracts in the legal systems of Jordan and Egypt. Given the close relationship between Iranian, Egyptian and Jordanian legal systems on the one hand, and the continental origins of Jordanian and Egyptian systems on the other, the reasons for conducting this research are obvious. The purpose of the paper is to identify the nature and different types of administrative contracts in Egypt and Jordan as well as different regimes for the application of such contracts. Administrative contracts in Egyptian and Jordanian legal systems,  despite  their similarities, have subtle differences in terms of execution and dispute settlement that are noteworthy .The method used in this paper is a descriptive-analytical.

The principle of subsidiarity or necessity of making the decision at the closest point to the principal is a doctrine that has been evaluated and implemented in some political and legal systems in recent decades. The German constitutional system, and most importantly the EU system have enabled the practical implementation of this principle. The application of this principle, however, is not without challenges. In the EU legal system, a quarter-century of experience in implementing this principle implies a number of difficulties that challenge one of the most successful regional political and judicial systems. By critically evaluating the background and implemention of this principle of EU law in terms of local democracy, this paper seeks to examine the reasons and the implications of its successes and failures from a legal point of view.