International Law
Alireza Salehifar
Abstract
As international trade is expanding, international trade and tax disputes are increasing. Under international tax agreements, there are two mechanisms for the resolution of potential disputes between contracting States. These agreements mostly rely on a form of negotiation known as the “Mutual ...
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As international trade is expanding, international trade and tax disputes are increasing. Under international tax agreements, there are two mechanisms for the resolution of potential disputes between contracting States. These agreements mostly rely on a form of negotiation known as the “Mutual Agreement Process (MAP)” as the main mechanism for the settlement of disputes. During the last decade, the inclusion of “ad hoc arbitration” as a new dispute resolution mechanism in international tax treaties has become popular to augment the MAP. Iran has long concluded several international tax agreements with several countries for the avoidance of double taxation. Due to Iran’s macroeconomic policy for relying more on tax revenues as an alternative to revenues from the petroleum industry, it is important that the Iranian lawyers seek to focus more on tax law and tax dispute resolution mechanisms. The purpose of this article is to introduce and critically analyse the dispute resolution mechanisms of international tax agreements. In this article, to make some suggestions for the improvement of the dispute resolution system of tax treaties, the strengths and weaknesses of the MAP and ad hoc arbitration, will be scrutinised by adopting a descriptive-analytical approach.
Public Law
Mahdi Shahabi
Abstract
The history of the evolution of legal thought indicates the contentious process of the interaction between metaphysics and reality. Meanwhile, notions such as law and justice, and in general, natural law, being the criterion for evaluating justice in the legal structure, have a more complicated situation. ...
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The history of the evolution of legal thought indicates the contentious process of the interaction between metaphysics and reality. Meanwhile, notions such as law and justice, and in general, natural law, being the criterion for evaluating justice in the legal structure, have a more complicated situation. Petrazyski's idea on intuitive law should be considered as a new framework for the mentioned interaction; as modern natural law is based on the preeminence of metaphysical rule over reality, and classical natural law also seeks static metaphysics to provide the ground for its interaction with reality. Thus, they could not be admissible. Petrazycki endeavors to seek a dynamic metaphysics which he finds it in dynamic subjectivism. Individual intuition is another expression of this type of subjectivism which leads to the intuitive right and intuitive justice. However, one may ask whether this type of metaphysics be the foundation and even superior and evolutionary framework of law? In fact, Petraziski does not believe in such a foundation, and as a result, his metaphysical interaction with reality cannot be maintained in the framework of idealism.
International Law
Ebrahim Rahbari
Abstract
IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big ...
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IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big data, make it difficult for newcomers to enter the market and there is a good opportunity for big data companies to abuse their dominant position and commit anti-competitive practices, all of which brings new issues to antitrust law.It is clear that we can apply general rules on the abuse of dominant positions and monopolizing in the big data field. This article clarifies how abusive behaviors such as unilateral refusal to share necessary big data or restricting access to it can disrupt competition in downstream or adjacent markets and also, how deceptive practices of platforms in collecting data have gradually surfaced in the realm of competition law. This research also analyzes price discrimination and predatory pricing by using big data and the challenging issue of entering other markets by leveraging big data. Literature ReviewThere are no studies in Iranian legal literature that discuss different aspects of the abuse of dominant position by use of big data. Viewing the challenges from the perspective of Iranian Competition Law, the current research analyzes the issues and provides some particular solutions for the first time. MethodologyThe method of this research is descriptive-analytical done by a comparative approach. ResultsGenerally, refusing to share or restricting access to big data may be considered an abuse of one’s dominant position under certain circumstances. Various factors should be considered such as whether the data is first-second- or third-party, alternative sources to access the big data, the effect of the refusal or the restriction on competition in the related markets, the process of providing new products and services, and the incentives for innovation and investment.Recent approaches to the deceptive collection of data indicate the significance of competitive and economic dimensions of personal data. Since solutions outside the realm of antitrust law are not sufficient to regulate and protect these data, employing decisive remedies of competition law seems justified.Regarding abuse of pricing powers, if price discrimination among users is done by collecting and analyzing big data and tracking and discovering their preferences, and leads to a reduction in the price of products or services and brings real and long-term efficiency, it would be desirable from the perspective of competition law. However, it should be noted that if this arrangement becomes an abusive behavior to restrict the competition for other companies or lay the groundwork for predatory pricing in the future, in such a way that other competitors lose their ability to compete, antitrust law should intervene to prevent this abuse of big data.In addition, platforms are not allowed to abuse the big data that they gather in their system to facilitating the way for themselves or their partners and their related companies to improperly penetrate adjacent or vertical markets at the expense of weakening competitors. Also, tying any kind of products or services to data that the applicants do not need between which no reasonable linkage can be imagined is an example of improper tying arrangements and abuse of a dominant position, which is condemned in antitrust law. In fact, self-preferencing by using data is in itself contrary to competition law norms if it results in a significant disruption of competition. ConclusionIn the Iranian competition law, although the existing general rules and regulations may be effective to a relatively small extent when facing abuse of a dominant position by way of big data, one cannot ignore the shortcomings and inefficiency of these legal frameworks and the necessity to adopt new competition strategies in the light of the diverse aspects of digital markets and as the rising importance of big data. Although some new approaches taken in the Strategic Plan Of the Islamic Republic of Iran in Cyber Space can be seen, those policies and solutions are not in line with competition law standards, the requirements of Iran's digital markets and the big data challenges, and the proposed views lack the necessary legal-technical justification.In fact, the aforementioned document has failed to codify the fundamental principles of competition law in platform markets by not setting the basic foundation and taking the initial steps in the right direction. It points to modern approaches to competition law, controversial in matters which legal systems are dealing with in academic and judicial circles. Despite these considerations, it seems that, especially in Iran, in the absence of an effective competition system and strong monitoring arrangements on the practices of companies, platforms with a dominant position have a real chance to abuse big data, and so, it is incumbent to take stronger measures and remedies to regulate and inspect the behaviors of companies while respecting the fundamental principles and standards of antitrust law.
Hamid Kazemi; Milad Sadeghi
Abstract
The Aviation Industry and its governing law are vulnerable to the outbreak and pandemic of contagious diseases. It is possible that the industry takes part in the spread of disease and endanger lives, while on the other hand, with the spread of contagious diseases, the economic cycle of actors and beneficiaries ...
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The Aviation Industry and its governing law are vulnerable to the outbreak and pandemic of contagious diseases. It is possible that the industry takes part in the spread of disease and endanger lives, while on the other hand, with the spread of contagious diseases, the economic cycle of actors and beneficiaries of the aviation industry is seriously threatened and faced with numerous difficulties, which eventually is to the detriment of the economy in whole. Studies illustrate that the norms and rules related to counter the spreading of disease through air navigation are mainly taken from the International and regional laws but the norms and rules dealing with the economic effects of such pandemics are largely attained from national laws. This article, using the same structure and classification, analyzes legal aspects of contagious diseases in the aviation industry with emphasis on the novel Coronavirus disease. The results indicate that the law of contagious diseases in the aviation industry should have three important characteristics: “cooperative or collaborative”, “supportive” and “temporary”.
Public Law
Mohammad Jalali; Mehrdad Aghaei
Abstract
Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue ...
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Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue individually. They demand the right to use their mother tongue collectively and as a third-generation right. However, sometimes the demand for this right conflicts with national security and territorial unity. Some governments, based on their approach to the issue of rights, the conflict between them and the public interest and their own security policies limit the right to the mother tongue and take a confrontational and restrictive stance on both the general right and the specific right to the mother tongue, in consideration of the issue of territorial unity. This study aims to explore and explain the theoretical framework of this conflict and its reasons, and to provide strategies for solving this problem by describing and expanding on various theoretical discourses related to the subject. Another goal of this study is to explore some of the concepts involved in this subject and to examine an appropriate theoretical approach to related concepts, which also aids to answer the main research problem. As research backgrounds, reference can be made to the book "Language Rights and Political Theory" by Will Kymlicka, published by Oxford University Press in 2007, and the book "National Security, Human Rights, Political Legitimacy in Fragile Democracies: An Introduction to the Foundations of National Security Law" by Mehdi Rezaei, published by Khorsandi Publishing in 2018.The main purpose of this research is to explain the relationship between the right of linguistic minorities to use their mother tongue and national security and territorial unity? Within this framework, the present study, while reviewing and analyzing all the concepts involved in the subject, by adopting a reductionist approach towards the rights of minority groups and emphasizing the individual nature of rights, and with attention to the requirements of positive discrimination in insuring group rights, explains and defends the rights of minority groups to the mother tongue and the necessity of ensuring those rights. It also examines and analyzes the relationship between the right to the mother tongue and national security, and territorial unity. It shows that the closer a state's security discourse is to a negative and commodity-based interpretation, the more threatened national security and territorial unity will be, and the more it will be in conflict with the right to the mother tongue. The choice of a political-legal system to adopt a security theoretical manifest has a direct impact on the definition and boundaries of national security in that country, and the degree of its democracy and human rights also has a complete impact on the model and approach of its security discourse. Non-democratic and non-human rights systems that adopt traditional discourse in national security not only refuse to tolerate any objections and opposition by the people but also, based on various security pretexts and through "securitization", initiate suppression and threatening of public freedoms and citizens' rights. However, the modern discourse, with a focus on the citizens' demands, internal vulnerabilities, and socio-economic issues, and with regard to pluralism, democracy, and human rights, seeks security through creating national convergence and synergy. The postmodern discourse, on another hand, looks at national security with a focus on global security centered on human beings and from the perspective of fundamental human rights, culture, and cultural issues. Therefore, the two modern and postmodern discourses not only recognize the right to the mother tongue, but also guarantee it and consider guaranteeing it as a booster of national security. Regarding the right to the mother tongue, political regimes with a traditional security approach see this right and its enforcement in conflict with national security, and thus restrict the freedom of linguistic minorities. Non-democratic and non-human rights regimes, with a security-oriented approach, always label linguistic minorities as secessionist forces and with various titles, including labeling them as threats to national security and unity, and territorial unity, and they restrict the freedom to use their mother tongue. It seems that the democratic or non-democratic and human rights or non-human rights nature of a political system determines which security approach and discourse that system has, and it is this discourse that shapes the government's position on the basic freedoms and rights of the people and following that, the path of that political system will become apparent. In the face of the duality of “the existence of linguistic diversity and minorities increases threats and insecurity”, or conversely, “confronting the linguistic freedoms of minorities leads to their dissatisfaction and desire for secession", the proposition of the authors is the second approach; especially since governments that seek security only outside their borders with a traditional security perspective, naturally overlook internal security threats or even consider their source as foreign, and over time, people’s dissatisfaction with the deprivation of their fundamental freedoms such as linguistic freedom will only be one of the problems and dissatisfactions, and economic and social problems will also prevail. at that time, the centrifugal forces due to injustice, economic deprivation, and restrictions on fundamental freedoms will become more apparent. Therefore, in a general proposition, the less democratic a government is and the less commitment it has to human rights, the more traditional and outward-looking its security policies and approaches will become. It will also restrict domestic rights and freedoms, resulting in an increase in centrifugal forces and threats to national security and territorial unity. Regarding linguistic minorities Specifically, the more the governments disregard democracy and human rights, the more probable that they view national security negatively so as to consider threats only from external or foreign roots. By closing these outlets and making the phenomenon of linguistic diversity and minority mother tongues a security issue, they threaten the freedom of using the mother tongue in many aspects. On the other hand, focusing on militarization to gain security at exorbitant costs, neglecting human rights and freedoms, and the absence of a monitoring and desirable balance system for a democratic system will lead to a "crisis of efficiency" and a "crisis of legitimacy" of that political system, which will result in deep economic and social crises and dissatisfaction, especially among minorities. This economic pressure, coupled with severe repression of the freedom to use the mother tongue, will plant the seed of anomie and subsequently, the revival of separatist movements and threats to national security. Thus, the unity of the land and territorial unity will be compromised.
Naser Soltani
Abstract
The Constitution must be regarded as one of the elements of a larger order, and the political system based on it, and the "text of the constitution" is just one of these elements. The relationship between political forces and their balance, as the context in which the constitution is flowing, directly ...
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The Constitution must be regarded as one of the elements of a larger order, and the political system based on it, and the "text of the constitution" is just one of these elements. The relationship between political forces and their balance, as the context in which the constitution is flowing, directly affects its life and expands it. In this article, we will draw a conception in which the constitution is not just a text but it includes also a bunch of non-written rules, which play a role in the political system. We are trying to find a fundamental notion on which this distinction is based. Legality and legitimacy are our criterions for such a distinction. We are trying to identify the moments in the political life of Iran in which these two conceptual couples (legality and legitimacy) have been revealed. For, we will identify these categories in the system of constitutional law in Iran, and show the importance of researching them. Research on the constitutional law in Iran, with lack of these rules, cannot provide a true picture of the Constitution.
hamid hamidian; Ali Rezaeiee
Abstract
Principles of international investment law and treaties are more about protecting foreign investors. Therefore, in investment agreements that are signed between the host countries with the investors or their respective governments, the host country is obliged to provide the necessary investment support ...
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Principles of international investment law and treaties are more about protecting foreign investors. Therefore, in investment agreements that are signed between the host countries with the investors or their respective governments, the host country is obliged to provide the necessary investment support and any action contrary to the investment agreement is prohibited. In some cases, however, the protection of the public and fundamental interests of society requires the host country to take actions contrary to the provisions of the treaty, as encouraging and promoting investment should not be at the expense of the internal public interest. So the main challenge is how the public interest in host countries can have convergence with investment criteria? The most important findings of this study indicate that although there is no uniform procedure in this regard, but the new approach of most tribunals is that if the government's actions are based on reasonable criteria such as necessity, similar conditions and appropriateness, it is allowed. Of course this is achieved by providing a balanced interpretation of the requirements of international investment and creating a balance between the public interest of the host country and the requirements of the rules of international investment.
Public Law
Javad Yahyazadeh; Ali Farhadian
Abstract
1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition ...
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1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality". Literature ReviewComparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible. MethodologyIn this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method. Discussion The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time. ConclusionThe findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid. Keywords: Right, Wrong, Hermeneutics, Constitution, Islamic Republic of Iran
Mehdi Piri; Mohamad Tabatabae nejad; hamidreza abasi
Abstract
Pipelines are one of the most commonly used means for onshore transportation of oil and gas. In general, there are two different approaches which can be used to form the legal framework for the construction and operation of international pipelines: the interconnector and the unified models. These two ...
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Pipelines are one of the most commonly used means for onshore transportation of oil and gas. In general, there are two different approaches which can be used to form the legal framework for the construction and operation of international pipelines: the interconnector and the unified models. These two models differ in a range of factors, including ownership, the governing law, taxation, safety and environmental issues. However, it should be noted that in addition to pipeline agreements which govern the construction and operation of cross-border pipelines, this is the domestic law of the concerned States which allows for the selection between these approaches. This paper examines the structure of agreements which have been used for the construction of international pipelines and examines the possibility of implementing these models in the Iranian legal system. Finally, it has been revealed that a distinction shall be made between pipelines connected to upstream installations and pipelines which are used for transporting refined products. Relying on that, for each category different approaches could be arranged in the Iranian legal system.
International Law
Mahshid Ajeli lahiji; S. Ali Hosseiniazad; Majid Zahmatkesh
Abstract
Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a ...
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Undoubtedly, jus cogens or preemptory norm is always recognized as the highest source of international law. Nevertheless, the judicial review of International Court of Justice caused doubt in the absolute priority of jus cogens when violation of jus cogens and immunity are simultaneously argued in a case. Especially, in the cases concerning the Arrest Warrant (Congo v. Belgium 2002) and the Jurisdictional Immunities (Germany v. Italy 2012), ICJ tried to separate procedural and substantive norms and declared that the norms of immunity and jus cogens are different in nature, thus they couldn’t oppose each other but immunity as a procedural norm could prevent deciding about merits. In this article, by using descriptive – analytic method, the rationale behind the decision of ICJ is analyzed in order to know that if immunity is considered procedural and jus cogens is recognized as substantive norm in international law and how these norms interact. Evaluation of doctrine shows that there is no certainty about the quality of the separation of procedural and substantive norms and their proof in international law. Therefore, the court’s decision in choosing the approach could cause an insecurity in the peremptory place of jus cogens.
International Law
Soroosh Falahati; Mirghasem Jafarzade
Abstract
IntroductionIn the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation from regulatory measures. This article will analyze these issues ...
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IntroductionIn the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation from regulatory measures. This article will analyze these issues as well as the approach adopted by Iran in this regard, while also discussing the necessity of changing the approach adopted in Iran's foreign investment protection treaties. It then continues to examine Philip Morris v. Uruguay because, firstly, although the relevant treaty contained expropriation provisions similar to those of most treaties to which Iran is a party, eventually Uruguay managed to win the case. Therefore, Uruguay’s defenses can be helpful for Iran in similar cases. Secondly, it will be shown that issuance of a favorable award for the host state in this case provides no guarantee that othertribunals follow the approach adopted by that tribunal. Therefore, the article suggests specific clauses to be inserted into investment treaties of Iran that can be interpreted to the benefit of public interest and, as such, reduce the possible instances that require compensation to be paid by the government.Research Question - Which aspects of the host state’s defenses in Philip Morris v. Uruguay can be utilized by Iran in similar expropriation claims?- When faced with similar expropriation disputes, would it suffice for Iran to rely on defenses similar to those of Uruguay in the said case?- What is the best possible approach for Iran to adopt in its foreign investment promotion and protection treaties to avoid compensation in expropriation disputes? Literature ReviewThe Persian legal database contains few studies examining the Philip Morris v. Uruguay case. They mostly contain overviews of the case and discuss the restrictions imposed on trademarks as a method of expropriating industrial property rights. However, no prior article has examined how the defenses used by Uruguay could be of use to Iran’s government when faced with similar expropriation claims. In this regard, the authors explain the importance of the state’s regulatory and policing powers and their degree of interference in the foreign investor’s property rights. Nevertheless, this piece indicates that the host state’s defenses in the Philip Morris v. Uruguay case cannot be relied upon in all similar instances, especially considering that Iran seems to have adopted the “high protection” policy towards foreign investments and has consequently opted not to discuss and define the connection between expropriation and governmental measures in the field of intellectual property rights in most of its BITs. The article suggests that Iran adopt the “increased predictability” or “qualified” policy and set apart intellectual property rights-related regulatory measures from the scope of expropriation. A similar suggestion can only be found in an article written by the authors of this article titled “Legal Nature of Compulsory Licensing under Patent Law: A Regulatory Measure or Expropriation?”. However, the said suggestion, unlike the suggestions in this article, was primarily focused only on a single regulatory measure of the host state i.e., compulsory licenses. 3. MethodologyThis article uses a descriptive and analytical method and the authors have resorted to library research to gather the relevant resources. A wide range of resources including the most recent books, articles, dissertations, cases, and regulations have been used to author this piece. In particular, it has been attempted to examine different treaties on the protection and promotion of foreign investment so that the article would be of a comparative nature. ConclusionTreaties on the promotion and protection of foreign investment contain different views concerning the relationship between expropriation and governmental measures that are taken regarding foreign investors' intellectual property rights. Considering that the exclusion approach reduces the instances in which the host states would have to pay compensation, this article concludes that Iran's government should adopt this approach when drafting these treaties and set aside its current approach which is unclear about the relation between expropriation and regulatory measures in the field of intellectual property. Until then, due to the similarities between the approaches adopted by Iran and Uruguay regarding the relation between expropriation and governmental measures in the field of intellectual property rights, Uruguay's defenses in Phillip Morris v. Uruguay can be utilized by Iran in similar expropriation claims filed against it.
Hamidreza salehi; Mohammadreza ABBasi
Abstract
The tax regulation related to Article No. 219 of the Tax Code, is the manifestation of the interaction between taxation affair organization and its taxpayers. In the new regulation, a considerable number of rules are reviewed and amended. From the study of the aforementioned Code, one can understand ...
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The tax regulation related to Article No. 219 of the Tax Code, is the manifestation of the interaction between taxation affair organization and its taxpayers. In the new regulation, a considerable number of rules are reviewed and amended. From the study of the aforementioned Code, one can understand the new approach, which the tax affairs organization has applied when encountering tax payer’s rights. This research is conducted using scientific and research methods. As well, the subject is to review the two vital principles of functus officio and res judicata in terms of tax payment matters. Contrary to its precedent, the referred Code allows the “head of taxation affair administration office” not only to provide the ‘tax report’, and issue ‘tax assessment’, but they are authorized to proceed with the ‘taxpayers’ objection’ in that regard. The possibility of the reconsideration by the issuer, not only increases the likelihood of corruption, it is in inconsistency with the taxpayers’ rights. The said regulation has further allowed the tax affair administration offices to proceed with a so-called “review” procedure against the taxpayers’ matter after the proceeding had been finalized. Whereas, Article No. 239 and No. 270 of the Direct Taxation Act acknowledge the ignorance of res judicata principles as a violation of the taxpayers’ rights. As such, the approach of the above-mentioned regulation is considered a violation of functus officio and res judicata principles, and therefore wrongful.
International Law
Mohammad Reza Mogadasifar; Farideh Shaygan
Abstract
IntroductionAsylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark ...
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IntroductionAsylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark on the arduous asylum process due to the fear of torture and persecution in their home country or place of residence, in pursuit of a life that aligns with the minimum standards of human rights. While some successfully obtain refugee status from the host country, some face deportation or repatriation after going through the legal process. In some cases, they may even be returned to a third country, where persecution awaits based on justified evidence. Returning them to their former country is certainly the worst-case scenario for asylum seekers or refugees. The international community has established a legal framework for refugee protection through the 1951 Convention and the 1967 Protocol. Certain rules and principles outlined in these documents are so fundamental that no reservations can be made to them. A notable example is the principle of non-refoulement which prevents the return of refugees to their home country or a third state where persecution is feared.The present study tried to answer the following question: What prevents the return or deportation of a refugee to their home country or a third state? While the treaties do not explicitly answer this question, the jurisprudence of the European Court of Human Rights provides valuable insights into the meaning and legal nature of this principle, as well as methods for assessing the status of a refugee when deciding on repatriation. Although the European Court of Human Rights lacks the authority to review and apply the 1951 Convention Relating to the Status of Refugees, member states of the Council of Europe are obligated to ensure the respect of rights outlined in the European Convention on Human Rights for all individuals within their jurisdiction, including refugees and asylum seekers. At the intersection of the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees, the European Court of Human Rights examines general conditions in the state concerned and the individual applicant’s situation to determine factors preventing repatriation or expulsion. To this end, the Court has set specific limits on the right of states to expel refugees and asylum seekers from their borders. The Court indirectly supports the principle of non-refoulement, aiming to ensure respect and prevent violations of relevant articles of the European Convention on Human Rights, particularly Article (3) which prohibits torture. This implies that the reservation cannot be applied to the principle of non-refoulement, which extends beyond the scope of the 1951 Convention.Literature ReviewWhile there are many articles addressing refugee protection and the non-refoulement principle under the European Convention on Human Rights, they have not explicitly delved into the prohibition of reservation to the non-refoulement principle. Therefore, the current study can be regarded as innovative in both its subject matter and content.Materials and MethodsAdopting a descriptive–analytical method, the present research examined national and international legal literature, the jurisprudence of the European Court of Human Rights, and pertinent international treaties.ConclusionThe European Court of Human Rights, functioning as a monitoring mechanism for the European Convention on Human Rights, has encountered numerous cases involving asylum seekers seeking refugee status. Its jurisprudence has significantly contributed to the development and evolution of laws pertaining to refugee protection. By establishing a connection between the European Convention on Human Rights and the Convention Relating to the Status of Refugees, the Court has effectively offered indirect support to refugees, safeguarding them against deportation, extradition, and repatriation. Its jurisprudence firmly prohibits the application of reservations to the non-refoulement principle.
Ramin Yarmohammadi; Zahra Mahmoudi Kordi
Abstract
Due to the advancement of industry and increasing economic activities, environmental interferences have been raised, which has led to the emergence of transboundary harm. Given the widespread effects of transboundary harm, governments have departed from a traditional compensation-based approach to a ...
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Due to the advancement of industry and increasing economic activities, environmental interferences have been raised, which has led to the emergence of transboundary harm. Given the widespread effects of transboundary harm, governments have departed from a traditional compensation-based approach to a preventive approach. Experiences and scientific findings show that in addition to its environmental benefits, the preventive approach is economical and therefore is known as the Golden Rule and the Environmental Watch Tower. This article seeks to identify the main elements of the states’ obligation to prevent transboundary harm, using international instruments and precedents. It is concluded that firstly, the obligation to prevent includes two elements: substantial (or due diligence) and procedural (or cooperation), each of which has their structures or components whose existence is essential in identification of the responsibility of the state of origin. Secondly, considering the extent and the negative effects of transboundary harm, the two elements are intrinsic and inseparable, both necessary to fulfill the state’s commitment to prevention.
International Law
Ali Reza Jalali; Mohammadhasan Maldar
Abstract
Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based ...
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Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based on the procedure of the European Court of Human Rights, as an innovative and developed international judicial body, what elements should the courts consider when issuing a judgment in order to impose a punishment protecting the human dignity? After reviewing some judgments of the Court, the research concluded that by observing some formal and substantive principles such as justification of conviction, charge bargaining, ne bis in idem principle, citation of high quality laws, proportionality of offence and punishment and non-recourse to severely painful punishments, the human dignity of offenders is safeguarded. Accordingly, in case of non-observance of the mentioned principles, the legal systems would be exposed to serious human rights challenges, because states' lack of attention to the human dignity of criminals, would make the repressive nature of states to prevail over the fundamental rights of citizens.
sanaz kamyarrad; Mehdi Hadavand; safarali kamyarrad
Abstract
Cities contain more than half of the world's population. Urban sprawl and environmental degradation would cause irreparable damage to the cities and their citizens. A considerable number of the urban population suffer from the lack of human rights in the cities. Fundamental principles ought to be respected ...
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Cities contain more than half of the world's population. Urban sprawl and environmental degradation would cause irreparable damage to the cities and their citizens. A considerable number of the urban population suffer from the lack of human rights in the cities. Fundamental principles ought to be respected in order to achieve the desired standards of living, Human dignity and the well-being of citizens. The right to the city is an idea, recently having drawn social movements and urban designers' attention to the fact that preserving the fundamental human rights in the cities is of the essence to the extent that some countries have recognized this right in their internal documents. It is true that the community of engineers has allocated a part of their studies to the right to the city and its importance. However, such human right is not confined to the urbanization rules and it should be considered legally binding. This Article Interprets the Right to The City from legal dimension and the responsible organizations for protecting and preserving it.
Seyed Hesamoddin Lesani
Abstract
International Criminal Court (ICC) accepted the Prosecutor demand to start the investigation on the crimes by the American troops in Afghanistan, in March 5, 2020. But the challenge that ICC will be faced is that there is an Agreement (called SOFA) between United States and Afghanistan that if American ...
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International Criminal Court (ICC) accepted the Prosecutor demand to start the investigation on the crimes by the American troops in Afghanistan, in March 5, 2020. But the challenge that ICC will be faced is that there is an Agreement (called SOFA) between United States and Afghanistan that if American troops commit a crime in Afghan territory, they will be under the exclusive jurisdiction of their own country namely USA. The United States has Argued that Afghanistan has no right about the American troops so they cannot hand over this right to ICC due to the membership in ICC. So we face with two contradict conventions that Afghanistan has signed: First the Statute of the ICC and second the agreement between Afghanistan and USA. The aim of this article is to study the challenges that ICC is faced to start the investigation on the American troops in Afghanistan and to answer the conflicts between the conventions signed by Afghanistan.
International Law
Sayed Murtaza Àbid; Mohammad Hosein Ramezani Ghavam Abadi
Abstract
IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing ...
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IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing source of legal regulation, the other three water basins of Afghanistan do not have a treaty exploitation system and are considered subject to the customary rules. Therefore, any use of these waterways is only possible within the framework of the customary rules of international law of the sea. Due to various historical reasons, Afghanistan has not had the opportunity to avail itself of these watercourses. In the last few years, this country has designed and implemented programs to manage and use its water resources. Many of these actions were faced with protests from Afghanistan's neighboring countries. These countries have considered the actions taken by Afghanistan to be in conflict with international law, especially the customary law governing international waterways. According to the practice of states, and the opinions of international judicial and non-judicial institutions, currently, there are rules such as reasonable and equitable utilization, the prohibition of incurring serious harm to other countries, and the responsibility to cooperate, which underly the basic and customary rules of international law of the sea. The customary characteristic makes states legally obliged to comply with these rules regardless of their membership in international treaties. States’ violation of customary obligations will result in international liability. Without a doubt, Afghanistan, as a member of the international community, will not be exempt from this rule. Research Questions The present research examines the status of the customary obligations regarding the non-navigational use of international waterways in the legal system and the practical practice of the Afghan government. The research seeks to answer these questions: What is the approach of Afghanistan's legal system towards the international customary rules of the sea and do the domestic laws require the government to comply with these obligations or not? What is the practical practice of the government in this case and to what extent are Afghanistan's actions consistent with the international customary rules? Research Background As an important source of life and livelihood, the subject of waterways has been of interest to humans forever. The greatest human civilizations are built next to water sources. With the formation of nation-states, the discussion of international waterways and their exploitation by countries was raised. In this regard, many researches have been conducted and published by scholars on how to regulate the use of international watercourses around the world.Although such research was initially centered around the use of navigation, with the increase in population, the climate changes, and the pollution of water resources, non-navigational exploitation and their related topics also attracted the attention of scholars. Regarding the international watercourses of Afghanistan, many researches have been published by different authors both inside and outside of Afghanistan, in different languages.The common denominator of all of these efforts is the focus on contractual obligations, management, and the protection of water resources. Therefore, an important i.e., international customary obligations of Afghanistan and its practice and performance in this area has been neglected. However, some authors have mentioned some of these obligations in their research. For example, we can refer to works such as the research of Mr. Jamshid Momtaz titled “The legal system of the middle East watercourses”, “Ali Raghanabi: The legal principles governing the international rivers, with an emphasis on the Hirmand River”, “Nusratullah Afzali: The principles governing the international watercourses with an emphasis on the Harirud river”, and “Mrs. Sara Naqshband: International Practices in the Settlement of International River Disputes”. Within Afghanistan, in the last few years, research has been carried out in the field of Transboundary Rivers. The major parts of these research papers have been carried out by the Doran Institute, which is a private research institute. This research center has so far published two articles in this area (Amu and Kabul) and besides these, publishes a journal about the waters of Afghanistan, the first issue of which was published in 2015. This research focuses on the capacities of the mentioned areas, the capabilities and challenges of their use, and the climate risks that threaten these waters; it briefly refers to the legal aspects of using these waters. however, it has not been specifically and comprehensively addressed. DiscussionArticle 7 of Afghanistan’s Constitution recognizes the government’s responsibility to comply with the United Nations Charter, the Universal Declaration of Human Rights, and other treaties that Afghanistan has accepted, but it does not make any reference to international customary obligations. Of course, this does not mean that Afghanistan does not accept customary international obligations. the obligation to comply with the UN Charter (based on Articles 1 and 2 and other principles of the Charter) is not limited to treaties, and includes obeying all binding sources of international law. The constitution, especially its seventh article, has stated the obligations that need to be approved by the parliament (National Council) and approved by the president. Customary international obligations are usually entered into national systems through automatically and informally and do not require a special process for ratification andapproval. The study of Afghanistan's legal practice, including the study of the past constitutions (1980 and 1987), in which, in addition to treaties, Afghanistan's obligations to other accepted principles and rules of international law are set out, supports this claim.This is why the Afghanistan transboundary water policy, which was approved by the Council of Ministers in 2015, mentions Afghanistan's responsibility to comply with the international rules and regulations in the operation of transboundary waters in its sixth chapter. International rules and regulations include contractual and customary rules.The practice of the Afghan government in the exploitation of common waterways is in line with its responsibility to act by these rules. The signing of a treaty with Iran (in 1973) and an agreement with the Soviet Union in the field of utilization of the Amu River (in 1958 and 1964) indicates that this country considers itself bound to international obligations in this field. Conclusion The Afghan constitution is silent on its international customary obligations. nevertheless, the emphasis on compliance with the United Nations Charter in its seventh chapter also includes complying with the customary rules. The legal and practical practice of the Afghan government shows that this country considers itself obliged to comply with these obligations not only as a member of the international community; but also according to its domestic laws. However, examining the degree of compliance of this country's actions in the use of international waterways with its international obligations requires examining all the related factors. Without access to the relevant information, it would be very difficult to consider these actions in violation of these obligations. However, the principle of responsibility to cooperate obliges the Afghan government to take appropriate measures to deal with these protests within the framework of international law.
Keyvan Sedaghati; Ali Faghih Habibi
Abstract
Properties of NGO are classified within 4 main items including: Non-profit-making, non-political, non-governmental and volunteer oriented and its mission is filling probable gaps between government, citizens and transferring goals of society to public authorities within specific framework. Although “realistically” ...
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Properties of NGO are classified within 4 main items including: Non-profit-making, non-political, non-governmental and volunteer oriented and its mission is filling probable gaps between government, citizens and transferring goals of society to public authorities within specific framework. Although “realistically” speaking and under influence of some policies, there are some differences between “current” status of Iranian mosques with functions of NGO and in relation to the feature of being “Non-governmental”, there is no significant compatibility; from “Theoretical” point of view there is maximum compatibility and proximity between “noble” functions of mosque with that of NGO. Findings of this descriptive-analytical research showed that it can and should be considered negligent in considering the mosque as an NGO, so that by reforming the laws, regulations and macro-cultural policies in this field and accompanying the mosque with all the main components of the NGO, the strengthening and developing of the "civil society" can be achieved.
Public Law
omid shirzad
Abstract
Relations between state and ethics or religion is one of the important subjects in political philosophy and public law and there are several approaches about it. In this meantime, Professor Naser Katouzian refers to three kind of Relations between state and ethics or religion and points out the theory ...
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Relations between state and ethics or religion is one of the important subjects in political philosophy and public law and there are several approaches about it. In this meantime, Professor Naser Katouzian refers to three kind of Relations between state and ethics or religion and points out the theory of stipulated state to ethics, state that is beside of ethics or religion and the governor state on ethics or religion. This paper has considered the doctrine of professor and with utilization from other sources in public and constitutional law, has completed this issue .The author has considered the concepts of perfectionist and neutral state as related concepts to stipulated state to ethics, state that is beside of ethics or religion and with conceptual analysis about them, has remarked the necessity of obstruction the line from perfectionism to despotism.Naser Katouzian is undoubtedly one of the most influential figures of Iranian law in the contemporary era. An unforgettable and moral teacher whose works and school of thought every professor and student of law in Iran is indebted to and rereading his doctrine can be considered a solution to most legal problems of the society. Despite the professor's specialized entry into private and civil law and dedicating the major part of his works to this field, his concern about the relationship between the state and the nation and public law had him write in this important field and take part in preparing the draft of the Constitution of the Islamic Republic of Iran and setting up the foundations of Iran’s political-legal system.In this article, the author has turned to one of the important views of Professor Naser Katouzian regarding the relationship between the government, ethics, and religion and tries to evaluate the professor's doctrine in this field as much as possible. Reexamining this point of view was not only necessary at the beginning of the Islamic revolution, but also nowadays. It can be very effective in explaining the foundations of the Islamic Republic of Iran's constitution and governing political system. Therefore, the main Point of this research is the relationship between state, ethics, and religion in the thinking of Professor Naser Katouzian and formats and forms in which this relationship will appear.In analyzing the relationship between the state, ethics, and religion and in a basic classification, Katouzian points to the state that is bounded to ethics and religion, the state that is beside ethics and religion and is neutral, and the state that rules on ethics and religion. The professor considered religious governments, such as Islamic or Christian governments, as examples of the states that are bounded to a certain religion and considers the constitution of the Islamic Republic of Iran and some of its fundamental principles, such as Article IV, as the pledge that has bounded the state to a certain religion and ethics.In the second category, he refers to the governments that are beside ethics and religion and are neutral. In these states, the government is separated from any common philosophical and religious beliefs among the people and ethics, and religion has a personal and private feature next to the government and is ineffective in policymaking and legislation.In the third category, professor Katouzian points to the states that rule on ethics and religion in which the government takes an authoritarian approach. The government has the authority to validate and create rights, good, and even morality and it is under the government’s will that the moral progress and evolution of citizens is pursued.This paper considers the doctrine of Professor Katouzian and by looking at other sources in public and constitutional law, has developed this issue. The author has considered the concepts of perfectionist and neutral states as related concepts to states that are bound to ethics and states that are beside ethics or religion and by conceptual analysis of them has remarked the necessity of preventing the progression of perfectionism to despotism. Professor Katouzian's concern about the pure sovereignty of the government over the right and good is commendable in the author’s view. This research intends to talk about the limitations and restraints of the government's power and its lack of sovereignty over the rights and morals with reference to the professor's doctrine.Professor Katouzian criticizes authoritarian governments that rule on ethics and religion and in practice, examples of these outlooks in government such as Nazism and fascism have left bitter experiences for humanity and history. consequently, the author expresses his concern about the transition from perfectionism to authoritarianism and considers understanding the basis of modern public law as the mechanism to prevent this transition.Therefore, the legal system in a government that is bounded to ethics and religion must recognize and guarantee the values of the public such as the rule of law, separation of powers, accountability, supervision and balance, transparency, fundamental rights and freedoms for the citizens, etc. In this way, It will help to spread morality in the society. we propose that the achievement of a virtuous society is directly linked with good governance, correct management of public resources and their optimal allocation to public needs, and efficient management of conflict of interests among members of the political society. These will give the citizens the opportunity to live a dignified life and the opportunity to think about moral virtues and the meaning of life and will reduce immorality and vices in society.
Mehrnoosh Mazloomian; , Hossein Rahmatolahi; Mohammad Mohammadi Gorgani; Mahdi Mokhtati
Abstract
Because of the economic, political and social conditions of iran in the early 1950s which resulted in a state of emergency, Dr. Mosadegh, the incumbent prime minister, made some supposedly legal actions and decisions affecting the Majles (the Parliament) and its law-making power. At first, to enquire ...
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Because of the economic, political and social conditions of iran in the early 1950s which resulted in a state of emergency, Dr. Mosadegh, the incumbent prime minister, made some supposedly legal actions and decisions affecting the Majles (the Parliament) and its law-making power. At first, to enquire the people's opinion he held a referendum, and based on its result he asked for the dissolution of the 17th Majles. In addition to that, he asked the Majles to delegate him the legislative power in nine specific issues, in August 1952. But in this case, he did not refer to the people’s vote. Since the Constitution of 1906 is silent about the issues such as referendum, state of emergency, and delegation of power, this article tries to recognize the mentioned subject matters in constitutional law and to analyze Dr. Mossadegh’s actions in holding referendum, dissolution of parliament, and requesting the delegated powers from the viewpoint of “the Constitutional Theory” in the parliamentary system.
International Law
Heidar Piri
Abstract
1. IntroductionIn recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable"[1] doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use force in self-defense against non-state terrorist actors operating ...
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1. IntroductionIn recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable"[1] doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use force in self-defense against non-state terrorist actors operating within the territory of host states based on the unwillingness or inability of the territorial state to control them. The unwilling or unable doctrine has one of the lowest standards with which it determines when non-state terrorist organizations can legally be attacked in third states based on the right of self-defense,[2] even though the legality of such use of force against non-state actors in weak host states, without the consent of the host state, is unclear. In the context of legal positivism, this article seeks to prove whether the current sources of international law allow states to recourse to the unwilling or unable doctrine in the host state. Since these concepts have not been mentioned in any legal document (besides Article 17 of the Rome Statute and the 1951 Refugee Convention) or even international case law, it is not clear whether it is possible to accept such use of force in international law despite its prohibition in the UN Charter, denying its legitimacy by most publicists, very little occurrence of it in the practice of states and subjectivity of the concept of unwillingness or inability. The International Court of Justice and some scholars also deny the legality of the use of force in an ineffective host.This article seeks to critically examine and demonstrate the evolution of the use of force in the name of self-defense against non-state actors in the territory of host states, which is justified by the unwilling and unable doctrine. The purpose of this research is not only to identify the unwilling and unable doctrine but also to offer a practical solution to the challenges regarding extra-territorial self-defense against non-state terrorist organizations.Research Question(s)This article, by examining de lege lata, seeks to verify whether treaties, customary laws, and international judicial practice allow states to legally resort to the unwilling and unable doctrine in another state (the host state). In other words, has the unwilling and unable doctrine become a part of international law (as it exists)? Moreover, does the doctrine provide a legitimate way to use transnational self-defense against non-state actors, particularly in a situation where the host state is willing to repress the non-state actors but is unable to do so? Based on which criteria is it determined that the host state is unwilling or unable to fight the threat posed by the non-state actors? Finally, is it possible for the acting state to make this decision unilaterally or does the host state also play a role in this regard? MethodologyThe article has used descriptive and analytical research methods. The necessary data has been collected through the library research method by reference to relevant books, essays, and international judicial decisions. FindingsThis article shows that although the right to self-defense in ineffective host states may be desirable in light of the contemporary security and safety threats, the existing data about the doctrine is incomplete and has many gaps. The "unwilling" and "unable" doctrine presents a significant challenge to the “rule of law” in international law. This doctrine based on self-judgment theories in international law and providing exceptions to the jus ad bellum regime, not only leads to the instability of this regime, but also its legal justifications are a serious attack on the fundamental legal concepts that are generally accepted in international law. This article, with a legal positivist look, believes that any resort to the "unwilling and unable” doctrine is subject to the following criteria: an armed attack according to Article 51 of the Charter, lack of control of the host state over its territory, proof of inability and unwillingness of the host state by the victim state, act of the victim state with the consent and cooperation of the host state, giving the host state a reasonable time to effectively deal with the non-state actor, and the inability of the host state based on duty of due diligence, lack of cooperation by the host state and refusal to accept international assistance. ConclusionAccording to the above, the inevitable conclusion is that it’s very difficult to balance the unwilling or unable doctrine with the jus ad bellum regime. This doctrine lacks both a legal underpinning and a clear, distinct content. The criteria for the unwillingness and inability, the legality of self-defense, and the permissibility of resorting to force in an ineffective host state do not have a valid basis in either treaty law or customary international law; It is not mentioned in Article 51 of the UN Charter, nor have the states accepted it sufficiently. The International Court of Justice and the most highly-qualified publicists have also refused to recognize such use of force. Due to the change in the nature and power of terrorist organizations, the rules in this field remain unclear and this field is replete with legal uncertainty. It is not surprising that the UN charter is not able to provide clear answers for these situations.Despite the relative success of the jus ad bellum regime in preventing armed conflicts between states, the mentioned doctrine undermines the legal framework regulating prohibition on the use of force and poses a threat to the UN Collective Security System. The doctrine distorts the concept of imminence and damages the definition of armed attack[3] 3 enshrined in Article 51 of the UN Charter by lowering the threshold for the justifiable use of force in self-defense. It also destabilizes the fundamental principle of necessity in self-defense. Finally, by providing weak governing standards for the victim state may make unilateral decisions as to the necessity of the use of force, in spite of the disapproval or unwillingness of the host state, the doctrine extremely over-privileges the interests of the powerful states at the expense of the rights and interests of typically weaker host states. Consequently, it should be acknowledged that the doctrine created to address the limited and specific threat of transnational terrorism cannot be a justification for weakening the regime designed to maintain international peace and security.If we apply this doctrine, any state will be allowed to start military operations simply on the pretext of the host state’s inability to suppress a terrorist group. Accepting to such a view by the international community and allowing to create this new legal order will lead to a fundamental change in the UN system if it is not completely damaged. By granting discretion to any state to adopt unilateral actions in the war on terror, through the unwilling and unable test, it simply ignores some fundamental provisions of the Charter (Article 39) and challenges the entire Collective Security System of the Charter. Creating unwritten exceptions to the principle that prohibits the use of force not only causes problems for the integrity of international law but also leads to disorganization in international law.Finally, within the framework of the lex lata, the only point that can be said regarding self-defense against attacks by non-state actors in situations, lower than the threshold that the ICJ has stated in the Nicaragua case, is that such actions are undoubtedly illegal. In the framework of the Lex ferenda, we believe that the customary law is evolving regarding the applications of Article 51 of the UN Charter, defensive action in the territory of target states, and the use of force against non-state actors in host states. Even in the light of Lex ferenda, it cannot be said that the unwilling and unable doctrine is currently an established rule of international law.[1]. Ashley Deeks, “Unwilling or Unable: Toward a Normative Framework for Extraterritorial Self-Defense”, Virginia Journal of International Law, Vol. 52, (2012), at 483,505.[2]. Sjöstedt Britta, “Applying the Unable/Unwilling State Doctrine – Can a State Be Unable to Take Action?”, Heidelberg Journal of International Law, Vol. 77, (2017), at 39.[3]. Craig Martin, “Challenging and Refining the Unwilling or Unable Doctrine”, Vanderbilt Journal of Transnational Law, Vol. 52, (2019), at 460.
Roohollah Makarem; Hadi Tahan Nazif
Abstract
Increase in Legislation leads to inflation of laws. Certainly, this problem causes inefficiency of laws. So, codification seems to be necessary. Despite 110 years of history of legislation in Iran, the first act of codification was enacted about 60 years ago. The legislative power should be the main ...
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Increase in Legislation leads to inflation of laws. Certainly, this problem causes inefficiency of laws. So, codification seems to be necessary. Despite 110 years of history of legislation in Iran, the first act of codification was enacted about 60 years ago. The legislative power should be the main legal entity that is responsible for codification. By the way, there are other legal entities –such as of the Vice Presidency for Legal Affairs - that prepares the process of codification. This deputy has published its codified laws in various forms like books, sites and applications. In this paper we tried to evaluate this collection, using the analytical-descriptive method. In conclusion, we saw two kinds of problems in this case: implementation problems and theoretical problems. Between these dual problems, implementation problems contribute more. In another way, this office is a few steps ahead of other similar institutions. Also, it has been able to apply the principles of codification equally to all laws.
Mahdi Mahdavizahed
Abstract
Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility ...
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Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility of multidisciplinary in law is of concern here.
In this study, it is argued that, sociology of public law as a multidisciplinary field of studies has affected theory of state. The study of public law and sociology rests on the belief that legal rules and decisions must be understood in the context. Public law is not autonomous, standing outside of the social world, but is deeply embedded within the society.
In this paper, it is illustrated how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law. It is concluded that sociology of public law is based on “legal realism” and the concept of rule of law is shaped from this theory.
Mohammad Habibi Majandeh; afife gholami
Abstract
Environmental considerations have always been a challenge for foreign investment. The need to observe environmental minimums from the beginning to the end of the investment is also a concern of environmental law activists. In the meantime, the host state faces sometimes conflicting commitments. State ...
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Environmental considerations have always been a challenge for foreign investment. The need to observe environmental minimums from the beginning to the end of the investment is also a concern of environmental law activists. In the meantime, the host state faces sometimes conflicting commitments. State dual obligations to foreign investors on the one hand, and the whole citizens on the other, has in many cases led to disputes, rooted in environmental norms. The main question is how the arbitration mechanism can take an active stand in the face of such disputes? The main purpose of this study is to examine the reflection of these conflicts in investment arbitration and the importance and role of arbitration in improving the environmental status. The authors of this paper believe that the arbitration system has tools that it can use in resolving disputes to balance these conflicting obligations. Some of these legal tools are directly or indirectly related to investment agreements, and others are beyond the treaty and based on international principles, rules, customs and practices.
