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, ...
Read More
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.
Rahim Nobahar; Ali Velaei
Abstract
The right to be elected is one of the important examples of right to self-determination. Although this right is not absolute, its restriction must be justified. Unjustified insistence upon meritocracy and trusteeship of candidates, has resulted in violation of the right to be elected and the right to ...
Read More
The right to be elected is one of the important examples of right to self-determination. Although this right is not absolute, its restriction must be justified. Unjustified insistence upon meritocracy and trusteeship of candidates, has resulted in violation of the right to be elected and the right to vote. From a socio-political point of view, such restrictions harm democratic aspect of any political system. In I.R. Iran, necessitation of qualification of being just, supposing official positions as religious trust and argument to the principle of incompetency and non-existence of legal qualifications have resulted in many challenges for free, fair and competitive election. Subjective and non-institutional assessment of the nominees by the Guardian Council has worsened the situation. The aim of this article is to evaluate the method of assessment of qualifications of nominees. The article suggests to rely upon those fiqhi theories that present a more tolerant view on the qualification of being just. Also due to the fact that people are the owners of public sphere, it is possible to presume official authorities as contractual trust rather than religious and legal trust. Similarly, there is way to rely upon the presumption of non-sinfulness instead of being just to reduce some restrictions on qualifications of nominees.
International Law
Amirsaed Vakil; Ahmad Ebrahimi
Abstract
Introduction
The joy and excitement that sports bring to fans worldwide, together with the principles of fairness and sportsmanship, requires that the results of sporting events should remain unpredictable and be determined solely based on the skill and will of the athletes, free from any interference ...
Read More
Introduction
The joy and excitement that sports bring to fans worldwide, together with the principles of fairness and sportsmanship, requires that the results of sporting events should remain unpredictable and be determined solely based on the skill and will of the athletes, free from any interference by corrupt entities. The pervasive issue of match-fixing stands out as a significant threat, undermining the very essence of unpredictability in sports results. Now considered as a modern symbol of corruption in the field of sports, match-fixing has evolved into a transnational and cross-border problem as it is associated with gambling, sports betting, and international organized crime. The commercialization of sports, together with the influx of substantial financial resources and wide media coverage, has increased the significance of sports results for both legal and illegal financial companies (Primorac & Pilić, 2020). Consequently, no sport or sports stakeholder remains immune to the consequences of manipulation of results. A report released by Sportradar shows a concerning trend in 2022, revealing the identification of 1212 suspected cases of match-fixing across 12 sports and 92 countries (Sportradar, 2023). In light of this alarming scenario, there is an urgent need to address match-fixing thoroughly by relying on the collective efforts and cooperation of all stakeholders in the field of sports.
Literature Review
A dominant theme in the mainstream literature on match-fixing is the relation between match-fixing and international organized crime, gambling, and legal and illegal betting platforms (e.g., Tweedie & Holden, 2022). There are also case studies focused on specific countries (e.g., Hessert & Goh, 2022). Therefore, the proposed conclusions often advocate for the adoption of criminal laws and regulations within national legal frameworks to address match-fixing (Smith, 2023). Concerning the related literature in Persian, there are a few studies within the sports law. These works predominantly dealt with match-fixing within the scope of domestic law rather than international law or specific sports fields (e.g., Sadati-Fallahabadi, 2021). The studies also offered non-legal solutions (e.g., Mallaei &
Afroozeh, 2021), or addressed the topic from the perspective of sports management and preventive strategies, proposing solutions such as education and the increased awareness to combat match-fixing (see Cheragh-Birjandi et al., 2020). The present study stands out by attempting to identify and analyze the legal nature of match-fixing as both a national and a transnational issue. By focusing on the structures of international sports law (e.g., the Court of Arbitration for Sport), this research aimed to provide a more accurate and nuanced assessment of regulations and the guarantees of their implementation, thus laying the groundwork for effectively confronting and addressing the issue of match-fixing.
Materials and Methods
The current study used a descriptive–analytical method to examine match-fixing, framing the topic within the international sports law and delving into both national and transnational dimensions.
Results and Discussion
According to the Macolin Convention (Council of Europe, 2014), match-fixing involves a multifaceted process with multiple actors that occurs due to sports-related motives—regardless of financial elements—or due to the motives of betting, gambling, or corruption. An analysis of match-fixing in international documents, such as the UN Conventions against Corruption and Transnational Organized Crime, reveals that while these conventions have established a significant international legal framework for corruption-relatedcrimes, they are applicable only when match-fixing is associated with offenses like bribery and organized crime. Moreover, even the Macolin Convention, specifically addressing match-fixing, has not yet achieved global recognition and serves only as the viable option to address the issue (Chappelet, 2015).
Prominent bodies in international sports law, such as the International Olympic Committee and the Court of Arbitration for Sport, have dedicated special attention to the issue of match-fixing. The International Olympic Committee has implemented numerous rules and regulations for preventing, educating, monitoring, and combating match-fixing, as outlined in the Olympic Charter. Following the measures of the International Olympic Committee, international sports organizations have taken significant measures in recent years to combat match-fixing. These efforts generally manifest as ethical and behavioral guidelines, information systems, early warning systems, integrity units, and educational programs (see Criminal Law Provisions for the Prosecution of Competition Manipulation: UNODC-IOC Study, 2016). The jurisprudence of the Court of Arbitration for Sport indicates the development of ratione materiae and personal jurisdiction in addressing match-fixing cases in recent years. To deal with match-fixing cases, the Court adopts a zero-tolerance approach, observing legal principles such as the legality of punishment, proportionality, non-interference, and the prohibition of double trial.
Conclusion
An examination of the performance of various international sports institutions reveals that, from the perspective of international sportslaw, match-fixing is inherently of a disciplinary nature and is treated as a violation of disciplinary standards. In essence, greater emphasis is placed on addressing match-fixing instances driven primarily by sports motives, be they financial or non-financial. This approach avoids associating stakeholders with other criminal activities.
Concerning Iran’s sports law, it is suggested that the shortcomings in the federation regulations be amended by providing a precise and consistent definition of match-fixing, making clear the instances of match-fixing, and developing ratione materiae and personal jurisdiction within the federations. To improve the prosecution process, a series of measures can also be taken, such as establishing a universal standard of proof for proving match-fixing violations, broadening the range of acceptable evidence, and adopting a coherent two-step procedure involving disciplinary and criminal proceedings (with due consideration of legal conditions)—akin to the model observed in UEFA.
Furthermore, the research highlighted notable gaps in international sports law, despite the efforts to establish a suitable international legal framework by the UN, the International Olympic Committee, and the Court of Arbitration for Sport. First, UN conventions, as globally accepted documents, do not specifically address the issue of match-fixing. Second, other declaration documents fall short of covering all forms of match-fixing. Even the Macolin Convention has yet to achieve universal acceptance. Third, the Court of Arbitration for Sport possesses limited executive power and holds a secondary responsibility in this regard. Therefore, it is suggested that the issue of match-fixing be explicitly introduced into international conventions in order to provide a rigorous legal framework for addressing it.
Public Law
Mahdi Mahdavizahed
Abstract
PurposeChanging from "People" to "society" requires a unity of interests and a nation that connects the building blocks of the Iranian people. The present paper concerns the relationship between social changes and public law. The sociological approach to law by deepening the social roots of laws, links ...
Read More
PurposeChanging from "People" to "society" requires a unity of interests and a nation that connects the building blocks of the Iranian people. The present paper concerns the relationship between social changes and public law. The sociological approach to law by deepening the social roots of laws, links "theories" to "facts". Therefore, this article can be classified under interdisciplinary studies of law and sociology. This study goes beyond the traditional classification of public law in the areas of constitutional law, administrative law, financial law, and labor law and can be categorized under the field of socio-legal Studies.The purpose of the paper is to show how the sociology of law affects the theory of state, as a multidisciplinary field of study.Design, Methodology, and ApproachThis article is a library-oriented study in terms of the method of data collection, and descriptive-explanatory-prescriptive in terms of research method.The method of data collection in this research is library research, and the data obtained has been studied through descriptive and explanatory methods with an interdisciplinary approach. Interdisciplinary studies are currently a hot topic in legal academia and we must differentiate between the four types in which the sociological approach to law has been classified as disciplinary, interdisciplinary, multidisciplinary, and Transdisciplinary studies. In the author’s view, public law and sociology are strongly interconnected but we can speak about the possibility of the sociology of law being multidisciplinary. In our paper, we illustrate that different methods can be used in the research of law and legal concepts, and how the methodology of controversial issues and debates in sociology is relevant to the study of law.Therefore, the article can be classified under interdisciplinary studies of law and communication.FindingsBased on the results of this article, the most important characteristic of a co-benefit society for citizens is that a sense of belonging and membership in the society is created and the main legal advantage of a government overseeing it is in its capacity and ability to solve problems. we must first appreciate that law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, how people interact with the law is usually shown in their social life. Evidence from different studies demonstrates that, if we insist on the systematic imposition of values in a diverse society, we create dualities, numerous conflicts, and contradictions, and we will produce many social problems. Consequently, we will send a message to society which indicates the incompetence and inefficiency of the government. In fact, the value of the government is in its ability to efficiently manage conflicts that result from contrasting moral plans.The understanding of the state and theories of state should be firmly grounded in their social context. The state, being an artificial construct, has emerged from a complex interplay of diverse attitudes, beliefs, and values held by individuals. By recognizing the state as a product of human society, we can unveil a profound connection between its "man-made nature" and the underlying "theory of state."Against this background, in this article, I will try to use a socio-legal approach to explain “Pluralistic Society” as the social context of the formation of the democratic state. The use of the sociology of law is because it describes social changes and explains relationships with legal structures, norms, and mechanisms in the search of achieving utopia.this study finds that changes in social values and attitudes inevitably lead to irreversible plurality which is just the situation in the Contemporary Iran. Iran is so diverse in different aspects, meaning that, it has a society that gives different answers to similar questions. The desirable reaction to this cultural diversity should be tolerance and respect for different values because the changes in “citizens' beliefs” form sociocultural forces that shape democracy. Just as many social evolutions in Iran after the Islamic Revolution have arisen from changes in the social forces shaped by the public opinion. Therefore, as long as social changes gravitate toward diversity, we can hope that the best is yet to come.Originality and ValueThis article has reviewed some of the empirical and theoretical research on social norms and law and is one of the first attempts to address the role of social change in the formation of law in contemporary Iran. it has tried to provide a basic understanding as it examines the interplay between social norms and the enforcement of laws.
Iraj Babaei; Morteza Torabi
Abstract
With the development of human rights in all aspects of human life, its impact on private law (horizontal relationship) and consequently on contract law cannot be denied. Human dignity has two individual and social aspects according to human nature. Human social dignity expresses rights such as freedom ...
Read More
With the development of human rights in all aspects of human life, its impact on private law (horizontal relationship) and consequently on contract law cannot be denied. Human dignity has two individual and social aspects according to human nature. Human social dignity expresses rights such as freedom of employment, freedom of education, freedom of expression, freedom of religion and freedom of access to information that are necessary for social life in a democratic society. Regardless of which generation of human rights these rights are, the main question is how these rights apply in contractual relations and whether it is possible to waive or violate any of the rights enumerated through the contract. In this regard, while analyzing different opinions in the case of some European countries and the European Court of Human Rights, it can be said that in Iranian law, these rights are among the general civil rights that cannot be revoked by contract, even in part, and in case of violation of the mentioned rights, the result will be the annulment of all or part of the contract.
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.
Noorbakhsh Riahy; Hossein Alaee; Mohammad Moghadam Fard
Abstract
A legislative system should have only one "legal logic". that's mean, based on principles, clear criteria, principles, concepts and related sources, the method of reasoning as well as goals and ideals can be achieved. However, based on the understanding of this article about the origin and nature of ...
Read More
A legislative system should have only one "legal logic". that's mean, based on principles, clear criteria, principles, concepts and related sources, the method of reasoning as well as goals and ideals can be achieved. However, based on the understanding of this article about the origin and nature of the republic and the Islam of the system, the legislative system of the Islamic Republic is based on the legal logic of "Islamic government" on the one hand and the legal logic of "republican government" on the other. For this reason, both the supreme sovereign institutions are involved in hesitation and duplicity in the performance of duties and powers, and the study of the concept of civil rights from the perspective of fixed divine laws (Islamic government) and changing human rights laws (republican government) will always be subject to instability and challenges. Was. Hence, many believe that these two systems of thought can never be connected with the two infrastructures. The present article, in a descriptive-analytical manner, assumes that in order to reduce this challenge as much as possible, the Islamic Republic is obliged to establish an institution of Islamic Sharia (an institution neglected in the Iranian legal system).
Anvar Yadollahi; Mohammad Hossein zarei; Asadollah Yavari
Abstract
In the last century, one of the most important issues raised in education is the spread of educational justice. With the expansion of the women's role in social activities, sex and gender have changed into the most challenging field of the educational justice. In Iranian legal system, the Document on ...
Read More
In the last century, one of the most important issues raised in education is the spread of educational justice. With the expansion of the women's role in social activities, sex and gender have changed into the most challenging field of the educational justice. In Iranian legal system, the Document on the Transformation in Iran's Education and in the international context, the 2030 Document are the outstanding documents in the field of educational justice.
In the present research, information collection and the research compilation will be made using library resources and descriptive-analytical method.
The common point of these two documents relates to the dignity and status of the human beings. In this regard, both documents have accepted an identical status for both women and men. The departing point of the documents is that each one of these documents has different views towards the meaning of justice and education. . The 2030 Document perceives justice as simple and synonym with equality and defines the gender justice as the gender equality in education. The Transformation Document believes in education distribution proportionate to the needs and roles of each of the two genders. The ambiguity of the Transformation Document in explaining the needs and roles of each gender is its biggest weakness.
Public Law
Seyed Shahabeddin Mostafavinejad; Kheirollah Parvin
Abstract
Corruption is the use of public interest for personal gain. One of the most important ways to deal with corruption is to consider the principle of transparency as one of the main pillars of good governance.Transparency makes all actions and activities visible and closes the ways for violations and the ...
Read More
Corruption is the use of public interest for personal gain. One of the most important ways to deal with corruption is to consider the principle of transparency as one of the main pillars of good governance.Transparency makes all actions and activities visible and closes the ways for violations and the spread of corruption. The question is whether transparency in the Iranian legal system is achievable or not? In this research, through descriptive and analytical methods and use of library resources while considering the legal norms of Iran were used in order to achieve transparency and despite some shortcomings, there are sufficient resources from upstream documents to ordinary laws, and what can be stated as a challenge and a barrier to transparency is the non-compliance of laws and lack of proper supervision by executive bodies. It is relevant. To solve this problem, all executive bodies must take steps towards transparency while paying attention to the existing laws. In this regard, consolidation of employment laws and regulations based on meritocracy, strengthening transparency laws along with eliminating their shortcomings and paying attention to general policies of the government is necessary for transparency and elimination of corruption.
Public Law
Ayet Mulaee; Sayed Ali Mousavi; Farshid Bandehali
Abstract
IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce ...
Read More
IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce rights, or promote benefits beyond its own existence, and only in this capacity can it be recognized by everyone as a right. On the other hand, in his theory, the divine and intrinsically purposive government is trying to incorporate all the desirable features of these schools, despite all these criticisms. notwithstanding this paradox, this research, whose sources have been collected through the library research method and descriptive-analytical study, aims to prove the hypothesis that the Hegelian state emerges from within the traditional liberal and democratic state-building philosophies in a special and distinct way. It is trying to answer the question “What are the characteristics of the ideal state in Hegel's view, In a practical look at the political philosophy of the state?”, The results show, while proving the hypothesis; that contrary to the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, Hegel's state is ‘a reasonable and inevitable institution of society that everyone must recognize its by force and accept its obedience’. Research Question(s)What are the characteristics of the ideal state in Hegel's view? Literature ReviewSeveral research papers have been published Related to the subject of the research, including; Zahra Vashqani Farahani's thesis titled: "State Theory in Hegel's Political Philosophy" published by the Faculty of Literature and Humanities of the Islamic Azad University (Central Tehran Branch), as well as an article titled "The Importance of Hegelian Separation, State and Civil Society" written by Azim Rahin, Prepared and published in No. (1.2) of Social Sciences Quarterly. However, the distinct feature of this research is the examination of Hegel's paradigmatic view of the government, which is in many ways against or in favor of democracy and liberalism. MethodologyConsidering that research in most humanities disciplines is mainly focused on theoretical solutions, the present study has used a library research method to collect the desired data and examines the data with a descriptive-analytical method. ConclusionHegel's philosophy, methodology, and valuable critiques present an outlook that thinks about modernity, instead of being oriented towards the Enlightenment era of his time. Because, basically, from Hegel's point of view, modernity is a bridge in the evolution of the soul towards freedom, and in this way, the self-awareness of the soul is the most important characteristic of the new era. In summary, for the purposes of this research and its main question, what is certain is that Hegel rejects the political theory of social contract that philosophers such as Locke and Rousseau established and views them as inefficient abstract concepts and, by rejecting the abstract idealism of "Reason" and the empiricism of "History" as an independent and durable ground for authority, established a dialectical relationship between reason and history and thereby resolved some of the contradictions raised in the state's founding phase. He also, based the political right on having an independent nature from the state and supports the concept of political right where it maintains its idealistic aspect, but is based on a certain historical era. On the other hand, even though Hegel criticizes the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, his divine and intrinsically purposive government tries to incorporate all the desirable features of these schools and support them. Hegel's goal was to achieve the desired political power system for Germany, and so in this way, he presented his government specially and distinctly from the democratic and liberal state-building philosophies of his time.But what are the characteristics of Hegel's ideal government? The key to understanding this question lies in the ideal concept of political right in Hegel's belief and his opinion about the inherent rationality of the state. From Hegel's point of view, the state is the manifestation of realized freedom and the perfect ethical life. Therefore, the state is an ethical soul that emerges in the form of an essential will by becoming more transparent and definite. Therefore, the state is nothing but "the action of the spirit in the world" realized in a self-conscious form. But since the soul in Hegel's philosophy has an absolute, and even divine essence, according to Hegel's definition, the state is God's will in the world. Such a government is not a responsible or parliamentary government, and this was at a time when the belief in a responsible government was considered the most important feature of 19th-century liberalism. Overall, by studying the philosophy of rights that Hegel talks about, it cannot be said that he does not explicitly accept responsible government, nor can it be said that he explicitly rejected such a government.
Sadeq Z. Bigdeli; Ehsan Solhi
Abstract
The Technical Barriers to Trade (TBT) Agreement is one of the covered agreements of the World Trade Organization (WTO), one of the main objectives of which is to harmonize regulations in the area of technical barriers to trade. While under the TBT Agreement, governments can legitimately apply technical ...
Read More
The Technical Barriers to Trade (TBT) Agreement is one of the covered agreements of the World Trade Organization (WTO), one of the main objectives of which is to harmonize regulations in the area of technical barriers to trade. While under the TBT Agreement, governments can legitimately apply technical regulations and standards for the purpose of protecting public interest, including health and safety, this Agreement, establishes four basic principles including non-discrimination, prohibition of creating unnecessary obstacles to international trade, harmonization and transparency thereby balancing those interest with free flow of cross-border trade. The Purpose of this essay is to evaluates the Iranian regulatory landscape in light of these TBT provisions and the relevant provisions of the WTO Trade Facilitation Agreement. It demonstrates that Iranian legislator, with some exceptions, has substantially disregarded the concepts and principles of TBT Agreement. The same holds true with respect to the recently adopted law titled "Reinforcement and Development of Standard System Act”, enacted as of October 2017, leading to increase in trade costs and therefore undermining Iran’s export competitiveness.
َAmir Nikpey; Shiva Bazargan
Abstract
Discrimination in law is defined on the basis of separate identity grounds such as gender or race, etc. Critical law theorist, Kimberly Crenshaw, challenged the single-axis approach to the discrimination with the introduction of the concept of intersectionality in 1989, and since then, the intersectional ...
Read More
Discrimination in law is defined on the basis of separate identity grounds such as gender or race, etc. Critical law theorist, Kimberly Crenshaw, challenged the single-axis approach to the discrimination with the introduction of the concept of intersectionality in 1989, and since then, the intersectional approach has rapidly expanded into different fields and disciplines under different ways and methodologies. In this article, three basic critiques of intersectionality with anti-discrimination law, including legal essentialism and the experience of discrimination, a single-axis framework of discrimination, and additive approach and multiple discrimination are debated. So, Intersectional discrimination is defined as unequal positions based on social categorization shaped in the complex power relations according to context and in conflict with social justice. The approach of this article is a descriptive-critical approach and the method of the article is to explain each of the criticisms of intersectionality based on the judgments of Iranian Supreme Court.
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.
Zahra Mahmoudi Kordi; Masume Gholami Miansarayi
Abstract
Climate change is considered to be the biggest crisis of the present era, and traditional approaches have not been very effective to deal with it yet. Thus, in recent decades, geoengineering which includes two main methods of carbon dioxide removal and solar radiation management has come to the attention ...
Read More
Climate change is considered to be the biggest crisis of the present era, and traditional approaches have not been very effective to deal with it yet. Thus, in recent decades, geoengineering which includes two main methods of carbon dioxide removal and solar radiation management has come to the attention of countries. Like other emerging technologies, besides its benefits, most important of which to combat climate change, due to scientific uncertainty, they might have harmful effects on the environment. The present article has aimed to describe geoengineering methods and their environmental pros and cons. The findings of the article show that although the geoengineering methods in international environmental treaties are scattered, mostly in the form of implicit expressions, the rules and the actions of member states indicate the different and sometimes contradictory attitudes toward geoengineering, which varies from explicit or implicit approval of some methods, especially in treaties related to climate change, to explicit and implicit opposition of others, such as the Convention on Biological Diversity, the London Protocol, and the Ozone Conservation Convention. This dispersion is so great that a specific legal system cannot be assumed.
International Law
Ghahfur Ghahramani; Mohamad Sharif shahi; Sayed Mohammad Sadegh Ahmadi
Abstract
Citizens' right of access to information as well as the regulation of the system of classification of administrative documents are two important issues in examining the function of a state. In principle, everyone has right to access all information, and regulating a system of classification of documents ...
Read More
Citizens' right of access to information as well as the regulation of the system of classification of administrative documents are two important issues in examining the function of a state. In principle, everyone has right to access all information, and regulating a system of classification of documents to restrict access to information is an exception, and it could be possible where there is a higher interest than that of right of access to information. The way of limiting the right of free access and determining the instances of confidentiality is the main issue of the confidentiality system governing the administrative documents, and it raises the question that who is the authority to determine the confidentiality of administrative documents and its classification system? Also, how is it possible to declassify the documents? Using a comparative approach, this article endeavors to study the similarities and differences of the classification systems of Iran and the U, S, and while reviewing the system of declaring the classification of administrative documents in the United States, investigates the system of classification and declassification of documents in Iranian laws.
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, ...
Read More
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.
Hossain Ayene Negini; Mohammad Amin Abrishami rad
Abstract
According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative ...
Read More
According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative Court of Justice in the Iranian judicial system and the procedure of that Court, proved that the judges of the branches of the Administrative Court of Justice are subject to this principle and obliged to refrain from enforcing such during their proceedings. In this regard, according to Article 11 of “the 2013 Law on the Organization and Procedure of the Administrative Justice Court” that obligated the convicts in the branches of this courts to observe the provisions of the court's decision in their subsequent decisions and actions, it was concluded that, contrary to the supervision of other judges, if the judges of the branches of the Administrative Justice Court find the regulations to be contrary to the Islamic laws and regulations, in some cases it will be possible to invalidate them in general, which was referred to as the "implicit Revocation of Government regulations". However, this situation is inconsistent with the interpretive competence of other judges of the courts in Article 73 and the wording of Article 170, which states that "the effect of the supervision of the judges of the courts is occasional".
Public Law
Mahdi Moradi Berelian; Mohammad Ghsem Tangestani
Abstract
IntroductionIn recent decades, significant advancements in biomedicine have paved the way for the establishment of biobanks, serving as repositories for individual samples crucial in biological research. These samples are instrumental in identifying genetic diseases and developing appropriate treatments. ...
Read More
IntroductionIn recent decades, significant advancements in biomedicine have paved the way for the establishment of biobanks, serving as repositories for individual samples crucial in biological research. These samples are instrumental in identifying genetic diseases and developing appropriate treatments. Nevertheless, a pivotal concern within the domain of public law revolves around how governments address the challenges posed by biobanks and institute the necessary regulatory frameworks. Different legal systems adopt different models of biobank governance. Some legal systems have enacted specific laws, while others have embraced a combination of self-regulation and general government rules. As biobanks continue to expand, a novel form of governance is emerging, wherein biobanks wield influence over political decisions. The present study aimed to examine how Iran’s legal system regulates biobanks and navigates the associated challenges, including the absence of a comprehensive act and the multiplicity of regulatory norms and bodies. These distinctive characteristics may have impacts on transparency, efficiency, accountability, and the establishment of clear-cut mechanisms for sample collection, sample access, and data protection. Focusing on Iran’s legal system, the study addressed the following research questions: What is the model for management of biobanks and their interactions with the government in the legal systems under study? What are the defining characteristics of the regulation of biobanks in Iran’s legal system? What challenges exist in this field, and what potential solutions can be proposed to address them?Literature ReviewPersian literature includes several articles that touch upon this topic, yet they neither provide a comprehensive examination of the regulatory model nor analyze the topic within the context of Iran’s legal system. Instead, they predominantly concentrate on the ethical challenges posed by biobanks.Materials and MethodsEmploying a descriptive–analytical research method, the study relied on library and Internet sources to offer a description of biobanks and delineate their characteristics and various types, while conducting an analysis of selected legal systems to identify models of biobank governance. As a case study, the research meticulously evaluated all laws and regulations pertaining to biobanks within Iran’s legal system. Drawing upon the results of a comparative analysis, it analyzed the regulatory model for biobanks in Iran as well as its challenges.Results and DiscussionThe advancements in biomedical knowledge and the establishment of banks for storing human tissue and genes represent significant achievements as well as challenges for the modern state. The challenges arisen from legal, ethical, security, and commercial considerations associated with the collection and storage of human samples, donor consent, and privacy and data protection all have elevated the regulatory role of the state to a new and specialized level. Traditional laws and rules (e.g., public law, civil law, private ownership, privacy and even penal norms) certainly fall short of providing adequate solutions to the challenges arising from biobanking. Biobanks should be considered as emerging and complex objects of state governance. To deal with this complexity, some governments have adopted a model of regulation in order to design a comprehensive legal framework inclusive of (non-)institutional mechanisms concerning the regulation of biobanking. The adoption of the model assumes large-scale, governmental management capabilities to strike a balance between public interests, individual rights, and commercial interests resulting from biobanking; create integration and transparency in biobanking; and ensure public accountability in this regard. Alternatively, some other governments have opted for decentralized monitoring of biobanks by relying on self-regulatory mechanisms that are mostly based on the norms and principles set by non-governmental institutions as well as a few governmental regulations. The decentralized, self-regulatory approach may lack transparency and public accountability but offer adaptability to the rapid transformations in biotechnology, avoiding issues related to macro-bureaucratic governmental management. In any case, effective governance of biobanks requires appropriate methods to address the multifaceted challenges.ConclusionThe establishment and development of biobanks have ushered in a new era of bio-politics, focusing on individual dissected body parts rather than the body as a whole. Biobanks actively shape biological policies, functioning as subjects of governance rather than passive objects. It seems that ensuring effective network governance and safeguarding public rights and interests require a delicate balance between integrated regulation through legislative norms and self-regulation mechanisms. Governments must strike this balance to play a pivotal role in navigating network governance and guaranteeing its essential functions. Relying solely on integrated regulation through legislative norms can result in an inflexible governance structure that struggles to adapt to changing nature of biomedicine and biobanking. However, certain aspects of biobanking activities must be regulated to ensure efficiency, secure public interests, and maintain accountability while incorporating self-regulatory mechanisms going on in the non-governmental sector.In Iran’s legal system, which is relatively young in the realm of biobanking with a history of less than two decades, biobank governance tends to align more with the model of governmental regulation. However, the Iranian legislator has not introduced specific regulations on banks of human samples. A set of laws, regulations, and documents established by various government agencies, primarily addressing banks of non-human samples, reflects a fragmented and mosaic-like regulatory framework. This approach has not delivered the anticipated benefits of large-scale, governmental management of biobanks, such as transparency, accountability, and the implementation of specific mechanisms related to collecting samples, safeguarding individual rights and privacy, and managing legal and ethical challenges.The legislative body is expected to define general principles and rules for collecting and using human samples, striking a balance between various competing interests. However, due to the specialized nature of the regulated field and limitations related to the legislator’s technical capacity, delving into intricate details may not be a reasonable expectation. It is essential to entrust the detailed regulation to executive statutes or independent specialized bodies.
Mehdi Shabannia Mansour; peiman mohammadi almani
Abstract
Good urban governance is aimed at improving the quality of life of citizens, identified by nine principles of the United Nations as its criteria. The purpose of this research is to analyze and investigate the role and position of the mayor in the formation of good urban governance in Tehran. The research ...
Read More
Good urban governance is aimed at improving the quality of life of citizens, identified by nine principles of the United Nations as its criteria. The purpose of this research is to analyze and investigate the role and position of the mayor in the formation of good urban governance in Tehran. The research is carried out with an analytical descriptive approach and the required information is taken by field survey and completion of the questionnaires. By non-random, purposeful and judicious method, obtained from the members of the local councils of Tehran, and using statistical software Excel and SPSS, and valuation variables, using the Likert scale, the factors were analyzed. After the T-test, the significance level (sig), the indicators of efficiency, transparency, core consensus are equal to 0.055, and in the indicators of
participation, accountability, legality, justice, and strategic insight, it was found to be 0.000; also the sig is less than 0.05, and the correlation coefficient is also positive; consequently, these findings indicate that the mayor of Tehran metropolitan area did not receive a score in all of the above indicators. So the main hypothesis of the research is not rejected.
Hoda Ghafari; Zahra Ebrahimi
Abstract
The pandemic of the Coronavirus was a test for legal systems to evaluate the effectiveness of laws and regulations in the face of the crisis. Advertisement of health goods, including food, hygiene, and pharmaceutical products, is one of the areas that was severely affected by the onset of the crisis. ...
Read More
The pandemic of the Coronavirus was a test for legal systems to evaluate the effectiveness of laws and regulations in the face of the crisis. Advertisement of health goods, including food, hygiene, and pharmaceutical products, is one of the areas that was severely affected by the onset of the crisis. As advertising for tourism or home appliances declined, advertisements for personal protective equipment, cleaning materials, and nutrients to boost the immune system increased. Although Iranian law prohibits promoting and advertising drugs of any kind, drugs for the treatment of Coronavirus were advertised on TV and cyberspace. In this study, by a comparative study of Iranian laws and regulations with that of Britain, as a tool for measuring, the executive power of these two legal systems has been assessed in the face of the Corona crisis. Benefiting from a self-regulatory system of oversight and the existence of quasi-judicial bodies with transparency in access to the votes in the British legal system was an advantage, whereas the conflict of competence in issuing advertising licenses and the lack of a suitable mechanism to compensate consumers in Iran indicate the ineffectiveness of laws and regulations, especially in the face of crises such as Corona.
International Law
Mohammad Saleh Anisi; Mahdi Piri; Shirin Shirazian
Abstract
The strongest hypothesis as to the origin of Covid-19 indicates that it is zoonotic. The food use of products from the wild animal market in Wuhan, and its economic impacts and mortalities urged us to explain the relationship between the right to adequate food, food security and safety, and the approach ...
Read More
The strongest hypothesis as to the origin of Covid-19 indicates that it is zoonotic. The food use of products from the wild animal market in Wuhan, and its economic impacts and mortalities urged us to explain the relationship between the right to adequate food, food security and safety, and the approach to health impact assessment.In general, creating food security and safety and providing food free from any virus and bacteria is one of the gradual and cross-border obligations branching from the right to sufficient food, and it seems that the integrated and cross-border implementation of the approach in assessing the effects on health is a necessary and positive measure. Fulfilling this due obligation requires the existence of efficient legal tools in related fields, and the spread of Covid-19 lacks the presence of legal gaps in these fields. By detailed explaining of the legal and international dimensions of the above cases, this paper aims to analyze these gaps. Finally, it will come up with suggestions for the total fulfillment of the aforementioned obligations in the international law system.
Public Law
Ebrahim Azizi; Farshad Farazmand; Hossein Taleqani Mansournejad; Mohammadhossein Osta
Abstract
1. IntroductionGovernmental development plans have always been a point of concern for countries in terms of how to use national wealth in these projects. Governments have tried to devise possible ways to make better use of public resources in development projects. One of the solutions provided in Iranian ...
Read More
1. IntroductionGovernmental development plans have always been a point of concern for countries in terms of how to use national wealth in these projects. Governments have tried to devise possible ways to make better use of public resources in development projects. One of the solutions provided in Iranian law is the establishment of a legal body called the Supreme Technical Council. This council was established according to Article 80 (amended) of the Budget Law of 1977, approved in 1979, and was responsible for duties and powers, such as the authorization of price floors and the revision of general contract rates. In 1999, according to paragraph (c) of Article 53 of the General Conditions of Construction Works Procurements (a uniform regulatory document issued by the government that prescribes some general conditions that apply to all construction projects engaged in by a public authority), it was considered to be the arbitrator in disputes arising from development projects and so, this role was added to its aforementioned capacities. In this study, by analyzing the nature of these duties, powers, and authorities of the Supreme Technical Council, we will examine whether, first of all, the assigned missions are in line with the existential philosophy of this council. Is there a need to plan such tasks or not? further, is there a consistency between the duties, authorities, and powers of the council? Finally, some solutions and suggestions will be provided accordingly. MethodologyIn this article, by collecting data through library resources, we answered questions with the analytical-descriptive method. Results1- According to parts "a" and "b" of amended Article 80, the Supreme Technical Council is responsible for reviewing and approving the basic prices and related market regulations and instructions, as well as reviewing and approving the prices of special items (which are marked with an asterisk). This has so far been the best way in preventing the unusual increase in the cost of public construction projects and the abuse and waste of public resources. In this role, the Supreme Technical Council has an executive duty.2- According to part "c" of the amended Article 80, the duty to revise the general contract rates has also been assigned to the Supreme Technical Council. The appeal request by the general contractor is subject to the approval of the highest administrative authority of the public party (the employer) and after that, the Supreme Technical Council makes a decision regarding the request. This type of adjustment is a contractual price adjustment and the role of the Supreme Technical Council in agreeing to the appeal is to be a part of the decision-making elements of the public party's executive body which makes it a party to the contract (on the side of the employer). Therefore, in this perspective, the legal nature of the role given to the Supreme Technical Council is as a party to the contract.3- The last duty assigned to the Supreme Technical Council in part "D" of amended Article 80 is to review and make a decision on issues that have been raised by the public parties (employers) for which the contract has not provided a specific solution beforehand. it has been discussed that, in this role, it seems that the Supreme Technical Council is, again, a part of the decision-making side of the public party, and therefore, as a matter of its legal nature, it plays the role of party to the contract.4- The last power that has been considered for the Supreme Technical Council is the authority of arbitration in construction projects, which is derived from paragraph "C" of Article 53 of the general conditions of Construction Works Procurement, which is a judicial role and the Supreme Technical Council acts as a judge between the parties in this role. In addition to the problems that exist in terms of the possibility of exceeding its legal powers in setting guidelines about the general and specific conditions of Construction Works Procurements, and in providing templates for drafting arbitration clauses and the terms used in them, it seems that this authority causes the litigant to be the judge of its own case. Because as mentioned, in some cases, the Supreme Technical Council is on the decision-making side of the executive board of the public contracting party and is somehow involved in this litigation. ConclusionAccording to the aforementioned results, the suggestions are as follows:1- Considering the practical benefits of the duties mentioned in clauses "a" and "b" of the amended Article 80, we suggest keeping them as they are until a better solution is found in this regard.2- Regarding clauses "c" and "d", considering their negative effects in terms of time and money, it is suggested that these powers be assigned to the highest authority of the executive body of the public contracting party just like they were before the amendment of Article 80.3- Finally, regarding the duty of the arbitration, it is suggested that the position of alternative dispute resolution methods in the General Conditions of Construction Works Procurements should be strengthened and it should be mandatory to refer to them and not be at the discretion of the parties (as it is). Also, by amending the laws, the parties of construction projects should be given the right to choose an independent and validated arbitration authority active in the country.Keywords: General Conditions of Construction Works Procurements, Supreme Technical Council, BOQs, Contract Rates, Development Plan, Arbitration
Public Law
Mohjtaba Vaezi
Abstract
Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts ...
Read More
Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts of “ministerial power and discretionary power”. Given the place of foreign law in the field of administrative law, analyzing the origins and aspects of words can help prevent mere adaptation with no attempt at conformity. Examining the concept of competence and its types distinguishes public law, in particular administrative law, from civil law, and consequently makes it easier to identify the appropriate legal rules. The division of competence is not limited to the two types of ministerial and discretionary power. These divisions Affect the manner of judicial control, the type of civil liability regime, and the quality of the principle of legality. Contrary to popular belief, it has also been shown that the principle of "assumption of no authority" does not apply equally to all areas of administrative law. Competence also has its own reflections in the field of administrative contracts, unilateral actions, management of internal affairs of the administrative organization, public order, and public service, which, of course, should be examined on a broader basis.Regarding discretionary power, valuable books have been written, which are mostly focused on the two types of discretionary and ministerial power, such as the book " Discretionary Power" by Dr. Ali Mashhadi in 2013 and the book "Discretionary Power in the context of Modern Public Law" " published in 2014 by Dr. Reza Fanazad.Despite the importance of the two concepts above, it seems that diving deep into analyzing and clarifying the main concept of competence is still necessary and can help to provide appropriate legislation and more accurate judicial decisions in this area. Method and PurposeThis article, through a comparative-analytical method, discusses the different types and functions of competence in the field of administrative law, after dealing with the concept and similar concepts. Also, with a library research method of data collection, we seek to provide as much precision as possible to the key legal concepts in the field of administrative competence, to further explain the nature of administrative functions and facilitate judicial supervision over them. Main Text Competence in the judicial sense, simply, is the lawsuits and complaints that a judicial authority can, and must, deal with.With the provided definition, it should be possible to distinguish the concept of "competence" from "authority". The authority of a judicial authority can be considered as a set of legal facilities that a judge possesses and uses to discover the truth and verify the validity of the parties’ claims, in his capacity of adjudicating and after establishing his jurisdiction. Despite such a distinction in the field of judicial law, in the specific topics of administrative law, the concept of competence includes both the authority and scope of action of the agent. Therefore, it can be said that in Article 170 of the Constitution, in the phrase " or lie outside the authority of the executive power " authority means the field of action of executive authorities.Administrative competence in its strict sense, i.e., inherent or special competence, regarding its content and raison d’etre, has three basic characteristics:1- Undertaking affairs of others: The authority is basically a set of powers and duties that are provided to the administrative officer to perform a public mission or serve the public interest. Therefore, administrative competence is actually the power to administrate the citizens' affairs, or in the words of civil law, administration of another’s affairs.2- Exclusive tenure of a mission: competence is the exclusive responsibility of a public matter which is determined by thematic, temporal, or geographical criteria.3- Possessing legal powers and privileges: the mission of securing the public interest, in principle, requires the possession of a special privilege of authority.- Categories of administrative competence:1- Discretionary competence vs. ministerial competence: The most common and familiar division of administrative competence is ministerial and discretionary. ministerial competence in the shortest definition is where only one option is available to the administrative officer, and on the other hand, discretionary competence is where more than one option is available to the administrative officer based on which he has to decide and act.2- Instituting competence (constitutional) vs. diagnostic competence (declarative): when discussing diagnostic competence, it is noteworthy to check its resemblance with the discretionary competence of the administration. There is a fine line between these two types of competence. The diagnostic competence oversees the identification and diagnosis of the subject and has similarities with the judicial function, in the sense that the relevant authority checks whether the subject of investigation is in accordance with the legislative decree or not. For example, the interview board for PhD selection or employment interview committees identify people who possess the scientific and moral capabilities required by the law. In other words, diagnostic competence is basically declarative in nature and therefore has a quasi-judicial function. Also, to prevent errors and personal conflicts as much as possible, diagnostic authority is usually assigned to a council of experts. The said council is speciallyfounded based on this type of competence, and it has no other functions, so it can be said that the mentioned competence is the reason d’etre of these bodies of authority. On the other hand, instituting authority is where the administrative officer takes an initiative decision and creates a right or obligation or a new legal situation and so, it can be said to be a completely administrative measure. Also, the holder of instituting authority can be an individual officer or a council consisting of people. In addition, the range of functions of an officer with instituting authority is not limited to one or more cases, and to fulfill his multiple missions, he may have ministerial authority in some cases and discretionary authority in other cases.3- General competence vs. special (inherent) competence: administrative competence in its common sense is special or intrinsic competence. The authority of the administration in the legal actions it takes can be divided into two main types according to the nature of its function and goals: general authority and specific or inherent authority of the administration.General authority is the total authority that the administrative body has like any other legal entity. As a legal entity, the administration is considered to have a legal personality and should have the powers that every legal person needs to carry out its affairs. Competences such as concluding contracts and the capability to possess property rights to meet specific needs are among these common competencies.specific or inherent competence of the administration are the powers that the administration has as an official for public service. Not only do private legal entities not have this type of authority, but in many cases, it is specific and exclusive to a certain public person, and for this reason, they are called the special authority of the administration. For example, supervising the standards of urban buildings is the responsibility of the municipality, and in this regard, it can change them if necessary where deemed necessary.In the following, we have discussed the concept and basis of the principle of assumption of no authority in administrative law and we show that the said principle has different functions in different areas of administrative contracts, unilateral actions, internal affairs of the organization, public order, and public services.finally, we have discussed the consequences of different types of competence and their relationship with the scope of judicial control, the regime of civil responsibility, and the principle of legality. ConclusionAdministrative authority, due to belonging to the field of public law and conducting public affairs, has two important characteristics of exclusiveness and authoritativeness. In addition, other classifications of competence which have a practical impact in determining the applicable legal regime should also be recognized. Classification of competence into two types of instituting and diagnostic, on one hand, and into two types of general and special competence on the other, as well as identifying the characteristics of the principle of “assumption of no authority” in terms of its basis and function, require more reflection.It is needed to separate the scope of the implementation of the mentioned principle in the two areas of public order and public services and consider the different circumstances. The public law nature of the concept of competence makes the role of the administration important in administrative contracts, unilateral actions, management of internal affairs of the organization, and the fields of public order and public services, so much so that one cannot expect acceptable function from administrative bodies if this concept is not accurately defined in the field of public law.
Masoud Alborzi Verki; Mustafa Khorrami
Abstract
Distinction between airspace and outer space, despite its theoretical benefits and practical effects, has been controversial. The legal system of airspace is based upon sovereignty principle of territorial state; contrary to that of outer space which is based upon freedom to use. Where does ...
Read More
Distinction between airspace and outer space, despite its theoretical benefits and practical effects, has been controversial. The legal system of airspace is based upon sovereignty principle of territorial state; contrary to that of outer space which is based upon freedom to use. Where does space begin or at what altitude does airspace end, determines the domain of states powers in exercising sovereignty over the space. The present study examines with a critical approach the criteria of this distinction, the status of outer space ownership; comparison of airspace with sea area. By resorting to general principles of law, due to absence of an accepted legal rule, reliance must be made on incontrovertible criterion under which, the lowest point of an orbital flight to be considered as the beginning of outer space, and, the maximum altitude of a plane capable of flying as the airspace located in the air territory. Given the rules governing outer space are specific regime, where there is doubt as to state sovereignty, its existence should be presumed. Therefore, the area between airspace and outer space is governed by air law.
zahra sadat shareq; Hossein Rezazadeh
Abstract
Since non-compliance with human rights at sea is not tangible to what is happening on land, it doesnot receive much attention from the international community. While human rights must be taken into account at sea as much as they are on land. Given the fragmentation in international law, the relationship ...
Read More
Since non-compliance with human rights at sea is not tangible to what is happening on land, it doesnot receive much attention from the international community. While human rights must be taken into account at sea as much as they are on land. Given the fragmentation in international law, the relationship of human rights and law of the sea has provided the necessary grounds for the humanization of the law of the sea. One of the reasons for the fragmentation in international law is the creation of self-contained regimes. Undoubtedly, among these systems are human rights and law of sea, each of which has its own resources and mechanisms, and the collision of these systems with each other in the international system is inevitable. The interaction of the law of the sea with human rights can be seen as an opportunity to develop international law in order to further develop the rule of law. The purpose of the law of the sea is to regulate the relations of states at sea, but our intention is to go in the opposite direction and write about the relation between individual and state in this arena and the interaction between human rights and the law of the sea.
