International Law
Ahmad Ebrahimi; Amirsaed Vakil
Abstract
Abstract The phenomenon of "match-fixing" today as a modern symbol of corruption in the field of sports has become a transnational and cross-border problem due to its connection with events such as gambling, betting and the role of international organized criminal groups interwoven with it. The spread ...
Read More
Abstract The phenomenon of "match-fixing" today as a modern symbol of corruption in the field of sports has become a transnational and cross-border problem due to its connection with events such as gambling, betting and the role of international organized criminal groups interwoven with it. The spread of this phenomenon has made various sports disciplines, different levels of competitions and different athletes, coaches, referees and competition officials to be involved in it. Therefore, the need to deal with "match-fixing" in a comprehensive and coordinated manner with the help and cooperation of all the stakeholders in the field of sports has been doubled. This The present article first tries to deal with the phenomenology of "match-fixing" and its place in various international documents in a descriptive-analytical method and then provide a more accurate evaluation of the regulations and sanctions of "match-fixing" in order to offer a framework to deal with it more effectively trough identifying and analyzing the legal nature of this phenomenon as a national and transnational issue, especially in the field of international sports law, with the emphasis on its structures including the opinions of the Court of Arbitration for Sport.
International Law
Mahdi Mohebirad; Mehryar Dashab
Abstract
Following Qatar's diplomatic crisis in 2017, the UAE implemented a series of measures against Qataris. In response to these measures, Qatar filed an application against the UAE in the ICJ. Qatar cited the violation of the ICERD and claimed racial discrimination based on the national origin of Qataris. ...
Read More
Following Qatar's diplomatic crisis in 2017, the UAE implemented a series of measures against Qataris. In response to these measures, Qatar filed an application against the UAE in the ICJ. Qatar cited the violation of the ICERD and claimed racial discrimination based on the national origin of Qataris. While issuing an order on July 23, 2018, the ICJ concluded that according to Article 22 of the ICERD, it has the primary jurisdiction to deal with the case and that the dispute between the parties was related to the interpretation or application of the Convention. The controversial point was the deviation of the court from its position. In the judgment of February 4, 2021, the ICJ considered Qatar's application out of its jurisdiction. The main question of this research is that what is the relationship between racial discrimination based on "national origin" and discrimination based on "current nationality" according to the ICERD? The studies carried out in the form of descriptive-analytical method show that there were challenges regarding the scope of racial discrimination in the travaux preparatoires and the term "national origin" encompasses "current nationality". The Court's narrow interpretation of the term "national origin" in this case is debatable.
International Law
Mahmoud Hajjar; Seyed ghasem zamani
Abstract
The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, ...
Read More
The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, can play an important role in the interpretation of treaties. A treaty is a creation of the international legal system, and its interpretation and implementation should be carried out within the context of the legal system that governs it. The main question to which this research intends to answer is: What is the position of general principles of law in the interpretation of treaties? It seems that the use of general principles of law in the interpretation of treaties can reduce the potential fragmentation of international law and promote its coherence. In this research, by using library sources, international documents and international judicial decisions and arbitration awards and using a descriptive-analytical method, the position of general principles of law in the interpretation of treaties will be examined.
International Law
Hojatollah Mansouri; Soheyla Koosha; Mohammadreza Hatami; Hossein Alkajbaf
Abstract
Protecting the rights of women has been a permanent concern of human rights advocates throughout the last two centuries. Attempts led to the recognition of the principle prohibiting gender discrimination in several core human rights instruments and the Convention on the Elimination of All Forms of Discrimination ...
Read More
Protecting the rights of women has been a permanent concern of human rights advocates throughout the last two centuries. Attempts led to the recognition of the principle prohibiting gender discrimination in several core human rights instruments and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). However, reports indicate that many States have not fully adhered to the provisions of CEDAW. It is important to review the basic concepts of gender discrimination and the provisions of the Convention to analyse the feasibility of its implication in societies that have diverse norms. Drawing on qualitative research this article attempts to answer the key question “What is the approach of CEDAW to norms governing different societies and what legal standards do the Islamic Sharia norms require to be considered in municipal legal systems and the context of CEDAW?”. After providing a brief description of fundamental concepts in the field of gender equality, it critically reviews CEDAW and expounds on the quiddity and the causes of its shortcomings. Finally, it deals with the major contradictions between the provisions of CEDAW and the norms prevailing in Islamic societies and tries to propose an Islamic standard in this regard.
International Law
Abdollah Abedini
Abstract
The general principles of law are considered one of the main sources of international law, which have special features such as filling gaps or legal abstractions, as well as creating coherence in the international legal system. These principles are usually taken from domestic legal systems and some others ...
Read More
The general principles of law are considered one of the main sources of international law, which have special features such as filling gaps or legal abstractions, as well as creating coherence in the international legal system. These principles are usually taken from domestic legal systems and some others are specific to the international legal system. In its approach of the last two decades, the International Law Commission has started to examine the sources of international law and has so far concluded the issue of unilateral legal declarations, customary international law, and, (with some tolerance) peremptory norms of general international law. Currently, the issue of general principles and subsidiary means of determining the rules of international law is on the Commission's agenda. Examining Iran's approach in the field of general principles of law forms the subject of this article, so that while monitoring Iran's approach to the course of study of the Commission, the attention of the international law society of Iran will also be drawn to this issue in further researches.
International Law
maryam hosseinabadi; Seyed Qasem zamani
Abstract
The presence of Non State Armed Groups (NSAGs) in non-international armed conflicts has become a threat to the international peace and security in the last few decades. In this regard, shedding light on the matter of the aforementioned entities' adherence to the rules and regulations of international ...
Read More
The presence of Non State Armed Groups (NSAGs) in non-international armed conflicts has become a threat to the international peace and security in the last few decades. In this regard, shedding light on the matter of the aforementioned entities' adherence to the rules and regulations of international humanitarian law, as a branch of international law regulating armed conflicts, as well as its necessity through examining theoretical foundations proposed in this field of study is of great significance, since the effect of their adherence to the provisions of this field of law as primary rules, is, in turn, reflected in applying secondary rules. On the basis of analogical method and through examining international sources and doctrine, this article aims to shed light on the theories concerning non state armed groups` adherence to the rules of international humanitarian law and its effect on secondary rules with emphasis on the non- international along with internationalized armed conflict in Yemen. It is finally concluded the theory of binding force of IHL on NSAGs due to the exercise of de facto governmental functions may explain the aforementioned entities' commitments to rules in question more clearly.
International Law
Abbasali Kadkhodaei; Mohammadreza Mohammadi
Abstract
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process ...
Read More
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process occurs to take advantage of a process with different intentions in order to disrupt proceedings. Abuse of rights is an issue that is related to the substantive part of a case, while abuse of process is a non-substantive issue in most cases and is raised in the admissibility. This study's main objective is to examine the practice of the ICJ in relation to the abuse of rights and abuse of process. The research method of this research is descriptive-analytical by using library-documentary sources. Despite the refusal of the court to state the status of abuse of rights and process, today these concepts can be referred to as general principles of law in international law. This article proves that the court considers a high threshold to accept the realization of the abuse of rights and process, and so far it has not been able to confirm such abuse.
International Law
Meisam Norouzi; Pouya Berelian; Mehdi Eskandari Khoshgu
Abstract
So far, states' obligations to reduce greenhouse gas production have proved ineffective, and greenhouse gas emissions continue to increase. In such a circumstance, the approach to the legal obligation of states to reduce environmental risks associated with greenhouse gas production must provide a fresh ...
Read More
So far, states' obligations to reduce greenhouse gas production have proved ineffective, and greenhouse gas emissions continue to increase. In such a circumstance, the approach to the legal obligation of states to reduce environmental risks associated with greenhouse gas production must provide a fresh insight into environmental damage, as well as facilitating the exploration of sustainable, ethical, and fair alternatives. It is undeniable that states' actions and the release of greenhouse gases by them will lead to the complete destruction of the earth in terms of environmental pollution and global warming. Consequently, it is essential that a strategy is developed to hold the state accountable for the environmental risks posed by greenhouse gases. Current research focuses on the critical question of what obligation states have to mitigate greenhouse gas emissions in order to counter global climate change, and to what extent are these Obligations legally binding? In light of the answer to this question, we assume that there are specific obligations imposed on states in order to reduce the amount of greenhouse gases produced in comparison to the past in order to achieve the goals of combating global climate change.
International Law
Elham Aminzadeh; mersedeh mazloumi; Amirsaed Vakil
Abstract
Recently, water have become important for the economy and population; therefore, managing of these resources and preserving the environment requires multilateral approaches from states and other international actors. This situation is more complicated when a water source is shared between several states; ...
Read More
Recently, water have become important for the economy and population; therefore, managing of these resources and preserving the environment requires multilateral approaches from states and other international actors. This situation is more complicated when a water source is shared between several states; because the amount of water resources is limited and should be distributed fairly among neighboring states. Because of the optimal management and exploitation of water resources, environment preservation and hydropower development, Germany has been the focus of attention in domestic and cross-border dimensions. The main question is “what is the approach in the German legal documents and practical procedure to deal with the conflicts raised in the field of shared water allocation?” Its solutions can be used in other states to solve the problem of how to distribute shared water between opposite and neighboring states. The solutions are found in the legal documents and its practical procedure, which through analyzing them in an analytical method, the principles of reasonable and fair use, assessment of potential, actual and future needs of states and prevention of damage reserves along with cooperation between states are presented. The maximum amount of service to the whole human society has been inferred.
International Law
Milad Haji Esmaeili; Mehrab Darabpour
Abstract
The United Nations Global Compact, with more than 23000 voluntary participants, is the world’s largest corporate citizenship initiative, gathering multinational enterprises (MNEs) under an agreement. The purpose of the compact is to achieve the principles of human rights, labor, environmental, ...
Read More
The United Nations Global Compact, with more than 23000 voluntary participants, is the world’s largest corporate citizenship initiative, gathering multinational enterprises (MNEs) under an agreement. The purpose of the compact is to achieve the principles of human rights, labor, environmental, and anti-corruption in the behavior of multinational enterprises. This compact, which was approved in 2000 by the United Nations Economic and Social Council, differs from other international agreements. In this compact, governments do not have a role in regulating MNEs. The United Nations directly supports MNEs to regulate non-compulsory rules with the tools of dialogue, learning and partnership projects. Such an initiative brought a flood of criticism. (1) Its 10 principles are vague. (2) The Compact supports the capture of the United Nations. (3) The Compact is not accountable. The current article is based on the premise that the requirement for this compact is crucial and (a) vague principles are designed to allow MNEs to provide new solutions, (b) the intervention of MNEs in policymaking leads to the systematization of unwritten and behind-the-scenes policies. (c) The criticism of the non-accountability is due to a lack of understanding of the true nature of the compact.
International Law
Masoumeh Parsoon; ali kadkhodaei; mohsen hataminia
Abstract
In 2020, the Eastern Mediterranean region passed one of its most challenging historical times. The discovery of significant hydrocarbon resources deepened the gap between regional countries’ opinions regarding the delimitation of maritime boundaries, which has been accompanied by the influence ...
Read More
In 2020, the Eastern Mediterranean region passed one of its most challenging historical times. The discovery of significant hydrocarbon resources deepened the gap between regional countries’ opinions regarding the delimitation of maritime boundaries, which has been accompanied by the influence of regional and global powers. The existence of oil and gas fields in the Eastern Mediterranean increased the competition of coastal states to expand their claimed maritime area to such an extent that they demarcated maritime borders without being neighbors and pushed NATO members: Turkey, France and Greece to the point of military conflict. In the turbulent political situation of the region, the announcement of Türkiye's Blue Homeland doctrine following the signing of an MOU on the maritime boundary between Türkiye and Libya caused protests by some countries. This issue prompted Greece to continue negotiations with Egypt at a faster pace and reach a maritime border agreement. Although the shadow of the political affairs of the regional countries on the agreements is clear, we will try to examine the legal aspects of Türkiye's action in introducing the Blue Homeland from the perspective of international law of the seas and judicial procedure.
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 ...
Read More
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.
International Law
Sattar Azizi; Keivan Eghbali
Abstract
IntroductionResearch Question(s) The right to development brings forth an approach to the development of human societies in which all human rights standards are considered and the economic development of the nation is fundamentally integrated into the human right to development. Although women make ...
Read More
IntroductionResearch Question(s) The right to development brings forth an approach to the development of human societies in which all human rights standards are considered and the economic development of the nation is fundamentally integrated into the human right to development. Although women make up half of the population of every society, they have always been facing discrimination in achieving their rights. It seems that providing a platform for women for their equal presence in any decision-making process related to human-rights-based development in their respective societies is one of the most efficient ways to facilitate women's achievement of the said right. 2. Literature ReviewRegarding the issue of the right to development and the ways to achieve it, some research has been conducted in Persian, among which we can mention “The Influence of Good Governance on Implementing the Right to Development” by Habibzadeh, et al. (2013). However, not much research has been done to address the issue of women's right to development to be achieved through public participation.3. MethodologyThis research, using a descriptive-analytical method, tries to examine the place of public participation in ensuring women's access to the right to development.4. ConclusionCreating a platform for the presence of women in the decision-making processes provides the opportunity to bring up the needs and the rights requested by women when society makes decisions about planning programs to advance development. In addition, it would provide the possibility of following up on the level of practical attention to women’s needs and priorities in the implementation of these programs. Facilitating the participation of women in the development plans and decision-making processes is an important step in improving their status in other areas such as raising their level of education, health, employment, security, and so forth; because they’ve had the opportunity to express their wishes and opinions in the formulation of the development plans, as well as in monitoring the implementation of these plans. Such participation can lead the way for women to continue a free life, which is the ultimate goal of the right to development.Ensuring public participation of women in the governing of society requires attention to the right to free, fair, equal, open, and transparent participation of the people in the democratic process of managing the affairs of their governments. The said right is considered the right of the people to enjoy a democratic system that allows them to participate widely in the various political, economic, social, and cultural affairs of their country, meaning they can participate in the regularization of relations between the governors and the governed. The important point is that the realization of women's public participation is unimaginable without the existence of tools such as the system of selective representation, a dynamic civil society, and free access to information.One can talk about the real participation of women in a society in determining their own destiny when the said society, in the first stage, has a type of representative system that gives the individuals the right to participate in the selection of the decision-makers, as well as the right to be elected as the decision-makers of the society. As stipulated in Article 25 of the Covenant of Civil and Political Rights, the right of citizens to elect and be elected should be considered as one of the basic elements of public participation.Another essential pillar in the path of realizing the participation of women is the existence of a dynamic civil society. Civil society consists of a wide range of non-governmental organizations formed around the general issues of society, such as seeking justice, religious matters, educational affairs, etc. Civil society plays an important role in informing the elites and the ordinary citizens to get aware of the needs of the public in decision-making. The important impact of institutions in civil society is to strengthen public participation by encouraging citizens to participate politically in the decision-making process. Civil society is considered a very useful groundwork for ordinary citizens, including women, to raise their demands and bring them to the attention of the society's political leaders. The Citizens who lack the support of organized power groups in many cases have less opportunity to raise attention to their demands.In addition to having the right to elect and be elected and the existence of a dynamic civil society, women's public participation is largely dependent on transparency and access to information; Information that should be free, relevant, up-to-date, understandable, and available to individuals and groups of citizens in order to make an informed choice. In other words, the right of access to information is a prerequisite for informed public participation by citizens, including women. The lack of free access to information is a big obstacle in the way of effective participation of women because if the women do not have access to information, they do not have a correct understanding of the discussed issues and will not be able to make appropriate and informed decisions regarding those issues.The experience of countries such as Tunisia or Botswana are good examples of how public participation can be used to voice women’s problems and needs for public decision-making for adopting development programs. This participation has had very positive effects on improving women's access to their rights in the development process of the aforementioned societies, by making it possible to include women's demands in the formulation and implementation of community development programs, as well as in monitoring the progress of these programs.Keywords: Women’s Right to Development, Public Participation, Free Elections, Dynamic Civil Society, Freedom of Media
International Law
Seyed Hossein Malakooti Hashjin; Nasim Soleymani nejad; Seyed Ali Mousavi
Abstract
Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing ...
Read More
Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing daily. Initially, constitutions were primarily considered as national documents confined within a country's borders. However, this perspective no longer holds in the era of globalization. constitutional rights, as a subset of public rights, are no exception. Nevertheless, the internationalization of constitutional laws continues to face numerous challenges and raises many controversies. For instance, if a domestic constitution is influenced by international law, it might undergo substantial changes. This process reflects that national constitutions are essentially part of a broader international legal framework. The inclusion of human rights in domestic constitutions, the increase in the convergence between national and international constitutions, and the alignment of the legal systems with the global market all contribute to the internationalization of constitutions. Furthermore, in entities like the European Union, internationalization occurs partially or regionally which forms the legal framework for the member states. Additionally, focusing on shared ideological principles among governments can lead to the transnationalization of certain constitutional principles. This not only serves to hold governments accountable but also allows for a comparative assessment of judicial practices concerning common issues. In general, the internationalization of constitutional laws can be viewed as a tool to curb the political powers of the government and officials within the framework of harmonized and effective legal principles. This article introduces and explores different facets of this process. Research Questions What are the opportunities and challenges before the internationalization of constitutional laws?What sets the ground for the creation and the status of cross-border principles, and what is their impact on national constitutions? Literature ReviewIn delving into the research background on the internationalization of constitutional laws, it is pertinent to consider factors such as governments' accession to documents related to or containing provisions on international human rights and the shifts in the global legal atmosphere. These steps signify changes in the global legal thinking that play a role in shaping the constitutions of nations. The influence of regional organizations like the European Union in instigating changes in the constitutional laws of member states is also noteworthy. These regional interactions can directly affect the constitutional laws of member states in economic, legal, and political aspects. In this context, many articles have examined the intricate interplay between the Constitution, international law, and global governance[1], as well as the potential for the internationalization of constitutions in different countries through adherence to international documents.[2] However, few sources have tackled the existing challenges and the future prospects. Methodology This research is fundamental research, employing a library-based method to collect and review data from documents, books, writings, articles, and foreign sources. In terms of research methodology, this study follows a non-comparative approach wherein it first delves into the factors and the driving forces behind the shift toward internationalization of fundamental laws, the second part focuses on delineating and explaining partial or regional internationalization and the associated challenges, and finally, the third part presents the outlook of this initiative. ConclusionThis research aims to provide an in-depth understanding of the role of international human rights in national constitutions and the extent to which governments adhere to these documents. It also seeks to elucidate the impact of changes in global legal thinking on the constitutional frameworks of countries and their alignment with international law. The study investigates the role of regional organizations such as the European Union in promoting and facilitating the internationalization of constitutional laws in specific regions and how they affect the methods for adapting and formulating constitutional laws. In conclusion, the study finds that firstly, despite the debates among legal scholars, transnational principles are not always universally applicable, sometimes they are specific to particular geographical regions or their religious beliefs. furthermore, these principles allow oversight of governments and dual control through the application of binding domestic and international mechanisms. additionally, they enable a comparative examination of the judicial practices across different countries on common issues. In conclusion, the essay provides that the internationalization of constitutional laws can serve as a tool to underpin the restraint of political powers within the framework of harmonious and effective legal principles. [1]. Vicki C. Jackson, Paradigms of Public Law: Transnational Constitutional Values and Democratic Challenges, International Journal of Constitutional Law, (2010) 8.[2]. Wen-Chen Chang, ‘An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, National Taiwan University Law Review, (2009) 4(3).
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 ...
Read More
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.
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 ...
Read More
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.
International Law
Mohsen Abdollahi; Seyed Reza Hosseini
Abstract
Introduction The right to self-determination could be applied in situations aiming to prevent crimes against humanity that are subject to the responsibility to protect. Generally, governments that violate the right to self-determination of their people, including minority groups, are more prone to committing ...
Read More
Introduction The right to self-determination could be applied in situations aiming to prevent crimes against humanity that are subject to the responsibility to protect. Generally, governments that violate the right to self-determination of their people, including minority groups, are more prone to committing these heinous crimes. The doctrine of the responsibility to protect seeks to establish a responsible government toward its citizens; The protection aspect of the doctrine has been discussed in this research, which does not necessarily include intervention. Adhering to human rights standards and exercising the right to self-determination in the framework of the responsibility to protect is a foundation to prevent situations that can lead to atrocities and widespread violations of human rights. Thus, this can be considered as the link between the right to self-determination and the responsibility to protect. Literature ReviewThe right to self-determination of people has been an important subject of much legal research as a fundamental principle of international law. On the other hand, the responsibility to protect is also among the attractive topics of international law as a new doctrine. The two notions have been separately discussed by researchers such as Antonio Cassese, Jörg Fisch, Yasmine Nahlawi, and Stacey Henderson.It can be claimed that the subject of this article which is an updated version of the corresponding author’s master’s thesis, is an innovative topic in the international law literature and has not been explored before. MethodologyFirstly, a descriptive research method has been used for this research i.e., the characteristics and aspects of the right to self-determination and the responsibility to protect have been discussed separately. Secondly, based on the legal research method, the governments’ experiences in different situations have been observed to reach the final research result regarding the commonalities of these two notions. ResultsFrom the international law’s point of view, the internal aspect of the right to self-determination is an erga omnes rule, and its external dimension has been accepted as a jus cogens rule.However, it should be noted that a separatist interpretation of the right to self-determination has no place in the current system of international law. International legal doctrines, governments’ stances, and international documents always emphasize on the importance and priority of the principle of territorial integrity. Further, international peace and security requires that separatist interpretations not be supported. ConclusionToday, respecting human rights and, most importantly, the right to self-determination is a global matter and the international community should contribute to its realization. The right to self-determination can be realized indirectly under the doctrine of responsibility to protect. In other words, the right to self-determination can be applied as a means of preventing the occurrence of crimes that are subject to the responsibility to protect doctrine, and in this regard, the international community can assist and take measures and put them on its agenda to ensure the exercise of this right.The responsibility to protect emphasizes the primary responsibility of governments and the international community to assist other countries in carrying out their sovereign duties and only refers to the element of intervention at the last stage. the international community should come to the understanding that non-interventionist measures and international aid to the governments have a fundamental role and importance in supporting people and strengthening them and are to the benefit of international peace and security. The application of the responsibility to protect in Libya and the remedial secession in Kosovo showed how ineffective and destructive under-developed legal theories can be in practice.On the other hand, the doctrine of responsibility to protect suffers from a lack of clear criteria for intervention which is a problem that the international community should take steps to resolve. In many cases, powerful countries, especially the permanent members of the Security Council, apply double standards towards human rights issues. So, in order to prevent similar tragedies and protect the citizens, the international community should set clear and thorough standards regarding human rights issues and make them binding. However, it should be noted that the concept of cultural diversity should be taken into account In the process of formulating standards because, in issues related to human rights, no fixed standard that could be applied to all.
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 ...
Read More
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.
International Law
Amin Motamedi
Abstract
1. IntroductionIn recent years, there has been a growing trend in the “North and South” dialectics in all fields. International law is no exception to this rule. Recently, in international law studies, in particular, in philosophical discourses and historical development research regarding ...
Read More
1. IntroductionIn recent years, there has been a growing trend in the “North and South” dialectics in all fields. International law is no exception to this rule. Recently, in international law studies, in particular, in philosophical discourses and historical development research regarding the origin and the basis of international law obligations, efforts have been made by new scholars to spread the Eastern approach to international law. As these thoughts normally emerge from the less developed and colonial countries, it is called the “Third-World Approach to International Law (TWAIL)”. This approach is rooted in the critical legal studies movement in international law. By taking the Asian perspective into account and also, the evolution of the history of Asian civilizations, this approach attempts to address the inauspicious phenomenon of colonialism in undeveloped or less developed countries, and thereby, decenter Europe as the origin of international law.From 1996 to 2020, we have been facing a significant increase in studies related to this third-world approach to international law, which depicts the possible emergence of a renaissance period in this field of study. Although its initial consistent rise happened between 1998 and 2012, the volume of scientific content production in this approach gradually increased. In fact, this approach points us to a re-examination of the historical evolution of international law. As mentioned, the researchers and experts of this approach are actively present in the world of international law and this approach will undoubtedly impact their opinions and activities. MethodologyFurthermore, the third-world approaches to international law have rooted in different areas, but naturally, they have become more prominent in some categories of international law, in terms of studying the methodology and the historical background of international law that were mentioned earlier.The third-world approach functions in two ways: first, it challenges the radicalized power and the hierarchy of international institutions and norms, and second, it examines the past and the present foundations of colonies and imperial structures of international law. Many of the insights created by the critical approach have been important and useful for the supporters of the third-world approach to international law. So, this approach will analyze the current issues of international law and human rights in a critical discourse. Although there is a fear of division and conflict in such approaches, they create more awareness and increase the debate between different nations on the subject which leads to the universality of international law. It is worth mentioning that Marty Koskenniemi and David Kennedy are among the most famous experts in this field of study and have written many articles about this approach. ConclusionIn conclusion, it seems that the critical and bold approach to international law through the lens of the so-called third-world countries analyzes the deep-rooted inequalities in the international community. The synergy between the critical approach and the third-world approach has expanded the content of international law norms and has created new discourses in international law. Based on the writings of the experts with the third-world approach to international law, it seems that in the past and especially in recent centuries, through the flawed phenomenon of exploitation and colonialism (both in its traditional and modern forms), the powerful countries of the world have seriously damaged the trust of other countries regarding international decisions and regulations concerning third-world countries and especially Asian countries. Thus, actions should be taken to rebuild that trust. It is possible to change the view of third-world countries to powerful countries in international relations. But the emergence of other powerful governments and Asian actors, especially those countries that have a significant impact on the international economy and, as a result, are noticeably influential on politics and international relations, can lead to a redefinition of many concepts in the modern world.Finally, it seems that, regarding the true goals and ideals of international law, the presence of “North and South” views in all areas related to international law have led to different political sides and the current international order. challenges exist at all levels, but the examination and analysis of such multi-dimensional approaches will lead to the expansion of the discourse and exchange of opinions between different nations and will raise awareness and respect for different cultural systems among them, which finally, contributes to the universality of international law.
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 ...
Read More
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.
International Law
Anahita Seifi; Najmeh Razmkhah
Abstract
Artificial intelligence is the science of empowering machines to perform actions similar to human activities. In other words, artificial intelligence is considered a science and a set of computer technologies designed to think, reason and imitate human behavior.Artificial intelligence is considered a ...
Read More
Artificial intelligence is the science of empowering machines to perform actions similar to human activities. In other words, artificial intelligence is considered a science and a set of computer technologies designed to think, reason and imitate human behavior.Artificial intelligence is considered a new technology that has influenced various aspects of human life, from the economy to health and employment.Activists in the field of artificial intelligence always talk about the capabilities of this technology. According to them, the development and expansion of artificial intelligence is a great tool to deal with human problems and dilemmas. For example, the increase in temperature, decrease in biodiversity, deforestation, floods, droughts, air pollution, and garbage accumulation are all among the environmental problems that have plagued humanity, problems that require immediate and effective solutions. For this purpose, resorting to artificial intelligence and its capabilities in environmental care has been proposed as one of the scientific and technical solutions to deal with these environmental challenges.The capabilities of artificial intelligence in agricultural management, measuring the amount of greenhouse gases, managing and monitoring the optimization of energy consumption, recycling waste, and strengthening and optimizing the public transportation system are all among the potential capabilities of artificial intelligence in the protection of the environment.But on the other hand, the process of designing, producing, supplying, and resorting to artificial intelligence has been associated with various challenges such as high energy consumption, extensive use of rare metals, and destruction of mineral resources, as well as increasing waste production and environmental pollution. These problems have caused serious doubts about the capabilities of this technology considering the growing trend to resort to artificial intelligence. This has led to environmental activists raising the question of whether this technology will provide a toolbox for a sustainable future for humans.Concerns regarding the performance of artificial intelligence and the widespread global support for this technology on the other hand prompted the world community to respond to these doubts, by regularizing the processes of research, development, production, and supply of artificial intelligence.One of these attempts is preparing the First Draft of the Recommendation on the Ethics of Artificial Intelligence in September 2020 By the United Nations Educational, Scientific and Cultural Organization (UNESCO).This draft, which was prepared in the form of 8 sections with the efforts of UNESCO international experts, with the aim of creating an international framework in the field of ethical and legal issues related to artificial intelligence systems, is approved at the 41st annual meeting of UNESCO, which was held in November 2021, with the votes of 193 member countries of this organization as the first international document that specifically considers the ethical norms and human rights of artificial intelligence..This document will not be binding but it is significant because it will be the first international document that specifically considers the ethical norms and human rights of artificial intelligence.The drafters of this recommendation talked about four human values which the 1st is respecting, encouraging and ensuring the basic principles of human rights, the second is , protecting the environment, the third is protecting biodiversity and the fourth, is living in peace and reconciliation.This draft demanded all the activists in the field of artificial intelligence to participate in the activities and adhere to principles such as proportionality, safety, fairness, responsibility, and accountability.But when looking at the draft text it seems that in some cases it contains ambiguities and defects, especially environmental discussions.These defects lead to several questions such as: “Has UNESCO's ethical draft been able to address the challenges in the environment sector, to provide effective regulations and solutions?” and “Considering the important and ever-increasing role of private companies active in the production and supply of artificial intelligence systems, have the authors of the draft been able to act successfully regarding attributing responsibility, methods of compensation for environmental damages, and commitment to observe the precautionary principle?” This article aims at working on these subjects, questions, and ambiguities with an analytical-descriptive method.
International Law
Amineh Moaiedian
Abstract
freedom of people in determining their own destiny is a value first raised during the French Revolution in the form of a general concept called “the right of the people to determine their destiny” and was later pointed at internationally in different ways by statesmen such as Lenin and Wilson. ...
Read More
freedom of people in determining their own destiny is a value first raised during the French Revolution in the form of a general concept called “the right of the people to determine their destiny” and was later pointed at internationally in different ways by statesmen such as Lenin and Wilson. This right was developed to discard of the old approach in the international arena i.e., the state-oriented tendency in international interactions.According to the old approach, the international community was made up of states which essentially pursued the political interests of their leaders. In fact, the relations between the governments resulted in the relations between the ruling groups who considered the interests of their citizens only when they were threatened by foreign powers or only when the protection of the citizen’s interests was directly related to the interests of the country's leaders. On the contrary, self-determination means that individuals and nations have a say in the international arena. Governments with sovereignty can no longer oppress nations freely and can't take over territory without considering the wishes of the beneficiary population. People should also play a role in domestic and foreign relations. Self-determination, as a democratic principle, requires the consent of the governed meaning the people must always have the right to freely choose their rulers.Therefore, institutionalization and gradual legalization of this right, especially after World War I, gave a new concept to domestic and global relations. This right, which was first created in order to support the nations under colonialism, gradually extended its scope of protection to human groups under the domination of racist regimes, as well as the protection of religious, linguistic, and in general, all cultural minorities, and ultimately all peoples and nations. Paragraph 2 of Article 1 of the United Nations Charter states one of the goals of this organization is to establish friendly relations between nations with respect for equal rights and the right to self-determination. This goal is also repeated in Article 55 of this document.In addition to recognition of this right in the United Nations Charter, the well-known Declaration On the Granting of Independence to Colonial Countries and Peoples, also known as the United Nations General Assembly Resolution 1514 approved by the General Assembly in 1960, while calling for the end of colonialism and the domination of foreign nations, emphasized that the nations have the right to determine their own destiny and to freely determine their political status and pursue their economic, social and cultural development.This concept is also repeated in Article 1 of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. These documents were approved in 1966 by the General Assembly Resolution A/2200. It is noteworthy that the Human Rights Committee's General Interpretation No. 12 of Article 1 of the Covenants also mentions the right to determine the destiny of nations and highlights its importance to guarantee, and effectively respect, individual human rights. The principle of equal rights and self-determination for the people is also stated in the Friendly Relations Declaration of 1970[1]. All the above-mentioned documents indicate that the principle of self-determination is an internationally recognized right.According to international law, the Afghan nation has the right to self-determination. Therefore, they have the right to freely determine their political status and pursue their economic, social, and cultural development, in front of the ruling body from an internal perspective and also, from an external perspective, in front of other nations in the world. Furthermore, respecting this fundamental human right is considered a general obligation for all members of the international community, the violation of which entails responsibilities for transgressors. Therefore, with the establishment of the Taliban government, the question arises as to whether the right to self-determination of the Afghan people has been properly exercised, and have other governments fulfilled their commitment to the rights of the Afghan people in this regard? The current research has explored this issue using the descriptive-analytical method. At First glance, it appears that the self-proclaimed government of the Islamic Emirate has not only violated the right of the Afghan people to choose their political structure but is imposing its power on the Afghan nation by widely violating even more of their human rights. Despite all this, it, unfortunately, has the explicit and implicit support of some members of the international community, contrary to their erga omnes commitment.[1]. Full title: Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations.
International Law
zahra sadat shareq; Hossein Rezazadeh
Abstract
Seafaring is one of the risky jobs that needs more support and attention from governments and the international community. Human rights apply at sea as they do on land. Since the abuse of human rights at sea is not as tangible as it is on land, it has not received much attention from the international ...
Read More
Seafaring is one of the risky jobs that needs more support and attention from governments and the international community. Human rights apply at sea as they do on land. Since the abuse of human rights at sea is not as tangible as it is on land, it has not received much attention from the international community. However, due to the importance of the role of shipping in international trade and, consequently, the role of seafarers in this industry, this group should be given more attention. Accordingly, international organizations and non-governmental organizations (NGOs) such as ILO (International Labor Organization) pave the way for protecting seafarers' rights by developing international documents.The most important international document by the ILO is the Maritime Labor Convention. The Maritime Labor Convention (2006) is often described as the "Seafarers' Labor Rights Charter". This convention places responsibility on the flag state and the port state as well as the labor supply state.The unfavorable working conditions of seafarers, due to the temporary nature of their work and the lack of effective implementation of domestic and international laws by the flag state, put seafarers in a bad situation. Seafarers' rights depend on where the ship is registered. Examining the policies of the governments that grant convenience flags and paying attention to the cases in which even the seafarers’ basic rights are ignored, it is evident that joining international documents on behalf of these governments is a tool for them to present a positive image in the international community.On one hand, lack of implementation of a monitoring mechanism on seafarers' rights and international agreements and documents leads to the violation of international obligations. On the other hand, the seizure of ships by the coastal states for various reasons and detention of the crews, in a country whose laws are not familiar, may further result in the violation of seafarers' rights. Whereas the expansion of the use of convenience flags places more prominence on the role of the coastal government to enforce the rights of seafarers.The coastal government plays an important role in observing the rights of seafarers based on the Convention on the Law of the Sea, the Maritime Labor Convention, and the Tokyo and Paris Memorandum. In addition, for the effective implementation of seafarers' rights, there are international organizations such as FAO, IMO, and ILO that aid in this path, in addition to better and more cooperation with non-governmental organizations such as the "Human Rights at Sea".Obviously, rights have a limited value if it is not implemented in practice. So how can seafarers guarantee the implementation of their rights? Or in case of violation, how is it possible to compensate? As said before, the rights of seafarers are described in international conventions and treaties, the ILO conventions allow seafarers to learn about their rights and encourage the government to implement laws and regulations to protect them, but the mentioned documents lack a guarantee to oblige governments to implement them and so, there is no monitoring and reporting mechanism for human rights violations at sea. The monitoring mechanism should be available for the crew to sue the violation of their human rights.It seems that the establishment of competent maritime courts and the possibility of access to these courts can guarantee the observance of seafarers' rights. Although the establishment of competent courts is an important step in promoting respect for human rights, the establishment of competent courts will not be effective without experts who are familiar with the rules of international law and the law of the seas. There is hope that the establishment of the Maritime Court along with the approval of the "Commercial Shipping Law" will improve the respect and enforcement of seafarers' rights in Iran. It is better for the judges and experts of this specialized court to be familiar with the principles and rules of international law of the seas and other branches related to international law, including human rights. In other words, the establishment of courts with exclusive jurisdiction and the presence of judges and legal experts with sufficient knowledge in the field of international law of the seas and familiarity with the principles and rules of international law can have a significant impact on protecting the rights of seafarers. In this paper, we use the descriptive-analytical method and library resources as well as electronic resources such as books, articles, theses, and official conferences related to the subject (regional and international) in Persian and English languages.
International Law
Seyed Jamal Seifi; Mahdi Veis Karami
Abstract
International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of ...
Read More
International investment law is facing a legitimacy crisis, in which to tackle, substantial efforts are being made in structural and procedural areas. The first step to overcoming this crisis is identifying the roots of it. The lack of a dynamic balance between public and private interests is one of the main factors creating this legitimacy crisis in this legal system.[1] This paper focuses on the changes in the investment arbitration jurisprudence to create this balance. The findings of this paper can explain one of the convergence points of international trade and investment law. Such a claim is based on the evolution of international trade law in facing a similar legitimacy issue and the structural-procedural approach of this legal system in balancing public and private interests as an ultimate solution to the crisis.[2] From this perspective, one of the major factors in creating a legitimacy crisis in both legal systems is the dominance of the paradigm for preference of private interests; and one of the convergence points of international trade and investment law has been to replace it by accepting the paradigm of creating a dynamic balance between competing goals.[3] This paper examines this convergence in arbitral jurisprudence.IntroductionIn recent years, the legitimacy crisis of the regime of international investment law and, as a result, the investor-state dispute settlement system has been one of the most important and controversial topics in the academic environment and the practice of states consequently, serious efforts in various fields to tackle this crisis have begun. According to this paper, choosing an arbitration mechanism modeled on international commercial arbitration to resolve disputes between host states and foreign investors can be evaluated as a wrong and hasty action that, regardless of its factors and contexts, has changed the nature and function of this system over time.[4] It should be noted that the main factor in such consequences is how this dispute resolution system is used which, contrary to the accepted model, always puts the host states in a "respondent" position in possible future disputes and, as a result, disrupts the balance expected in any international dispute settlement system. On this basis, the confrontation of the host state's sovereign competence in ensuring public interests with the foreign investors’ ability to challenge this competence is brought into the spotlight: currently, within the regime of international investment law, host states have only responsibilities and obligations in contrast to extensive and exclusive rights and privileges recognized for foreign investors, and this can be considered as the most important factor disturbing the said balance. The main issue in this field is to analyze the role of the investment arbitral tribunals in creating such a balance. In this regard, the authors, by focusing on the nature of investment treaties, and the relations between the parties in investment disputes and with emphasis on the general legal regime governing international investment, consider creating a dynamic balance between public and private interests to be the key to solving the crisis. They emphasize that; As long as the rights and obligations of the parties to the dispute are based on imbalanced grounds, the change in nature of the disputes and the function of the system -as the main roots of this legitimacy crisis - will remain. In this remark, it is very important to focus on the two-sided nature (public-private) of the relationships established in the framework of investment treaties. The relationship between the host state and the foreign investor is created within the framework of investment treaties and in light of fundamental differences from purely private relationships in international commercial arbitration.[5] Note that any dispute arising from this relationship is affected by its inherently public nature governed by public international law.[6] Thus, a purely private attitude towards these relations does not seem viable. As Ian Brownlie has stated in the case of SME v. the Czech Republic, it can lead to ignoring some of the basic elements of the relevant investment treaty.[7] In other words, the right and duty of the host state in protecting and promoting public interests is a fundamental part of this relationship, and any indulgence of it leads to a serious disruption of the mentioned balance through which the system's legitimacy will be the first victim.It is clear that the main task of any dispute resolution system is to create such a balance, and on this basis, and compared to the WTO dispute resolution system, the role of the investment tribunals in this process is discussed. This jurisprudential convergence is in line with the goal of strengthening the legitimacy of the international investment law system as a whole.Based on the above, the first part of this paper focuses on the process of establishing the ISDS in international investment law and its characteristics, the factors of the crisis of legitimacy are analyzed with an analytical approach, while also explaining the nature of investment treaties and explaining the general legal regime governing international investment. Furthermore, the lack of a dynamic balance between public and private interests is emphasized as the main cause of the crisis. In the second part, while comparing the two legal systems of international trade and investment with a similar crisis of legitimacy, we will examine the interaction of investment arbitration with the WTO's jurisprudence in facing this crisis through a case study of several investment arbitral awards. [1]. David Gaukrodger, “The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scooping Paperˮ, OECD Working Paper on International Investment 2017/02, at 4.[2]. Nicholas DiMascio & Joost Pauwelyn, “Non-Discrimination in Trade and Investment Treaties: Worlds apart or Two Sides of the Same Coin?”, AJIL, Vol. 102, No.1, (2008), at 89.[3]. Jurgen Kurtz and Sungioon Cho, “Convergence and Divergence in International Economic Law and Politics”, EJIL, Vol. 20, No. 1, (2018), at 187.[4]. Benedict Kingsbury & Stephan W. Schill, “Public Law Concepts to Balance Investor's Rights with State Regulatory Actions in the Public Interest - The Concept of Proportionalityˮ, In Schill Stephan W., International Investment Law and Comparative Public Law (UK: Oxford University Press, 2010) at 76. [5]. Crina Baltag, “Reforming The ISDS System: In Search of a Balanced Approach?ˮ, Contemporary Asia Arbitration Journal, Vol. 22, No. 2, (2019), at 285.[6]. Ibid.[7]. Andreas Kulick, “Sneaking Through Backdoor – Reflections on Public Interest in International Investment Arbitrationˮ, Arbitration International, Vol. 29, No. 3, (2013), at 438.
International Law
Alireza Mirveisi; Mehdi Zakerian Amiri; Mohammad Ali Abdollah Zadeh
Abstract
There is a growing stream of critics who see investment arbitration in favor of foreign investors and as a negative force as opposed to sustainable development. The phenomenon of third-party funding and its use in investment arbitration has increased such concerns. Third-party funding is basically the ...
Read More
There is a growing stream of critics who see investment arbitration in favor of foreign investors and as a negative force as opposed to sustainable development. The phenomenon of third-party funding and its use in investment arbitration has increased such concerns. Third-party funding is basically the payment of all or a part of the arbitration costs of one of the parties of dispute by a third party funder which in return, the funder receives a percentage of the output of the award if successful. The purpose of this article is to explain and analyze the theoretical differences between pros and cons of third-party funding regarding the access to justice, screening mechanism for the claims, and the financial consequences on the host state. In this article, the advocates see third-party funding as a means of access to justice for aggrieved investors in investment claims, while the adversaries refering on the profitability of third-party funding, see this method in arbitration a form of wealth transfer from public sector to private corporations and also refer to the asymmetric structure of the investment arbitration regime as well as the risks arising from the transfer of management and control of arbitration process to the third party funders.
