International Law
Vahid Salehi; Mohammad Hashemi; Seyed Ghasem Zamani
Abstract
IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental ...
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IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental and intellectual peace of a person, has legal effects on social relations, it has been attended to by the legal, legislative, and judicial systems of the countries since a long time ago, and the mechanisms for its establishment have been set out to guarantee the fundamental rights of people. The destruction of domestic governmental and non-governmental organizations, especially the judicial system in the two mentioned territories (the former Yugoslavia and Rwanda), highlights the domestic inability of these countries to establish transitional justice and national reconciliation between the militant groups and the survivors and victims of international crimes. These courts were created as a part of the global strategy to end violence and prevent its reoccurrence, establish justice in the mentioned territories, and establish international peace and security. therefore, by anticipating the most important aspects of the protection and guarantee of the fundamental rights and freedoms of individuals (including the accused, suspects, convicts, victims, and witnesses), the goal of legal security has been made possible to reach.The main question of the article is, what impact have the mentioned courts had on the establishment of the principle of legal security in the international arena and the relevant countries? Literature ReviewAlthough many books, treatises, dissertations, and articles have been authored on each of the topics of this research on both the domestic and international stage, the research method of this essay that considers the function of these two international criminal courts in the creation of this principle is unprecedented. Therefore, the following article is new research. finding a solid and meaningful link between the objective criteria of the principle of legal security and the decisions and opinions of the courts in their judicial proceedings is the main innovation of the present research. The purpose of this research is to show the practical approach of the mentioned international criminal courts towards legal security. Methodologythis research is both an "applied research" and a "fundamental" one in terms of its purpose, results, and use. The research method is "descriptive and analytical" in terms of the nature of the subject and the method of analysis. The data collection has been through library research, i.e., reference to academic and personal libraries, legal research centers, and accessing books, articles, theses, magazines, academic theses, and websites.Accordingly, We Will Discuss the Following The Concept of Security in the Domestic and International ArenaIn general, security is a situation where a kind of reasonable and proportionate link is between the demands and the possessions of the actors in a political and legal community which ultimately leads to the satisfaction of those actors. The concept of legal security has entered the international arena from the domestic laws of the countries, and various forms of human security have been met with the approval of the most important international documents (such as the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights). Sub-principles Resulting from the Legal SecurityAlthough in terms of the diversity of the legal, political, economic, social ,and cultural concepts and trends, it is not possible to present afixed ratio and connection between the protection of citizenship rights and legal security, in general, there are legal regulations and legal criteria in the legal system of countries which are not only secondary to the principle of legal security but are also its constituent elements, and in terms of importance in the legal literature, they are interpreted as "principles". What is meant by the sub-principles arising from the principle of legal security is these rules and criteria which can be categorized into the two forms of principles that guarantee the quality of laws (such as the principles of transparency and ease of access to laws) and the principles that guarantee the legal status of individuals (the principles of predictability of laws and the presumption of innocence). The first group is the principles that protect the rights of citizens, And the second group protects the legal security of the citizens against the government’s power and are actually the supporters of fundamental individual freedoms. The stronger the mechanisms of safeguarding individuals’ fundamental rights, the stronger and more stable their security against the government is. The practice of the International Criminal Courts of the Former Yugoslavia and Rwanda in facing the said principles is:1-3. The principles that guarantee the quality of the lawsThese are the principles that contain the components of the laws in expressing the rights and duties of persons. The significant feature of these principles is that not only must laws be clear and understandable to individuals, courts, and states, but they also must be easily accessible. Transparency of the laws and ease of access to them are among the most important principles that guarantee the quality of laws. Not only the compliance of the laws, regulations, statutes, and procedures of the two Criminal Courts to the international standards and human rights has added to the richness of their quality, but also the practical practice of the said courts in removing the ambiguity and clarifying the laws and also facilitating access of users and actors to the rules and regulations has established and increased legal security.2-3. The Principles that Support the Legal Status of PeopleThese principles are related to the stage of applying laws and regulations. The main function of the aforementioned principles is to maintain the status created for individuals by the legal norms. The principle of predictability of laws is one of the most important of these principles, which are set out in the statutes, rules of procedure, and evidence of specific criminal courts and have manifested in the practice of those courts.4. ConclusionIn hearing and deciding important cases such as; Tadić, Ekaiso, Hasanović, Blaskić, Simić, Selbići and Delalić, Erdemović, Kernojlač, Milosevic and Berdjanin, The mentioned International Criminal Tribunals have set the ground for the establishment and promotion of legal security at both the domestic level of these countries and in the international arena by clarifying and removing the ambiguity from the laws and regulations, promoting the principle of ease of access = to laws, employing the presumption of innocence principle, observing the international human rights and resorting to customary international norms regarding the extension of laws to former criminal behaviors, and by compliance with the principle of predictability of laws (despite the legal and judicial challenges in this field), while preventing the impunity of the perpetrators of international crimes under their jurisdiction.Keywords: Legal Security, International Criminal Tribunals, Former Yugoslavia, Rwanda, Innocence, Ease of Access to Laws.
S.Ghasem Zamani; hoda Shakib manesh
Abstract
Legitimate expectations protect the negotiated tariff concessions from being adversely modified. The principle of legitimate expectations considered as a ‘well-established’ principle specific to WTO is implicitly stated in Article III of General Agreement on Tariffs and Trade (GATT). It is ...
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Legitimate expectations protect the negotiated tariff concessions from being adversely modified. The principle of legitimate expectations considered as a ‘well-established’ principle specific to WTO is implicitly stated in Article III of General Agreement on Tariffs and Trade (GATT). It is also explicitly codified in paragraph 3 of Article XVII of General Agreement on Trade in Services (GATS) which considers the modification of conditions of competition as a violation of the non-discrimination obligation.
The dispute settlement body in the WTO recognizes the legitimate expectations as a “conditions of competition” where foreign markets trust domestic markets based on the negotiated tariff concessions.
So, any actions inconsistent with the overall level of negotiated commitments which have not become enforceable and predictable may constitute the violation of legitimate expectations. In conclusion, the principle of good faith is a tool to accommodate under the protection of legitimate expectations that “impaired benefits” could be claimed under a non-violation type complaint. Furthermore, this article demonstrates how the principle of legitimate expectations, in addition to protecting tariff consolidation, works effectively to fill the void and guarantee competitive opportunities.
S.Ghasem Zamani; behnaz ahmadvand
Abstract
Incredible development in communications, especially in the last two decades, has changed the entire worlds communications system. The main accessibility to new information system by advanced technology and huge investments in this field shows a new description of power and its balance in the present ...
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Incredible development in communications, especially in the last two decades, has changed the entire worlds communications system. The main accessibility to new information system by advanced technology and huge investments in this field shows a new description of power and its balance in the present world. Therefore, the relationship between government and mass media, in different legal systems, in three stages of policy making, legislation and regulation plays a big and effective role in this regard. It has to be said that audiovisual communications have not been subject to the same legal systems governing the rest of the media, and in all of the political regimes in the world, government interventions in this sector have always been more intense. This article is an attempt to localize and recognize the obstacles to establish the desirable satellite television model in Iranian legal system by introducing the American model in the field of satellite communications, as the desirable model in the world.
Valiollah Noori; Seyed Ghasem Zamani
Abstract
In the past, most armed conflicts were international, but today armed conflicts often are non-international and internal conflicts. However most of international armed conflicts rules are about international armed conflicts and some of them regulate non-international conflicts. Applicability of some ...
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In the past, most armed conflicts were international, but today armed conflicts often are non-international and internal conflicts. However most of international armed conflicts rules are about international armed conflicts and some of them regulate non-international conflicts. Applicability of some of international humanitarian law rules to this kind of conflicts is doubtful. One of these rules is the principle of proportionality.
This principle means that incidental and consequential damages resulting from an attack against civilians or civilian objects should not exceed the direct military advantage expected of the attack. 1977 Additional Protocol II to the 1949 Geneva Conventions which deals with the rules governing non-international conflicts has not referred to this principle. However, in accordance with what is discussed in this paper, the principle of proportionality is applicable to these conflicts.
seyed ghasem zamani
Abstract
Religious freedom is one of the most fundamental human rights which has been embodied and recognized in essential universal and regional human rights instruments, including universal declaration on human rights, international convent on civil and political rights, European convention on human rights, ...
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Religious freedom is one of the most fundamental human rights which has been embodied and recognized in essential universal and regional human rights instruments, including universal declaration on human rights, international convent on civil and political rights, European convention on human rights, American convention on human rights, African charter on human and people rights and Islamic declaration on human rights. Most of these instruments provide that Freedom of religion may be subject to conditions and restrictions such as national security, public safety and protection of health or morals. European Court of Human Rights, as a judicial body of European convention, in its jurisprudence determinate the scope of margin of appreciation. In this article, margin of appreciation and States maneuver in interpretation and implementation of religious freedom were analyzed in light of the jurisprudence of European Court of Human Rights
S.Ghasem Zamani
Abstract
Convergence and divergence of Individual criminal responsibility and international responsibility of States for wrongful acts:Taking a Look at Iran- Iraq War Case (1980)Abstract:On September 22, 1980, Iraq launched an invasion against Iran. The Iraqi army, trained and influenced by Soviet advisors, had ...
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Convergence and divergence of Individual criminal responsibility and international responsibility of States for wrongful acts:Taking a Look at Iran- Iraq War Case (1980)Abstract:On September 22, 1980, Iraq launched an invasion against Iran. The Iraqi army, trained and influenced by Soviet advisors, had organic chemical warfare units and a wide variety of chemical materials and delivery systems. The continuous use of chemical weapons by Iraq against Iran during the war was indeed in violation of Iraq's obligations under 1952 Geneva Convention Protocol and also the principals of international humanitarian law. However taking a look at Iran-Iraq war demonstrates that two aspects of responsibility in this case could be distinguished. While the perpetrators of war crimes are responsible for the acts in their individual capacity, the State is also responsible for its international wrongful acts. In this article the different aspects of the case will be examined in theory and practice. Keywords:Iran-Iraq war, international responsibility of state, individual criminal responsibility, chemical weapons, war crimes
Rahmatollah Farokhi; Mohammad Hossein Ramazani Ghavam Abadi; Seyd Ghasem Zamani
Abstract
European Court of Justice (ECJ) is the judicial body of the European Union (EU). Since its founding in 1952, ECJ has always played a prominent role in the development of the EU law. What has been studied in this article is the role of ECJ in transition of the EU law from duality (between national law ...
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European Court of Justice (ECJ) is the judicial body of the European Union (EU). Since its founding in 1952, ECJ has always played a prominent role in the development of the EU law. What has been studied in this article is the role of ECJ in transition of the EU law from duality (between national law of member states and EU law) to legal monism with the superiority of EU law. In implementation of its effective role, the ECJ has utilized different instruments such as Interpretation of EU law under the preliminary rulings, addressing the infringements of the EU law, recognizing the general principles of law in the form of case law, and also the principle of proportionality of regulations and domestic politics to promote the position of EU law in relation to municipal law of member states. This research partly reveals the process of EU legal integration, through the study of the ECJ case law
seyd ghasem Zamani; Ali Navari
Volume 16, Issue 46 , September 2015, , Pages 9-37
Abstract
The overwhelming view concerning the unilateral secession under contemporary international law is that, in international law, there is no rule in regard to secession. some international lawyers concentrate upon the principle of respect to territorial integrity of independence and sovereign states and ...
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The overwhelming view concerning the unilateral secession under contemporary international law is that, in international law, there is no rule in regard to secession. some international lawyers concentrate upon the principle of respect to territorial integrity of independence and sovereign states and maintain that unilateral secession is unlawful. Meanwhile a moderate and relatively new approach has been proposed by some international lawyers so called “Remedial Secession Doctrine” that according to it, although international law supports territorial integrity of independence and sovereign states in international community, in special circumstances, a state cannot rely on its territorial integrity. The principle of Self-Determination of peoples prevails over Territorial Integrity and so, secession of a part of territory of a state by a people comprising a part of the population of the territory would be possible. Basis and foundation of such argument is relies on inverted reading of the “safeguard clause” embodied in the United Nations General Assembly resolution 2625 that repeated in 1993 Vienna declaration and program of action. this characterize the existence of the Right to Remedial Secession in National and Regional Judicial Decisions.
seyd ghasem zamani; mona sadat mirzadeh
Volume 16, Issue 43 , February 2015, , Pages 81-108
Abstract
Attribution of private-person’s act to a state is accepted in international law insome exceptional matters. Acting under the direction or control of the state is oneof those exceptional cases; by proving state control over private persons andentities, their actions are attributable to the state. ...
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Attribution of private-person’s act to a state is accepted in international law insome exceptional matters. Acting under the direction or control of the state is oneof those exceptional cases; by proving state control over private persons andentities, their actions are attributable to the state. However for understanding therequired level of the control and direction, we shall review and inquiry the judicialjurisprudence in order to make these theoretical concepts more tangible. Iran-U.Sclaims tribunal, as the most prominent international arbitration, has separatedjurisdiction and the merit phase in some of its cases.From jurisdictional point ofview, the tribunal has applied a looser standard while in the merit, tribunal’sapproach has more affinity for theory of effective control. In such cases, as ageneral rule,stateshave notbeenliable for the conduct of non-state actors unlessthe tribunal could find the conduct in question intensely controlled by the state.Indeed the tribunal, in place of determining standard of control in these kinds ofcases, has not lowered the threshold for imputing private acts to statesbut treatedwith it in an exceptional manner. The purpose of present article is to examinestandard of direction and control, while the focus is on the jurisprudence of Iran-U.S claims tribunal.
Seyed Ghasem Zamani
Volume 15, Issue 40 , September 2013, , Pages 115-140
Abstract
There are instances in Municipal jurisdictions where Corporate legalprotections -generally granted as a result of their legal entity- isabrogated, thus empowering third parties to file claims directly againstindividuals responsible for corporate’s conducts. Similarly in InternationalLaw there are ...
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There are instances in Municipal jurisdictions where Corporate legalprotections -generally granted as a result of their legal entity- isabrogated, thus empowering third parties to file claims directly againstindividuals responsible for corporate’s conducts. Similarly in InternationalLaw there are circumstances in which Corporate’s protections are liftedand International responsibility of states may arise as a result of actionstaken by private companies national to it. In such instances, there must beproof of indications that the private company in question has beenexercising sovereign power, has been superintended by the stategovernment and/or has followed its orders. Even so , where the aboverequirements are not so present altogether, state responsibility for privatecompanies conducts may still be envisaged as result of states responsibilityto protect human rights.
sayed ghasem zamani
Volume 8, Issue 19 , December 2006, , Pages 25-41
