فصلنامه پژوهش حقوق عمومی
سال سیزدهم شماره 32 (بهار 1390)

This paper reviews the conception of democratic legitimacy and its development in international law and attempts to consider an important aspect of the application (KARBORD) of this concept as a criterion to recognize newly-established countries and governments.With the collapse of the Soviet Union, former Yugoslavia breakup, and emergence of newly-established countries, democratic legitimacy criteria were cited increasingly by European and the US. In this regard the Europe Society issued a declaration on “the new guidelines to identify the new countries in Eastern Europe and the Soviet Union” in 1991 and mentioned special conditioned to identify new countries. On the other hand the application of this concept is not limited to identify the newly-established countries and has been increasingly cited by regional governments, particularly by the Organization of American States (OAS) to recognize the governments resulted from coup or illegal changes of governments. The latest case of this matter can be seen in the integrated reaction of global community and the OAS in Honduras crisis.

The maintenance of aquatic resources from the endanger rebuilding is the first goals of theirs existences in the national and international scale. Illegal and irresponsible fisheries led to danger marine species and aquatic generation. In order to control and stay this risk, nation, regional and international agencies efforts to enacted complementary regular, internal Acts and international conventions and pacts in the legal policies. Especial usage is relay on the criminal sanctions, in these policies. Iranian legal policy shows that: these flowing conducts are crimes. Fisheries of endangered aquatic, fisheries without license, industrial fisheries in the local shore, fisheries in the protected area and limited time, fisheries with the illegal instruments, obstacle and prevent emigration fishes, carry, maintenance, process, transport, expos, offer, sale of aquatic. Fisheries organization is allowed to apply some restricted; such as suspension or invalidate fishing license, reduce of fishing portion. Main strategy in these polices is ratified act, regular, legal regime and action plan to prevent extreme harm on the marine environmental. Reduce risk of species beneficiary and prepare bed to the marine existence in natural process be renewable and relief.

Although the international air law, international space law and telecommunications law, to some extent have the ability to apply on global navigation satellite systems, but the increasing development of new applications of this air navigation services, has created new problems that conventions in these three areas of the law, are not sufficient for the answers. Maybe at first, attempting to ratification and acceptance of an international Convention in global navigation satellite services is the best option to ensure continuity and quality of these services but at the same time, experience of time-consuming efforts to drafting an international convention regard to liability of Air Traffic Control (ATC), makes clear the difficulties. In fact, with the complexity and expansion of the legal dimensions of CNS/ATM and differences between countries, developing such a Convention will be difficult. Author believes that the solution of some legal challenges in the field of global navigation satellite systems is creating and developing the appropriate legal framework in this regard.

In international criminal law for the reason of legal and political obstacles against competence of international criminal courts, State’s Obligation to Cooperation has been under consideration of lawyers and is a requirement of fulfilment of justice. Chapter 9th of statute of international criminal court relate to the regulation of State's Obligation to Cooperation. The 9th chapter is related to State's Obligation to Cooperation, and we study common regulations of cooperation, legal dimensions of the common regulation and the relation between the articles of this chapter. As the general assembly of membered states consider suggestions and issue some declarations as the declaration of cooperation in the 1st statute reviewing conference, we consider this declaration and court's report to assembly to know with cooperation of states and international organization to the court.

Despite the significant development of the international community in various areas of international law, including human rights, theoretically by defining international crimes or by establishing proper Courts to prosecute criminals, the world attests crisis in which many people lose their lives. In this regard, the ambiguity of the compliance of the practice of humanitarian intervention in international law and the inefficiency of the system of collective security of the United Nations Charter made that the lawyers pose a new idea to promote the rights of individuals during crises mentioned above. The theory of responsibility to protect intends to redefine the doctrine of state sovereignty and put forward the international community a large area of response, from prevention to reconstruction through military response if it would be necessary. All these actions of the international community will be considered as their duties.

In accordance with the Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) developed members are required to reduce their greenhouse gas emissions to a defined level during the period of 2008-2012. As such reduction may cause huge costs to these developed countries, Kyoto Protocol provides for flexible mechanisms under which they could perform their obligations through cross-boarder projects. The most important mechanism provided in the Kyoto Protocol which could be used by developing countries and in particular by Iran in attracting foreign investment is “Clean Development Mechanism (CDM)”. Through CDM, developed countries implement their obligations under the Protocol though assisting developing countries to achieve sustainable development. In this article an overview of the Framework Convention and Kyoto Protocol is first provided. Then CDM and the method of financing CDM project is discussed. Finally the risks inherent in CDM and their management are discussed.

Russia and Nicaragua recognized South Ossetia and Abkhazia as independent states in August 2008. Beforehand Kosovo was recognized by about 60 states. While there are a lot of examples of secession from parent state, the law governing on secession is very ambiguous and abstract. International law has two inconsistent principles in relation to this field: right of people to self-determination and principle of respect to territorial integrity. Secessions which occurred in the past were interpreted with the principle of effectively and recognition by parent state. But in the present cases we can see a tendency for recognition of secession by third states. This fact indicates that international community believes the emergence of the right of self-determination in contrast with the classic principle of respect to territorial integrity. Present paper represents the state practice in which states preferred the right of self-determination to principle of territorial integrity and assesses international law bases which relate to this problem.

In Islam and Iran criminal law, sanction for murder, with some special conditions, is retaliation. One of these conditions is religious sameness of murder and murdered. A general principle is that, from the religious point of view inferior regarding to religion against superior is avenged but superior regarding to religion against inferior will not avenged. Religious sameness provides possibility of retaliation too. This principle is not accepted by all Islamic creeds and Hanafians do not regard it necessary and they believe in soul immunity sameness for Muslims and Non-Muslims. In addition maybe sometimes religion convert affects possibility of retaliation execution. Iranian legislation in many aspects, for some perceivable reasons, has been silent about Non-Muslims murder and in such cases because of law system of this country, Islamic jurisprudence is referred and this reference has a lot of ambiguity and problems.

International space law is one of branches of public international law. The space technology and science develop this law. There is no another branches in law such as international space law which it is subject to new technologies. The article does not intend to provide international space law in details; however, it tries to consider how the technology develops space law and vice versa. Hence, the author firstly provides effects of the technology in public international in general, and secondly he elaborates the legal aspects of space activities. On the other hand, this article contributes some innovative of space law that improved and developed international rules in public international law. Although process of making decision and codification in the field of public international law are based on traditionally benefit of developed countries, international space law introduces consensus and respects benefits of developing countries and developed countries in international community.

War as a blameworthy phemomenon, will offers some effects like poverty and hunger, destruction of infrastructure, destroying pastures, farmland and forests, displacement and homelessness, such restrictions regarding rights of people’s freedom like traffic, life, physical and moral integrity, employment, health, educatio, and in general degradation of political, social, economic and cultural institutions for communities. A system gradually formed in the international scene to limit and reduce such brutality and violence, which originally aimed to reduce human suffering and reconciliation between the "military necessity" and " human inherent dignity". In the second half the nineteenth century a committee in Geneva and to help war causalties and patients with considering the realities of the international community, Introduced the first humanize ideas of war to the world and their efforts began in 1863. "international committee to help injured" a few years later renamed "the International Committee of Red Cross", on the one hand developed its measures and activities in the diplomatic scene among the nations, and on the other hand with spreading its protective umbrella to benefit of war victims, in the battlefields, found such a place that became a model for same NGOs. In this paper we attempt to present a picture of this exquisite phenomenon and analyze its actions and explain its evolution from the beginning till now, and considering carried out activities and extracting joint parts of their activities, will note the procedures that the committee always before, during and after conflict, in order to relief several ranges of victims of war, though there exist some obstacles and challenges in the way.

In the sphere of the seas, piracy is the most important crime which is under universal jurisdiction. The doctrine of universal jurisdiction authorizes all states to prosecute specific kinds of criminals who commit international crimes, even if the criminal or victim has no connection whit prosecuting state. Before increase of piracy challenges in recent years, the viability of application of this rule on piracy seems apparently useless. But now, it is time to prosecution of piracy criminals like other criminals who are involved in universal jurisdiction. However, states are faced some problem to use this legal authority. These problems include some international norms, especially human rights norm which increase from the time of adoption of provision relating to piracy. On the other hand, nowadays, piracy occurs in the way different from what was that in past. This problem cause current international instruments for fighting piracy cannot respond to recent needs. Thus for fighting this crime, states leave the solutions of international instruments and fight piracy in a different way. In this paper, in addition to examination of nature and concept of crime of piracy, we address the new challenges of this crime and modern way to fight it.

Increasing co-relation of international relations to international law leads to cite some theories as a basis of rights and obligations of members of international community in recent years. As showing exception of prohibition of use of force principle is one of the pillars of international relations and because of radical changes in nature of international threats, it seems that traditional theory of international peace and security as a base of use of force is not suitable upon requirements of international community, then some states emphasize on doctrine of responsibility to protect. In this article, in addition to considering conceptual and historical aspects, we will answer this question by reference to two practical instances if mentioned doctrine could be a good alternative for theory of international peace and security or not.