International Law
Vahid Salehi; Mohammad Hashemi; Seyed Ghasem Zamani
Abstract
IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental ...
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IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental and intellectual peace of a person, has legal effects on social relations, it has been attended to by the legal, legislative, and judicial systems of the countries since a long time ago, and the mechanisms for its establishment have been set out to guarantee the fundamental rights of people. The destruction of domestic governmental and non-governmental organizations, especially the judicial system in the two mentioned territories (the former Yugoslavia and Rwanda), highlights the domestic inability of these countries to establish transitional justice and national reconciliation between the militant groups and the survivors and victims of international crimes. These courts were created as a part of the global strategy to end violence and prevent its reoccurrence, establish justice in the mentioned territories, and establish international peace and security. therefore, by anticipating the most important aspects of the protection and guarantee of the fundamental rights and freedoms of individuals (including the accused, suspects, convicts, victims, and witnesses), the goal of legal security has been made possible to reach.The main question of the article is, what impact have the mentioned courts had on the establishment of the principle of legal security in the international arena and the relevant countries? Literature ReviewAlthough many books, treatises, dissertations, and articles have been authored on each of the topics of this research on both the domestic and international stage, the research method of this essay that considers the function of these two international criminal courts in the creation of this principle is unprecedented. Therefore, the following article is new research. finding a solid and meaningful link between the objective criteria of the principle of legal security and the decisions and opinions of the courts in their judicial proceedings is the main innovation of the present research. The purpose of this research is to show the practical approach of the mentioned international criminal courts towards legal security. Methodologythis research is both an "applied research" and a "fundamental" one in terms of its purpose, results, and use. The research method is "descriptive and analytical" in terms of the nature of the subject and the method of analysis. The data collection has been through library research, i.e., reference to academic and personal libraries, legal research centers, and accessing books, articles, theses, magazines, academic theses, and websites.Accordingly, We Will Discuss the Following The Concept of Security in the Domestic and International ArenaIn general, security is a situation where a kind of reasonable and proportionate link is between the demands and the possessions of the actors in a political and legal community which ultimately leads to the satisfaction of those actors. The concept of legal security has entered the international arena from the domestic laws of the countries, and various forms of human security have been met with the approval of the most important international documents (such as the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights). Sub-principles Resulting from the Legal SecurityAlthough in terms of the diversity of the legal, political, economic, social ,and cultural concepts and trends, it is not possible to present afixed ratio and connection between the protection of citizenship rights and legal security, in general, there are legal regulations and legal criteria in the legal system of countries which are not only secondary to the principle of legal security but are also its constituent elements, and in terms of importance in the legal literature, they are interpreted as "principles". What is meant by the sub-principles arising from the principle of legal security is these rules and criteria which can be categorized into the two forms of principles that guarantee the quality of laws (such as the principles of transparency and ease of access to laws) and the principles that guarantee the legal status of individuals (the principles of predictability of laws and the presumption of innocence). The first group is the principles that protect the rights of citizens, And the second group protects the legal security of the citizens against the government’s power and are actually the supporters of fundamental individual freedoms. The stronger the mechanisms of safeguarding individuals’ fundamental rights, the stronger and more stable their security against the government is. The practice of the International Criminal Courts of the Former Yugoslavia and Rwanda in facing the said principles is:1-3. The principles that guarantee the quality of the lawsThese are the principles that contain the components of the laws in expressing the rights and duties of persons. The significant feature of these principles is that not only must laws be clear and understandable to individuals, courts, and states, but they also must be easily accessible. Transparency of the laws and ease of access to them are among the most important principles that guarantee the quality of laws. Not only the compliance of the laws, regulations, statutes, and procedures of the two Criminal Courts to the international standards and human rights has added to the richness of their quality, but also the practical practice of the said courts in removing the ambiguity and clarifying the laws and also facilitating access of users and actors to the rules and regulations has established and increased legal security.2-3. The Principles that Support the Legal Status of PeopleThese principles are related to the stage of applying laws and regulations. The main function of the aforementioned principles is to maintain the status created for individuals by the legal norms. The principle of predictability of laws is one of the most important of these principles, which are set out in the statutes, rules of procedure, and evidence of specific criminal courts and have manifested in the practice of those courts.4. ConclusionIn hearing and deciding important cases such as; Tadić, Ekaiso, Hasanović, Blaskić, Simić, Selbići and Delalić, Erdemović, Kernojlač, Milosevic and Berdjanin, The mentioned International Criminal Tribunals have set the ground for the establishment and promotion of legal security at both the domestic level of these countries and in the international arena by clarifying and removing the ambiguity from the laws and regulations, promoting the principle of ease of access = to laws, employing the presumption of innocence principle, observing the international human rights and resorting to customary international norms regarding the extension of laws to former criminal behaviors, and by compliance with the principle of predictability of laws (despite the legal and judicial challenges in this field), while preventing the impunity of the perpetrators of international crimes under their jurisdiction.Keywords: Legal Security, International Criminal Tribunals, Former Yugoslavia, Rwanda, Innocence, Ease of Access to Laws.
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 ...
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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
Environmental law
Wahid Kowthari; Mostafa Fazaeli
Abstract
IntroductionDespite the abundance of international environmental norms, for various reasons, such as their implementation conflict with the developmental concerns of countries or the lack of consensus at the global level regarding environmental hazards, these norms have not been effective. The GEO-6 ...
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IntroductionDespite the abundance of international environmental norms, for various reasons, such as their implementation conflict with the developmental concerns of countries or the lack of consensus at the global level regarding environmental hazards, these norms have not been effective. The GEO-6 report in 2019 states that without additional policies, the trends in environmental degradation are projected to continue at a rapid rate and neither the Sustainable Development Goal targets nor other internationally agreed environmental goals are expected to be achieved, including the set goals regarding climate change, biodiversity loss, water scarcity, excess nutrient run-off, land degradation and ocean acidification, and so on. The usual procedure in legal research in such cases is to turn the audience's attention to the lack of a sufficient guarantee of these norms, the separation of domestic legal systems from the international, or the absence of necessary criminalization. Without intending to question these conventional legal researches, this essay has tried to take a different path to deal with the challenges related to the "efficacy” or “effectiveness” of such laws with a sociological approach. Generally, having in mind the link between society and law, which is expressed in some famous and proverbial sentences such as "where there is society, there is law (Ubi Societas ibi jus) ", reference to the society and providing a sociological analysis of individuals’ behavior and their reaction to the legal rules in domestic societies or the international community seems useful and even necessary. A sociological look at the factors of the underlying ineffectiveness of environmental norms brings forward theories about environmental sociology and social or economic justice, whose possible role and effects in international environmental law the current research aims to evaluate, with a descriptive-analytical approach and using library research.Research Question(s)An important question that we should seek to answer is why the mass of environmental norms are not as efficient as they should be, and governments, as the main members of the international community, have not shown much interest in employing and implementing them. The fact is that to increase the efficiency of legal norms, it is useful and even necessary to pay attention to the coordination between the rules and regulations and weigh them according to the standards of justice, rationality, social values, freedom, equality, etc. This is what we are trying to demonstrate through the concept of socialization of laws. In examining the effectiveness of laws, the formal legal binding of a rule is not taken into account alone, rather, some cases should be studied through a meta-analysis to analyze the individuals’ behavior towards these norms. the result of such analysis is the effective implementation of legal rules as much as possible. Literature ReviewThe current article deals with the efficacy of environmental norms in an interdisciplinary manner and it has not been yet researched and investigated to the extent of the authors' knowledge. MethodologyAlthough, the efficacy of legal norms is raised after the formation or the identification of them, by observing the executive effects of legal norms and their pathology after their creation or recognition, we pave the way for their possible revision and proposing a reform in the legal system. Therefore, the purpose of this article is not only to look at the establishment of the norms and to examine the effectiveness of environmental sociological theories, but it also examines the behavior of international actors, especially governments, concerning pre-established norms. In this way, the methodology of this research in some parts is “Intrasystem” although it is mostly “Intersystem”; because, beyond the international environmental law system, it considers the role of other regimes. As an Intersystem study, in the framework of the present topic, the researcher is allowed, after observing the degree of realization of the rules in social practice, to review the entire process before and after the formation of the rules until their implementation. ConclusionCurrently, despite the adoption of numerous environmental norms, for various reasons, countries, in general, have not shown much approval towards the implementation of environmental obligations. Two important factors of the inefficacy of these norms are: 1) their conflict with governments’ developmental concerns and, 2)Lack of consensus and sufficient scientific knowledge at the global level.through referring to some sociological theories, the following article seeks to find ways to strengthen environmental norms (at the stage of establishing these environmental norms) and to influence the behavior of governments towards environmental obligations (at the stage of implementing the mentioned norms).This research hypothesizes that by opening the door of international environmental law to some sociological theories and distancing it from others, it would be possible to achieve more efficient and effective environmental norms.
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 ...
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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).
Public Law
Abdollah Ghaderi; Haneh Farkish; Arkan Sharifi
Abstract
IntroductionAs a fundamental human right, the right to peaceful protest has always been the focus of governments. Therefore, after studying the concept and the legal framework concerning the exercise of this right according to the international documents, the constitution, important international principles, ...
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IntroductionAs a fundamental human right, the right to peaceful protest has always been the focus of governments. Therefore, after studying the concept and the legal framework concerning the exercise of this right according to the international documents, the constitution, important international principles, and standards, and also after examining theories of welfare and social contract, this essay has considered the theory of relative deprivation (the most complete theory proposed so far) as the basis of general dissatisfaction and then, by stating the importance and application of the right to peaceful protest and examining this right at the domestic level (according to Article 27 of the Constitution), it has tried to reach new findings that have not been accepted so far. In the following, by discussing and examining the standards for the implementation of the said right has been regarded and through referring to international documents, books, articles, theories, and especially the universality of human rights, the importance and enforceability of the rights contained in international documents, especially the International Covenant on Civil and Political Rights has been emphasized so that the governments be adherent to their international obligations. The right to peaceful protest, which has been recognized in Article 20 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights, and other international and regional documents, is a compound right that includes rights such as the freedom of opinion and expression, right of Self-determination, freedom of organization and association, etc. Therefore, the right to peaceful protest is specific to societies that follow a system of democracy, and accordingly, governments are required to provide the necessary preparations, platform, and space for its implementation given their responsibility to facilitate the implementation of human rights. These governments work to the benefit of the nation and should not put restrictions on this right in ways such as requiring permission or strictly monitoring peaceful protest gatherings by violating the privacy of the protesters, which effectively brings the implementation of the right of peaceful protest to a dead-end. Literature Review2.1. GharibNawaz in his book entitled Civil Liability of Persons in Public Protests (2015), examined the issue from the perspective of private rights and determined the situation where damages are caused by public protests and the loss is not compensable in the usual ways.2.2. Eslami and KamalVand in their article titled "Challenges of freedom of assembly in Iran's legal system in the light of the international human rights system"(2013), criticized and examined the freedom of assembly according to international legal documents, and examined the characteristics of gatherings (according to Article 27 of the Constitution), and also the restrictions limiting this right. They have reached the conclusion that the said right should be guaranteed and supported because it is a natural right and belongs to all people. MethodologyThe current research was carried out in a descriptive-analytical way, by describing various international and domestic laws and documents, as well as analyzing the various forms and criteria in governance aims to achieve a conclusive result in the pursuit of the right to peaceful protest. ConclusionIn the domestic legal field, considering the constitution and regarding the theory of relative deprivation as the main basis and criteria, it should be stated that failure to observe principles such as Article 59 of the constitution has been an important factor in dissatisfaction and the feeling of relative deprivation. Thus, by attracting the attention of the authorities to the need fot making important and decisive decisions in line with the implementation of this right, it would be possible to manage and minimize any dissatisfaction and feeling of relative deprivation in society. Another solution is to pay attention to \ Article 27 of the Constitution, which is in accordance with Article 20 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights, and international standards, and if it was necessary to include other conditions, the honorable legislator would have predicted so. According to the international standards and the practice of certain countries (including Germany) which have recognized the mere notification of a peaceful protest rally to be sufficient, and considering the mandate of the constitution, if there is a protest rally without a permit, but notification has already been made, we should consider such a gathering as legal and provide the legal support of the government. Concerning the matter of the foundations of Islam which is a precondition for the legality of gatherings in Article 27, one should try to have an interoperation in line with the benefit of the nation to do public good, and instead of expanding the scope of the mentioned clause, try to limit its examples so that citizens can protest peacefully while maintaining observing a specific legal framework. Regarding the actions taken by the officials and officers’ executive actions, it must be mentioned that they should try to manage the peaceful protest gatherings as best as possible by exercising discretion and balancing between the interests and the results of their actions so that there is no room to violate the rights of the protesters as well as third parties. Now, according to the above-mentioned, the absence of a Constitutional Court is sensed even more than before, and with which many problems would be solved, including determining the matters that disturb the foundations of Islam and the need to take permission. Finally, in the international arena, the lack of an Asian human rights institution or a court to manage and exert pressure on the governments of the region to meet their human rights obligations is felt more than ever. Considering the fact that most of the governments in the region are Islamic, it is a good idea to look for theinherent dignity of people and human rights in international documents instead of referring to the religion of Islam and especially the Holy Quran. On the other hand, with the expansion of the interactions and relations between countries, the existence of such an institution can solve many problems and fill many legal gaps.
Public Law
Mohammad Amin Abrishami Rad
Abstract
IntroductionArticle 4 of the Constitution of the Islamic Republic of Iran has determined the jurists of the Guardian Council as the competent authority to exercise religious supervision over the application of the general principles of the Constitution. According to this article, "All civil, criminal, ...
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IntroductionArticle 4 of the Constitution of the Islamic Republic of Iran has determined the jurists of the Guardian Council as the competent authority to exercise religious supervision over the application of the general principles of the Constitution. According to this article, "All civil, criminal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic standards. This article governs [deciding] the generality or specificness of all articles of the Constitution as well as other laws and regulations, and it is up to the jurists of the Guardian Council to determine this matter."In recent years, the jurists of the Guardian Council, in the exercise of their competence, have accordingly limited or allocated some of the articles of the Constitution by providing "direct and explicit Sharia interpretations" or "indirect and implicit Sharia interpretations".Assuming the competence of the Guardian Council jurists to supervise the implementation of the Constitution, one of the issues that must be discussed and investigated is the limits of the Guardian Council jurists’ power in exercising this competence.Research Question(s)To what extent can the jurists of the Guardian Council restrict the articles of the Constitution? Literature ReviewThis research topic has had no precedent thus discussing this matter is completely novel and new. MethodologyThis study tried to ask the question above by identifying the examples of this authority and analyzing them with a descriptive-analytical method. ResultThe research proved that, although the assumption of the absolute and unlimited competence of the Guardian Council's jurists to exercise Sharia supervision over the articles of the Constitution can be useful and effective in taking advantage of purposive interpretations that also consider the evolution of the legal system, this view can be criticized and unacceptable for various reasons.One error in this view is that complete discretion might lead to a violation of the intention of the writers of the constitution; because the majority of the members of the committee in charge of the final review of the constitution were among the faqihs and were Islamic scholars, they paid attention to Sharia when drafting the articles of the Constitution. On the other hand, before the referendum was held and the people voted on it, the draft of the constitution was approved by Imam Khomeini (RA) as a faqih; therefore, the claim that the writers of the Constitution have approved matters that may be in violation of the Sharia rules and Imam Khomeini (RA) also approved them and put them to referendum is not acceptable.On the other hand, the assumption of such absolute authority for the jurists of the Guardian Council is contrary to the necessity of maintaining stability and coherence in the Constitution as a national covenant. Prevalence of this view may cause instability in the coherence of Iran's Constitution. Also, this view will make it impossible to use the capacity to revise the Constitution, which is already set out in Article 177 of the Constitution.Therefore, to protect the status of the Constitution in Iran’s political system, it is necessary to assume the legitimacy of the content of the Constitution, and presume that the competence of the jurists of the Guardian Council interpret the Constitution is limited to the cases which the drafters of the Constitution have overlooked or neglected in the process of approving that article. Therefore, the jurists of the Guardian Council cannot declare the specific rules of the constitution as contrary to Sharia or to limit the general articles of the Constitution. ConclusionBased on the mentioned rule, if there is a conflict between the Islamic approach of the drafters of the constitution and the approach of the jurists of the Guardian Council, the approach considered by the drafters of the constitution should be adhered to. Also, Sharia supervision cannot in any case modify the structure or the mechanisms defined in the constitution or introduce a new structure in contrast with the existing structure.
International Law
Ebrahim Rahbari
Abstract
IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big ...
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IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big data, make it difficult for newcomers to enter the market and there is a good opportunity for big data companies to abuse their dominant position and commit anti-competitive practices, all of which brings new issues to antitrust law.It is clear that we can apply general rules on the abuse of dominant positions and monopolizing in the big data field. This article clarifies how abusive behaviors such as unilateral refusal to share necessary big data or restricting access to it can disrupt competition in downstream or adjacent markets and also, how deceptive practices of platforms in collecting data have gradually surfaced in the realm of competition law. This research also analyzes price discrimination and predatory pricing by using big data and the challenging issue of entering other markets by leveraging big data. Literature ReviewThere are no studies in Iranian legal literature that discuss different aspects of the abuse of dominant position by use of big data. Viewing the challenges from the perspective of Iranian Competition Law, the current research analyzes the issues and provides some particular solutions for the first time. MethodologyThe method of this research is descriptive-analytical done by a comparative approach. ResultsGenerally, refusing to share or restricting access to big data may be considered an abuse of one’s dominant position under certain circumstances. Various factors should be considered such as whether the data is first-second- or third-party, alternative sources to access the big data, the effect of the refusal or the restriction on competition in the related markets, the process of providing new products and services, and the incentives for innovation and investment.Recent approaches to the deceptive collection of data indicate the significance of competitive and economic dimensions of personal data. Since solutions outside the realm of antitrust law are not sufficient to regulate and protect these data, employing decisive remedies of competition law seems justified.Regarding abuse of pricing powers, if price discrimination among users is done by collecting and analyzing big data and tracking and discovering their preferences, and leads to a reduction in the price of products or services and brings real and long-term efficiency, it would be desirable from the perspective of competition law. However, it should be noted that if this arrangement becomes an abusive behavior to restrict the competition for other companies or lay the groundwork for predatory pricing in the future, in such a way that other competitors lose their ability to compete, antitrust law should intervene to prevent this abuse of big data.In addition, platforms are not allowed to abuse the big data that they gather in their system to facilitating the way for themselves or their partners and their related companies to improperly penetrate adjacent or vertical markets at the expense of weakening competitors. Also, tying any kind of products or services to data that the applicants do not need between which no reasonable linkage can be imagined is an example of improper tying arrangements and abuse of a dominant position, which is condemned in antitrust law. In fact, self-preferencing by using data is in itself contrary to competition law norms if it results in a significant disruption of competition. ConclusionIn the Iranian competition law, although the existing general rules and regulations may be effective to a relatively small extent when facing abuse of a dominant position by way of big data, one cannot ignore the shortcomings and inefficiency of these legal frameworks and the necessity to adopt new competition strategies in the light of the diverse aspects of digital markets and as the rising importance of big data. Although some new approaches taken in the Strategic Plan Of the Islamic Republic of Iran in Cyber Space can be seen, those policies and solutions are not in line with competition law standards, the requirements of Iran's digital markets and the big data challenges, and the proposed views lack the necessary legal-technical justification.In fact, the aforementioned document has failed to codify the fundamental principles of competition law in platform markets by not setting the basic foundation and taking the initial steps in the right direction. It points to modern approaches to competition law, controversial in matters which legal systems are dealing with in academic and judicial circles. Despite these considerations, it seems that, especially in Iran, in the absence of an effective competition system and strong monitoring arrangements on the practices of companies, platforms with a dominant position have a real chance to abuse big data, and so, it is incumbent to take stronger measures and remedies to regulate and inspect the behaviors of companies while respecting the fundamental principles and standards of antitrust law.
International Law
Sayed Murtaza Àbid; Mohammad Hosein Ramezani Ghavam Abadi
Abstract
IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing ...
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IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing source of legal regulation, the other three water basins of Afghanistan do not have a treaty exploitation system and are considered subject to the customary rules. Therefore, any use of these waterways is only possible within the framework of the customary rules of international law of the sea. Due to various historical reasons, Afghanistan has not had the opportunity to avail itself of these watercourses. In the last few years, this country has designed and implemented programs to manage and use its water resources. Many of these actions were faced with protests from Afghanistan's neighboring countries. These countries have considered the actions taken by Afghanistan to be in conflict with international law, especially the customary law governing international waterways. According to the practice of states, and the opinions of international judicial and non-judicial institutions, currently, there are rules such as reasonable and equitable utilization, the prohibition of incurring serious harm to other countries, and the responsibility to cooperate, which underly the basic and customary rules of international law of the sea. The customary characteristic makes states legally obliged to comply with these rules regardless of their membership in international treaties. States’ violation of customary obligations will result in international liability. Without a doubt, Afghanistan, as a member of the international community, will not be exempt from this rule. Research Questions The present research examines the status of the customary obligations regarding the non-navigational use of international waterways in the legal system and the practical practice of the Afghan government. The research seeks to answer these questions: What is the approach of Afghanistan's legal system towards the international customary rules of the sea and do the domestic laws require the government to comply with these obligations or not? What is the practical practice of the government in this case and to what extent are Afghanistan's actions consistent with the international customary rules? Research Background As an important source of life and livelihood, the subject of waterways has been of interest to humans forever. The greatest human civilizations are built next to water sources. With the formation of nation-states, the discussion of international waterways and their exploitation by countries was raised. In this regard, many researches have been conducted and published by scholars on how to regulate the use of international watercourses around the world.Although such research was initially centered around the use of navigation, with the increase in population, the climate changes, and the pollution of water resources, non-navigational exploitation and their related topics also attracted the attention of scholars. Regarding the international watercourses of Afghanistan, many researches have been published by different authors both inside and outside of Afghanistan, in different languages.The common denominator of all of these efforts is the focus on contractual obligations, management, and the protection of water resources. Therefore, an important i.e., international customary obligations of Afghanistan and its practice and performance in this area has been neglected. However, some authors have mentioned some of these obligations in their research. For example, we can refer to works such as the research of Mr. Jamshid Momtaz titled “The legal system of the middle East watercourses”, “Ali Raghanabi: The legal principles governing the international rivers, with an emphasis on the Hirmand River”, “Nusratullah Afzali: The principles governing the international watercourses with an emphasis on the Harirud river”, and “Mrs. Sara Naqshband: International Practices in the Settlement of International River Disputes”. Within Afghanistan, in the last few years, research has been carried out in the field of Transboundary Rivers. The major parts of these research papers have been carried out by the Doran Institute, which is a private research institute. This research center has so far published two articles in this area (Amu and Kabul) and besides these, publishes a journal about the waters of Afghanistan, the first issue of which was published in 2015. This research focuses on the capacities of the mentioned areas, the capabilities and challenges of their use, and the climate risks that threaten these waters; it briefly refers to the legal aspects of using these waters. however, it has not been specifically and comprehensively addressed. DiscussionArticle 7 of Afghanistan’s Constitution recognizes the government’s responsibility to comply with the United Nations Charter, the Universal Declaration of Human Rights, and other treaties that Afghanistan has accepted, but it does not make any reference to international customary obligations. Of course, this does not mean that Afghanistan does not accept customary international obligations. the obligation to comply with the UN Charter (based on Articles 1 and 2 and other principles of the Charter) is not limited to treaties, and includes obeying all binding sources of international law. The constitution, especially its seventh article, has stated the obligations that need to be approved by the parliament (National Council) and approved by the president. Customary international obligations are usually entered into national systems through automatically and informally and do not require a special process for ratification andapproval. The study of Afghanistan's legal practice, including the study of the past constitutions (1980 and 1987), in which, in addition to treaties, Afghanistan's obligations to other accepted principles and rules of international law are set out, supports this claim.This is why the Afghanistan transboundary water policy, which was approved by the Council of Ministers in 2015, mentions Afghanistan's responsibility to comply with the international rules and regulations in the operation of transboundary waters in its sixth chapter. International rules and regulations include contractual and customary rules.The practice of the Afghan government in the exploitation of common waterways is in line with its responsibility to act by these rules. The signing of a treaty with Iran (in 1973) and an agreement with the Soviet Union in the field of utilization of the Amu River (in 1958 and 1964) indicates that this country considers itself bound to international obligations in this field. Conclusion The Afghan constitution is silent on its international customary obligations. nevertheless, the emphasis on compliance with the United Nations Charter in its seventh chapter also includes complying with the customary rules. The legal and practical practice of the Afghan government shows that this country considers itself obliged to comply with these obligations not only as a member of the international community; but also according to its domestic laws. However, examining the degree of compliance of this country's actions in the use of international waterways with its international obligations requires examining all the related factors. Without access to the relevant information, it would be very difficult to consider these actions in violation of these obligations. However, the principle of responsibility to cooperate obliges the Afghan government to take appropriate measures to deal with these protests within the framework of international law.
