نشریه مطالعات حقوق عمومی
سال پنجاه و سوم شماره 3 (پاییز 1402)

Making public officials accountable in terms of their powers and jurisdiction is an obvious necessity, which is done in different ways by various institutions. Political adjudication is considered as an effective mechanism to hold public authorities accountable and is used along with other mechanisms such as questioning, impeachment, censuring of the government, and judicial and administrative oversight. In this paper, using a descriptive-analytical approach, the nature, history and function of political adjudication as a monitoring mechanism against high officials in presidential as well as parliamentary systems will be examined. Political adjudication is a process of investigation and prosecution of crimes and infractions committed by a high-ranking official done by a political body which results in a political verdict.

Maintaining international peace and security is considered to be the mission or at least one of the primary missions of the United Nations. As such, the rules and principles of the United Nations, as reflected in the UN Charter, are directly and indirectly tied to international peace and security. This contribution will study the role of the International Court of Justice in fulfilling this mission. After examining the conceptual evolution of international peace and security, the paper will examine the capacity and performance of the ICJ, as a court with international jurisdiction on a global scale and a pillar of the United Nations. As the main judicial organ of the United Nations, the ICJ plays an important role in maintaining international peace and security by way of its judgements and advisory opinions. It will be argued that due to the ICJ’s effect on the development of international law, the court plays an indirect but crucial role in maintaining international peace and security. It will also be argued that the court can play an even more active role in maintaining international peace and security through so-called normative supplementary jurisdiction.

Political-legal theories about government are mostly based on fundamental principles, which shape the content, form and structure of the state. Meanwhile, principles that are legal in nature of are somehow associated with legal rights have a great influence on good governance. In this paper, the legal principle of "government accountability" as conceived in the thoughts of Shaheed Sadr and Ayatollah Khamenei will be examined. The paper is based on two  assumptions. Firstly, government accountability is a universally accepted rational truth. Secondly, both thinkers share a similar viewpoint about the accountability principle as they are influenced by the same sources. However, their views differ on how the principle should be implemented. Their differences are more related to the realities of their lifetimes, rather than intellectual and theoretical basis.

On Tuesday, 19 April 2022, the Greek Coast Guard seized a Russian-owned oil tanker named Pegasus in the waters off the Euboea Island.  It had adopted the Iranian flag and changed its name to Lana just before the Greek action. The seizure of the ship was initially carried out under European Union sanctions against Russia in connection with the attack on Ukraine. However, pursuant to a request by the US Department of Justice - which claimed the tanker’s oil cargo was Iranian and subject to US sanctions- the seizure was continued and a part of the cargo was delivered to the United States. After the seizure of Luna/Pegasus, Iran tried to release the ship through diplomatic and legal measures, but these measures were unsuccessful due to Greece’s refusal. Thereupon, on 27 May, Iran seized two Greek oil tankers in the Persian Gulf called Prudent Warrior and Delta Poseidon. The purpose of this paper is to examine the legality of Iran's seizure of the Greek oil tankers from the point of view of international law, specifically in terms of the law of countermeasures. Using a descriptive-analytical method and collecting information from library and documentary sources, the paper finds that in response to the actions by Greece and the United States, Iran had the right to take countermeasures within the framework of international law, and its seizure and detention of the two Greek tankers did not entail international responsibility.

The cyberspace is a human ecosystem that is extremely complex. In such a space different paradigms, approaches and methods of regulation are possible. The regulatory paradigms of the cyberspace are based on two basic approaches, namely: cyber paternalism and cyber libertarianism. Under these two paradigms, different models for regulating the relationships of the cyberspace actors exist. This paper seeks to answer the fundamental questions of how law-making can take place in the dynamic, complex, and networked environments of the cyberspace? And which model can be applied as a desirable framework for regulating the cyberspace? The present study, which uses a comparative and descriptive method, evaluates different models of cyberspace regulation in order to obtain the desired model for Iran. The results show that due to the uncertainty and complexity of the cyberspace, a dynamic and flexible regulatory framework should be considered as a suitable regulatory model for the cyber environment both nationally and internationally. While Iran's approach to regulating the cyberspace at the national level should be based on the paternalistic paradigm, its approach at the international level should follow libertarianism.

Sand and dust storms deeply affect Middle Eastern countries in social, economic and development terms. Iran and its neighbors are particularly impacted by these storms. Based on the study the international environmental obligations of Iran, Iraq, Saudi Arabia and Turkey, this paper attempts to find a legal solution to the problem of sand and dust storms in the region. International obligations and domestic regulations of other countries in the region have also been studied. Iran, Iraq, Saudi Arabia and Turkey have accepted the responsibility to combat sand and dust storms by undertaking international environmental obligations. However, the main question is how these potential commitments could be transformed into action. To answer this question, the domestic laws and international obligations of these countries must be studied so that the best solutions with the least cost can be presented.

Supervising administrative contracts is necessary for an administrative system to provide efficient services to the public. It is important to note that administrative contracts are the most significant gate to corruption in governmental administrations. Therefore, controlling this kind of corruption is essential for increasing the efficiency of the government and protecting the rights of the public. Supervising administrative contracts is a legal mechanism which prevents corruption by high-ranking officials and guarantees public rights. In this paper, the characteristics of administrative contracts and the methods and bodies for their oversight within the Iranian legal system will be examined. The findings of the study show that in Iranian legal system, the oversight of administrative contracts is insufficient due to ambiguities in the relevant laws and regulation and the lack or weakness of exclusive supervisory authorities. It seems that the enactment of a specific law on the oversight of administrative contracts will solve this problem.

Undoubtedly, International Court of Justice as the principal judicial organ of the United Nations and also one of the highest international forums with general subject-matter jurisdiction has had an important role in development of international law for decades. In spite of ICJ’s core role in the development of international law, the legitimacy of this contribution has always been contested by some scholars. It is obvious that ICJ is not and could not be a legislative body in international law, but through of its judicial capacity the ICJ has developed existing rules and clarified the vague customary rules. In this respect, the legitimacy of those decisions or practice has always been questioned. As this article argues, ICJ through its high position in the international dispute settlement system and also its justification capability, has obtained enough legitimacy of the development of international law and such legitimacy has been approved by international community.

Public opinion is one of the tools through which public oversight of the state is exercised.  Public oversight of the state, in turn, is one of the most important mechanisms for guaranteeing citizens’ rights and maintaining the stability of the state. Public opinion can turn into civil disobedience if it is truly formed and ignored by the state. Citizens' enjoyment of social freedoms, the form of government, the manner by which state authorities are elected, are among the factors influencing the formation and influence of public opinion as one of the most important elements of power control in any country. Explaining the role of public opinion in controlling state power, this research examines how public opinion is formed and how it exerts influence. The paper will also study the exercise of supervisory power by public opinion from the perspective of public law.

Despite increasing armed conflicts and the resulting damages to civilians, including foreign investors, no specific regime has been envisaged in international law to compensate for such damages to investors. As a result, for reparation of damages caused by armed conflicts, investors resort to the so-called war clause in investment treaties as well as the general international law on reparation for wrongful acts. But this practice, as will be argued, has many ambiguities that may affect the rights of both the host state and the investor. While sovereignty considerations such as public order or national security can make it difficult to prove government responsibility in armed conflicts, the war clause provides an additional layer of protection for investors, but does not eliminate traditional investor-protection standards. All the same, the war clause makes the investor's right to reparation subject to strict requirements, such as proving the cause of damages and absence of military necessity, which is difficult in armed-conflict situations. It would be more sound to burden the state that has used military force with proving military necessity. In evaluating the damages, arbitration courts are expected to pay attention to emergency situation and its impact on the interests of both parties.

European democracies see themselves as defenders of political freedoms including the freedom of all political parties. This, however, does not mean that all parties operate in complete freedom. The law in these regimes identify a phenomenon known as "anti-system parties", whose activities are prohibited. In this paper, we will attempt to answer the following question by studying the legal systems of Spain, Germany and Italy: how is the relationship between freedom of association and the dissolution of anti-system parties characterised in European democracies? Based on a descriptive-analytical and comparative study, it seems that the rational for dissolving anti-system parties is  guaranteeing freedom of association itself; as anti-system parties do not adhere to political pluralism, if they came to power this will lead to the abolition of other parties or the violation of their freedoms. On the other hand, the existence of this strong tool to defend the system entails the risk of abuse by the established order. Therefore, democracies must establish a reasonable balance between freedom of association and the supression of anti-system parties, namely by using the dissolution tool only in exceptional cases and under strict and precise rules.

As “work” is a creative, productive and transformative act, leisure activities are also an individual’s relatively spontaneous and free activity to self-recreation, self-expression and self-recovery. Several components such as reasonable working time, a specific time for rest, periodic leave, and vacations and holidays will enable workers to leisure from working and as well as  guarantee their health, safety and efficiency. International human rights law focuses on this issue and recognizes rest and leisure as a human right as provided in some universal and regional instruments. Article 24 of universal declaration of human rights and article 7 of International Covenant on Economic, Social And Cultural Rights are seen as the most important sources for this purpose. This right of the worker and the obligation of states to guarantee this right for workers ensures their human dignity. This paper analyzes the requirements of the right to rest and leisure  and examines the obligations of states to realize and ensure this right for workers.

Indigenous rights are a set of rights that take the indigenous peoples particular situation into consideration and define certain standards to preserve their lives, territories, languages, religions, and other cultural heritage, all of which constitute their identity. The present paper raises the question whether investment in development plans and projects threatens the rights of indigenous peoples or not? If so, which rights are threatened by them, and what are the bases for such claims in international law? Furthermore, what is the solution for balancing the rights of the indigenous people and the rights of the investor? This study, by examining the 1989 ILO Convention No. 169 (Indigenous and Tribal Peoples Convention) and the 2007 United Nations Declaration on the Rights of Indigenous Peoples, seeks to propose that development and investment programs affecting the indigenous peoples must be implemented after consulting with them and in accordance with the rights specified in legal instruments. The study will also propose ways to balance the rights of the indigenous peoples and the rights of the investors.

Since 2015 and the peaking of the EU's refugee crisis, the Common European Asylum System (CEAS) has been seriously challenged. In this crisis, the role of the EU's highest judicial authority, the Court of Justice of the European Union (CJEU), has been crucial. In this descriptive-analytical paper, the cases referred to the CJEU on refugee crisis after 2015 have been analyzed, to answer the question: from the perspective of CJEU practice, to what extent the CEAS has succeeded in managing the EU's refugee crisis? The CJEU’s case law has shown a sort of dichotomy that sometimes leans towards fundamental rights and sometimes in favor of the CEAS. Along with the gradual evolution of the court’s judgments related to the interpretation of the CEAS, the dichotomy is being resolved in favor of fundamental rights, which indicates the need for substantial reform of the CEAS. Due to the need of reforming and updating the Foreign Nationals law of Iran, in light of the CEAS’s trial and error, this paper provides a suitable basis for formulating a set of efficient laws for this purpose.

The exceptional characteristics of Iran's nuclear case, in terms of compliance with the safeguards agreement, enforcement of IAEA's competencies, UN Security Council engagement with the case and the eventual agreement called JCPOA, continues to be the focus of scholars and commentators. Moreover, the continuation of the case and the current challenges for JCPOA, further mark the importance of examining the reporting procedure of the IAIA to the UN Security. Focusing on the period from beginning of the case up to reporting it to the Security Council, this article tends to review the basis of IAEA reporting to the Council with reliance on the documentary sources.

In recent decades, various armed conflicts have created threats to the marine environment. The Gulf War of 1990-91, the Israeli attacks on The Jiyeh Power Station in 2006, and the massive oil spill in the Persian Gulf and the Mediterranean Sea have all caused serious damage to the marine environment. The need to prevent, reduce and control pollution of the marine environment as a result of armed conflict is an important task for international humanitarian law. The purpose of this study is to explain the challenges faced by international humanitarian law in the protection of the marine environment. The findings of the paper show that international humanitarian law faces significant normative gaps in this field that seriously affect its ability to protect the marine environment. The appropriate responses to maritime environmental challenges during armed conflict include: adoption of precautionary measures, applying the Martens clause, updating pertinent provisions, explaining the scope of existing norms and conclusion of new provisions governing armed conflicts as regards maritime environmental protection.

The immunity of the state has a strong basis in customary international law. But the nature of these rules is not exactly obvious. Lawyers have different points of view on determining immunity as procedural or substantive rule. Twice the International Court of Justice had the chance to evaluate the nature of state immunity and its probable conflict with substantive rules. The first time, in the case concerning Yerodia arrest warrant (Congo v. Belgium) in 2002 and the second time, in the case concerning the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) in 2012. The question of this paper is whether the distinction between the procedural rule of immunity and a substantive jus cogens rule as is used by ICJ has a legal basis or can it be legally challenged? It will be argued that the ICJ approach in using the distinction can cause problems like descending the position of jus cogens and impunity for the perpetrators of the most serious crimes. Thus, the ICJ should be more cautious in using such a reasoning.

There is no doubt that during wars, women have not only been the victims, but they have also been considered as influencers. Thus, in many international activities they are the aims of many conventions and resolutions based on planning for protecting them and keeping their human rights. Of course, in the domestic level, there are a process of law making and policy implementation to defend women in the time of armed conflicts and after that, especially in the process of peace keeping. The authors with a critical approach examine different policies and programs in this respect in Iran and the US and show disparity between men and women in this regard. This inequality is mainly the result of functions of social and cultural infrastructures of the societies. Although in Iran the procedures of law making has many difficulties in its nature. The main question of this paper is that: what is the impact of gender consideration in the implementation of protective rules for the people who have been engaged in different stages of the war? The authors focus on positive discrimination to reduce neglected condition of women in this respect in Iran.

Since the cyberspace has changed the concept of national sovereignty and political independence of states, the international community is obliged to react to it and protect cyber sovereignty. Thus, within the framework of international law, the international community has foreseen the national jurisdiction to prosecute violations of cyber sovereignty in accordance with international criminal law as well as ancillary jurisdiction with due regard to governance considerations. At the first step the Tallinn's talks expanded the jurisdiction of the International Criminal Court by defining cyber-aggression as a violation of international peace and security and the principle of non-interference in the internal affairs of states (national sovereignty). The enhancement of the authority of this institution in accordance with customary international law in line with international criminal policy of countering impunity is done in order to maintain and restore international cyber peace and security.

The international law system based on groundbreaking  human-rights standards - which has amounted to a fundamental change in the international legal values from an outward view (state to state) to an inward view (state to nation) - has compelled all states to change their approach in domestic legal system. Moreover, to protect their identity as a civilized member of international community all states are anxious to coordinate domestic rules and regulations with progressive human-rights standards. National courts are among the main sources by which international legal standards can penetrate into national legal systems. In this paper, based on hypothesis that national judicial decisions have an evident impact on the settlement of national and international conflicts, it will be argued that by interpreting laws in line with international legal sources, national courts can strengthen human rights related standards. This role is compatible with two main theories namely, coordination and prioritization between national and international sources both of which lead to the convergence of national and international legal systems.

Global environmental crimes could destroy human life; thus, they can be considered as major international crime. In the years since World War II, close attention has been paid to the importance of the environment as well as its health. In various treaties, support and protection of environment against war, chemical and nuclear weapons, as well as other crimes were emphasized. The author of this article believes that in order to prevent environmental crimes, they should be recognized as criminal offences and the perpetrators be punished. Only then they can be classified as separate international crime. Moreover, recent developments in the International Criminal Court's approach to environmental crimes make it possible for the Court to recognize them as a separate crime and define its policy in its Statute. As a result, this article seeks to explain the possibility of identifying crimes against the environment as separate crimes.

Globalization and emergence of global governance have changed the traditional structures of international law. As the result of a gradual undermining of the border between the domestic and international law and the expansion of interaction between global actors, having the mechanisms to manage them is necessary, mechanisms which create global administrative law. One of the important purposes of this new order is to increase the accountability of international organizations to external stakeholders, especially people and civil Society. Accountability as a new concept, has conjoint components ie participation, transparency, complaint. Application of these elements in international organizations system will increase the legitimacy of these actors.The question is, what is the practical status of accountability in international organizations? To answer this question, at first the article to describe the concept of accountability using the descriptive method, and then with analytical method and by virtue of the practice of some international organizations evaluate the status of accountability`s elements. The article finds that under pressure of public opinion and growth of the rule of law in international law, accountability have been applied sporadically in some international organizations but its integrated implementation international organizations, the strengthening of global administrative law is an undeniable necessity.

The constitution is a national pact and as such must be more consistent than other laws and no event, or changing of taste or time should be allowed to change it. That being the case, the passing of time, new needs, and inefficiency of the constitution when facing changes cannot be overlooked. Also, the real owners of the constitution are the people, and the right to govern is given to governments by the people. The purpose of this research is to propose an argumentative framework to justify the new generation’s right to demand changes in the constitution. The basic question of the research is how can the new generation’s demand right be accepted in relation to the principle of constitutional stability? Based on the hypothesis of the research, the new generation’s right to demand constitutional change is accepted in the framework of the changeable principles of the constitution of the Islamic Republic of Iran. In the present study, the descriptive-analytical method is used to investigate the relationship between generations’ demands and the constitution. The results of the research indicate that the unchangeable articles of the constitution are absolutely permanent and there could be no demand for amending them, but the changeable articles can be amended in light of new generation’s right to demand constitutional changes.

The pinciple of universal jurisdiction, applied in international criminal law for many years, can complement international justice as an important mechanism. In addition to complementing the jurisdiction of international criminal courts, universal jurisdiction guarantees the widest jurisdiction for national courts to deal with important international crimes including genocide, crimes against humanity and war crimes, on the premiss that these crimes harm international public order. Three essential steps are needed to implement this principle: the existence of a specific context for universal jurisdiction, a clear definition of crime and its elements, and national law-enforcement procedures that allow national judicial authorities to exercise jurisdiction over these crimes. Therefore, national courts can exercise universal jurisdiction only when the government has enacted legislation which authorizes its application. The main question in the present study is how can Iranian courts exercise universal jurisdiction, and what kind of universal jurisdiction does Iran believe in? The answer can be found in both general (Articles 3 and 9 of the Penal Code) and special laws (such as the Bill on International Crimes). The current study applies a descriptive-analytical approach to investigate the principle of universal jurisdiction, the Islamic Penal Code, and other relevant laws to clarify the universal jurisdiction of the Iranian courts regarding international criminal law.

Basic rights of the people are in fact the human rights that have a divine origin and every human being deserves to enjoy them due to his/her inherent dignity. Regardless of the weak ambiguities that have been raised about litigation of economic, social and cultural rights versus civil and political rights, the basis of litigation itself is one of the basic rights of every human being and necessity requires that all types of rights be judicially claimable. In many cases, the fundamental rights of citizens are violated by the government. In this regard, the general authority for grievance is the general courts of justice, but the Court of Administrative Justice, as a special authority, has jurisdiction over the complaints of the people against the government. The Court of Administrative Justice has the authority to issue a mandatory sentence regarding the omission of actions in case actions and decisions, as well as to consider the damages caused by omission, but it has no jurisdiction over general approvals regarding omission. Also, according to current laws and the principle of narrow interpretation in criminal law, criminal courts can only deal with acts that lead to the violation of the fundamental rights of the people, and leaving the government to act in these cases is not criminalized.