The Journal of Public Law Research
Allameh Tabataba'i University, Journal, Faculty Member
- Public Law Research is an open-access, double-blind, peer-reviewed journal published by Allameh Tabataba’i University... morePublic Law Research is an open-access, double-blind, peer-reviewed journal published by Allameh Tabataba’i University, the leading university in Humanities and Social Sciences in Iran. Public Law Research has been established to provide an intellectual platform for national and international researchers working on issues related to public law. The Journal was founded in as a response to quick advancements in public law and was dedicated to the publication of highest-quality research studies that report findings on issues of great concern to the profession of public law. In this journal, as well as all other journals published by Allameh Tabataba’i University, each paper is given its specific DOI number to facilitate identification.
To allow for easy and worldwide access to the most updated research findings, the journal is set to be an open-access journal. Yet, the journal does not charge any fee for reviewing, processing, and publishing research papers from the authors or from the research institutes and organizations. All the mentioned processes for paper publication are sponsored by Allameh Tabataba’i University.edit
Even though in the works of legal scholars, some notions regarding the characteristics of legal norms are included, the systematic approach to this issue has been established in this century. The necessity to investigate characteristics... more
Even though in the works of legal scholars, some notions regarding the characteristics of legal norms are included, the systematic approach to this issue has been established in this century. The necessity to investigate characteristics of legal norms, good legal norms, and qualified legal norms, is raised from the practical experience influencing the thoughts and opinions. As a tool for the adjustment of human communication, law is meant to follow goals such as limiting the power, fighting despotism and defending citizens’ rights. Yet, the law itself is encountered with deficiencies hindering it from achieving the goals. The contemporary scholars have put efforts to resolve the deficiencies to introduce the “law” as the true useful tool for society. Investigating the deficiencies and solutions has formed thoughts regarding the “quality of law”. In the present study, the bases and necessity of such investigations and studies is discussed. The present account of writing is divided into three sections: the essence and goals of investigating “quality of law”, necessity and reasons for investigating the issue, and the similar terms and definitions used erroneously as the quality of law.
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Pension funds for maintaining the balance of resources and expenditure invest in different ways; one of the most common practices is owning companies’ stocks. The tendency of many pension funds to this type of investment have led to the... more
Pension funds for maintaining the balance of resources and expenditure invest in different ways; one of the most common practices is owning companies’ stocks. The tendency of many pension funds to this type of investment have led to the management of companies. Management of companies by pension funds (in the sense of having a stock management) as an emerging issue in the legal literature of our country has faced different regulatory policies; some are limiting or prohibiting and others are prescribing. Even though the legislator's last determination was to ban the company management of Iran's pension funds, some have gone too far from their social goals by forming investment companies. This essay using a comparative approach and library analysis, after explaining the legal status of firms has tried to analyze the background and reasons for company management of pension funds including paying of government debt to funds, capital market restrictions in Iran and entrepreneurial profitability. The findings show that if pension funds want to pay more attention to the rights of their members, it is necessary to significantly reduce the company managing, establish balancing through acquisition of shares of investment companies and other investment practices.
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Illegal performance of the flagship is one of the issues discussed in the Convention on the Law of the Sea, for which the guarantee is not enforced. Nevertheless, the capacity of the legal principles and international environmental... more
Illegal performance of the flagship is one of the issues discussed in the Convention on the Law of the Sea, for which the guarantee is not enforced. Nevertheless, the capacity of the legal principles and international environmental instruments and the jurisprudence of international authorities is pivotal. Judicial procedure of international authorities also rely on the ‘precautionary principle’ and ‘Due Regard’ of the flag State. The guarantee of cooperation between flag state and flagship with coastal State and the regional fisheries organizations is considered as shared obligations and responsibilities of the parties. However, this approach is a kind of pledge done that is not accompanied by a guarantee of liability for the compensation to the coastal state. However, the coastal state's approach to the denial of the credibility and reputation of the flag State for the illegal operation of its ship is only a guarantee in order to prevent repetition of similar cases in the future.
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Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place.... more
Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place. Therefore, when these texts are translated into other languages, the meaning and the content of the legal expressions and concepts in terms of their scope and connotations shall be considered. Only in this situation one can rely on these translations and they deserve to be cited. So the revision and reconsideration of these texts from the legal concepts point of view seem very useful and necessary. In this paper, focus has been on the public law expressions and concepts of the Persian translation of the Leviathan and their precision and accuracy is evaluated.
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In evaluating some theories of public law, the observation about the link between those theories and ideology is more often made in a critical spirit, in order to impugn the mentioned public law theories. The question posed in this... more
In evaluating some theories of public law, the observation about the link between those theories and ideology is more often made in a critical spirit, in order to impugn the mentioned public law theories. The question posed in this article is how to define “ideological theories of public law”. This involves three fundamental steps. First, defining the concept of ideology; second, the exposition of the theory of public law; and third, answering to the questions of the consequences of ideologicization of mentioned theories.
In order to establish a legal definition of ideology as used in the current essay, and in the absence of a unified definition of this concept amongst scholars, initially general and specific notions regarding the concept of ideology have been outlined. Subsequently, from these outlined definitions, focus has been on those that are closely related to public law theories. Consequently, an exposition has been given into how a theory of public law becomes ideological at four different levels of origination point; approach; content; and function. Finally, the question of “how the ideologicization of public law theories adversely affects these theories” has been answered.
In order to establish a legal definition of ideology as used in the current essay, and in the absence of a unified definition of this concept amongst scholars, initially general and specific notions regarding the concept of ideology have been outlined. Subsequently, from these outlined definitions, focus has been on those that are closely related to public law theories. Consequently, an exposition has been given into how a theory of public law becomes ideological at four different levels of origination point; approach; content; and function. Finally, the question of “how the ideologicization of public law theories adversely affects these theories” has been answered.
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International rivers that traverse the territories of different States are subject to their exercise of the principle of territorial sovereignty. Utilization of these rivers and performance development plans by each of the riparian States... more
International rivers that traverse the territories of different States are subject to their exercise of the principle of territorial sovereignty. Utilization of these rivers and performance development plans by each of the riparian States will have impacts which may affect the rights and interests of other riparian States. Rules of international legal order relevant to international rivers have regulated legal relations among riparian States for the prevention of disputes and conflicts. Turkish government launched Güneydoğu Anadolu Projesi (GAP) and scheduled the construction of the Ilisu dam on the River Tigris. The operation of this dam in the future will diminish the Tigris water flow to the territory of lower riparian States such as Syria and Iraq. This diminishing effect indirectly plays an important role in developing arid and desert areas and leads to the intensification of dust haze, especially in Iran. This article examines international obligations of Turkish government with regard to the utilization of Ilisu dam.
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The Prosecution is one of the most important public institutions in the realization of the rule of law and the protector of political rights and freedoms. However, there is no theoretical basis or practical practice regarding the position... more
The Prosecution is one of the most important public institutions in the realization of the rule of law and the protector of political rights and freedoms. However, there is no theoretical basis or practical practice regarding the position of this institution among the three powers. Affected by the legal structure and historical and political issues of each country, four factors have been influential in the formation of the position of the Prosecutor's Office: the executive structure; the structure of the judiciary; the independent prosecution; and the elected prosecution, which makes it impossible to introduce a desirable and ideal model for all systems. However, this paper will attempt to examine the four factors and concerns about the prosecution's position among the three powers. These factors include: the independence of the prosecutor's office; the separation of the Prosecution and Adjudication; and the need for prosecution policy-making and accountability. For the desirable position of the prosecution among the powers, it is necessary to strike a balance among these four concerns and effective factors in accordance with the political situation and the historical context of the formation of powers in any legal system.
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Advances in aerospace technology especially in the 20 century unveiled a new kind of aircraft as (remotely piloted aircraft) which is deployed in military and civil application. In recent years, the civil usage of this aircraft has... more
Advances in aerospace technology especially in the 20 century unveiled a new kind of aircraft as (remotely piloted aircraft) which is deployed in military and civil application. In recent years, the civil usage of this aircraft has influential advancement and with no doubt in the future, this new technology will have a great advancement. Some believe that by inventing and increasing the use of this new technology and taking into account the capabilities of these aircraft, the aerospace has become a serious concern and a potential threat to civil rights. Almost all countries are encountered with the same challenges with the use of RPA and their impact on the privacy rights of people. In this article, the effect of the use of RPA on the privacy of the people and the necessity observance of this right at the time of concluding of regulations on the operation of the mentioned aircraft considering the economic and social benefits of the deployment of this technology, are considered and emphasized.
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Analyzing current definitions of public properties in Iranian legal system indicates that distinction between these properties from State properties cannot be sought in criteria such as devoting to public services, the ability to... more
Analyzing current definitions of public properties in Iranian legal system indicates that distinction between these properties from State properties cannot be sought in criteria such as devoting to public services, the ability to confiscate, style of utilization, conformity of public properties from civil
and commercial laws. Also existing approaches about the issues such as “relation between public properties and State-owned companies' properties” and “rules governing public properties” are facing criticism that necessitate the redefinition of public properties.
In this research, it has been endeavored to redefine the public property according to criteria of Iranian constitutional law system such as interpretation of civil law according to the Constitution, with regard to the effects of the concept of sovereignty; in such a way that, while respecting the fundamental legal-jurisprudential frameworks, the efficiency of the State in utilizing public properties shall be taken into accounts. According to this redefinition, public properties (in the general sense) unlike private ones, are properties devoted to public benefit and belonged to legal person of public law and consisting of State properties, State-owned companies properties and public properties (in the strict sense). These properties can be divided into “original or subordinate” public properties and "national or local" in the domain of State ownership. The redefinition will have many practical legal effects in the legal system.
and commercial laws. Also existing approaches about the issues such as “relation between public properties and State-owned companies' properties” and “rules governing public properties” are facing criticism that necessitate the redefinition of public properties.
In this research, it has been endeavored to redefine the public property according to criteria of Iranian constitutional law system such as interpretation of civil law according to the Constitution, with regard to the effects of the concept of sovereignty; in such a way that, while respecting the fundamental legal-jurisprudential frameworks, the efficiency of the State in utilizing public properties shall be taken into accounts. According to this redefinition, public properties (in the general sense) unlike private ones, are properties devoted to public benefit and belonged to legal person of public law and consisting of State properties, State-owned companies properties and public properties (in the strict sense). These properties can be divided into “original or subordinate” public properties and "national or local" in the domain of State ownership. The redefinition will have many practical legal effects in the legal system.
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This article sheds light on the origins of the Rule of saving the system (hifdh al-nidhām) in both theology and jurisprudence. The article insists the broader sense of the Rule and its close relationship with social order. While... more
This article sheds light on the origins of the Rule of saving the system (hifdh al-nidhām) in both theology and jurisprudence. The article insists the broader sense of the Rule and its close relationship with social order. While mentioning some examples of the Rule in juristic issues, the article explains the importance of a transcendental and virtue-based discipline as it is conceived in the Rule. Also the article clarifies the connection of the Rule with saving the government. According to the article, the implication of the Rule in Islamic jurisprudence is more connected with protection of social order in its broad sense. Although the Rule relates to saving and protecting a good government as a necessary element of the society, it is more protecting the disciplines and systems made by human being. The insistence of the rule on social order is not limited to Islamic society and/or saving an Islamic government. Therefore, every human discipline as far as it helps the survival of human being and the quality of its life should be respected. The article also points out the ideal concept of the discipline and the potentials of the Rule for making a better social order.
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Public policy-making is considered as the most important manifestation of government’s ruling, exertion of authority and arrangement of public affairs based on the “rule of law”. Public policy-making cycle, from think tank and... more
Public policy-making is considered as the most important manifestation of government’s ruling, exertion of authority and arrangement of public
affairs based on the “rule of law”. Public policy-making cycle, from think tank and policy-making to assessment and supervision is formed in relation to basic/fundamental rights and therefore, under the influence of the legal and political system, its position and function would be different. In the Iranian legal system, the concept of “general policies of the system” has legal and political affinity/relationship with public policy-making. However, as the result of the existing legal vacuum, its position and function is questionable and accordingly strategies and solutions implied in the process of public policy-making cannot be utilized in assessment and supervision of general policies of the system. Hence, in order to utilize the capacity and capability of “public policy-making” within “general policies” concept in the structure of basic/fundamental rights system in Iran, this legal establishment shall be placed in the procedure of Constitutionalisation in two different but coordinated courses by separating minor and major departments. Therefore in the process of localization, this concept is redefined based on Iranian legal system.
affairs based on the “rule of law”. Public policy-making cycle, from think tank and policy-making to assessment and supervision is formed in relation to basic/fundamental rights and therefore, under the influence of the legal and political system, its position and function would be different. In the Iranian legal system, the concept of “general policies of the system” has legal and political affinity/relationship with public policy-making. However, as the result of the existing legal vacuum, its position and function is questionable and accordingly strategies and solutions implied in the process of public policy-making cannot be utilized in assessment and supervision of general policies of the system. Hence, in order to utilize the capacity and capability of “public policy-making” within “general policies” concept in the structure of basic/fundamental rights system in Iran, this legal establishment shall be placed in the procedure of Constitutionalisation in two different but coordinated courses by separating minor and major departments. Therefore in the process of localization, this concept is redefined based on Iranian legal system.
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Transferring right to reparation as a legal consequence of a state succession in public international law, regardless of how and the way the related succession has been occurred, has always been in dispute and controversial issue.... more
Transferring right to reparation as a legal consequence of a state succession in public international law, regardless of how and the way the related succession has been occurred, has always been in dispute and controversial issue. Following the state succession, the issue of succession of states in respect of right to reparation, in the ways are allowed in public international law, seeks to scrutinize the feasibility of transferring such rights. Studying a conceptual framework of the conception in question in view of public international law, the present paper looking over opinions in favour of it and opposite views. At last, it concludes that transferring of the responsibility to the right to reparation in respect of succession of states should be disregarding of absoluteness and as a result of that, succession of states in respect of the right to reparation has been necessitated in international law which is necessary to achieveing justice and it represents a conceptual evolution in this human knowledge.
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One of the legal tools used by the Court of Justice of the European Union in its jurisdictional system is the preliminary ruling on the basis of Article 267 of the Treaty on the Functioning of the European Union. According to this rule,... more
One of the legal tools used by the Court of Justice of the European Union in its jurisdictional system is the preliminary ruling on the basis of Article 267 of the Treaty on the Functioning of the European Union. According to this rule, the national courts can ask the Court to respond about the interpretation and correct way of applying a European law in a european country, with the aim of removing doubts and perplexities. This process ends with the enactment of a preliminary ruling by the Court. If the request for a preliminary ruling by the lower national courts is a consolidated fact, on the other hand the same can not be said for the requests of the Constitutional Courts, which have not reached a common view on the subject. In this article, in addition to the description of the cases of references for preliminary rulings of the Constitutional Courts of countries such as Italy, France, Spain and Germany before the Court of Justice of the European Union, we will try to understand the events concerning these referrals and mutual approaches held by the courts with particular attention to the approach of national Constitutional Courts.
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In the case Micula A.O. v. Romania, the arbitration tribunal established under the auspices of the International Center for Settlement of Investment Disputes (ICSID) sentenced Romania to pay a compensation for the revocation of investment... more
In the case Micula A.O. v. Romania, the arbitration tribunal established under the auspices of the International Center for Settlement of Investment Disputes (ICSID) sentenced Romania to pay a compensation for the revocation of investment incentives and for the breach of fair and equitable treatment principle that had been laid down in a bilateral investment treaty between Sweden and Romania. Considering investment incentives as a breach of the EU regulations regarding state aids, the European Commission then rendered a directive, prohibiting the enforcement of the arbitration award by the member states. As articles 53 and 54 of ICSID emphasize that the awards are binding, the EU Commission’s act of rendering the aforementioned directive, and the member states refusal to comply with the award equals to giving the EU law primacy over international law, which should be considered as a breach of their international obligations. Using a descriptive-analytical method, this article seeks to explain the viewpoints of the parties and the courts which were asked to enforce the award, as well as to determine the nature of their acts.
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In terms of legal status, 'workers' and 'employees' jobs are indicative of "subordinate labor", which, despite some similarities in dual legal systems, have certain conceptual features, and thus recognizing and distinguishing their... more
In terms of legal status, 'workers' and 'employees' jobs are indicative of "subordinate labor", which, despite some similarities in dual legal systems, have certain conceptual features, and thus recognizing and distinguishing their examples have significant practical implications. Among the similarities between these two legal situations, one can mention personality similarity, wage compliance, and order compliance. But in distinguishing these two terms, one must keep in mind the differences and specifications of each. The nature and basis of the employment are absolutely legal, but the basis for the formation of the worker-employer relationship is the contract. The basis of employee's compliance with the orders of supreme administrative position is the principle of administrative discipline, but the basis for the worker's order compliance is the economic risk of the employer. Finally, the recruitment of an employee is possible only by the administration and with full compliance with the legal terms and conditions of public employment, including the conduct of the public employment examinations. However, employing a worker and concluding a contract is not limited to the administration and is done by the consent of the parties.
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Establishing courts in territories under domination of non-state armed groups is one of the first actions of that groups for making order and law in that places to trial opposition soldiers, civilians and their own members. In this paper,... more
Establishing courts in territories under domination of non-state armed groups is one of the first actions of that groups for making order and law in that places to trial opposition soldiers, civilians and their own members. In this paper, it is tried to examine the legality of this kind of courts in International Humanitarian Law, International Human Rights Law and International Criminal Law. Some of the necessary requirements for legality of these courts are impartiality, independence, judicial guarantees of civilized nations, enjoyment of experienced judges, etc. In a Swedish court, the criminal responsibility of a person was raised for murdering several people in Syria on the basis of a verdict issued by courts held by non-state armed groups. The Swedish court, however, denied the legitimacy of the verdict issued by such courts.
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Executive organs sometimes are inevitable to take possession of real estates belonging to natural and legal persons in the implementation of their public projects. This transmission of real estate is sometimes by consent and sometimes... more
Executive organs sometimes are inevitable to take possession of real estates belonging to natural and legal persons in the implementation of their public projects. This transmission of real estate is sometimes by consent and sometimes compulsory. Determine of the nature of the compulsory possession has a considerable impact both in the works and the results of this practice and both sides' rights. Legal writers have three suggestions in this regard: Some of them considered the nature of it to be juridical facts. Others also regard it as juristic acts. They are two groups themselves: some of them have chosen the nature of the contract for the compulsory possession and others as unilateral acts. In the present study at first, the views have been explained and violated and finally the nature of unilateral acts has been chosen and strengthened.
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Decommissioning of petroleum installation and facilities is part of E&P operations that consists of plugging of wells, dismantling of installations and clearance of the site. Technical, financial, economic costs and environmental issues... more
Decommissioning of petroleum installation and facilities is part of E&P operations that consists of plugging of wells, dismantling of installations and clearance of the site. Technical, financial, economic costs and environmental issues associated with the decommissioning process, compel host countries to enact laws and regulations dealing with all the details of decommissioning operations. However, in some countries, there is no system of law governing the decommissioning project. In the countries with the decommissioning law system, the contents of the laws and regulations are different due to the level of technology and environmental awareness. Identifying law-making gaps in the decommissioning law system of Iran requires the comparative study of the other countries′ laws and regulations especially oil pioneer countries. Therefore, this article at first, analyses the laws and regulations governing the decommissioning of oil and gas installations in the countries with more production capacity such as the UK, the US, Norway and Canada and the countries with lower production capacity such as Nigeria, China, Thailand, Australia, New Zealand, Brunei, Indonesia and the Netherlands comparatively and then deals with decommissioning laws and regulations in Iran.
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The Egyptian Constitution of 1971 addressed the issue of the necessity of protecting the Constitution and established the Supreme Constitutional Court for this task. This body is currently is protecting the Constitution of 2014, as... more
The Egyptian Constitution of 1971 addressed the issue of the necessity of protecting the Constitution and established the Supreme Constitutional Court for this task. This body is currently is protecting the Constitution of 2014, as stipulated in Article 192 of the Constitution and Article 25 of the Supreme Constitutional Court of Egypt, as the task of "monitoring the constitutionality of statutes and regulations". While the laws in the Egyptian legal system are diverse, the effectiveness of the constitutional review system requires the adoption of ordinances to expand the scope of the Supreme Constitutional Court. One of these ordinances is that all laws are subject to the constitutional review of the Court. Accordingly, ordinary laws, Supplementary Constitutional Laws, laws approved by the referendum, abolished laws, parliamentary internal regulations, international treaties, and decisions of the president are subject to the constitutional review of the Supreme Constitutional Court. This is a mark of the effective and genuine constitutional review system in Egypt. However, the Constitutional Amendment rule is out of the constitutional review scope of the Supreme Constitutional Court. In this article, the efficiency of the constitutional review of statutes in the law of Egypt has been investigated.
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In the field of commercial exploitation of underwater cultural heritage, the goal of commercial operators is to maximize profits with minimal cost and time, which is in conflict with archaeological principles requiring large investments... more
In the field of commercial exploitation of underwater cultural heritage, the goal of commercial operators is to maximize profits with minimal cost and time, which is in conflict with archaeological principles requiring large investments and spending so much time. Today, due to the variety of commercial exploitation methods (which are no longer restricted to the sale of archaeological and historical objects), compromise between the goals of commercial operators and archaeologists is not unlikely. International documents have also adopted their own approach, some explicitly prohibiting any commercial exploitation of this heritage, and others implicitly prescribing it. The key question is raised on approach of the "UNESCO’s 2001 Convention on the Protection of Underwater Cultural Heritage". A detailed analysis of the provisions of the Convention indicates that it has almost prohibited the sale of archaeological and historical objects by adopting a retrogressive approach. The Convention's approach could have been more progressive in this field, in line with practical requirements, including the financing of future archeological projects.
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The European Court of Human Rights whose main mission is to consider individual and States petitions in case of the violation of the European Convention on Human Rights and Fundamental Freedoms and its additional protocols, based on the... more
The European Court of Human Rights whose main mission is to consider individual and States petitions in case of the violation of the European Convention on Human Rights and Fundamental Freedoms and its additional protocols, based on the applicant’s request or at its own discretion, tries by indicating interim measures to prevent States actions that might inflict serious and irreparable damage to the applicants. This competence is not specifically enshrined in the Convention, however, it is recognized in article 39 of the rules of the Court. This article, by reviewing the Court’s case-law, investigates to what extent the Court invokes this jurisdiction and whether the interim measures entail enforcement mechanism. The findings of this article show that the Court is using interim measures in an exceptional manner to prevent the violation of articles 2 and 3 of the European Convention on Human Rights. Furthermore, due to the fact that the enforcement of interim measures is not expressly recognized in the Convention or the rules of the Court, the court by its judgments and with referring to article 34 of the European Convention, endeavors to establish an effective enforcement.
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One of the conflicting areas of law arising from custom and treaty is manifested in sea. This happens when a state tries to prove its sovereignty on body of waters that is under sovereignty of another state or part of high seas. Conflict... more
One of the conflicting areas of law arising from custom and treaty is manifested in sea. This happens when a state tries to prove its sovereignty on body of waters that is under sovereignty of another state or part of high seas. Conflict of interest in peripheral states of South China Sea was aggravated by claiming historical sovereignty and rights of China based on Nine-Dash Line in the seabed. Philippines referred to the Permanent Court of Arbitration on the Law of the Sea Convention and brought the dispute to the international arena and once again raised the issue of historic waters. Although China didn’t appear before the PCA but the Court by referring to obligation of parties according to the Law of the Sea Convention concluded that the claim of China is on the contrary of its obligation under United Nations Convention on the Law of the Sea, hence refused to accept it.
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concessions from being adversely modified. The principle of legitimate expectations considered as a ‘well-established’ principle specific to WTO is implicitly stated in Article III of General Agreement on Tariffs and Trade (GATT). It is... more
concessions from being adversely modified. The principle of legitimate expectations considered as a ‘well-established’ principle specific to WTO is implicitly stated in Article III of General Agreement on Tariffs and Trade (GATT). It is also explicitly codified in paragraph 3 of Article XVII of General Agreement on Trade in Services (GATS) which considers the modification of conditions of competition as a violation of the non-discrimination obligation.
The dispute settlement body in the WTO recognizes the legitimate expectations as a “conditions of competition” where foreign markets trust domestic markets based on the negotiated tariff concessions.
So, any actions inconsistent with the overall level of negotiated commitments which have not become enforceable and predictable may constitute the violation of legitimate expectations. In conclusion, the principle of good faith is a tool to accommodate under the protection of legitimate expectations that “impaired benefits” could be claimed under a non-violation type complaint. Furthermore, this article demonstrates how the principle of legitimate expectations, in addition to protecting tariff consolidation, works effectively to fill the void and guarantee competitive opportunities.
The dispute settlement body in the WTO recognizes the legitimate expectations as a “conditions of competition” where foreign markets trust domestic markets based on the negotiated tariff concessions.
So, any actions inconsistent with the overall level of negotiated commitments which have not become enforceable and predictable may constitute the violation of legitimate expectations. In conclusion, the principle of good faith is a tool to accommodate under the protection of legitimate expectations that “impaired benefits” could be claimed under a non-violation type complaint. Furthermore, this article demonstrates how the principle of legitimate expectations, in addition to protecting tariff consolidation, works effectively to fill the void and guarantee competitive opportunities.
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Pipelines are one of the most commonly used means for onshore transportation of oil and gas. In general, there are two different approaches which can be used to form the legal framework for the construction and operation of international... more
Pipelines are one of the most commonly used means for onshore transportation of oil and gas. In general, there are two different approaches which can be used to form the legal framework for the construction and operation of international pipelines: the interconnector and the unified models. These two models differ in a range of factors, including ownership, the governing law, taxation, safety and environmental issues. However, it should be noted that in addition to pipeline agreements which govern the construction and operation of cross-border pipelines, this is the domestic law of the concerned States which allows for the selection between these approaches. This paper examines the structure of agreements which have been used for the construction of international pipelines and examines the possibility of implementing these models in the Iranian legal system. Finally, it has been revealed that a distinction shall be made between pipelines connected to upstream installations and pipelines which are used for transporting refined products. Relying on that, for each category different approaches could be arranged in the Iranian legal system.
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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... 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
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
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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... 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.
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.
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The goods shall be subject to customs formalities while crossing national borders in international transportation. The main duty to meet the above formalities lies against the cargo owner which, in deed, is assignable to an agent _ who... more
The goods shall be subject to customs formalities while crossing national borders in international transportation. The main duty to meet the above formalities lies against the cargo owner which, in deed, is assignable to an agent _ who might be the carrier. However, the carrier itself is obliged to submit a summary declaration of the total cargo before the customs authorities prior to the cargo unloading. The summary declaration is submitted based on the transport documents so that the governing rules could only be construed in line with the transportation law. The legal basis of summary declaration, the exemption from this duty, the carrier who shall declare, the legal nature of manifest and the remedy of non- compliant declaration are some of the issues that are dealt with in this article. This article is distinct in this respect that it has analyzed a customs legal rule from the perspective of transport law.
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The country’'s oil industry, despite having over a hundred years of experience in oil production and trade, is still unable to carry out activities in an endogenous manner and to exploit local potentials in all operational and executional... more
The country’'s oil industry, despite having over a hundred years of experience in oil production and trade, is still unable to carry out activities in an endogenous manner and to exploit local potentials in all operational and executional sectors. One of the most important sectors of the country’'s oil industry, which continues to be significantly dependent to overseas, is the procurement part of the industry in the upstream sector. Considering the importance of national production of oil and gas equipment in upstream sector, this survey is trying to answer whether the oil legislation law sources support the oil industry in the production of these equipment properly and proportionately? To answer this question, this research has extracted standard measures on the basis of a conceptual framework and through the experts’ viewpoints, and after clarifying the existing legislative sources, has come to evaluate the oil legislation law sources in this regard. The results show that the main oil laws of the country and the laws regarding the requirement of internal share towards the extracted standards are neglected and the statutory laws of the National Iranian Oil Company also provide poor support for the construction of the mentioned equipment.
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Defining the applicable standards for proving and measurement of damages constitute one of the most significant issues under the law of damages. In principle, an aggrieved party, who claims compensation for damages based on contractual... more
Defining the applicable standards for proving and measurement of damages constitute one of the most significant issues under the law of damages. In principle, an aggrieved party, who claims compensation for damages based on contractual liability is responsible for showing the existence and the amount of losses suffered or to be suffered. Due to great importance of the issue, transnational instruments of contract law, such as UNIDROIT Principles of International Commercial Contracts (UPICC), Principles of European Contract Law (PECL) and Draft Common Frame of Reference (DCFR) have set out, explicitly or implicitly, special standards such as reasonable certainty, reasonably likely to occur and so on for proving damages; By contrast, the Iranian laws and regulations including the Civil Code do not set out such standards. The legal scholarship and jurisprudence have also failed to address the issue. Therefore, a comparative study of the issue with particular look at international instruments and arbitral awards could provide a reliable source of guidance. This paper analyzes the general and specific standards for proving damages and those situations that fall outside of ambit of the standards such as late payment damages. By doing so, the paper tries to open the debate in Iranian law.
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Downsizing of governments is one of the basic solutions for obtaining the goal of delocalization of Tehran. A strategy, however confirmed in Iranian positive laws, is obstructed with legal-political, administrative structure, limited... more
Downsizing of governments is one of the basic solutions for obtaining the goal of delocalization of Tehran. A strategy, however confirmed in Iranian positive laws, is obstructed with legal-political, administrative structure, limited interpretations about qualifications of local-administrative units and NGOs etc. Thus, rethinking and revising the pattern for administration of Iran and reengineering legal and executive system through decentralization is an undeniable necessity. In order to obtain this task, it’s possible to benefit from related legal documents including: Paragraph 10 of 3rd Principle of the Constitution, Paragraph 10 of the General Policies of Administrative System and other positive laws for downsizing the government, E-government and the decentralization. In the present research, by descriptive- analytical and applied approach, a feasibe study of delocalization of Tehran with government downsizing is emphasized. The main hypothesis of this research is that delocalization of Tehran is possible if the related rules of government downsizing by the related authorities is executed.
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Governments sometimes attempt directly to research and sometimes sponsor them based on their interests and reasons. The legal system governing the funded researches’ results and findings is one of the most important and effective factors... more
Governments sometimes attempt directly to research and sometimes sponsor them based on their interests and reasons. The legal system governing the funded researches’ results and findings is one of the most important and effective factors in exploiting intellectual properties. Some States have enacted special intellectual property rules for publicly funded research which is divided into two main models: Institutional-ownership and inventor-ownership models. In institutional-ownership model, the recipient institute of fund is the owner of the intellectual property. This model was appeared in Bayh-Dole Act in the US, afterwards it spread to the other countries. In Inventor-ownership model, inventors and creators are recognized as the owner of intellectual property, although public institutes funded the research. Professor’s privilege rule which is used in some European countries, could be considered as an inventor- ownership model. Although in the last two decades, global trend is in adopting institutional-ownership model and even several countries with inventor-ownership model changed their legal system to the system, but still some countries emphasize on efficiency of inventor-ownership model. Meanwhile, problems of institutional-ownership model changed the direction of attentions toward inventor-ownership model in the past few years.
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The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his... more
The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, it was attempted to explain the concept of the term "issuing of the referendum" based on an intentionalist approach and in the form of descriptive-analytic studies, in order to explain the authority of the Supreme Leader in the process of substantive and legislative referenda. Analyzing the discussions of the members of the Review Council and considering other relevant indications, it could be argued that the term "issuing of the referendum" was intended to identify the practical action of Imam Khomeini in issuing the decree on the beginning of the process of the "Constitutional Revision Referendum" and it should be considered as the Replica of the first sentence of Article 177. Therefore, this authority of the Supreme Leader does not extend to referendum subject to Article 59 of the Constitution.
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Undoubtedly, one of the conditions for the realization of peace is the participation of all strata and social and political groups. Therefore, the widespread process of peace requires attendance. The obstacles on this path indicate that... more
Undoubtedly, one of the conditions for the realization of peace is the participation of all strata and social and political groups. Therefore, the widespread process of peace requires attendance. The obstacles on this path indicate that we need to know more about why and how women participate in the peace process. It is therefore necessary to pay attention to the participation of women as one of the groups most affected by war and violence. The challenges women face in the peace process are, in most cases, gendered factors. In this regard, the present study seeks to examine the implementation of United Nations Security Council Resolution 1325 on women's participation in the process of peace building in Afghanistan, using a descriptive-analytical method. The results of the study indicate that the Afghan National Action Plan is slowing down with regard to Security Council resolution 1325. This is largely due to the growing conservative position of the government on the role of women and the controversial views of the peace process, on the participation of women in the peace process and the international institutions that provide funding to the Afghan National Action Plan. Women's participation in the peace process in Afghanistan is faced with serious doubts.
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From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in... more
From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition received its legitimation from God’s will and people as peasants, by accepting this issue, considered this power transformation as a kind of charisma. However, because king’s volition came out of king’s characteristics, it was considered to have a variable basis and their derived rule had characteristics such as unpredictability, lack of equality element, uncertainty, lack of continuity and limitation. These features in contrast by modern legal paradigm could not have structure based on natural justice or legal justice and eventually led to the Constitutional Revolution. The major goal of this research is to analyzing the characters of traditional voluntarism frome the perspective of the modern voluntarism. Therfore, it would be possible to clarifing the structural challenges of the pre-revolutionary legal system.
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One of the aspects of the synthesis between religious freedom and freedom of teaching is the correct description of the legal system of religious education in schools. The aim of the research is the explanation of this system in the... more
One of the aspects of the synthesis between religious freedom and freedom of teaching is the correct description of the legal system of religious education in schools. The aim of the research is the explanation of this system in the Council of Europe member States, especially in consideration of respect for the teachings of minorities, focusing on the situation of Turkish Alevis. These descriptions will help us to answer the following question i.e. what are the parameters of the European Court of Human Rights in outlining a legal system of religious education that requires States to respect the faith of minorities and whythe Turkish government does notrecognize Alevis as an independent minority. The result of our research is that from the point of view of European Court, a State can teach a particular religion in its education system, but these teachings must not affect the rights of Alevis. Ankara wants to strengthen its national and religious unity; hence it does not recognize Alevis as an autonomous community. All this is in contrast with the jurisprudence of the European Court and against Turkish secular system.
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Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies.... more
Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility of multidisciplinary in law is of concern here.
In this study, it is argued that, sociology of public law as a multidisciplinary field of studies has affected theory of state. The study of public law and sociology rests on the belief that legal rules and decisions must be understood in the context. Public law is not autonomous, standing outside of the social world, but is deeply embedded within the society.
In this paper, it is illustrated how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law. It is concluded that sociology of public law is based on “legal realism” and the concept of rule of law is shaped from this theory.
In this study, it is argued that, sociology of public law as a multidisciplinary field of studies has affected theory of state. The study of public law and sociology rests on the belief that legal rules and decisions must be understood in the context. Public law is not autonomous, standing outside of the social world, but is deeply embedded within the society.
In this paper, it is illustrated how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law. It is concluded that sociology of public law is based on “legal realism” and the concept of rule of law is shaped from this theory.
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Due to the advancement of industry and increasing economic activities, environmental interferences have been raised, which has led to the emergence of transboundary harm. Given the widespread effects of transboundary harm, governments... more
Due to the advancement of industry and increasing economic activities, environmental interferences have been raised, which has led to the emergence of transboundary harm. Given the widespread effects of transboundary harm, governments have departed from a traditional compensation-based approach to a preventive approach. Experiences and scientific findings show that in addition to its environmental benefits, the preventive approach is economical and therefore is known as the Golden Rule and the Environmental Watch Tower. This article seeks to identify the main elements of the states’ obligation to prevent transboundary harm, using international instruments and precedents. It is concluded that firstly, the obligation to prevent includes two elements: substantial (or due diligence) and procedural (or cooperation), each of which has their structures or components whose existence is essential in identification of the responsibility of the state of origin. Secondly, considering the extent and the negative effects of transboundary harm, the two elements are intrinsic and inseparable, both necessary to fulfill the state’s commitment to prevention.
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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... 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.
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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... 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.
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The Council of Money and Credit, as one of the most important components of the central bank of Iran, is responsible for regulating macroeconomic policies of the country’s banking and supervision over banks and financial and credit... more
The Council of Money and Credit, as one of the most important components of the central bank of Iran, is responsible for regulating macroeconomic policies of the country’s banking and supervision over banks and financial and credit institutions. In order to carry out its duties, the Council has laid down many approvals that are binding on the banking system. However, in some cases, these decisions are in conflict with current laws and regulations or have been outside the scope of the legislative authority of the Council. Hence, there are many questions and ambiguities regarding the position and legal scope of the decisions of the Council of Money and Credit. For instance, are the council’s regulations mandatory for other executive organizations in addition to banks and financial and credit institutions? Otherwise, if the rules are contrary to the Constitution, or the ordinary law, what is the duty of the executors? Given the lack of anticipation of the prior assessment of the above-mentioned approvals, in the course of a dispute and a lawsuit, does the court have a duty to assess and have the right to disregard the effects of such decisions, which have not yet been canceled?
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Internet Multi-stakeholder governance is the latest achievement of the legal doctrine on how to regulate the rules governing the Internet (as a clear indication of the cyberspace). After the first World Summit on the Information Society... more
Internet Multi-stakeholder governance is the latest achievement of the legal doctrine on how to regulate the rules governing the Internet (as a clear indication of the cyberspace). After the first World Summit on the Information Society (WSIS) which was held in 2003, and faced with the acceptance of governments and other stakeholders in the cyber space, it draw serious attention and became operational. In fact, the promoters of this form of global governance are striving using the common concepts and rules of international law to organize the field which unlike the classic international law its only active actors are not the governments, and to some extent, international organizations and this time, other stakeholders such as social groups (individuals) and companies have a major role and influence.
This paper uses an analytical-descriptive method to study the role and effectiveness of each stakeholders in the future of internet governance and the context, implications of applicable international law in this area, such as soft law, related international organizations and, finally, its existing problems and disadvantages.
This paper uses an analytical-descriptive method to study the role and effectiveness of each stakeholders in the future of internet governance and the context, implications of applicable international law in this area, such as soft law, related international organizations and, finally, its existing problems and disadvantages.
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The rapid development of the aviation industry depends on the safety of aviation. Aircraft safety is one of the most important issues in aviation and is not only an internal matter, but also a transnational one due to its nature. The... more
The rapid development of the aviation industry depends on the safety of aviation. Aircraft safety is one of the most important issues in aviation and is not only an internal matter, but also a transnational one due to its nature. The development of the aviation industry is not the same in all countries. Non-compliance with international regulations and standards affect other countries’ aviation safety and may lead to aviation accidents and incidents. No country can take steps to ensure air safety without considering other countries situation.
Since the National Aviation Organization is the main body in charge of aviation safety and the implementation of these regulations in the country, this organization shall make efforts to perform its assigned duties.
This article seeks to explore the role of this organization based on international recommendations and standards and national rules and regulations to ensure the safety of aviation
Since the National Aviation Organization is the main body in charge of aviation safety and the implementation of these regulations in the country, this organization shall make efforts to perform its assigned duties.
This article seeks to explore the role of this organization based on international recommendations and standards and national rules and regulations to ensure the safety of aviation
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Investment arbitrations have their own challenges due to their asymmetric nature, which arise from the essential difference between the parties to the claim. The investor on the basis of the investment agreement can bring a claim against... more
Investment arbitrations have their own challenges due to their asymmetric nature, which arise from the essential difference between the parties to the claim. The investor on the basis of the investment agreement can bring a claim against the host State, but on the contrary, the counterclaim by States for changing the current process of investment arbitration, in which the ultimate conviction is usually for the State, faces with a number of fundamental challenges. This is due to the non-anticipation of the possibility of counterclaim by States and the difficulty of imposing the obligations of international law on investors. These gaps along with the possibility of violation of human rights by the investor, ultimately, lead to non-compensation of third-parties, who are in many cases the direct victims of human rights abuse in this process. Urbaser v. the Argentina is the first ICSID case which the ICSID arbitration tribunal accepts a counterclaim of a State based on human rights violations and puts it into detail analysis; although finally the State remained unable to prove its claim, and the counterclaim had been rejected in merits.
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International Environmental Law is one of the branches of international law that has been developed several decades ago, especially after 1970. Since then, the process of humanization of international law has begun and extended to various... more
International Environmental Law is one of the branches of international law that has been developed several decades ago, especially after 1970. Since then, the process of humanization of international law has begun and extended to various branches of international law. The humanization of international law had begun with an individual-oriented approach, and changed to humankind-approach afterwards, which means it seeks to achieve common high goals among all humanity as a whole. International environmental law is one of the branches of international law that is influenced by this process and based on objective and subjective factors in the environmental field has a humankind-approach. To the authors, the influence of the dignity elements on the basis of invoking to human dignity in the field of environmental law and human dignity capacities, has led to humanist and the humankind-approach of environmental law.
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With the outbreak of Covid-19 in the world, many measures have been taken to reduce the effects of this pandemic. The most important of these was the recommendation to "stay home", which became the main line of slogans. With this... more
With the outbreak of Covid-19 in the world, many measures have been taken to reduce the effects of this pandemic. The most important of these was the recommendation to "stay home", which became the main line of slogans. With this recommendation, schools, offices and factories were closed. Covid-19 pandemic has so far made wide impacts in people's lifestyles, and is likely to have some other implications. The main question of this article is, what environmental opportunities and challenges does Covid-19 bring, and how do these affect environmental law? Quarantine policies have led to a reduction in production and transportation, and a significant reduction in pollution caused by these behaviors. Other implications may not be immediately apparent. Covid-19 may increase residuals vulnerability to future contamination. Other changes may occur, including revisions in environmental and economic changes and revisions in allocating and consumption of resources, as Covid-19 affects the global, national, and local economies. Considering each of these implications and their effects can help develop environmental rights and develop effective strategies.
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As the reports of World Health Organization have proved so far, source of Covid-19 is the zoonotic virus which has been transmitted to human. Consumption of wild animals by humans as a source of nutrition is the main reason of emergence... more
As the reports of World Health Organization have proved so far, source of Covid-19 is the zoonotic virus which has been transmitted to human. Consumption of wild animals by humans as a source of nutrition is the main reason of emergence of these deadly diseases which has not only threatened the safety of millions but unfortunately has also put an end to lives of hundreds of thousands. This study through descriptive-analytical method tries to find the possible bases for prohibiting the production, consumption or trade of wild animals for nutritional purposes in international law. For this purpose and by legal arguments, it is explained that firstly; the right to food doesn’t ban these activities. Secondly, obligations of States on prevention of disasters oblige them to prohibit the production, consumption and their trade for nutritional purposes. In addition, in case of not finding an explicit basis for prohibiting these acts, States which don’t comply fully with their obligations in this regard will be presumed internationally liable. There is a lack of an obligation for States to prohibit these activities in order to preserve the biological diversity. Therefore, the conclusion of an international treaty is recommended for putting an end to the current trend.
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Citizens' freedom of expression in the field of public health is closely related to other concepts such as national security, public morality, rights and freedoms of others And with justifiable restrictions on its expression by citizens... more
Citizens' freedom of expression in the field of public health is closely related to other concepts such as national security, public morality, rights and freedoms of others And with justifiable restrictions on its expression by citizens in a number of international instruments, including Article 19 of the International Covenant on Civil and Political Rights; Article 29 of the Universal Declaration of Human Rights; The principles of Syracuse and General Comments 31 and 34 are challenged because governments use a variety of ways to promote public health, In the event of diseases such as corona with a high prevalence, they can carry out coordinated and principled struggles based on global standards. In this study, international documents that could impose suspensions or restrictions on public freedom of expression in the field of public health (such as the outbreak of coronavirus) have been studied in a descriptive-analytical manner, Because the authors of this article believe that absolute freedom of expression in the field of public health promotes many consequences, including promotion of the use of non-medical methods in the fight against diseases among the people And restrictions on freedom of expression in cyberspace, advertising, and news can be imposed or temporarily suspended.
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According to the international human rights system, human beings have an inherent right to enjoy human rights. In the meantime, although governments are obliged to fully comply with them, those rights are linked to life and survival... more
According to the international human rights system, human beings have an inherent right to enjoy human rights. In the meantime, although governments are obliged to fully comply with them, those rights are linked to life and survival issues, as well as the security and stability of the States. However, due to the entanglement of the right to health and public health with other human rights, the use of the suspension to cover the protection of the right to health in the extraordinary state of Corona has made the realization of this fundamental right doubly challenging. Therefore, the intrinsic part of this challenge is the adoption of health measures compatible with human rights. This article, descriptively-analytically, assuming the possibility of suspending human rights in the Corona emergency, seeks to answer the fundamental question of how the realization of the right to health is possible with the suspension of other human rights. At the same time, what measures are needed to reduce the friction between the right to health and other human rights cases? Since human rights provide a framework for balancing individual and societal interests, balancing rights instead of suspending one right for the benefit of another can help resolve this conflict.
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Three months after the outbreak of the Coronavirus (Covid-19), more than 200 countries around the world have been infected with this virus. The wide and transboundary dimensions of this disease make it necessary to examine those... more
Three months after the outbreak of the Coronavirus (Covid-19), more than 200 countries around the world have been infected with this virus. The wide and transboundary dimensions of this disease make it necessary to examine those obligations that States must bear to prevent and compensate transnational harm in general and those originated from the pandemic in particular. This article tries to define the scope of the States’ obligations. The most common cause of Corona is related to the sale and purchase of some wild animals in China's Wuhan Wet Market, but since the exact cause of the Corona virus has not yet been exactly determined, this article examines the States' commitment to prevent and compensate Corona’s transboundary damages in two hypothetical scenarios to cover all aspects of this issue. In the first hypothetical scenario, assuming the effect of the Wuhan Wildlife Wet Market in China, the obligation of the State of origin (China) to prevent and compensate for Covid-19 is being examined. In the second one, it is assumed that there is no specific cause for the disease, and then the general commitment of States to prevent transboundary harm is studied.
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Coronavirus crisis that began since November 2019 in China influenced the entire World rapidly. This crisis provoked some important questions regarding its legal aspects. One of these questions was about the duty of States in realm of... more
Coronavirus crisis that began since November 2019 in China influenced the entire World rapidly. This crisis provoked some important questions regarding its legal aspects. One of these questions was about the duty of States in realm of individuals’ rights. Due diligence in international law should be considered a key notion for regulation of States’ behavior concerning the coronavirus crisis. Content of this flexible principle as a conduct rule is not a new innovation. No-harm rule as corollary of that principle could be described as an appropriate framework in regulating the conduct of States regarding their neighbors during Covid-19 outbreak. States’ obligations for respecting the human fundamental rights as a key point have been studied in this article. The shadow of due diligence principle on fulfillment of International Health Regulation by States has been the core of this study.
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The spread of Coronavirus in Italy has created the conditions for the government to declare the State of emergency. It has given the opportunity to manage the crisis, but has also limited people's fundamental rights. In this research,... more
The spread of Coronavirus in Italy has created the conditions for the government to declare the State of emergency. It has given the opportunity to manage the crisis, but has also limited people's fundamental rights. In this research, through the deductive-descriptive method, we will try to answer this main question: the actions of the Italian government to counter Coronavirus until what point are compatible with the fundamental rights present in the Constitution? After describing the concept of State of emergency, the government's decisions and the challenges about restriction of fundamental rights, we conclude that the government's actions have had a very negative impact on fundamental rights and freedoms. Not only these emergency decisions have had a very negative impact on people's rights in a democratic system, but the lack of parliamentary oversight about the actions of the Executive makes it reasonable to take a critical look at the actions of the Italian government.
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< p >Natural and unnatural events and disasters always threaten human life, so the protection of human life against them is very important. As one of the most contagious diseases, Corona virus (Covid-19) has affected the lives of all... more
< p >Natural and unnatural events and disasters always threaten human life, so the protection of human life against them is very important. As one of the most contagious diseases, Corona virus (Covid-19) has affected the lives of all people around the world and has damaged the fundamental rights of mental health, which is more vulnerable than other human rights cases. During the Covid-19 pandemic, most people experience a psychological crisis, but certain groups such as the mentally ill, single people, children, workers, the elderly, asylum seekers, the poor, and health workers are more affected than others. The main purpose of the research is to explain the relationship between mental health and human rights and to analyze the mechanisms of Article 12 of the International Covenant on Economic, Social and Cultural Rights and General Comments 14 of the Committee in support of Mental Health against Covid-19 with a descriptive-analytical approach. The results of the research show that Article 12 of the Covenant and the General Comments mentioned have the necessary capacities to protect the right to mental health and prescribe the obligations of the state in fulfilling the right to mental health of vulnerable people.
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Creation of Marine Protected Areas (MPAs) on the High Seas is one of the United Nations Environmental Programme (UNEP) goals in its recent guidance document whose dimensions are subject of this study. The main question here is the... more
Creation of Marine Protected Areas (MPAs) on the High Seas is one of the United Nations Environmental Programme (UNEP) goals in its recent guidance document whose dimensions are subject of this study. The main question here is the challenges facing the UN in the creation and management of MPAs on the High Seas. Findings of this study indicate that the achievement of this goal requires addressing effective enforcement mechanisms and the obligation of all governments and the International Maritime Organization, Regional Fisheries Management Organizations and the International Seabed Authority to identify, implement and to adhere to constraints governing the MPAs on the High Seas. However, the requirement and coordination between different parts of the law of the seas faces challenges that are rooted in dispersed, different, and inconsistent mechanisms. Establishing a consensus and balance between such mechanisms and covering it on the High Seas requires serious intention and consensus of the parties which is missing at present.
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Sometimes the experience of women is an unpleasant combination of marginalization, violence and cultural domination. To ethically encounter with this situation, one approach is equality; however, its content is controversial due to its... more
Sometimes the experience of women is an unpleasant combination of marginalization, violence and cultural domination. To ethically encounter with this situation, one approach is equality; however, its content is controversial due to its open source text. Equality is a descriptive concept, and normative; within the form of a descriptive concept, it refers to a descriptive relationship between two individuals who are similar in some respects. In the normative sense, that belongs to the world of credit and prescribes a particular behavior to all, it is related to our understanding of what should be and is based on desired value which is often "justice". In international law, among the three discourses of equality (capabilities, rights and human capital), the rights is recognized in the framework of the primary rules and through treaties, custom and judicial procedures, which are the formal sources of this legal system, but fails in the actual sources of international law and its secondary rules .This research, by descriptive-analytic approach, shows equality as a legal general principle; its forms, and its relation to the concepts such as discrimination, difference, agency, empowerment and investigates its position among the primary and secondary rules of international law.
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The Helmand International River is a border river between Afghanistan and Iran which originates in Afghanistan and flows into southeastern Iran and finally drains into the Hamun Lake. It has been one of the Afghan-Iranian legal-political... more
The Helmand International River is a border river between Afghanistan and Iran which originates in Afghanistan and flows into southeastern Iran and finally drains into the Hamun Lake. It has been one of the Afghan-Iranian legal-political disputes since the signing of the 1857 Treaty of Paris.
By the construction of several dams on Helmand, Afghanistan has tried to control floods and to provide water for drinking, agriculture, industry, hydroelectric power and so on. However, the environmental impacts of these constructions on the domestic and international levels are controversial. Reducing Iran's right to water leads to drought and desertification, reducing local food products, poverty of marginalized communities and migration, changing the livelihoods of some inhabitants of the region from agriculture, hunting and fishing to illegal activities such as robbery, kidnapping, and the trafficking of drugs, goods and fuel.
The paper uses a descriptive-analytical method to explain Afghanistan's international obligations regarding the use of Helmand through arbitral and judicial procedures. It concludes that the government of Afghanistan is committed to fair and equitable use of the River under its customary commitments so that it does not seriously impair the downstream State’s (Iran) rights. In addition, solving this problem requires the cooperation of the two countries.
By the construction of several dams on Helmand, Afghanistan has tried to control floods and to provide water for drinking, agriculture, industry, hydroelectric power and so on. However, the environmental impacts of these constructions on the domestic and international levels are controversial. Reducing Iran's right to water leads to drought and desertification, reducing local food products, poverty of marginalized communities and migration, changing the livelihoods of some inhabitants of the region from agriculture, hunting and fishing to illegal activities such as robbery, kidnapping, and the trafficking of drugs, goods and fuel.
The paper uses a descriptive-analytical method to explain Afghanistan's international obligations regarding the use of Helmand through arbitral and judicial procedures. It concludes that the government of Afghanistan is committed to fair and equitable use of the River under its customary commitments so that it does not seriously impair the downstream State’s (Iran) rights. In addition, solving this problem requires the cooperation of the two countries.
Research Interests:
There are occasions when several human rights are to be enforced at the same time, but the exercise of all may not be possible in certain circumstances i. e., exercising a right by violating another one, known as the "conflict of human... more
There are occasions when several human rights are to be enforced at the same time, but the exercise of all may not be possible in certain circumstances i. e., exercising a right by violating another one, known as the "conflict of human rights". In today’s world, where human rights are a concern of governments and international organizations, and these rights have established a fundamental place in international documents and rules, the "conflict of human rights" would be regarded as a major challenge for the executives, including governments and the judiciary. Therefore, adopting a method to prevent or eliminate this challenge is vital. Achieving a suitable solution to face this challenge requires an explanation of the concept of human rights and awareness of its divisions, including absolute and non-derogable rights. A review of these divisions illustrates the point of conflict, which will help to resolve the dispute henceforth. In this article, while analyzing various solutions that have been proposed for resolving this problem, it is indicated that in different cases, depending on their circumstances, it is necessary to adopt a suitable solution or a combination of several ones to achieve the best result
Research Interests:
UN Human Rights Treaty Bodies play an essential role in the promotion of State parties’ compliance with international human rights treaties, through examination of complaints filed pursuant to individual communications procedure. These... more
UN Human Rights Treaty Bodies play an essential role in the promotion of State parties’ compliance with international human rights treaties, through examination of complaints filed pursuant to individual communications procedure. These bodies, despite of their quasi-judicial function, are allowed to request interim measures in order to preserve the rights of the individuals claiming of being violated until the final views on the relevant communications are adopted. Whereas, final views adopted by Treaty Bodies are not per se binding and considering the lacuna in their founding instruments and rules of procedure, it is to be seen whether or not interim measures requested by these Bodies could be considered as having a binding force. In the present article, the legal nature of interim measures issued by the UN Human Rights Treaty Bodies is reviewed in light of legal doctrine and the jurisprudence of the said Bodies.
Research Interests:
On 20 June, 2019, a U.S. drone was shot down by the Iranian forces while spying above the Iran’s territory. It is said by the Iranian officials that the drone ignored the warning signals. Under the 1944 Chicago Convention, military and... more
On 20 June, 2019, a U.S. drone was shot down by the Iranian forces while spying above the Iran’s territory. It is said by the Iranian officials that the drone ignored the warning signals. Under the 1944 Chicago Convention, military and civilian aircrafts including drones shall be flown over territories of a contracting State with a special authorization of that State. The 1993 Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, also excluded the passage of foreign vessels aimed at collecting information prejudicial to the national security, defense or economic interests of Iran as an innocent passage. Further, under article 39(1)b of the 1982 Law of the Sea Convention, during the transit passage, ships and aircrafts shall “refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”. The entering into the territory of Iran by the U.S. drone which was with the purpose of collecting information from the army targets was prejudicial to the Iranian national interest. Iran`s reaction in shooting down of the drone is compatible with the inherent right of self-defense enshrined in article 51 of the UN Charter. As a result, the Iranian government could use force based on the self-defense principle.
Research Interests:
Sustainable development of the oceans and regulating the seas by the application of the rule of law is considered as one of the most recent phenomena in the field of international law of the sea. Because of the exacerbated challenges and... more
Sustainable development of the oceans and regulating the seas by the application of the rule of law is considered as one of the most recent phenomena in the field of international law of the sea. Because of the exacerbated challenges and threats posed on the marine environment and the growing decline in genetic resources due to the expansion of human activities, the international community’s concerns about occurring environmental crises for future generations and the threat posed on the principles of intergenerational equity and the common heritage of mankind have been increasing. Therefore, the conservation and sustainable exploitation of marine biodiversity and genetic resources in areas beyond national jurisdiction in recent years have attracted the attention of the UN General Assembly. Therefore, it seems necessary that the legal regime governing biodiversity to be set out by a legally binding instrument under the Convention on the Law of the Sea (UNCLOS) through the consensus of all states. The following research, while outlining the international legal regime governing marine biodiversity, examines the legal effects and outputs arising out of the implementation of the doctrine of the common heritage of mankind on marine genetic resources in areas beyond national jurisdiction.
Research Interests:
After half a century from the first provisions on air pollution of Iranian cities in the Amendment of Some Provisions and Addendum of New Provisions to the Municipal Act of 1967 and on the basis of experiences gained from 22-year... more
After half a century from the first provisions on air pollution of Iranian cities in the Amendment of Some Provisions and Addendum of New Provisions to the Municipal Act of 1967 and on the basis of experiences gained from 22-year enforcement of the Prevention of Air Pollution Act of 1995, the Iranian legislative and executive branches passed the Clean Air Act in 2017.
Although the Clean Air Act contains many innovations and strengths, unfortunately, this Act has also some weaknesses and irregularities which failure to eliminate them would make its implementation hard and its success impossible. Some of the most important irregularities and weaknesses of this Act that will be examined in this paper include the following: reducing the speed of the detection of emergency situations of air pollution and taking necessary measures in these situations; conflicts and overlapping between some of its Provisions, underestimating the social, economic and political consequences of combating air pollution in some cases; failure to grant the general right of public interest litigation to the Department of Environment; numerous irregularities in criminal provisions, notably the lack of prediction of prompt judicial proceedings and non-use of imprisonment punishment, and finally; ambiguity in some Provisions of the said Act.
Although the Clean Air Act contains many innovations and strengths, unfortunately, this Act has also some weaknesses and irregularities which failure to eliminate them would make its implementation hard and its success impossible. Some of the most important irregularities and weaknesses of this Act that will be examined in this paper include the following: reducing the speed of the detection of emergency situations of air pollution and taking necessary measures in these situations; conflicts and overlapping between some of its Provisions, underestimating the social, economic and political consequences of combating air pollution in some cases; failure to grant the general right of public interest litigation to the Department of Environment; numerous irregularities in criminal provisions, notably the lack of prediction of prompt judicial proceedings and non-use of imprisonment punishment, and finally; ambiguity in some Provisions of the said Act.
Research Interests:
The entry of foreign private individuals into the contract with the Administration is always accompanied by this concern that the Administration by using its instruments of governance, violates the terms of equality of the parties at the... more
The entry of foreign private individuals into the contract with the Administration is always accompanied by this concern that the Administration by using its instruments of governance, violates the terms of equality of the parties at the time of concluding the contract and will do such acts like the unilateral change and termination of the contract. To overcome this concern, the types of stabilization clauses in foreign investment contracts are inserted, which seek to preserve the terms of the contract in time of concluding and to prohibit the Administration from changing the terms after the conclusion of the contract. This article by using a descriptive and analytical method seeks to answer the correctness of the inclusion of stabilization clauses in foreign investment contracts in light of administrative rules and principles. Findings show that the inclusion of the conditions of stability in particular types of words, freezing, non-interference and non-compliance with the principle of rule of law, the principle of competence and the principle of equal alignment of public interest and public authority are in contrary with the administrative contracts and the principle of compatibility and non-violation of the stabilization clauses in terms of economic equilibrium with principles governing administrative contracts.
Research Interests:
One of the mechanisms that is foreseen in the Iranian legal system to monitor retirement funds and to create synergies between them is the aggregation of retirement funds. Combining funds in terms of pooling of funds by maintaining their... more
One of the mechanisms that is foreseen in the Iranian legal system to monitor retirement funds and to create synergies between them is the aggregation of retirement funds. Combining funds in terms of pooling of funds by maintaining their own legal personality under the supervision of a superior institution will lead tomultiple desirable effects. The present article, which aims to study the feasibility of aggregation of Iranian retirement funds, has been reviewed in three sections in order to examine the necessities, sources and authorities and the obstacles before aggregating funds. The results suggest that it is necessary for their integration in the current situation due to the lack of coordination between the funds, the lack of effective monitoring thereof, as well as the disregard of some government policies by the funds. However, although the legal framework for this action is largely available in Iran, there are obstacles such as the conflict of aggregation with the independence of the funds, the conflict with the policy of downsizing the government and the disapproval of high-ranking officilas.
Research Interests:
The main focus of this research is on the nature and origin of rights. Jeremy Bentham totally rejects the notion of extra-legal rights. For him, it is only legal rights that are valid and imply a benefit for its holders. Sayyid Abu... more
The main focus of this research is on the nature and origin of rights. Jeremy Bentham totally rejects the notion of extra-legal rights. For him, it is only legal rights that are valid and imply a benefit for its holders. Sayyid Abu al-Qasim al-Khoei's believed that rights’ validity derives from the religious lawmaker. He authenticates rights for reasons which seem to be individuals’ interests. In this paper, it will be shown that Bentham and Khoei, at least on the formation basis of rights, have similar analysis of the concept of rights: they both consider rights as valid due to the lawmaker’s authentication to the benefits of individuals, legally sanctioned in the form of duties. Accordingly, it shall be emphasized that the mentioned writers think along similar lines on the relationship between rights and law. Nevertheless, differences and also consequences of these two analytical theories of rights are too serious to be overshadowed by their mentioned similarity.
Research Interests:
One of the manifestations of rule of law is constitutionalism that entered into legal-political arena in the 18th century. Henceforth, many countries have considered the Constitution as the main manifestation of constitutionalism.... more
One of the manifestations of rule of law is constitutionalism that entered into legal-political arena in the 18th century. Henceforth, many countries have considered the Constitution as the main manifestation of constitutionalism. Accordingly, Algeria and Iran had their own Constitution in 1963 and 1906 respectively for the first time. Their Constitutions needed support from a superior independent institution. The first Algerian Constitution appointed constitutional council as centralized and expert institution to take charge of basic hearing. However, the first Iranian Constitution embraced sharia hearing institution and basic hearing was not in Iranian Constitution until 1979. In general, the nature at basic hearing divided into political and legal parts. The structure of this research is based on the aforementioned classification. The main object of the research is to demonstrate the nature of basic hearing in Algeria and Iran by using documentary method to analyze and to explain the nature of institution that supervises the execution of the Constitution. The results show the multi–dimensional nature of these two institutions.
Research Interests:
One of the require ement of a democratic society is that any governing body arising from the people and authorities must be accountable to the people or their representatives for their conducts. Therefore, the president, as the political... more
One of the require ement of a democratic society is that any governing body arising from the people and authorities must be accountable to the people or their representatives for their conducts. Therefore, the president, as the political official responsible over the government, namely as the management of the Executive Power and the administration of executive affairs of the country must be accountable to the Islamic Consultative Assembly of Iran. The Constitution has implemented certain procedures for the accountability of the president, for instance, interpellation and vote of incompetence. To explain this, the Constitution is permitting the Islamic Consultative Assembly to investigate the executive incompetence of the President, namely the Continuity and durability of his management capabilities and prudence. In this study, three main sources are used to take a closer look at the incompetency of a President including the transcripts of the discussions held in the Assembly of Final Investigation of the Constitution; Council for Revision of the Constitution; and the negotiations on the political incompetence of the first President of Iran
Research Interests:
Creation of Marine Protected Areas on the High Seas is one of the United Nations goals in new executive agreement that its dimensions are subject of this study. Main question is that the UN's ahead Challenges in the creation and... more
Creation of Marine Protected Areas on the High Seas is one of the United Nations goals in new executive agreement that its dimensions are subject of this study. Main question is that the UN's ahead Challenges in the creation and management of Marine Protected Areas on the High Seas? Findings of this study indicate that the achievement of this goal requires the prediction of effective enforcement mechanisms and the obligation of all governments and the International Maritime Organization, Regional Fisheries Management Organizations and the International Seabed Authority to identify, implement and adhere to constraints governing of Marine Protected Areas on the High Seas. However, the requirement and coordination between different parts of the law of the seas faces challenges that are rooted in dispersed, different, and inconsistent mechanisms. Establishing a consensus and balance between ahead capacities and covering it in High Seas requires a present missing’ serious will and consensus.
Research Interests:
Sometimes the experience of women is an unpleasant combination of marginalization, violence and cultural domination. To ethically encounter with this situation, one approach is equality; however, its content is controversial due to its... more
Sometimes the experience of women is an unpleasant combination of marginalization, violence and cultural domination. To ethically encounter with this situation, one approach is equality; however, its content is controversial due to its open source text. Equality is a descriptive concept, and normative; within the form of a descriptive concept, it refers to a descriptive relationship between two individuals who are similar in some respects. In the normative sense, that belongs to the world of credit and prescribes a particular behavior to all, it is related to our understanding of what should be and is based on desired value which is often "justice". In international law, among the three discourses of equality (capabilities, rights and human capital), the rights is recognized in the framework of the primary rules and through treaties, custom and judicial procedures, which are the formal sources of this legal system, but fails in the actual sources of international law and its secondary rules .This research, by descriptive-analytic approach, shows equality as a legal general principle; its forms, and its relation to the concepts such as discrimination, difference, agency, empowerment and investigates its position among the primary and secondary rules of international law.
Research Interests:
The Hirmand International River is a border river between Afghanistan and Iran, whose source originated on the territory of Afghanistan, and has been one of the legal-political subjects between Iran and Afghanistan since the signing of... more
The Hirmand International River is a border river between Afghanistan and Iran, whose source originated on the territory of Afghanistan, and has been one of the legal-political subjects between Iran and Afghanistan since the signing of the Paris Convention of 1857.
Afghanistan's goal is to provide water for drinking, agriculture, industry, hydroelectric power, flood control, and so on. However, the environmental impacts of these dam construction on the domestic and international levels are controversial. Reducing Iran's right to water leads to drought and desertification, reducing local food products, poverty of marginalized communities and migration, changing the livelihoods of some inhabitants of the region from agriculture, hunting and fishing to illegal activities such as Robbery, kidnapping, drug trafficking, goods and fuel.
The paper uses a descriptive-analytical method to explain the international law of Afghanistan's international obligations regarding the use of Hirmand through the use of judicial and judicial procedures. It concludes that the Government of Afghanistan is committed to using its customary commitments to use the Hirmand River fairly and reasonably so that it does not seriously impair the downstream state (Iran), and in addition, solving this problem requires the cooperation of each Two countries.
Afghanistan's goal is to provide water for drinking, agriculture, industry, hydroelectric power, flood control, and so on. However, the environmental impacts of these dam construction on the domestic and international levels are controversial. Reducing Iran's right to water leads to drought and desertification, reducing local food products, poverty of marginalized communities and migration, changing the livelihoods of some inhabitants of the region from agriculture, hunting and fishing to illegal activities such as Robbery, kidnapping, drug trafficking, goods and fuel.
The paper uses a descriptive-analytical method to explain the international law of Afghanistan's international obligations regarding the use of Hirmand through the use of judicial and judicial procedures. It concludes that the Government of Afghanistan is committed to using its customary commitments to use the Hirmand River fairly and reasonably so that it does not seriously impair the downstream state (Iran), and in addition, solving this problem requires the cooperation of each Two countries.
Research Interests:
There are occasions when several human rights are to be enforced at the same time, but the exercise of all may not be possible in certain circumstances i. e., exercising a right by violating another one, known as the "conflict of human... more
There are occasions when several human rights are to be enforced at the same time, but the exercise of all may not be possible in certain circumstances i. e., exercising a right by violating another one, known as the "conflict of human rights". In today’s world, where human rights are a concern of governments and international organizations, and these rights have established a fundamental place in international documents and rules, the "conflict of human rights" would be regarded as a major challenge for the executives, including governments and the judiciary. Therefore, adopting a method to prevent or eliminate this challenge is vital. Achieving a suitable solution to face this challenge requires an explanation of the concept of human rights and awareness of its divisions, including absolute and non-derogable rights. A review of these divisions illustrates the point of conflict, which will help to resolve the dispute henceforth. In this article, while analyzing various solutions that have been proposed for resolving this problem, it is indicated that in different cases, depending on their circumstances, it is necessary to adopt a suitable solution or a combination of several ones to achieve the best result.
Research Interests:
UN Human Rights Treaty Bodies play an essential role in the promotion of State parties’ compliance with international human rights treaties, through examination of complaints filed pursuant to individual communications procedure. These... more
UN Human Rights Treaty Bodies play an essential role in the promotion of State parties’ compliance with international human rights treaties, through examination of complaints filed pursuant to individual communications procedure. These bodies, despite of their quasi-judicial function, are allowed to request interim measures in order to preserve the rights of the individuals claiming of being violated until the final views on the relevant communications are adopted. Whereas, final views adopted by Treaty Bodies are not per se binding and considering the lacuna in their founding instruments and rules of procedure, it is to be seen whether or not interim measures requested by these Bodies could be considered as having a binding force. In the present article, the legal nature of interim measures issued by the UN Human Rights Treaty Bodies is reviewed in light of legal doctrine and the jurisprudence of the said Bodies.
Research Interests:
On 20 June, 2019, a U.S. drone was shot down by the Iranian forces while spying above the Iran’s territory. It is said by the Iranian officials that the drone ignored the warning signals. Under the 1944 Chicago Convention, military and... more
On 20 June, 2019, a U.S. drone was shot down by the Iranian forces while spying above the Iran’s territory. It is said by the Iranian officials that the drone ignored the warning signals. Under the 1944 Chicago Convention, military and civilian aircrafts including drones shall be flown over territories of a contracting State with a special authorization of that State. The 1993 Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, also excluded the passage of foreign vessels aimed at collecting information prejudicial to the national security, defense or economic interests of Iran as an innocent passage. Further, under article 39(1)b of the 1982 Law of the Sea Convention, during the transit passage, ships and aircrafts shall “refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations”. The entering into the territory of Iran by the U.S. drone which was with the purpose of collecting information from the army targets was prejudicial to the Iranian national interest. Iran`s reaction in shooting down of the drone is compatible with the inherent right of self-defense enshrined in article 51 of the UN Charter. As a result, the Iranian government could use force based on the self-defense principle.
Research Interests:
Sustainable development of the oceans and regulating the seas by the application of the rule of law is considered as one of the most recent phenomena in the field of international law of the sea. Because of the exacerbated challenges and... more
Sustainable development of the oceans and regulating the seas by the application of the rule of law is considered as one of the most recent phenomena in the field of international law of the sea. Because of the exacerbated challenges and threats posed on the marine environment and the growing decline in genetic resources due to the expansion of human activities, the international community’s concerns about occurring environmental crises for future generations and the threat posed on the principles of intergenerational equity and the common heritage of mankind have been increasing. Therefore, the conservation and sustainable exploitation of marine biodiversity and genetic resources in areas beyond national jurisdiction in recent years have attracted the attention of the UN General Assembly. Therefore, it seems necessary that the legal regime governing biodiversity to be set out by a legally binding instrument under the Convention on the Law of the Sea (UNCLOS) through the consensus of all states. The following research, while outlining the international legal regime governing marine biodiversity, examines the legal effects and outputs arising out of the implementation of the doctrine of the common heritage of mankind on marine genetic resources in areas beyond national jurisdiction.
Research Interests:
After half a century from the first provisions on air pollution of Iranian cities in the Amendment of Some Provisions and Addendum of New Provisions to the Municipal Act of 1967 and on the basis of experiences gained from 22-year... more
After half a century from the first provisions on air pollution of Iranian cities in the Amendment of Some Provisions and Addendum of New Provisions to the Municipal Act of 1967 and on the basis of experiences gained from 22-year enforcement of the Prevention of Air Pollution Act of 1995, the Iranian legislative and executive branches passed the Clean Air Act in 2017.
Although the Clean Air Act contains many innovations and strengths, unfortunately, this Act has also some weaknesses and irregularities which failure to eliminate them would make its implementation hard and its success impossible. Some of the most important irregularities and weaknesses of this Act that will be examined in this paper include the following: reducing the speed of the detection of emergency situations of air pollution and taking necessary measures in these situations; conflicts and overlapping between some of its Provisions, underestimating the social, economic and political consequences of combating air pollution in some cases; failure to grant the general right of public interest litigation to the Department of Environment; numerous irregularities in criminal provisions, notably the lack of prediction of prompt judicial proceedings and non-use of imprisonment punishment, and finally; ambiguity in some Provisions of the said Act.
Although the Clean Air Act contains many innovations and strengths, unfortunately, this Act has also some weaknesses and irregularities which failure to eliminate them would make its implementation hard and its success impossible. Some of the most important irregularities and weaknesses of this Act that will be examined in this paper include the following: reducing the speed of the detection of emergency situations of air pollution and taking necessary measures in these situations; conflicts and overlapping between some of its Provisions, underestimating the social, economic and political consequences of combating air pollution in some cases; failure to grant the general right of public interest litigation to the Department of Environment; numerous irregularities in criminal provisions, notably the lack of prediction of prompt judicial proceedings and non-use of imprisonment punishment, and finally; ambiguity in some Provisions of the said Act.
Research Interests:
The entry of foreign private individuals into the contract with the Administration is always accompanied by this concern that the Administration by using its instruments of governance, violates the terms of equality of the parties at the... more
The entry of foreign private individuals into the contract with the Administration is always accompanied by this concern that the Administration by using its instruments of governance, violates the terms of equality of the parties at the time of concluding the contract and will do such acts like the unilateral change and termination of the contract. To overcome this concern, the types of stabilization clauses in foreign investment contracts are inserted, which seek to preserve the terms of the contract in time of concluding and to prohibit the Administration from changing the terms after the conclusion of the contract. This article by using a descriptive and analytical method seeks to answer the correctness of the inclusion of stabilization clauses in foreign investment contracts in light of administrative rules and principles. Findings show that the inclusion of the conditions of stability in particular types of words, freezing, non-interference and non-compliance with the principle of rule of law, the principle of competence and the principle of equal alignment of public interest and public authority are in contrary with the administrative contracts and the principle of compatibility and non-violation of the stabilization clauses in terms of economic equilibrium with principles governing administrative contracts.
Research Interests:
One of the mechanisms that is foreseen in the Iranian legal system to monitor retirement funds and to create synergies between them is the aggregation of retirement funds. Combining funds in terms of pooling of funds by maintaining their... more
One of the mechanisms that is foreseen in the Iranian legal system to monitor retirement funds and to create synergies between them is the aggregation of retirement funds. Combining funds in terms of pooling of funds by maintaining their own legal personality under the supervision of a superior institution will lead tomultiple desirable effects. The present article, which aims to study the feasibility of aggregation of Iranian retirement funds, has been reviewed in three sections in order to examine the necessities, sources and authorities and the obstacles before aggregating funds. The results suggest that it is necessary for their integration in the current situation due to the lack of coordination between the funds, the lack of effective monitoring thereof, as well as the disregard of some government policies by the funds. However, although the legal framework for this action is largely available in Iran, there are obstacles such as the conflict of aggregation with the independence of the funds, the conflict with the policy of downsizing the government and the disapproval of high-ranking officilas.
Research Interests:
The main focus of this research is on the nature and origin of rights. Jeremy Bentham totally rejects the notion of extra-legal rights. For him, it is only legal rights that are valid and imply a benefit for its holders. Sayyid Abu... more
The main focus of this research is on the nature and origin of rights. Jeremy Bentham totally rejects the notion of extra-legal rights. For him, it is only legal rights that are valid and imply a benefit for its holders. Sayyid Abu al-Qasim al-Khoei's believed that rights’ validity derives from the religious lawmaker. He authenticates rights for reasons which seem to be individuals’ interests. In this paper, it will be shown that Bentham and Khoei, at least on the formation basis of rights, have similar analysis of the concept of rights: they both consider rights as valid due to the lawmaker’s authentication to the benefits of individuals, legally sanctioned in the form of duties. Accordingly, it shall be emphasized that the mentioned writers think along similar lines on the relationship between rights and law. Nevertheless, differences and also consequences of these two analytical theories of rights are too serious to be overshadowed by their mentioned similarity.
Research Interests:
One of the manifestations of rule of law is constitutionalism that entered into legal-political arena in the 18th century. Henceforth, many countries have considered the Constitution as the main manifestation of constitutionalism.... more
One of the manifestations of rule of law is constitutionalism that entered into legal-political arena in the 18th century. Henceforth, many countries have considered the Constitution as the main manifestation of constitutionalism. Accordingly, Algeria and Iran had their own Constitution in 1963 and 1906 respectively for the first time. Their Constitutions needed support from a superior independent institution. The first Algerian Constitution appointed constitutional council as centralized and expert institution to take charge of basic hearing. However, the first Iranian Constitution embraced sharia hearing institution and basic hearing was not in Iranian Constitution until 1979. In general, the nature at basic hearing divided into political and legal parts. The structure of this research is based on the aforementioned classification. The main object of the research is to demonstrate the nature of basic hearing in Algeria and Iran by using documentary method to analyze and to explain the nature of institution that supervises the execution of the Constitution. The results show the multi–dimensional nature of these two institutions.
Research Interests:
One of the requirement of a democratic society is that any governing body arising from the people and authorities must be accountable to the people or their representatives for their conducts. Therefore, the president, as the political... more
One of the requirement of a democratic society is that any governing body arising from the people and authorities must be accountable to the people or their representatives for their conducts. Therefore, the president, as the political official responsible over the government, namely as the management of the Executive Power and the administration of executive affairs of the country must be accountable to the Islamic Consultative Assembly of Iran. The Constitution has implemented certain procedures for the accountability of the president, for instance, interpellation and vote of incompetence. To explain this, the Constitution is permitting the Islamic Consultative Assembly to investigate the executive incompetence of the President, namely the Continuity and durability of his management capabilities and prudence. In this study, three main sources are used to take a closer look at the incompetency of a President including the transcripts of the discussions held in the Assembly of Final Investigation of the Constitution; Council for Revision of the Constitution; and the negotiations on the political incompetence of the first President of Iran.
Research Interests:
The right to water in investment arbitration has been one of the most contentious issues before investment arbitration tribunals in recent decades. The privatization of public services, including water and sanitation, and assigning them... more
The right to water in investment arbitration has been one of the most contentious issues before investment arbitration tribunals in recent decades. The privatization of public services, including water and sanitation, and assigning them to foreign investors has caused the right to water as a vital benefit being repeatedly raised in investment arbitrations. However, due to tribunals’ narrow interpretation of jurisdiction and applicable law, this fundamental human right has been considered irrelevant and ignored, and this has fueled the legitimacy crises in investment arbitration. This research seeks to indicate the potentiality of more protection of the right to water through balancing the states international obligations in the two areas of investment law and human rights law. Proposed methods for integrating human rights with investment law include the correct interpretation of jurisdictional clauses and the applicable law based on the treaties interpretation principles, systematic integration and the inclusion of new clauses in investment agreements.
Research Interests:
Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted... more
Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, so that the damage leads to its deprivation and abstraction of property from the owner. The Islamic legislator has tried to expropriate property in accordance with property rights and according to the needs of society. Therefore, measures such as the provision of the Court of Administrative Justice and the Guardian Council have been considered in order to protect private property. In this article, which has been compiled in a library method, we will be in a position to answer the question of how the Court of Administrative Justice can prevent or protect the expropriation of persons, but the result is that the Court of Administrative Justice cannot prevent expropriation alone or without legal protection or fully protect the right to property.
Research Interests:
In domestic legal systems, Joint and several liability provides the best assurance that the plaintiffs will be compensated for their loss. The rule means that when multiple defendants are found to have caused the same damage, each... more
In domestic legal systems, Joint and several liability provides the best assurance that the plaintiffs will be compensated for their loss. The rule means that when multiple defendants are found to have caused the same damage, each defendant can be obliged to pay up to the full amount of the loss suffered. It is common in international practice that several states or international organizations contribute together to the indivisible injury of a third party. Therefore, due to the fact that there are situations in which two or more international persons share responsibility for their contribution to an indivisible injury of third persons, is it possible to apply the principle of joint and several liability in the concept of domestic law regarding distribution of reparation in situations of share international responsibility? According to this study, based on the general principle of law as a source of international law in Article 38 of the Statute of the International Court of Justice and due to the relative lack of development of the rules of international responsibility in this field, comparison with domestic law is possible. Yet, the implementation of joint and several liability in the international law system will face the obstacle of the jurisdiction of international courts.
Research Interests:
Misallocation of industries can cause environmental degradation and land misuse, and therefore, to control the deleterious impacts of which on the environment, it is required to use land planning besides the environmental rules on the... more
Misallocation of industries can cause environmental degradation and land misuse, and therefore, to control the deleterious impacts of which on the environment, it is required to use land planning besides the environmental rules on the allocation of industrial units in accordance with the environmental characteristics of land. This article, addressing the interplay between land planning and environmental law, discusses the mechanisms of land planning application in reasonable location of industries and the challenges that hinder this process. The article exercises the land planning regulation in Iran’s environmental law and concludes that land planning can pave the way for the environmentally sound location of the industries through three mechanisms: industrial development strategy designation, zoning for the industries, and their wastes. However, due to some legal ambiguities in land planning, the Iranian environmental law does not apply this instrument in the environmentally sound location of the industries appropriately. The article suggests effective enforcement of land planning in the environmentally sound location of the industries through the legal and institutional improvement of land planning rules in Iran’s environmental law.
Research Interests:
The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led... more
The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution cannot be the only way to achieve the desired goal of meeting the constitution with the needs of society, parties, and people on the constitution in the constitutional law. In this respect, two approaches of originality and dynamism are noteworthy. The controversy between the originalists and the dynamic constitution suggests that in addition to the formal method, constitutions can be reviewed and changed informally. In this article, the concept and principles of the dynamic constitution as a new theory, survey the limits of living constitution interaction in the face of the originalist constitution, the relationship between the living constitution and the legitimacy of the political system, and its confrontation with the rule of law are examined. The main goal of this article is to provide the basis for further research and localization of the present theory by examining the dimensions and challenges of the forthcoming issue to address the shortcomings of the Iranian constitution in the face of the current challenges of the constitution.
Research Interests:
Extensive research has been conducted on expropriation of foreign investment. However, different methods of expropriating intellectual property of foreign investors have yet to be shed light on by legal scholars. Considering that issuance... more
Extensive research has been conducted on expropriation of foreign investment. However, different methods of expropriating intellectual property of foreign investors have yet to be shed light on by legal scholars. Considering that issuance of compulsory licenses is one of the most important measures in this respect, this article shall focus on compulsory licensing through critical analysis of different approaches in this regard, and an attempt will be made to provide a proper response to the question whether compulsory licenses are regulatory measures or expropriation ending in compensation. The piece will make an effort to achieve this through illustration of current stance of the Iranian legal system, domestic and international regulations and pertinent legal cases. It seems that despite the initial regulatory nature of such licenses, one cannot exclude all instances of granting compulsory licenses from the expropriation provisions. Instead, adoption of a case by case approach along with due consideration of the literature of the treaty and domestic regulations in order to determine whether the measure of government in regard to issuance of such licenses is expropriation or not is recommended.
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"Civil disobedience" as a form of protest in socio-political activities is the act of deliberately violating a valid law for moral protest against the government. The justification of this socio-political idea has seen ups and downs in... more
"Civil disobedience" as a form of protest in socio-political activities is the act of deliberately violating a valid law for moral protest against the government. The justification of this socio-political idea has seen ups and downs in parallel with the emergence of widespread protest movements against governments in the Western world. One of the concerns of accepting this idea in religious government is philosophical justification based on the existence of a moral and political obligation to "obey the law" in law-abiding religious governments. Borrowing from the posed subjects in the legal and political literature of the West about the two mentioned doctrines, this article deals with the feasibility of combining civil disobedience and the rule of law in religious governments. The result is to prove the possibility of establishing a relative interaction between these two doctrines and accepting the degree of civil disobedience and the rule of law in religious government by separating the formal and substantive analyses of the rule of law. The research method of this writing is descriptive-analytical.
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Legal systems have taken different approaches to Copyright infringement but the ultimate purpose of them is to prevent the intentional and unjust appropriation of the rights of the creators. The proof of copyright infringement is easy... more
Legal systems have taken different approaches to Copyright infringement but the ultimate purpose of them is to prevent the intentional and unjust appropriation of the rights of the creators. The proof of copyright infringement is easy when some rights such as reproduction is infringed or literal appropriation has taken place. However, it would be difficult to prove infringement when the plaintiff claims that defendant appropriated a material amount of his original work with some differences. The main question is how much similarities are too much? there is no definitive standard in the law, but courts believe that infringement occurs when the defendant’s work bears a substantial similarity to plaintiff's work and to achieve that they have introduced various tests. This article seeks to explain the concept of substantial similarity in Copyright infringement and the way to achieve it. The result of the research is the choice of one or more tests from the four available tests depending on the type and nature of the work. However, in all choices, it is necessary to separate protected from unprotected elements and dichotomy between idea and expression in the work. This article also show that qualitative similarities are more important than quantitative similarities.
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The states whose national security is threatened sometimes violate international law by seeking to maintain their national security. Thus, the treaty system took national security into account. Examining the provisions of the treaty... more
The states whose national security is threatened sometimes violate international law by seeking to maintain their national security. Thus, the treaty system took national security into account. Examining the provisions of the treaty system on the invocation of national security, the rule of recourse to national security was not inferred, but by analyzing the exceptions of national security in the treaty system, the two concepts of national security protection and national defense security were invoked. "Protective national security exception" is a set of rules that have been formulated to protect individuals against governments' self-centeredness in the field of human rights, and "national security defensive exception" is the authorization that international law allows countries to resort to national security. It gives self-defense against acute threats. The purpose of this research is to answer the question whether countries can ignore international law in a limited and temporary manner citing their national security. It can be confirmed that Governments can violate international law in a controlled manner without being held accountable for their self-preservation, and this violation may occur against any international entity. The sum of these two mechanisms expresses the concept of the exceptionalism system of national security. Implicit and explicit exceptions to states' recourse to national security (exceptionalism) can be summed up under the legal regime of national security.
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One of the important principles of international water law is the Principle of Equitable and Reasonable Utilization. According to this principle, any Watercourse State is eligible for an equitable and reasonable share in the constructive... more
One of the important principles of international water law is the Principle of Equitable and Reasonable Utilization. According to this principle, any Watercourse State is eligible for an equitable and reasonable share in the constructive use of the shared water resource. The allocation of states' rights in using shared water resources has long been based on the multi-dimensional and complex definition of fairness. The main questions to which this research intends to answer are as follows: what is the concept and realm of the principle of equitable and reasonable utilization in the international law and procedure and how was the process of its changes? This principle, as the main basis and component of the international water law system, is considered a rule of the customary international law and is included in various international instruments. The described principle, along with other principles ruling in this field, can create a lawful system for the states and control the disputes between the states in shared water resources management. In this research, by using library and internet resources and international instruments, and using a descriptive-analytical method, the concept and realm of the principle of equitable and reasonable utilization will be studied.
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1. Introduction According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the... more
1. Introduction
According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic Council. Since, according to Article 113 of the Constitution, the President, who is the highest official of the country, heads the executive branch, including the ministries -except in matters directly related to the Supreme Leader’s powers, the powers of a vice president may interfere with the powers of ministers. Considering the obscurity of Article 124 and the legal gap regarding the limits to the powers of the vice presidents, the framework grounded for the powers of the vice presidents and the limits to the powers of the ministers should be determined.
Research Question
This essay seeks to answer the question "Could the president appoint deputies with duties that are in the jurisdiction of the ministries?". The exact answer to this question depends on analyzing whether, on a legal basis, it is possible to appoint a vice president in the jurisdiction of the ministries or not. On the other hand, it should be investigated as to what extent this type of appointment has occurred in the legal system of the Islamic Republic of Iran, and what is the opinion of the Guardian Council as the main judge in this matter? And finally, considering the capacities provided in law, how can this conflict be prevented or solved?
2. Literature Review
Before this research, the subject of vice presidents has not only been examined under the general concept of the president and the first vice president’s powers but also specifically in articles such as "The legal requirements of delegating the powers of the president to deputies in Iran's constitutional law system with regards to the opinions of the Guardian Council", "A look at the assignment of president’s legal duties to the deputies" and "Regulations for the appointment and the position of special representatives and deputy presidents". However, these articles did not deal with the issue of any interference between the competence of the president and the ministers and thus, their topic is fundamentally different from this research. Regarding the relationship between the vice presidents and the ministries, there has been a report on "carrying out executive affairs through the vice presidents instead of the ministries", which is also different from this research because it focuses on the possibility of doing executive affairs by the vice presidents instead of the ministries, irrespective of the issue of interference of their powers. Therefore, the innovation of this research is first, in its topic of examining the conflict between the legal powers of the vice presidents and ministers and, second, in its analysis at two theoretical and practical levels, and third, in its examination of the plausible legal answers and providing an innovative solution to overcome this problem.
3. Methodology
The current essay has been done through library research and adopting a descriptive-analytical approach meaning that, in addition to identifying the qualifications of vice presidents and ministers, we have analyzed the research problem using logical arguments.
4. Results
According to Article 124 of the Constitution, the president can have deputies to perform his legal duties. By examining the detailed summary of the deliberations of the Constitutional Revision Council, the proposed arguments, and the systematic approach taken to the enactment of the Constitution, we find that the deputy is considered a representative of the president by the legislator and a non-authentic person, and since the authority of the president is limited, he cannot appoint a deputy within the jurisdiction of the ministries.
From the opinions of the Guardian Council regarding the issue of the "consulting minister", it is also deduced that the president can create institutions under his supervision and delegate matters to them to handle some extra-ministerial affairs and his special duties such as "supervising the work of ministers", "harmonizing government decisions", "formulating the government's programs and policies", "synchronizing and policy-making of executive bodies" and "mobilizing the facilities of executive bodies for a specific issue", but other duties and executive affairs that are not part of the president’s special duties which are under the jurisdiction of the ministries, cannot be entrusted to his affiliated institutions, and such assignment would be against the Constitution.
In the current status, vice presidents are assigned in four ways: by the Constitution, the resolution of the supreme councils, the statutes, and by the decree of the president. On the other hand, the only bodies that determine the ministers’ powers are the statutes, and in case of a conflict between the powers of the vice presidents and the ministers, conflict resolution of the above-mentioned bodies with the statutory law should be examined. In case of adding to or changing the powers of the ministers by the statutory law and their conflicts with the powers of the vice presidents; If the founding document of the vice president is the statutory law or the decree of the president, the recent statute is applied, but if the founding document is the Constitution or the decree of the supreme councils, the recent law is invalid. To change or establish the powers of the vice-presidents, only the parliament or supreme councils such as the Cultural Revolution Council have the authority to appoint vice-presidents acting in duties that are considered to be in the jurisdiction of the ministers.
5. Conclusion
A conflict between the powers of the ministers and the vice presidents is only problematic where the founding body for appointing the vice president is the decree of the president himself, and in order to get out of this problem, it is possible to use the capacity provided by the constitution in the matter of supervision of the General Inspection Organization of the Country, the supervision of the parliament in Article 90 of the Constitution, and the case law of the Court of Administrative Justice; However, these solutions are difficult to reach and only reactive; Therefore, it is suggested that in the statutory law, the president -while appointing the vice presidents- should be required to approve bylaws on the limits of their authority in the cabinet so that the speaker of the parliament can prevent the interference of the authorities a priori, and that filing a well-grounded complaint in the administrative court of justice would become less complicated and problematic.
According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic Council. Since, according to Article 113 of the Constitution, the President, who is the highest official of the country, heads the executive branch, including the ministries -except in matters directly related to the Supreme Leader’s powers, the powers of a vice president may interfere with the powers of ministers. Considering the obscurity of Article 124 and the legal gap regarding the limits to the powers of the vice presidents, the framework grounded for the powers of the vice presidents and the limits to the powers of the ministers should be determined.
Research Question
This essay seeks to answer the question "Could the president appoint deputies with duties that are in the jurisdiction of the ministries?". The exact answer to this question depends on analyzing whether, on a legal basis, it is possible to appoint a vice president in the jurisdiction of the ministries or not. On the other hand, it should be investigated as to what extent this type of appointment has occurred in the legal system of the Islamic Republic of Iran, and what is the opinion of the Guardian Council as the main judge in this matter? And finally, considering the capacities provided in law, how can this conflict be prevented or solved?
2. Literature Review
Before this research, the subject of vice presidents has not only been examined under the general concept of the president and the first vice president’s powers but also specifically in articles such as "The legal requirements of delegating the powers of the president to deputies in Iran's constitutional law system with regards to the opinions of the Guardian Council", "A look at the assignment of president’s legal duties to the deputies" and "Regulations for the appointment and the position of special representatives and deputy presidents". However, these articles did not deal with the issue of any interference between the competence of the president and the ministers and thus, their topic is fundamentally different from this research. Regarding the relationship between the vice presidents and the ministries, there has been a report on "carrying out executive affairs through the vice presidents instead of the ministries", which is also different from this research because it focuses on the possibility of doing executive affairs by the vice presidents instead of the ministries, irrespective of the issue of interference of their powers. Therefore, the innovation of this research is first, in its topic of examining the conflict between the legal powers of the vice presidents and ministers and, second, in its analysis at two theoretical and practical levels, and third, in its examination of the plausible legal answers and providing an innovative solution to overcome this problem.
3. Methodology
The current essay has been done through library research and adopting a descriptive-analytical approach meaning that, in addition to identifying the qualifications of vice presidents and ministers, we have analyzed the research problem using logical arguments.
4. Results
According to Article 124 of the Constitution, the president can have deputies to perform his legal duties. By examining the detailed summary of the deliberations of the Constitutional Revision Council, the proposed arguments, and the systematic approach taken to the enactment of the Constitution, we find that the deputy is considered a representative of the president by the legislator and a non-authentic person, and since the authority of the president is limited, he cannot appoint a deputy within the jurisdiction of the ministries.
From the opinions of the Guardian Council regarding the issue of the "consulting minister", it is also deduced that the president can create institutions under his supervision and delegate matters to them to handle some extra-ministerial affairs and his special duties such as "supervising the work of ministers", "harmonizing government decisions", "formulating the government's programs and policies", "synchronizing and policy-making of executive bodies" and "mobilizing the facilities of executive bodies for a specific issue", but other duties and executive affairs that are not part of the president’s special duties which are under the jurisdiction of the ministries, cannot be entrusted to his affiliated institutions, and such assignment would be against the Constitution.
In the current status, vice presidents are assigned in four ways: by the Constitution, the resolution of the supreme councils, the statutes, and by the decree of the president. On the other hand, the only bodies that determine the ministers’ powers are the statutes, and in case of a conflict between the powers of the vice presidents and the ministers, conflict resolution of the above-mentioned bodies with the statutory law should be examined. In case of adding to or changing the powers of the ministers by the statutory law and their conflicts with the powers of the vice presidents; If the founding document of the vice president is the statutory law or the decree of the president, the recent statute is applied, but if the founding document is the Constitution or the decree of the supreme councils, the recent law is invalid. To change or establish the powers of the vice-presidents, only the parliament or supreme councils such as the Cultural Revolution Council have the authority to appoint vice-presidents acting in duties that are considered to be in the jurisdiction of the ministers.
5. Conclusion
A conflict between the powers of the ministers and the vice presidents is only problematic where the founding body for appointing the vice president is the decree of the president himself, and in order to get out of this problem, it is possible to use the capacity provided by the constitution in the matter of supervision of the General Inspection Organization of the Country, the supervision of the parliament in Article 90 of the Constitution, and the case law of the Court of Administrative Justice; However, these solutions are difficult to reach and only reactive; Therefore, it is suggested that in the statutory law, the president -while appointing the vice presidents- should be required to approve bylaws on the limits of their authority in the cabinet so that the speaker of the parliament can prevent the interference of the authorities a priori, and that filing a well-grounded complaint in the administrative court of justice would become less complicated and problematic.
Research Interests:
Abstract freedom of people in determining their own destiny is a value first raised during the French Revolution in the form of a general concept called “the right of the people to determine their destiny” and was later pointed at... more
Abstract
freedom of people in determining their own destiny is a value first raised during the French Revolution in the form of a general concept called “the right of the people to determine their destiny” and was later pointed at internationally in different ways by statesmen such as Lenin and Wilson. This right was developed to discard of the old approach in the international arena i.e., the state-oriented tendency in international interactions.
According to the old approach, the international community was made up of states which essentially pursued the political interests of their leaders. In fact, the relations between the governments resulted in the relations between the ruling groups who considered the interests of their citizens only when they were threatened by foreign powers or only when the protection of the citizen’s interests was directly related to the interests of the country's leaders. On the contrary, self-determination means that individuals and nations have a say in the international arena. Governments with sovereignty can no longer oppress nations freely and can't take over territory without considering the wishes of the beneficiary population. People should also play a role in domestic and foreign relations. Self-determination, as a democratic principle, requires the consent of the governed meaning the people must always have the right to freely choose their rulers.
Therefore, institutionalization and gradual legalization of this right, especially after World War I, gave a new concept to domestic and global relations. This right, which was first created in order to support the nations under colonialism, gradually extended its scope of protection to human groups under the domination of racist regimes, as well as the protection of religious, linguistic, and in general, all cultural minorities, and ultimately all peoples and nations. Paragraph 2 of Article 1 of the United Nations Charter states one of the goals of this organization is to establish friendly relations between nations with respect for equal rights and the right to self-determination. This goal is also repeated in Article 55 of this document.
In addition to recognition of this right in the United Nations Charter, the well-known Declaration On the Granting of Independence to Colonial Countries and Peoples, also known as the United Nations General Assembly Resolution 1514 approved by the General Assembly in 1960, while calling for the end of colonialism and the domination of foreign nations, emphasized that the nations have the right to determine their own destiny and to freely determine their political status and pursue their economic, social and cultural development.
This concept is also repeated in Article 1 of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. These documents were approved in 1966 by the General Assembly Resolution A/2200. It is noteworthy that the Human Rights Committee's General Interpretation No. 12 of Article 1 of the Covenants also mentions the right to determine the destiny of nations and highlights its importance to guarantee, and effectively respect, individual human rights. The principle of equal rights and self-determination for the people is also stated in the Friendly Relations Declaration of 1970 . All the above-mentioned documents indicate that the principle of self-determination is an internationally recognized right.
According to international law, the Afghan nation has the right to self-determination. Therefore, they have the right to freely determine their political status and pursue their economic, social, and cultural development, in front of the ruling body from an internal perspective and also, from an external perspective, in front of other nations in the world. Furthermore, respecting this fundamental human right is considered a general obligation for all members of the international community, the violation of which entails responsibilities for transgressors. Therefore, with the establishment of the Taliban government, the question arises as to whether the right to self-determination of the Afghan people has been properly exercised, and have other governments fulfilled their commitment to the rights of the Afghan people in this regard? The current research has explored this issue using the descriptive-analytical method. At First glance, it appears that the self-proclaimed government of the Islamic Emirate has not only violated the right of the Afghan people to choose their political structure but is imposing its power on the Afghan nation by widely violating even more of their human rights. Despite all this, it, unfortunately, has the explicit and implicit support of some members of the international community, contrary to their erga omnes commitment.
freedom of people in determining their own destiny is a value first raised during the French Revolution in the form of a general concept called “the right of the people to determine their destiny” and was later pointed at internationally in different ways by statesmen such as Lenin and Wilson. This right was developed to discard of the old approach in the international arena i.e., the state-oriented tendency in international interactions.
According to the old approach, the international community was made up of states which essentially pursued the political interests of their leaders. In fact, the relations between the governments resulted in the relations between the ruling groups who considered the interests of their citizens only when they were threatened by foreign powers or only when the protection of the citizen’s interests was directly related to the interests of the country's leaders. On the contrary, self-determination means that individuals and nations have a say in the international arena. Governments with sovereignty can no longer oppress nations freely and can't take over territory without considering the wishes of the beneficiary population. People should also play a role in domestic and foreign relations. Self-determination, as a democratic principle, requires the consent of the governed meaning the people must always have the right to freely choose their rulers.
Therefore, institutionalization and gradual legalization of this right, especially after World War I, gave a new concept to domestic and global relations. This right, which was first created in order to support the nations under colonialism, gradually extended its scope of protection to human groups under the domination of racist regimes, as well as the protection of religious, linguistic, and in general, all cultural minorities, and ultimately all peoples and nations. Paragraph 2 of Article 1 of the United Nations Charter states one of the goals of this organization is to establish friendly relations between nations with respect for equal rights and the right to self-determination. This goal is also repeated in Article 55 of this document.
In addition to recognition of this right in the United Nations Charter, the well-known Declaration On the Granting of Independence to Colonial Countries and Peoples, also known as the United Nations General Assembly Resolution 1514 approved by the General Assembly in 1960, while calling for the end of colonialism and the domination of foreign nations, emphasized that the nations have the right to determine their own destiny and to freely determine their political status and pursue their economic, social and cultural development.
This concept is also repeated in Article 1 of the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. These documents were approved in 1966 by the General Assembly Resolution A/2200. It is noteworthy that the Human Rights Committee's General Interpretation No. 12 of Article 1 of the Covenants also mentions the right to determine the destiny of nations and highlights its importance to guarantee, and effectively respect, individual human rights. The principle of equal rights and self-determination for the people is also stated in the Friendly Relations Declaration of 1970 . All the above-mentioned documents indicate that the principle of self-determination is an internationally recognized right.
According to international law, the Afghan nation has the right to self-determination. Therefore, they have the right to freely determine their political status and pursue their economic, social, and cultural development, in front of the ruling body from an internal perspective and also, from an external perspective, in front of other nations in the world. Furthermore, respecting this fundamental human right is considered a general obligation for all members of the international community, the violation of which entails responsibilities for transgressors. Therefore, with the establishment of the Taliban government, the question arises as to whether the right to self-determination of the Afghan people has been properly exercised, and have other governments fulfilled their commitment to the rights of the Afghan people in this regard? The current research has explored this issue using the descriptive-analytical method. At First glance, it appears that the self-proclaimed government of the Islamic Emirate has not only violated the right of the Afghan people to choose their political structure but is imposing its power on the Afghan nation by widely violating even more of their human rights. Despite all this, it, unfortunately, has the explicit and implicit support of some members of the international community, contrary to their erga omnes commitment.
Research Interests:
Abstract Artificial intelligence is the science of empowering machines to perform actions similar to human activities. In other words, artificial intelligence is considered a science and a set of computer technologies designed to think,... more
Abstract
Artificial intelligence is the science of empowering machines to perform actions similar to human activities. In other words, artificial intelligence is considered a science and a set of computer technologies designed to think, reason and imitate human behavior.
Artificial intelligence is considered a new technology that has influenced various aspects of human life, from the economy to health and employment.
Activists in the field of artificial intelligence always talk about the capabilities of this technology. According to them, the development and expansion of artificial intelligence is a great tool to deal with human problems and dilemmas. For example, the increase in temperature, decrease in biodiversity, deforestation, floods, droughts, air pollution, and garbage accumulation are all among the environmental problems that have plagued humanity, problems that require immediate and effective solutions. For this purpose, resorting to artificial intelligence and its capabilities in environmental care has been proposed as one of the scientific and technical solutions to deal with these environmental challenges.
The capabilities of artificial intelligence in agricultural management, measuring the amount of greenhouse gases, managing and monitoring the optimization of energy consumption, recycling waste, and strengthening and optimizing the public transportation system are all among the potential capabilities of artificial intelligence in the protection of the environment.
But on the other hand, the process of designing, producing, supplying, and resorting to artificial intelligence has been associated with various challenges such as high energy consumption, extensive use of rare metals, and destruction of mineral resources, as well as increasing waste production and environmental pollution. These problems have caused serious doubts about the capabilities of this technology considering the growing trend to resort to artificial intelligence. This has led to environmental activists raising the question of whether this technology will provide a toolbox for a sustainable future for humans.
Concerns regarding the performance of artificial intelligence and the widespread global support for this technology on the other hand prompted the world community to respond to these doubts, by regularizing the processes of research, development, production, and supply of artificial intelligence.
One of these attempts is preparing the First Draft of the Recommendation on the Ethics of Artificial Intelligence in September 2020 By the United Nations Educational, Scientific and Cultural Organization (UNESCO).
This draft, which was prepared in the form of 8 sections with the efforts of UNESCO international experts, with the aim of creating an international framework in the field of ethical and legal issues related to artificial intelligence systems, is approved at the 41st annual meeting of UNESCO, which was held in November 2021, with the votes of 193 member countries of this organization as the first international document that specifically considers the ethical norms and human rights of artificial intelligence..
This document is not binding but it is significant because it will be the first international document that specifically considers the ethical norms and human rights of artificial intelligence.
The drafters of this recommendation talked about four human values which the 1st is respecting, encouraging and ensuring the basic principles of human rights, the second is , protecting the environment, the third is protecting biodiversity and the fourth, is living in peace and reconciliation.
This draft demanded all the activists in the field of artificial intelligence to participate in the activities and adhere to principles such as proportionality, safety, fairness, responsibility, and accountability.
But when looking at the draft text it seems that in some cases it contains ambiguities and defects, especially environmental discussions.
These defects lead to several questions such as: “Has UNESCO's ethical draft been able to address the challenges in the environment sector, provide effective regulations and find Solution?” and “Considering the important and ever-increasing role of private companies active in the production and supply of artificial intelligence systems, have the authors of the draft been able to act successfully regarding attributing responsibility, methods of compensation for environmental damages, and commitment to observe the precautionary principle?” This article aims at working on these subjects, questions, and ambiguities with an analytical-descriptive method.
Artificial intelligence is the science of empowering machines to perform actions similar to human activities. In other words, artificial intelligence is considered a science and a set of computer technologies designed to think, reason and imitate human behavior.
Artificial intelligence is considered a new technology that has influenced various aspects of human life, from the economy to health and employment.
Activists in the field of artificial intelligence always talk about the capabilities of this technology. According to them, the development and expansion of artificial intelligence is a great tool to deal with human problems and dilemmas. For example, the increase in temperature, decrease in biodiversity, deforestation, floods, droughts, air pollution, and garbage accumulation are all among the environmental problems that have plagued humanity, problems that require immediate and effective solutions. For this purpose, resorting to artificial intelligence and its capabilities in environmental care has been proposed as one of the scientific and technical solutions to deal with these environmental challenges.
The capabilities of artificial intelligence in agricultural management, measuring the amount of greenhouse gases, managing and monitoring the optimization of energy consumption, recycling waste, and strengthening and optimizing the public transportation system are all among the potential capabilities of artificial intelligence in the protection of the environment.
But on the other hand, the process of designing, producing, supplying, and resorting to artificial intelligence has been associated with various challenges such as high energy consumption, extensive use of rare metals, and destruction of mineral resources, as well as increasing waste production and environmental pollution. These problems have caused serious doubts about the capabilities of this technology considering the growing trend to resort to artificial intelligence. This has led to environmental activists raising the question of whether this technology will provide a toolbox for a sustainable future for humans.
Concerns regarding the performance of artificial intelligence and the widespread global support for this technology on the other hand prompted the world community to respond to these doubts, by regularizing the processes of research, development, production, and supply of artificial intelligence.
One of these attempts is preparing the First Draft of the Recommendation on the Ethics of Artificial Intelligence in September 2020 By the United Nations Educational, Scientific and Cultural Organization (UNESCO).
This draft, which was prepared in the form of 8 sections with the efforts of UNESCO international experts, with the aim of creating an international framework in the field of ethical and legal issues related to artificial intelligence systems, is approved at the 41st annual meeting of UNESCO, which was held in November 2021, with the votes of 193 member countries of this organization as the first international document that specifically considers the ethical norms and human rights of artificial intelligence..
This document is not binding but it is significant because it will be the first international document that specifically considers the ethical norms and human rights of artificial intelligence.
The drafters of this recommendation talked about four human values which the 1st is respecting, encouraging and ensuring the basic principles of human rights, the second is , protecting the environment, the third is protecting biodiversity and the fourth, is living in peace and reconciliation.
This draft demanded all the activists in the field of artificial intelligence to participate in the activities and adhere to principles such as proportionality, safety, fairness, responsibility, and accountability.
But when looking at the draft text it seems that in some cases it contains ambiguities and defects, especially environmental discussions.
These defects lead to several questions such as: “Has UNESCO's ethical draft been able to address the challenges in the environment sector, provide effective regulations and find Solution?” and “Considering the important and ever-increasing role of private companies active in the production and supply of artificial intelligence systems, have the authors of the draft been able to act successfully regarding attributing responsibility, methods of compensation for environmental damages, and commitment to observe the precautionary principle?” This article aims at working on these subjects, questions, and ambiguities with an analytical-descriptive method.
Research Interests:
1. Introduction In recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable" doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use... more
1. Introduction
In recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable" doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use force in self-defense against non-state terrorist actors operating within the territory of host states based on the unwillingness or inability of the territorial state to control them. The unwilling or unable doctrine has one of the lowest standards with which it determines when non-state terrorist organizations can legally be attacked in third states based on the right of self-defense, The legality of such use of force against non-state actors in weak host states, without the consent of the host state, is unclear. In the context of legal positivism, this article seeks to prove whether the current sources of international law allow states to recourse to the unwilling or unable doctrine in the host state. Since these concepts have not been mentioned in any legal document (besides Article 17 of the Rome Statute and the 1951 Refugee Convention) or even international case law, it is not clear whether it is possible to accept such use of force in international law despite its prohibition in the UN Charter, denying its legitimacy by most publicists, very little occurrence of it in the practice of states and subjectivity of the concept of unwillingness or inability. The International Court of Justice and some scholars also deny the legality of the use of force in an ineffective host.
This article seeks to critically examine and demonstrate the evolution of the use of force in the name of self-defense against non-state actors in the territory of host states, which is justified by the unwilling and unable doctrine. The purpose of this research is not only to identify the unwilling and unable doctrine but also to offer a practical solution to the challenges regarding extra-territorial self-defense against non-state terrorist organizations.
Research Question(s)
This article, by examining de lege lata, seeks to verify whether treaties, customary laws, and international judicial practice allow states to legally resort to the unwilling and unable doctrine in another state (the host state). In other words, has the unwilling and unable doctrine become a part of international law (as it exists)? Moreover, does the doctrine provide a legitimate way to use transnational self-defense against non-state actors, particularly in a situation where the host state is willing to repress the non-state actors but is unable to do so? Based on which criteria is it determined that the host state is unwilling or unable to fight the threat posed by the non-state actors? Finally, is it possible for the acting state to make this decision unilaterally or does the host state also play a role in this regard?
2. Methodology
The article has used descriptive and analytical research methods. The necessary data has been collected through the library research method by reference to relevant books, essays, and international judicial decisions.
3. Findings
This article shows that although the right to self-defense in ineffective host states may be desirable in light of the contemporary security and safety threats, the existing data about the doctrine is incomplete and has many gaps. The "unwilling" and "unable" doctrine presents a significant challenge to the “rule of law” in international law. This doctrine based on self-judgment theories in international law and providing exceptions to the jus ad bellum regime, not only leads to the instability of this regime, but also its legal justifications are a serious attack on the fundamental legal concepts that are generally accepted in international law. This article, with a legal positivist look, believes that any resort to the "unwilling and unable” doctrine is subject to the following criteria: an armed attack according to Article 51 of the Charter, lack of control of the host state over its territory, proof of inability and unwillingness of the host state by the victim state, act of the victim state with the consent and cooperation of the host state, giving the host state a reasonable time to effectively deal with the non-state actor, and the inability of the host state based on duty of due diligence, lack of cooperation by the host state and refusal to accept international assistance.
4. Conclusion
According to the above, the inevitable conclusion is that it’s very difficult to balance the unwilling or unable doctrine with the jus ad bellum regime. This doctrine lacks both a legal underpinning and a clear, distinct content. The criteria for the unwillingness and inability, the legality of self-defense, and the permissibility of resorting to force in an ineffective host state do not have a valid basis in either treaty law or customary international law; It is not mentioned in Article 51 of the UN Charter, nor have the states accepted it sufficiently. The International Court of Justice and the most highly-qualified publicists have also refused to recognize such use of force. Due to the change in the nature and power of terrorist organizations, the rules in this field remain unclear and this field is replete with legal uncertainty. It is not surprising that the UN charter is not able to provide clear answers for these situations.
Despite the relative success of the jus ad bellum regime in preventing armed conflicts between states, the mentioned doctrine undermines the legal framework regulating prohibition on the use of force and poses a threat to the UN Collective Security System. The doctrine distorts the concept of imminence and damages the definition of armed attack 3 enshrined in Article 51 of the UN Charter by lowering the threshold for the justifiable use of force in self-defense. It also destabilizes the fundamental principle of necessity in self-defense. Finally, by providing weak governing standards for the
victim state may make unilateral decisions as to the necessity of the use of force, in spite of the disapproval or unwillingness of the host state, the doctrine extremely over-privileges the interests of the powerful states at the expense of the rights and interests of typically weaker host states. Consequently, it should be acknowledged that the doctrine created to address the limited and specific threat of transnational terrorism cannot be a justification for weakening the regime designed to maintain international peace and security.
If we apply this doctrine, any state will be allowed to start military operations simply on the pretext of the host state’s inability to suppress a terrorist group. Accepting to such a view by the international community and allowing to create this new legal order will lead to a fundamental change in the UN system if it is not completely damaged. By granting discretion to any state to adopt unilateral actions in the war on terror, through the unwilling and unable test, it simply ignores some fundamental provisions of the Charter (Article 39) and challenges the entire Collective Security System of the Charter. Creating unwritten exceptions to the principle that prohibits the use of force not only causes problems for the integrity of international law but also leads to disorganization in international law.
Finally, within the framework of the lex lata, the only point that can be said regarding self-defense against attacks by non-state actors in situations, lower than the threshold that the ICJ has stated in the Nicaragua case, is that such actions are undoubtedly illegal. In the framework of the Lex ferenda, we believe that the customary law is evolving regarding the applications of Article 51 of the UN Charter, defensive action in the territory of target states, and the use of force against non-state actors in host states. Even in the light of Lex
ferenda, it cannot be said that the unwilling and unable doctrine is currently an established rule of international law.
In recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable" doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use force in self-defense against non-state terrorist actors operating within the territory of host states based on the unwillingness or inability of the territorial state to control them. The unwilling or unable doctrine has one of the lowest standards with which it determines when non-state terrorist organizations can legally be attacked in third states based on the right of self-defense, The legality of such use of force against non-state actors in weak host states, without the consent of the host state, is unclear. In the context of legal positivism, this article seeks to prove whether the current sources of international law allow states to recourse to the unwilling or unable doctrine in the host state. Since these concepts have not been mentioned in any legal document (besides Article 17 of the Rome Statute and the 1951 Refugee Convention) or even international case law, it is not clear whether it is possible to accept such use of force in international law despite its prohibition in the UN Charter, denying its legitimacy by most publicists, very little occurrence of it in the practice of states and subjectivity of the concept of unwillingness or inability. The International Court of Justice and some scholars also deny the legality of the use of force in an ineffective host.
This article seeks to critically examine and demonstrate the evolution of the use of force in the name of self-defense against non-state actors in the territory of host states, which is justified by the unwilling and unable doctrine. The purpose of this research is not only to identify the unwilling and unable doctrine but also to offer a practical solution to the challenges regarding extra-territorial self-defense against non-state terrorist organizations.
Research Question(s)
This article, by examining de lege lata, seeks to verify whether treaties, customary laws, and international judicial practice allow states to legally resort to the unwilling and unable doctrine in another state (the host state). In other words, has the unwilling and unable doctrine become a part of international law (as it exists)? Moreover, does the doctrine provide a legitimate way to use transnational self-defense against non-state actors, particularly in a situation where the host state is willing to repress the non-state actors but is unable to do so? Based on which criteria is it determined that the host state is unwilling or unable to fight the threat posed by the non-state actors? Finally, is it possible for the acting state to make this decision unilaterally or does the host state also play a role in this regard?
2. Methodology
The article has used descriptive and analytical research methods. The necessary data has been collected through the library research method by reference to relevant books, essays, and international judicial decisions.
3. Findings
This article shows that although the right to self-defense in ineffective host states may be desirable in light of the contemporary security and safety threats, the existing data about the doctrine is incomplete and has many gaps. The "unwilling" and "unable" doctrine presents a significant challenge to the “rule of law” in international law. This doctrine based on self-judgment theories in international law and providing exceptions to the jus ad bellum regime, not only leads to the instability of this regime, but also its legal justifications are a serious attack on the fundamental legal concepts that are generally accepted in international law. This article, with a legal positivist look, believes that any resort to the "unwilling and unable” doctrine is subject to the following criteria: an armed attack according to Article 51 of the Charter, lack of control of the host state over its territory, proof of inability and unwillingness of the host state by the victim state, act of the victim state with the consent and cooperation of the host state, giving the host state a reasonable time to effectively deal with the non-state actor, and the inability of the host state based on duty of due diligence, lack of cooperation by the host state and refusal to accept international assistance.
4. Conclusion
According to the above, the inevitable conclusion is that it’s very difficult to balance the unwilling or unable doctrine with the jus ad bellum regime. This doctrine lacks both a legal underpinning and a clear, distinct content. The criteria for the unwillingness and inability, the legality of self-defense, and the permissibility of resorting to force in an ineffective host state do not have a valid basis in either treaty law or customary international law; It is not mentioned in Article 51 of the UN Charter, nor have the states accepted it sufficiently. The International Court of Justice and the most highly-qualified publicists have also refused to recognize such use of force. Due to the change in the nature and power of terrorist organizations, the rules in this field remain unclear and this field is replete with legal uncertainty. It is not surprising that the UN charter is not able to provide clear answers for these situations.
Despite the relative success of the jus ad bellum regime in preventing armed conflicts between states, the mentioned doctrine undermines the legal framework regulating prohibition on the use of force and poses a threat to the UN Collective Security System. The doctrine distorts the concept of imminence and damages the definition of armed attack 3 enshrined in Article 51 of the UN Charter by lowering the threshold for the justifiable use of force in self-defense. It also destabilizes the fundamental principle of necessity in self-defense. Finally, by providing weak governing standards for the
victim state may make unilateral decisions as to the necessity of the use of force, in spite of the disapproval or unwillingness of the host state, the doctrine extremely over-privileges the interests of the powerful states at the expense of the rights and interests of typically weaker host states. Consequently, it should be acknowledged that the doctrine created to address the limited and specific threat of transnational terrorism cannot be a justification for weakening the regime designed to maintain international peace and security.
If we apply this doctrine, any state will be allowed to start military operations simply on the pretext of the host state’s inability to suppress a terrorist group. Accepting to such a view by the international community and allowing to create this new legal order will lead to a fundamental change in the UN system if it is not completely damaged. By granting discretion to any state to adopt unilateral actions in the war on terror, through the unwilling and unable test, it simply ignores some fundamental provisions of the Charter (Article 39) and challenges the entire Collective Security System of the Charter. Creating unwritten exceptions to the principle that prohibits the use of force not only causes problems for the integrity of international law but also leads to disorganization in international law.
Finally, within the framework of the lex lata, the only point that can be said regarding self-defense against attacks by non-state actors in situations, lower than the threshold that the ICJ has stated in the Nicaragua case, is that such actions are undoubtedly illegal. In the framework of the Lex ferenda, we believe that the customary law is evolving regarding the applications of Article 51 of the UN Charter, defensive action in the territory of target states, and the use of force against non-state actors in host states. Even in the light of Lex
ferenda, it cannot be said that the unwilling and unable doctrine is currently an established rule of international law.
Research Interests:
1. Introduction The most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “the right to be wrong” has also... more
1. Introduction
The most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “the right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality".
2. Literature Review
Comparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible.
3. Methodology
In this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method.
4. Discussion
The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time.
5. Conclusion
The findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid.
The most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “the right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality".
2. Literature Review
Comparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible.
3. Methodology
In this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method.
4. Discussion
The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time.
5. Conclusion
The findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid.
Research Interests:
1. Introduction Governmental 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... more
1. Introduction
Governmental 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? further, is there a consistency between the duties, authorities, and powers of the council? Finally, some solutions and suggestions will be provided accordingly.
4. Methodology
In this article, by collecting data through library resources, we answered questions with the analytical-descriptive method.
2. Results
1- 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.
3. Conclusion
According 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.
Governmental 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? further, is there a consistency between the duties, authorities, and powers of the council? Finally, some solutions and suggestions will be provided accordingly.
4. Methodology
In this article, by collecting data through library resources, we answered questions with the analytical-descriptive method.
2. Results
1- 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.
3. Conclusion
According 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.
Research Interests:
1. Introduction In 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... more
1. Introduction
In 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.
2. Methodology
Furthermore, 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.
3. Conclusion
In 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.
In 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.
2. Methodology
Furthermore, 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.
3. Conclusion
In 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.
Research Interests:
1. Introduction The president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the... more
1. Introduction
The president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the 2nd clause of Article 89 of the Constitution and Article 114 of the Constitution. Article 89 says: “In the event that at least one-third of the members of the Islamic Consultative Assembly interpellate the President concerning his responsibilities for leadership of the executive power and managing the executive affairs of the country, the President must present himself to the Assembly within one month after the submission of the interpellation and to give adequate explanations regarding the matters raised. After hearing the statements of the opposing and favoring members and the reply of the President, if two-thirds of the members of the Assembly vote for his incompetency, the vote will be communicated to the Supreme Leader for implementation of Article 110(10)”. Article 114 holds: “The President is elected for a four-year term by the direct vote of the people. His re-election for a successive term is permissible only once”
In other words, The main cause of the challenge is the appointment of the president through elections and the lack of any power by the Islamic Consultative Assembly in this regard. The current presumption among the legal society is that interpellation would be applied to an authority that is elected by the ICA. Although the current presumption is relatively true, what has been neglected during these years is that in fact, the interpellation of the president in the Constitution of the Islamic Republic of Iran is impeachment in a different, unique concept.
2. Discussion
In some political systems, the president would be removed by legislative assemblies by means of impeachment. Comparing the elements of the term impeachment with the elements of interpellation proves the above claim. Hence, comparing the two elements of their grounds and their procedures are notable.in the draft of the Constitution, a two-stage procedure for the removal of the president was set, but after the enactment of the Constitution, two different one-stage procedures were created. One procedure would be run by the Islamic Consultative Assembly, and the other would be run by the Supreme Court. In fact, two procedures that work together in an impeachment, have been transformed into two independent procedures, both of which leave the final decision-making to the Supreme Leader.
3. Conclusiom
The grounds for the president’s removal have been changed from “treason or conspiracy against national security” in the text of the Constitution to “treason and violation of legal duties” and eventually, to “violation of legal duties” and “lack of qualification”. Lack of qualification and being unfit to continue in office are common concepts among the grounds of impeachment in different political systems. lack of qualifications, incapability in doing his executive duties, or ineptitude in executive management in the text of the Constitution of the Islamic Republic of Iran are the instances of the general notion of “being unqualified unfit”. Both concepts of “lack of qualification” and “violation of legal duties” are incorporated in the general notion of unfitness in the legal and political literature of the Islamic Republic of Iran and are equal to impeachment in other systems; However, interpellation is often based on political reasons. Since the causes and the grounds of the president’s removal are enumerated in the Constitution, we can conclude that the nature of presidential removal in the Constitution is impeachment, but its title is interpellation.
Thus, some clarification and some reforms are required by amending the Constitution. Before any constitutional amendment, the nature of the interpellation of the president and its elements should be explained by the legal society. It may prevent this oversight tool to become a reason to remove the president based on political disagreements and may regulate and restrict the oversight tool to only clear legal grounds. This may, in the future, be the inspiration to possibly omit or add to the grounds for presidential removal in the constitutional amendment. According to the current laws and regulations, the procedure of presidential removal via Islamic Consultative Assembly is almost clear but the procedure of presidential removal through the Supreme Court is unclear. Again, reforming the procedure of presidential removal and merging the two procedures requires an amendment to the Constitution. Another subject that must be considered is the effect of this presidential removal mechanism and whether, irrespective of the removal from office, there are any other effects and sanctions for the president or not. Another sanction for the president’s incompetency would be exclusion and prohibition from holding any public office which is worthy to be debated and considered for the future.
The president’s interpellation before the Islamic Consultative Assembly (ICA), set in the Constitutional law of the Islamic Republic of Iran, has been a challenge. The cause of the challenge is the contrast between the 2nd clause of Article 89 of the Constitution and Article 114 of the Constitution. Article 89 says: “In the event that at least one-third of the members of the Islamic Consultative Assembly interpellate the President concerning his responsibilities for leadership of the executive power and managing the executive affairs of the country, the President must present himself to the Assembly within one month after the submission of the interpellation and to give adequate explanations regarding the matters raised. After hearing the statements of the opposing and favoring members and the reply of the President, if two-thirds of the members of the Assembly vote for his incompetency, the vote will be communicated to the Supreme Leader for implementation of Article 110(10)”. Article 114 holds: “The President is elected for a four-year term by the direct vote of the people. His re-election for a successive term is permissible only once”
In other words, The main cause of the challenge is the appointment of the president through elections and the lack of any power by the Islamic Consultative Assembly in this regard. The current presumption among the legal society is that interpellation would be applied to an authority that is elected by the ICA. Although the current presumption is relatively true, what has been neglected during these years is that in fact, the interpellation of the president in the Constitution of the Islamic Republic of Iran is impeachment in a different, unique concept.
2. Discussion
In some political systems, the president would be removed by legislative assemblies by means of impeachment. Comparing the elements of the term impeachment with the elements of interpellation proves the above claim. Hence, comparing the two elements of their grounds and their procedures are notable.in the draft of the Constitution, a two-stage procedure for the removal of the president was set, but after the enactment of the Constitution, two different one-stage procedures were created. One procedure would be run by the Islamic Consultative Assembly, and the other would be run by the Supreme Court. In fact, two procedures that work together in an impeachment, have been transformed into two independent procedures, both of which leave the final decision-making to the Supreme Leader.
3. Conclusiom
The grounds for the president’s removal have been changed from “treason or conspiracy against national security” in the text of the Constitution to “treason and violation of legal duties” and eventually, to “violation of legal duties” and “lack of qualification”. Lack of qualification and being unfit to continue in office are common concepts among the grounds of impeachment in different political systems. lack of qualifications, incapability in doing his executive duties, or ineptitude in executive management in the text of the Constitution of the Islamic Republic of Iran are the instances of the general notion of “being unqualified unfit”. Both concepts of “lack of qualification” and “violation of legal duties” are incorporated in the general notion of unfitness in the legal and political literature of the Islamic Republic of Iran and are equal to impeachment in other systems; However, interpellation is often based on political reasons. Since the causes and the grounds of the president’s removal are enumerated in the Constitution, we can conclude that the nature of presidential removal in the Constitution is impeachment, but its title is interpellation.
Thus, some clarification and some reforms are required by amending the Constitution. Before any constitutional amendment, the nature of the interpellation of the president and its elements should be explained by the legal society. It may prevent this oversight tool to become a reason to remove the president based on political disagreements and may regulate and restrict the oversight tool to only clear legal grounds. This may, in the future, be the inspiration to possibly omit or add to the grounds for presidential removal in the constitutional amendment. According to the current laws and regulations, the procedure of presidential removal via Islamic Consultative Assembly is almost clear but the procedure of presidential removal through the Supreme Court is unclear. Again, reforming the procedure of presidential removal and merging the two procedures requires an amendment to the Constitution. Another subject that must be considered is the effect of this presidential removal mechanism and whether, irrespective of the removal from office, there are any other effects and sanctions for the president or not. Another sanction for the president’s incompetency would be exclusion and prohibition from holding any public office which is worthy to be debated and considered for the future.
Research Interests:
Introduction A judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into... more
Introduction
A judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's lack of trust in the judicial system leads to a decrease in the legitimacy of the political system which causes political and social crises and at higher levels, the collapse of the political system. Based on the principle of separation of powers, which has been one of the most important intellectual achievements of mankind in social administration, the power of the government is separated and divided into the three branches of legislative, judiciary, and executive organs (although they maintain their interaction), in order to prevent the concentration of power in one person or institution. Judicial independence is, therefore, one of the logical results of accepting the principle of separation of powers, the origin of which can be found in the era of Aristotle. Today, this principle is considered one of the most important principles and, in fact, the cornerstone of democratic governments–a form of government that seems better able to provide justice than other forms of government.
The Principle of Judicial Independence in International Documents and the Legal System of Afghanistan
One of the results of accepting the principle of separation of powers, as mentioned earlier, is the acceptance of the principle of judicial independence. This principle has been discussed and supported in international and regional documents. In Afghanistan, for the first time during the reign of Amanullah Khan, it was recognized in Article 53 of the Constitution of Afghanistan (1923) by stating that "all courts are free from any interference". In the Constitution of the Islamic Republic of Afghanistan (2004), there is no clarity about accepting the principle of separation of powers. But from its general structure and its division of chapters –the fourth chapter (government) the fifth chapter (the National Council) and the seventh chapter (Judiciary) it is inferred that this principle is accepted. Judicial independence is also explicitly accepted in Article 116: "The judiciary is the independent pillar of the government of the Islamic Republic of Afghanistan".
Research Problem
In Afghanistan, in recent years, several criminal cases have resulted in decisions that raised questions about the status and position of judicial independence in the judicial system of the Islamic Republic of Afghanistan: Do judges and the judicial system of Afghanistan act independently?
History of Research and Its Method
Although much research has been done about judicial independence in the world, it has received less attention in Afghanistan which is perhaps the reason why Afghan legal writers have made fewer claims about the strength or weakness of judicial independence in Afghanistan based on evidence. Therefore, evidence-based research about judicial independence, in which the personal judgment of the authors is minimized, is one of the needs of Afghan society. The main question of this essay is regarding the status of judicial independence, as one of the most important pillars of good governance, in the legal system of the Islamic Republic of Afghanistan.
Judicial independence can be studied at both organizational and individual levels. At the organizational level, it is indicated by a look at factors such as the recognition of the independence of the judiciary in the constitution and other laws, the exclusivity of judicial authority in the judiciary, the binding nature of the rulings of the judiciary on other organs, administrative independence, and finally, its financial independence. Also, to evaluate individual judicial independence, one should consider indicators such as the process of selecting and appointing judges, job security of judges, prohibition of engaging in political and other duties for the judges, prescribing objective conditions for their promotion and demotion, documentation of judicial decisions, establishing a judicial panel in court, judicial immunity, the salaries of judges and finally their safety and security.
Conclusion
The results of this study show that in Afghanistan during the republic period, at the organizational level, while the independence of the judiciary was recognized in the constitution and other laws of the country, the exclusion of jurisdiction in the judiciary was not desirable. The rulings of the judiciary were not so binding on other organs which had damaged its independence. Administrative independence was also weak, but financial independence was in a good condition. At the individual level, the selection and appointment of judges was not suitable, but the job security of judges had been relatively good as the mechanism of hiring judges was in a good situation that ensured their job security to a large extent. The guarantee of the prohibition of their employment in political duties was weak, but in other duties, the ban had been appropriately executed. Also, while the prescription of objective criteria for the promotion and demotion of judges was very bad, the judicial decisions were documented and the judicial boards were established in proceedings. Judicial immunity had been realized incompletely, judges' salaries were assessed as appropriate but their safety and security had been inadequate. In general, judicial independence in Afghanistan was weak which, according to the authors, had caused people's distrust in the judicial system and as a result, a decrease in the legitimacy of the republican system. This can be considered one of the factors for the fall of the Islamic Republic of Afghanistan.
A judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's lack of trust in the judicial system leads to a decrease in the legitimacy of the political system which causes political and social crises and at higher levels, the collapse of the political system. Based on the principle of separation of powers, which has been one of the most important intellectual achievements of mankind in social administration, the power of the government is separated and divided into the three branches of legislative, judiciary, and executive organs (although they maintain their interaction), in order to prevent the concentration of power in one person or institution. Judicial independence is, therefore, one of the logical results of accepting the principle of separation of powers, the origin of which can be found in the era of Aristotle. Today, this principle is considered one of the most important principles and, in fact, the cornerstone of democratic governments–a form of government that seems better able to provide justice than other forms of government.
The Principle of Judicial Independence in International Documents and the Legal System of Afghanistan
One of the results of accepting the principle of separation of powers, as mentioned earlier, is the acceptance of the principle of judicial independence. This principle has been discussed and supported in international and regional documents. In Afghanistan, for the first time during the reign of Amanullah Khan, it was recognized in Article 53 of the Constitution of Afghanistan (1923) by stating that "all courts are free from any interference". In the Constitution of the Islamic Republic of Afghanistan (2004), there is no clarity about accepting the principle of separation of powers. But from its general structure and its division of chapters –the fourth chapter (government) the fifth chapter (the National Council) and the seventh chapter (Judiciary) it is inferred that this principle is accepted. Judicial independence is also explicitly accepted in Article 116: "The judiciary is the independent pillar of the government of the Islamic Republic of Afghanistan".
Research Problem
In Afghanistan, in recent years, several criminal cases have resulted in decisions that raised questions about the status and position of judicial independence in the judicial system of the Islamic Republic of Afghanistan: Do judges and the judicial system of Afghanistan act independently?
History of Research and Its Method
Although much research has been done about judicial independence in the world, it has received less attention in Afghanistan which is perhaps the reason why Afghan legal writers have made fewer claims about the strength or weakness of judicial independence in Afghanistan based on evidence. Therefore, evidence-based research about judicial independence, in which the personal judgment of the authors is minimized, is one of the needs of Afghan society. The main question of this essay is regarding the status of judicial independence, as one of the most important pillars of good governance, in the legal system of the Islamic Republic of Afghanistan.
Judicial independence can be studied at both organizational and individual levels. At the organizational level, it is indicated by a look at factors such as the recognition of the independence of the judiciary in the constitution and other laws, the exclusivity of judicial authority in the judiciary, the binding nature of the rulings of the judiciary on other organs, administrative independence, and finally, its financial independence. Also, to evaluate individual judicial independence, one should consider indicators such as the process of selecting and appointing judges, job security of judges, prohibition of engaging in political and other duties for the judges, prescribing objective conditions for their promotion and demotion, documentation of judicial decisions, establishing a judicial panel in court, judicial immunity, the salaries of judges and finally their safety and security.
Conclusion
The results of this study show that in Afghanistan during the republic period, at the organizational level, while the independence of the judiciary was recognized in the constitution and other laws of the country, the exclusion of jurisdiction in the judiciary was not desirable. The rulings of the judiciary were not so binding on other organs which had damaged its independence. Administrative independence was also weak, but financial independence was in a good condition. At the individual level, the selection and appointment of judges was not suitable, but the job security of judges had been relatively good as the mechanism of hiring judges was in a good situation that ensured their job security to a large extent. The guarantee of the prohibition of their employment in political duties was weak, but in other duties, the ban had been appropriately executed. Also, while the prescription of objective criteria for the promotion and demotion of judges was very bad, the judicial decisions were documented and the judicial boards were established in proceedings. Judicial immunity had been realized incompletely, judges' salaries were assessed as appropriate but their safety and security had been inadequate. In general, judicial independence in Afghanistan was weak which, according to the authors, had caused people's distrust in the judicial system and as a result, a decrease in the legitimacy of the republican system. This can be considered one of the factors for the fall of the Islamic Republic of Afghanistan.
Research Interests:
1. Introduction Human rights such as the right to life, the right to health, the right to work and social security, and the right to a healthy environment call for supporting workers of arduous or hazardous jobs in forms of their right to... more
1. Introduction
Human rights such as the right to life, the right to health, the right to work and social security, and the right to a healthy environment call for supporting workers of arduous or hazardous jobs in forms of their right to enjoy a proper, healthy and hygienic work environment and support during work and retirement. Clinical occupations have specifically been designated as arduous or hazardous occupations by the legislator's decree and its employees have been further supported. Unfortunately, because the mentioned employees work in different governmental and non-governmental sectors and that they are under different laws and regulations including different provisions depending on the relevant sector, different procedures have been adopted to support these employees which causes discrimination between people who have the same jobs with similar conditions and with the same duties. Those covered by the labor and social security law retire with at least 20 consecutive years or 25 alternating years of employment experience and without meeting the minimum age requirement, those subject to National Employment Laws and related regulations retire with at least 25 years of employment experience in non-specialized jobs and 30 years in specialized jobs, Azad University employees retire by having at least 20 years of employment experience, workers subjected to the Administrative Regulation for Employment and Organization of Non-faculty Employees of the University of Medical Sciences and Healthcare Services of the Country retire with 25 years of employment experience, and the employees of the armed forces retire with at least 20 years of employment experience. Therefore, extending the conditions of amendment 2 of Article 76 of the Social Security Law 1380 to all those working in arduous or hazardous clinical jobs can be considered a way forward.
2. Literature Review
So far, no article has been written about supporting those working in arduous or hazardous clinical jobs.
3. Methodology
Descriptive/analytical/exploratory research methods will be used in writing this research. Also, the method of collecting information in the upcoming research will be library research. Other methods of collecting information such as field research and questionnaires will not be used.
4. Conclusion
The table below demonstrates the different approaches to supporting those working in arduous or hazardous clinical jobs based on the governmental and non-governmental sectors and the different applicable rules to the mentioned sectors:
Organization's responsibility or authority Ex Gratia Payment for early retirement Minimum age Minimum employment experience Applicable law
Duty to agree with the request severance pay equal to 1.5 years of experience for each year of employment No need for meeting the minimum age requirement At least 20 consecutive years or 25 alternating years Subject to the Labor and Social Security Law 1990
Duty to agree with the request 5 years At least 55 years of age for men and no minimum age requirement for women At least 25 years in non-specialized jobs and 30 years in specialized jobs Subject to National Employment Laws and related regulations and employees of Social Security Organization and Martyrs and Veterans Foundation
Duty to agree with the request 5 years No need for meeting the minimum age requirement At least 20 years Azad University staff
Organization's responsibility or authority Ex Gratia Payment for early retirement Minimum age Minimum employment experience Applicable law
Duty to agree with the request 5 years At least 55 years of age for men and no minimum age requirement At least 25 years Subjects the Administrative Regulation for Employment and Organization of Non-faculty Employees of the University of Medical Sciences and Healthcare Services of the Country
The duty or discretion of the armed forces in agreeing to the retirement of their employees is uncertain. 5 years No need for meeting the minimum age requirement At least 20 years Armed forces employees Subject to
Therefore, this system has caused discrimination between people who are employed in the same jobs with the same conditions and with the same description of duties which necessitates the initiative of the legislator to solve it.
Human rights such as the right to life, the right to health, the right to work and social security, and the right to a healthy environment call for supporting workers of arduous or hazardous jobs in forms of their right to enjoy a proper, healthy and hygienic work environment and support during work and retirement. Clinical occupations have specifically been designated as arduous or hazardous occupations by the legislator's decree and its employees have been further supported. Unfortunately, because the mentioned employees work in different governmental and non-governmental sectors and that they are under different laws and regulations including different provisions depending on the relevant sector, different procedures have been adopted to support these employees which causes discrimination between people who have the same jobs with similar conditions and with the same duties. Those covered by the labor and social security law retire with at least 20 consecutive years or 25 alternating years of employment experience and without meeting the minimum age requirement, those subject to National Employment Laws and related regulations retire with at least 25 years of employment experience in non-specialized jobs and 30 years in specialized jobs, Azad University employees retire by having at least 20 years of employment experience, workers subjected to the Administrative Regulation for Employment and Organization of Non-faculty Employees of the University of Medical Sciences and Healthcare Services of the Country retire with 25 years of employment experience, and the employees of the armed forces retire with at least 20 years of employment experience. Therefore, extending the conditions of amendment 2 of Article 76 of the Social Security Law 1380 to all those working in arduous or hazardous clinical jobs can be considered a way forward.
2. Literature Review
So far, no article has been written about supporting those working in arduous or hazardous clinical jobs.
3. Methodology
Descriptive/analytical/exploratory research methods will be used in writing this research. Also, the method of collecting information in the upcoming research will be library research. Other methods of collecting information such as field research and questionnaires will not be used.
4. Conclusion
The table below demonstrates the different approaches to supporting those working in arduous or hazardous clinical jobs based on the governmental and non-governmental sectors and the different applicable rules to the mentioned sectors:
Organization's responsibility or authority Ex Gratia Payment for early retirement Minimum age Minimum employment experience Applicable law
Duty to agree with the request severance pay equal to 1.5 years of experience for each year of employment No need for meeting the minimum age requirement At least 20 consecutive years or 25 alternating years Subject to the Labor and Social Security Law 1990
Duty to agree with the request 5 years At least 55 years of age for men and no minimum age requirement for women At least 25 years in non-specialized jobs and 30 years in specialized jobs Subject to National Employment Laws and related regulations and employees of Social Security Organization and Martyrs and Veterans Foundation
Duty to agree with the request 5 years No need for meeting the minimum age requirement At least 20 years Azad University staff
Organization's responsibility or authority Ex Gratia Payment for early retirement Minimum age Minimum employment experience Applicable law
Duty to agree with the request 5 years At least 55 years of age for men and no minimum age requirement At least 25 years Subjects the Administrative Regulation for Employment and Organization of Non-faculty Employees of the University of Medical Sciences and Healthcare Services of the Country
The duty or discretion of the armed forces in agreeing to the retirement of their employees is uncertain. 5 years No need for meeting the minimum age requirement At least 20 years Armed forces employees Subject to
Therefore, this system has caused discrimination between people who are employed in the same jobs with the same conditions and with the same description of duties which necessitates the initiative of the legislator to solve it.
Research Interests:
1. Introduction The expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of... more
1. Introduction
The expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the top companies in the world, in terms of capital and market value, are companies in the field of digital economy.
This is a reality that Iran will also face in the not-too-distant future; then, companies in the field of digital economy will take a significant share of the market. So, today, it is especially necessary to pay attention to the issue of competition in digital platforms and to set the appropriate rules to govern them.
2. Literature Review
Until the writing of this article, most of the issues raised in Iran's competition law are devoted to the examination of rules governing competition in traditional markets. Only one article titled "Competition Council and Internet Businesses" by Zarei et al. (2019) has been written in relation to platform markets, and this work is also based on the traditional rules of competition law and regardless of the specific challenges of this field. Analysis of the vote number 306 of the Competition Council. Therefore, it can be claimed that the explanation of the characteristics and challenges of platform markets and its effect on the regulation of competition in this field, which is examined in this article, qualifies as innovation.
3. Methodology
In order to correctly set the new rules applicable in the field of digital platforms’ competition, it is necessary to go through a three-stage system: first, we must get a correct understanding of the prominent features of the digital platform markets that affect the issue of competition. In the second stage, the competitive challenges arising from these characteristics, with which the traditional rules are not able to fully deal, should be examined and evaluated; and finally, new rules of competition in the field of platform markets based on the aforementioned characteristics and challenges should be put in place.
As the title of the article suggests, the purpose of this article is to explain and analyze the first and second stages of the aforementioned process to show the deficiency of traditional rules in response to the competitive challenges of the field of digital platforms and the necessity of revising them. For this purpose, after explaining the meaning of "platform" and its conceptual evolution over time (the first part), the prominent features of digital platforms that affect the issue of competition are counted, identified, and evaluated (the second part) and finally, the challenges due to the aforementioned characteristics and the inadequacy of the traditional rules in response to them will be explained (part three) to prove the necessity of revising the traditional rules of competition law in the field of platform markets.
4. Conclusion
Based on the findings of this article, the main economic features of digital platforms are such as "the network effect", "reduction of transaction costs", "replacement of ownership with access", "fragmentation of supply and demand", "economy of scale and economy of significant scope", "simultaneous improvement of economies of scale and personalization" and "fundamental importance of data". Although they are not entirely new and traces of them can be seen in traditional markets, their simultaneous presence in digital platforms makes the market tend towards them. In addition, this problem may be aggravated by the actions of digital platforms to strengthen and expand their position in the market. It is noteworthy that none of the aforementioned features that have led to the occurrence of the mentioned challenges have been recognized in the traditional rules of competition as an obstacle to entering the market or as an anti-competitive practice. Therefore, the first competitive challenge of platform markets, which requires the regulation of appropriate rules, is the growing monopoly of these markets. Naturally, the most suitable solution to get out of this situation is to recognize the aforementioned features as specific types of entry barriers for digital markets.
It should also be kept in mind that the preliminary stages to apply anti-competitive rules and guaranteeing them in digital platform markets face serious challenges. In these markets, it is not possible to identify the product as easily as it is in traditional markets, and the application of the conventional SSNIP test cannot be applied to many platforms that offer zero-price services or two- or multi-modal platforms. This makes it a serious challenge to recognize the exact share of the platform in the market and, accordingly, to recognize the market power. It seems that the transition from "quantitative criteria" to "qualitative criteria" is the way out of such challenges.
Also, following the traditional rules in recognizing the anti-competitive behavior of platforms, causes many platforms to be accused of aggressive pricing at the very beginning due to having zero marginal cost. In addition, the existence of the aforementioned features has facilitated the conditions for committing anti-competitive acts, such as establishing exclusive conditions in the transaction, selling a package of products, collusion, etc. It seems that the requirement to overcoming such challenges is to promote ex-ante regulations along with the implementation of the current (mostly a-posteriori) regulation model.
Finally, it seems that the simultaneous presence of these features in digital platforms has largely led to the reemergence of traditional issues of competition law as current issues, and this will consequently require a review of competition laws in this area, as countries such as the United States, China, and the European Union have followed the same path.
The expansion of the Internet and its ever-increasing rate along with the rise of smart mobile phones have made Internet-based businesses one of the inseparable sectors of today's economy. The part that this type of business plays in today’s world economy is so much that now the top companies in the world, in terms of capital and market value, are companies in the field of digital economy.
This is a reality that Iran will also face in the not-too-distant future; then, companies in the field of digital economy will take a significant share of the market. So, today, it is especially necessary to pay attention to the issue of competition in digital platforms and to set the appropriate rules to govern them.
2. Literature Review
Until the writing of this article, most of the issues raised in Iran's competition law are devoted to the examination of rules governing competition in traditional markets. Only one article titled "Competition Council and Internet Businesses" by Zarei et al. (2019) has been written in relation to platform markets, and this work is also based on the traditional rules of competition law and regardless of the specific challenges of this field. Analysis of the vote number 306 of the Competition Council. Therefore, it can be claimed that the explanation of the characteristics and challenges of platform markets and its effect on the regulation of competition in this field, which is examined in this article, qualifies as innovation.
3. Methodology
In order to correctly set the new rules applicable in the field of digital platforms’ competition, it is necessary to go through a three-stage system: first, we must get a correct understanding of the prominent features of the digital platform markets that affect the issue of competition. In the second stage, the competitive challenges arising from these characteristics, with which the traditional rules are not able to fully deal, should be examined and evaluated; and finally, new rules of competition in the field of platform markets based on the aforementioned characteristics and challenges should be put in place.
As the title of the article suggests, the purpose of this article is to explain and analyze the first and second stages of the aforementioned process to show the deficiency of traditional rules in response to the competitive challenges of the field of digital platforms and the necessity of revising them. For this purpose, after explaining the meaning of "platform" and its conceptual evolution over time (the first part), the prominent features of digital platforms that affect the issue of competition are counted, identified, and evaluated (the second part) and finally, the challenges due to the aforementioned characteristics and the inadequacy of the traditional rules in response to them will be explained (part three) to prove the necessity of revising the traditional rules of competition law in the field of platform markets.
4. Conclusion
Based on the findings of this article, the main economic features of digital platforms are such as "the network effect", "reduction of transaction costs", "replacement of ownership with access", "fragmentation of supply and demand", "economy of scale and economy of significant scope", "simultaneous improvement of economies of scale and personalization" and "fundamental importance of data". Although they are not entirely new and traces of them can be seen in traditional markets, their simultaneous presence in digital platforms makes the market tend towards them. In addition, this problem may be aggravated by the actions of digital platforms to strengthen and expand their position in the market. It is noteworthy that none of the aforementioned features that have led to the occurrence of the mentioned challenges have been recognized in the traditional rules of competition as an obstacle to entering the market or as an anti-competitive practice. Therefore, the first competitive challenge of platform markets, which requires the regulation of appropriate rules, is the growing monopoly of these markets. Naturally, the most suitable solution to get out of this situation is to recognize the aforementioned features as specific types of entry barriers for digital markets.
It should also be kept in mind that the preliminary stages to apply anti-competitive rules and guaranteeing them in digital platform markets face serious challenges. In these markets, it is not possible to identify the product as easily as it is in traditional markets, and the application of the conventional SSNIP test cannot be applied to many platforms that offer zero-price services or two- or multi-modal platforms. This makes it a serious challenge to recognize the exact share of the platform in the market and, accordingly, to recognize the market power. It seems that the transition from "quantitative criteria" to "qualitative criteria" is the way out of such challenges.
Also, following the traditional rules in recognizing the anti-competitive behavior of platforms, causes many platforms to be accused of aggressive pricing at the very beginning due to having zero marginal cost. In addition, the existence of the aforementioned features has facilitated the conditions for committing anti-competitive acts, such as establishing exclusive conditions in the transaction, selling a package of products, collusion, etc. It seems that the requirement to overcoming such challenges is to promote ex-ante regulations along with the implementation of the current (mostly a-posteriori) regulation model.
Finally, it seems that the simultaneous presence of these features in digital platforms has largely led to the reemergence of traditional issues of competition law as current issues, and this will consequently require a review of competition laws in this area, as countries such as the United States, China, and the European Union have followed the same path.
Research Interests:
1. Introduction In the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation... more
1. Introduction
In the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation from regulatory measures. This article will analyze these issues as well as the approach adopted by Iran in this regard, while also discussing the necessity of changing the approach adopted in Iran's foreign investment protection treaties. It then continues to examine Philip Morris v. Uruguay because, firstly, although the relevant treaty contained expropriation provisions similar to those of most treaties to which Iran is a party, eventually Uruguay managed to win the case. Therefore, Uruguay’s defenses can be helpful for Iran in similar cases. Secondly, it will be shown that issuance of a favorable award for the host state in this case provides no guarantee that other
tribunals follow the approach adopted by that tribunal. Therefore, the article suggests specific clauses to be inserted into investment treaties of Iran that can be interpreted to the benefit of public interest and, as such, reduce the possible instances that require compensation to be paid by the government.
Research Question
- Which aspects of the host state’s defenses in Philip Morris v. Uruguay can be utilized by Iran in similar expropriation claims?
- When faced with similar expropriation disputes, would it suffice for Iran to rely on defenses similar to those of Uruguay in the said case?
- What is the best possible approach for Iran to adopt in its foreign investment promotion and protection treaties to avoid compensation in expropriation disputes?
2. Literature Review
The Persian legal database contains few studies examining the Philip Morris v. Uruguay case. They mostly contain overviews of the case and discuss the restrictions imposed on trademarks as a method of expropriating industrial property rights. However, no prior article has examined how the defenses used by Uruguay could be of use to Iran’s government when faced with similar expropriation claims. In this regard, the authors explain the importance of the state’s regulatory and policing powers and their degree of interference in the foreign investor’s property rights. Nevertheless, this piece indicates that the host state’s defenses in the Philip Morris v. Uruguay case cannot be relied upon in all similar instances, especially considering that Iran seems to have adopted the “high protection” policy towards foreign investments and has consequently opted not to discuss and define the connection between expropriation and governmental measures in the field of intellectual property rights in most of its BITs. The article suggests that Iran adopt the “increased predictability” or “qualified”
policy and set apart intellectual property rights-related regulatory measures from the scope of expropriation. A similar suggestion can only be found in an article written by the authors of this article titled “Legal Nature of Compulsory Licensing under Patent Law: A Regulatory Measure or Expropriation?”. However, the said suggestion, unlike the suggestions in this article, was primarily focused only on a single regulatory measure of the host state i.e., compulsory licenses.
3. Methodology
This article uses a descriptive and analytical method and the authors have resorted to library research to gather the relevant resources. A wide range of resources including the most recent books, articles, dissertations, cases, and regulations have been used to author this piece. In particular, it has been attempted to examine different treaties on the protection and promotion of foreign investment so that the article would be of a comparative nature.
4. Conclusion
Treaties on the promotion and protection of foreign investment contain different views concerning the relationship between expropriation and governmental measures that are taken regarding foreign investors' intellectual property rights. Considering that the exclusion approach reduces the instances in which the host states would have to pay compensation, this article concludes that Iran's government should adopt this approach when drafting these treaties and set aside its current approach which is unclear about the relation between expropriation and regulatory measures in the field of intellectual property. Until then, due to the similarities between the approaches adopted by Iran and Uruguay regarding the relation between expropriation and governmental measures in the field of intellectual property rights, Uruguay's defenses in Phillip Morris v. Uruguay can be utilized by Iran in similar expropriation claims filed against it.
In the field of intellectual property rights, host states’ policies, and accordingly, the approach of the relevant treaty towards expropriation and intellectual property rights play a key role when separating expropriation from regulatory measures. This article will analyze these issues as well as the approach adopted by Iran in this regard, while also discussing the necessity of changing the approach adopted in Iran's foreign investment protection treaties. It then continues to examine Philip Morris v. Uruguay because, firstly, although the relevant treaty contained expropriation provisions similar to those of most treaties to which Iran is a party, eventually Uruguay managed to win the case. Therefore, Uruguay’s defenses can be helpful for Iran in similar cases. Secondly, it will be shown that issuance of a favorable award for the host state in this case provides no guarantee that other
tribunals follow the approach adopted by that tribunal. Therefore, the article suggests specific clauses to be inserted into investment treaties of Iran that can be interpreted to the benefit of public interest and, as such, reduce the possible instances that require compensation to be paid by the government.
Research Question
- Which aspects of the host state’s defenses in Philip Morris v. Uruguay can be utilized by Iran in similar expropriation claims?
- When faced with similar expropriation disputes, would it suffice for Iran to rely on defenses similar to those of Uruguay in the said case?
- What is the best possible approach for Iran to adopt in its foreign investment promotion and protection treaties to avoid compensation in expropriation disputes?
2. Literature Review
The Persian legal database contains few studies examining the Philip Morris v. Uruguay case. They mostly contain overviews of the case and discuss the restrictions imposed on trademarks as a method of expropriating industrial property rights. However, no prior article has examined how the defenses used by Uruguay could be of use to Iran’s government when faced with similar expropriation claims. In this regard, the authors explain the importance of the state’s regulatory and policing powers and their degree of interference in the foreign investor’s property rights. Nevertheless, this piece indicates that the host state’s defenses in the Philip Morris v. Uruguay case cannot be relied upon in all similar instances, especially considering that Iran seems to have adopted the “high protection” policy towards foreign investments and has consequently opted not to discuss and define the connection between expropriation and governmental measures in the field of intellectual property rights in most of its BITs. The article suggests that Iran adopt the “increased predictability” or “qualified”
policy and set apart intellectual property rights-related regulatory measures from the scope of expropriation. A similar suggestion can only be found in an article written by the authors of this article titled “Legal Nature of Compulsory Licensing under Patent Law: A Regulatory Measure or Expropriation?”. However, the said suggestion, unlike the suggestions in this article, was primarily focused only on a single regulatory measure of the host state i.e., compulsory licenses.
3. Methodology
This article uses a descriptive and analytical method and the authors have resorted to library research to gather the relevant resources. A wide range of resources including the most recent books, articles, dissertations, cases, and regulations have been used to author this piece. In particular, it has been attempted to examine different treaties on the protection and promotion of foreign investment so that the article would be of a comparative nature.
4. Conclusion
Treaties on the promotion and protection of foreign investment contain different views concerning the relationship between expropriation and governmental measures that are taken regarding foreign investors' intellectual property rights. Considering that the exclusion approach reduces the instances in which the host states would have to pay compensation, this article concludes that Iran's government should adopt this approach when drafting these treaties and set aside its current approach which is unclear about the relation between expropriation and regulatory measures in the field of intellectual property. Until then, due to the similarities between the approaches adopted by Iran and Uruguay regarding the relation between expropriation and governmental measures in the field of intellectual property rights, Uruguay's defenses in Phillip Morris v. Uruguay can be utilized by Iran in similar expropriation claims filed against it.
Research Interests:
1. 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... more
1. 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.
2. Method and Purpose
This 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.
3. 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.
4. Conclusion
Administrative 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.
“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.
2. Method and Purpose
This 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.
3. 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.
4. Conclusion
Administrative 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.
Research Interests:
1. Introduction Hegel 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... more
1. Introduction
Hegel 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’.
2. Research Question(s)
What are the characteristics of the ideal state in Hegel's view?
3. Literature Review
Several 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.
4. Methodology
Considering 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.
5. Conclusion
Hegel'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.
Hegel 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’.
2. Research Question(s)
What are the characteristics of the ideal state in Hegel's view?
3. Literature Review
Several 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.
4. Methodology
Considering 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.
5. Conclusion
Hegel'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.
Research Interests:
1. Introduction The right to self-determination could be applied in situations aiming to prevent crimes against humanity that are subject to the responsibility to protect. Generally, governments that violate the right to... more
1. Introduction
The right to self-determination could be applied in situations aiming to prevent crimes against humanity that are subject to the responsibility to protect. Generally, governments that violate the right to self-determination of their people, including minority groups, are more prone to committing these heinous crimes. The doctrine of the responsibility to protect seeks to establish a responsible government toward its citizens; The protection aspect of the doctrine has been discussed in this research, which does not necessarily include intervention. Adhering to human rights standards and exercising the right to self-determination in the framework of the responsibility to protect is a foundation to prevent situations that can lead to atrocities and widespread violations of human rights. Thus, this can be considered as the link between the right to self-determination and the responsibility to protect.
2. Literature Review
The right to self-determination of people has been an important subject of much legal research as a fundamental principle of international law. On the other hand, the responsibility to protect is also among the attractive topics of international law as a new doctrine. The two notions have been separately discussed by researchers such as Antonio Cassese, Jörg Fisch, Yasmine Nahlawi, and Stacey Henderson.
It can be claimed that the subject of this article which is an updated version of the corresponding author’s master’s thesis, is an innovative topic in the international law literature and has not been explored before.
3. Methodology
Firstly, a descriptive research method has been used for this research i.e., the characteristics and aspects of the right to self-determination and the responsibility to protect have been discussed separately. Secondly, based on the legal research method, the governments’ experiences in different situations have been observed to reach the final research result regarding the commonalities of these two notions.
4. Results
From the international law’s point of view, the internal aspect of the right to self-determination is an erga omnes rule, and its external dimension has been accepted as a jus cogens rule.
However, it should be noted that a separatist interpretation of the right to self-determination has no place in the current system of international law. International legal doctrines, governments’ stances, and international documents always emphasize on the importance and priority of the principle of territorial integrity. Further, international peace and security requires that separatist interpretations not be supported.
5. Conclusion
Today, respecting human rights and, most importantly, the right to self-determination is a global matter and the international community should contribute to its realization. The right to self-determination can be realized indirectly under the doctrine of responsibility to protect. In other words, the right to self-determination can be applied as a means of preventing the occurrence of crimes that are subject to the responsibility to protect doctrine, and in this regard, the international community can assist and take measures and put them on its agenda to ensure the exercise of this right.
The responsibility to protect emphasizes the primary responsibility of governments and the international community to assist other countries in carrying out their sovereign duties and only refers to the element of intervention at the last stage. the international community should come to the understanding that non-interventionist measures and international aid to the governments have a fundamental role and importance in supporting people and strengthening them and are to the benefit of international peace and security. The application of the responsibility to protect in Libya and the remedial secession in Kosovo showed how ineffective and destructive under-developed legal theories can be in practice.
On the other hand, the doctrine of responsibility to protect suffers from a lack of clear criteria for intervention which is a problem that the international community should take steps to resolve. In many cases, powerful countries, especially the permanent members of the Security Council, apply double standards towards human rights issues. So, in order to prevent similar tragedies and protect the citizens, the international community should set clear and thorough standards regarding human rights issues and make them binding. However, it should be noted that the concept of cultural diversity should be taken into account In the process of formulating standards because, in issues related to human rights, no fixed standard that could be applied to all.
The right to self-determination could be applied in situations aiming to prevent crimes against humanity that are subject to the responsibility to protect. Generally, governments that violate the right to self-determination of their people, including minority groups, are more prone to committing these heinous crimes. The doctrine of the responsibility to protect seeks to establish a responsible government toward its citizens; The protection aspect of the doctrine has been discussed in this research, which does not necessarily include intervention. Adhering to human rights standards and exercising the right to self-determination in the framework of the responsibility to protect is a foundation to prevent situations that can lead to atrocities and widespread violations of human rights. Thus, this can be considered as the link between the right to self-determination and the responsibility to protect.
2. Literature Review
The right to self-determination of people has been an important subject of much legal research as a fundamental principle of international law. On the other hand, the responsibility to protect is also among the attractive topics of international law as a new doctrine. The two notions have been separately discussed by researchers such as Antonio Cassese, Jörg Fisch, Yasmine Nahlawi, and Stacey Henderson.
It can be claimed that the subject of this article which is an updated version of the corresponding author’s master’s thesis, is an innovative topic in the international law literature and has not been explored before.
3. Methodology
Firstly, a descriptive research method has been used for this research i.e., the characteristics and aspects of the right to self-determination and the responsibility to protect have been discussed separately. Secondly, based on the legal research method, the governments’ experiences in different situations have been observed to reach the final research result regarding the commonalities of these two notions.
4. Results
From the international law’s point of view, the internal aspect of the right to self-determination is an erga omnes rule, and its external dimension has been accepted as a jus cogens rule.
However, it should be noted that a separatist interpretation of the right to self-determination has no place in the current system of international law. International legal doctrines, governments’ stances, and international documents always emphasize on the importance and priority of the principle of territorial integrity. Further, international peace and security requires that separatist interpretations not be supported.
5. Conclusion
Today, respecting human rights and, most importantly, the right to self-determination is a global matter and the international community should contribute to its realization. The right to self-determination can be realized indirectly under the doctrine of responsibility to protect. In other words, the right to self-determination can be applied as a means of preventing the occurrence of crimes that are subject to the responsibility to protect doctrine, and in this regard, the international community can assist and take measures and put them on its agenda to ensure the exercise of this right.
The responsibility to protect emphasizes the primary responsibility of governments and the international community to assist other countries in carrying out their sovereign duties and only refers to the element of intervention at the last stage. the international community should come to the understanding that non-interventionist measures and international aid to the governments have a fundamental role and importance in supporting people and strengthening them and are to the benefit of international peace and security. The application of the responsibility to protect in Libya and the remedial secession in Kosovo showed how ineffective and destructive under-developed legal theories can be in practice.
On the other hand, the doctrine of responsibility to protect suffers from a lack of clear criteria for intervention which is a problem that the international community should take steps to resolve. In many cases, powerful countries, especially the permanent members of the Security Council, apply double standards towards human rights issues. So, in order to prevent similar tragedies and protect the citizens, the international community should set clear and thorough standards regarding human rights issues and make them binding. However, it should be noted that the concept of cultural diversity should be taken into account In the process of formulating standards because, in issues related to human rights, no fixed standard that could be applied to all.
Research Interests:
1. Introduction Peace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with... more
1. Introduction
Peace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of equality and brotherhood, and its realization is only possible through collective engagement. Afghanistan, apart from the post-Taliban era, has always witnessed the dominion of oppressive and discriminatory ideologies and structures, which have led to numerous conflicts. Wherever there is oppression, there will consequently be.
Research Question
This article seeks to identify how women can contribute to the realization of sustainable peace in Afghanistan. Therefore, it is based on the hypothesis that by recognizing the official and unofficial role of women in various public domains, sustainable peace is achievable. In peace, the structures and situations that lead to conflict are dismantled.
2. Literature Review
Regarding the role of women in achieving sustainable peace in the public legal system of Afghanistan, no work has been done in Afghanistan yet. However, considering the rapid developments that have taken place in the field of peace in Afghanistan, during my research, a significant number of studies have been conducted. Among these, there is the valuable research report titled "Women's Participation in the Peace Process in Afghanistan (A Case Study)". Another valuable work on this subject has been published by Dr. Omar Sadr under the title "Peace Processes in Afghanistan: People’s Perspectives", published by the Afghanistan Strategic Studies Institute. Another valuable article by Dr. Anahita Saifi, titled "Women, Peace, and Security in Afghanistan from the Perspective of the UN Security Council," was written in 2019. In this article, she examines the role of women in the peace-making process based on Resolution 1325 and the National Action Plan for Afghan Women, as well as the role of international institutions and women's participation in this process. Another valuable book, written by Mohammad Amin Ahmadi, who was also a member of the Afghan peace negotiating team, is titled "Peace in Afghanistan: The Struggle between the Republic and the Emirate."
This book covers topics such as avoiding war, defending the republic and parliamentary democracy, a comparative study of the republican constitution and the emirate constitution, defending human rights within the framework of Islamic constitutional law, peace experiences and techniques, and finally, the legitimacy and sustainability of peace. This article has explored new horizons by, firstly directly addressing the issue of peace while considering the Afghan public legal system, and secondly, by being written concurrently with the latest news of peace negotiations and the confrontation between the Taliban and the Afghan government before the fall of Kabul, and referring to many recent meetings and events for the first time. Hence, it can claim to be new and original in its subject. Alongside that, our outlook on peace in this article is about sustainable peace that goes beyond ending war and conflicts and focuses on good governance and empowerment. This aspect has not been paid attention to in previous articles and sources.
3. Methodology
This article aims to contribute to increasing knowledge in the field of sustainable peace, with an emphasis on the role of women. In practical terms, it aims to assist in the current situation of Afghanistan which is on the brink of new developments in its political system, and provide a practical response to women's concerns arising from the Taliban's return to power in Afghanistan, as well as to strengthen the discourse on the role of women in achieving sustainable peace in Afghanistan and help guarantee women's rights as a vulnerable part of the country. This research has been conducted with a descriptive-analytical method.
4. Result
Not until the social and cultural infrastructure is fundamentally reformed will top-down reforms to enforce the empowerment of women and project-based plans to increase their contribution in society achieve the desired result.
5. Discussion
The analyses in this article prove that the mechanism for achieving peace in post-war Afghanistan has been vertical (from top to bottom), and there have been significant international legal documents and domestic laws based on which many institutions and organizations have been created. However, what has prevented the realization of the goals set to achieve peace in Afghanistan are the structural and cultural problems in this area that have hindered women's participation in the desired positions.
Therefore, to achieve peace, the structures and conditions that cause conflict must be eliminated. Moreover, to achieve sustainable peace, we need a structural reform that includes the participation of everyone, regardless of gender and ethnicity, as well as a cultural reform that supports political inclusivity. of the absence of peace in the current situation is evidence that, due to the lack of appropriate conditions for the participation of all Afghan citizens, especially women, the peace process has reached an impasse.
6. Conclusion
To conclude, although the political system in Afghanistan after the war is defined as a modern and democratic system, its foundation is still the traditional and outdated national and tribal culture that has prevented the engagement of ethnic and social minorities and women in the body of the system as official actors. Therefore, women's struggles in recent years have primarily focused on reforming these structures and breaking down traditional anti-women structures, and because of the obstacles in front of their official actions to achieve sustainable peace, most of their efforts have been carried out through informal channels.
Peace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of equality and brotherhood, and its realization is only possible through collective engagement. Afghanistan, apart from the post-Taliban era, has always witnessed the dominion of oppressive and discriminatory ideologies and structures, which have led to numerous conflicts. Wherever there is oppression, there will consequently be.
Research Question
This article seeks to identify how women can contribute to the realization of sustainable peace in Afghanistan. Therefore, it is based on the hypothesis that by recognizing the official and unofficial role of women in various public domains, sustainable peace is achievable. In peace, the structures and situations that lead to conflict are dismantled.
2. Literature Review
Regarding the role of women in achieving sustainable peace in the public legal system of Afghanistan, no work has been done in Afghanistan yet. However, considering the rapid developments that have taken place in the field of peace in Afghanistan, during my research, a significant number of studies have been conducted. Among these, there is the valuable research report titled "Women's Participation in the Peace Process in Afghanistan (A Case Study)". Another valuable work on this subject has been published by Dr. Omar Sadr under the title "Peace Processes in Afghanistan: People’s Perspectives", published by the Afghanistan Strategic Studies Institute. Another valuable article by Dr. Anahita Saifi, titled "Women, Peace, and Security in Afghanistan from the Perspective of the UN Security Council," was written in 2019. In this article, she examines the role of women in the peace-making process based on Resolution 1325 and the National Action Plan for Afghan Women, as well as the role of international institutions and women's participation in this process. Another valuable book, written by Mohammad Amin Ahmadi, who was also a member of the Afghan peace negotiating team, is titled "Peace in Afghanistan: The Struggle between the Republic and the Emirate."
This book covers topics such as avoiding war, defending the republic and parliamentary democracy, a comparative study of the republican constitution and the emirate constitution, defending human rights within the framework of Islamic constitutional law, peace experiences and techniques, and finally, the legitimacy and sustainability of peace. This article has explored new horizons by, firstly directly addressing the issue of peace while considering the Afghan public legal system, and secondly, by being written concurrently with the latest news of peace negotiations and the confrontation between the Taliban and the Afghan government before the fall of Kabul, and referring to many recent meetings and events for the first time. Hence, it can claim to be new and original in its subject. Alongside that, our outlook on peace in this article is about sustainable peace that goes beyond ending war and conflicts and focuses on good governance and empowerment. This aspect has not been paid attention to in previous articles and sources.
3. Methodology
This article aims to contribute to increasing knowledge in the field of sustainable peace, with an emphasis on the role of women. In practical terms, it aims to assist in the current situation of Afghanistan which is on the brink of new developments in its political system, and provide a practical response to women's concerns arising from the Taliban's return to power in Afghanistan, as well as to strengthen the discourse on the role of women in achieving sustainable peace in Afghanistan and help guarantee women's rights as a vulnerable part of the country. This research has been conducted with a descriptive-analytical method.
4. Result
Not until the social and cultural infrastructure is fundamentally reformed will top-down reforms to enforce the empowerment of women and project-based plans to increase their contribution in society achieve the desired result.
5. Discussion
The analyses in this article prove that the mechanism for achieving peace in post-war Afghanistan has been vertical (from top to bottom), and there have been significant international legal documents and domestic laws based on which many institutions and organizations have been created. However, what has prevented the realization of the goals set to achieve peace in Afghanistan are the structural and cultural problems in this area that have hindered women's participation in the desired positions.
Therefore, to achieve peace, the structures and conditions that cause conflict must be eliminated. Moreover, to achieve sustainable peace, we need a structural reform that includes the participation of everyone, regardless of gender and ethnicity, as well as a cultural reform that supports political inclusivity. of the absence of peace in the current situation is evidence that, due to the lack of appropriate conditions for the participation of all Afghan citizens, especially women, the peace process has reached an impasse.
6. Conclusion
To conclude, although the political system in Afghanistan after the war is defined as a modern and democratic system, its foundation is still the traditional and outdated national and tribal culture that has prevented the engagement of ethnic and social minorities and women in the body of the system as official actors. Therefore, women's struggles in recent years have primarily focused on reforming these structures and breaking down traditional anti-women structures, and because of the obstacles in front of their official actions to achieve sustainable peace, most of their efforts have been carried out through informal channels.
Research Interests:
1. Introduction Although Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and... more
1. Introduction
Although Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, especially constitutional law. Constituent power and constitution are two important concepts in Arendt's thinking. Arendt's distinctions between the American and French revolutions are actually a way to understand the Constitution and the Constituent power in her thoughts. Knowledge of law and legal concepts also have an important place in Arendt's thought. It is necessary to deal with these researches for several reasons; these studies link legal issues to political and philosophical ideas, help advance matters related to the theories of constitutional law, and make the Constitution distance itself from text-oriented positivist views that ignore history and reality.
Research Question(s)
This article seeks to answer the question: “What Arendt's understanding is of the constitution and Constituent power as the creator of the constitution, and how she examines the different nature of the French and American revolutions to explain the concept of the constitution and Constituent power”.
2. Literature Review
The interpreters of Arendt's thought have mostly neglected the importance of the concept of the constitution in her thinking, but in recent decades, especially with the rising influence of Carl Schmidt's ideas in constitutional law, many have relied on Arendt to criticize Schmidt’s ideas. Also, essays and books were written about Arendt's legal philosophy. Even though that many of Arendt's works have been translated into Persian, her legal theories have never been discussed. The only thing that can be seen in the Iranian legal literature about Arendt is her criticisms of the concept of human rights.
3. Methodology
In this article, we have researched and discussed issues with a descriptive-analytical method and by relying on the writings of Arendt and her commentators.
4. Results
The constitution and constituent power are connected. The constitution is considered the most important legal document of a country. It is written by the constituent power which constituent power belongs to the people and the sovereignty of the people -sovereignty means the superior power to give orders. Arendt, fully familiar with the issues and theories of constituent power, makes a distinction between the American and French experiences regarding constituent power in order to explain constituent power and criticize it. Arendt understood constituent power very differently from what Schmidt theorized so complicatedly. Both Schmidt and Arendt have emphasized the role and power of people. For Schmidt, this power is absolute and beside the constitution, but for Arendt, it is limited and derived from the authority of pre-existing institutions. Also, both Arendt and Schmidt are indebted to Max Weber’s thinking. Arendt also stands against the constituent power and general will theories in the thought of Sieyès. According to Arendt, Sieyès has claimed the constituent power i.e., the nation to be a permanent state of nature. She has tried to criticize the supporters of public will and the strong role of the people. According to Arendt, emphasis on the will of the people makes the law in totalitarian governments a tool for the government, as a representative of the people which it can easily use to violate the constitution.
She also discussed the concept of law based on what she theorized about constituent power and the Constitution. Arendt believed that the people, as the constituent power, write the constitution, but the ordinary law that is written in the parliament is no longer under the absolute will of the people and is bound and limited by the constitution. According to Arendt, in both the Roman and Greek experiences, law was man-made. The Greek nomos and the Roman lex did not have any divine origin and there was no need for legislation that was outside and above the laws, and there was no need to obtain inspiration from God. The concept of divine law required that the legislator be outside and above the circle of laws that he enacts. Arendt's analysis of Rousseau's influence on the evolution of the French Revolution led her to the conclusion that since then, the concept of the nation led to the idea that law should be the product of the people’s will, and thus the concept of law gained a new meaning thereafter.
5. Conclusion
Hannah Arendt is one of the most important thinkers of the 20th century. Her thought system covers a wide and complex purview, and commentators of her thought have discussed various philosophical, political, and social aspects of her theories. One of the important aspects of Arendt's thinking is her legal philosophy, which has been less discussed than other aspects. Her legal philosophy covers a wide area in the philosophy of law, criminal law, international law, human rights, constitutional law, and administrative law, analysis of which requires writing numerous articles. In this article, only one of Arendt's theories, namely the constitution and its relationship with the constituent power, was discussed. For a more precise understanding of the Constitution, one refers to its author, that is, constituent power. Her understanding of the constituent power is different from the Western European tradition, from Sieyès to Carl Schmidt, and criticizes the exaggeration of the role of the people. Undoubtedly, the fate of the Weimar Republic and the bitter experience of 20th-century Europe, the emergence of totalitarian regimes in Germany and the Soviet Union, and her life experiences in America have influenced these ideas. regard to Arendt is increasing day by day in the world of legal thought and philosophy, and many aspects of Her thinking still need to be discussed.
Although Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, especially constitutional law. Constituent power and constitution are two important concepts in Arendt's thinking. Arendt's distinctions between the American and French revolutions are actually a way to understand the Constitution and the Constituent power in her thoughts. Knowledge of law and legal concepts also have an important place in Arendt's thought. It is necessary to deal with these researches for several reasons; these studies link legal issues to political and philosophical ideas, help advance matters related to the theories of constitutional law, and make the Constitution distance itself from text-oriented positivist views that ignore history and reality.
Research Question(s)
This article seeks to answer the question: “What Arendt's understanding is of the constitution and Constituent power as the creator of the constitution, and how she examines the different nature of the French and American revolutions to explain the concept of the constitution and Constituent power”.
2. Literature Review
The interpreters of Arendt's thought have mostly neglected the importance of the concept of the constitution in her thinking, but in recent decades, especially with the rising influence of Carl Schmidt's ideas in constitutional law, many have relied on Arendt to criticize Schmidt’s ideas. Also, essays and books were written about Arendt's legal philosophy. Even though that many of Arendt's works have been translated into Persian, her legal theories have never been discussed. The only thing that can be seen in the Iranian legal literature about Arendt is her criticisms of the concept of human rights.
3. Methodology
In this article, we have researched and discussed issues with a descriptive-analytical method and by relying on the writings of Arendt and her commentators.
4. Results
The constitution and constituent power are connected. The constitution is considered the most important legal document of a country. It is written by the constituent power which constituent power belongs to the people and the sovereignty of the people -sovereignty means the superior power to give orders. Arendt, fully familiar with the issues and theories of constituent power, makes a distinction between the American and French experiences regarding constituent power in order to explain constituent power and criticize it. Arendt understood constituent power very differently from what Schmidt theorized so complicatedly. Both Schmidt and Arendt have emphasized the role and power of people. For Schmidt, this power is absolute and beside the constitution, but for Arendt, it is limited and derived from the authority of pre-existing institutions. Also, both Arendt and Schmidt are indebted to Max Weber’s thinking. Arendt also stands against the constituent power and general will theories in the thought of Sieyès. According to Arendt, Sieyès has claimed the constituent power i.e., the nation to be a permanent state of nature. She has tried to criticize the supporters of public will and the strong role of the people. According to Arendt, emphasis on the will of the people makes the law in totalitarian governments a tool for the government, as a representative of the people which it can easily use to violate the constitution.
She also discussed the concept of law based on what she theorized about constituent power and the Constitution. Arendt believed that the people, as the constituent power, write the constitution, but the ordinary law that is written in the parliament is no longer under the absolute will of the people and is bound and limited by the constitution. According to Arendt, in both the Roman and Greek experiences, law was man-made. The Greek nomos and the Roman lex did not have any divine origin and there was no need for legislation that was outside and above the laws, and there was no need to obtain inspiration from God. The concept of divine law required that the legislator be outside and above the circle of laws that he enacts. Arendt's analysis of Rousseau's influence on the evolution of the French Revolution led her to the conclusion that since then, the concept of the nation led to the idea that law should be the product of the people’s will, and thus the concept of law gained a new meaning thereafter.
5. Conclusion
Hannah Arendt is one of the most important thinkers of the 20th century. Her thought system covers a wide and complex purview, and commentators of her thought have discussed various philosophical, political, and social aspects of her theories. One of the important aspects of Arendt's thinking is her legal philosophy, which has been less discussed than other aspects. Her legal philosophy covers a wide area in the philosophy of law, criminal law, international law, human rights, constitutional law, and administrative law, analysis of which requires writing numerous articles. In this article, only one of Arendt's theories, namely the constitution and its relationship with the constituent power, was discussed. For a more precise understanding of the Constitution, one refers to its author, that is, constituent power. Her understanding of the constituent power is different from the Western European tradition, from Sieyès to Carl Schmidt, and criticizes the exaggeration of the role of the people. Undoubtedly, the fate of the Weimar Republic and the bitter experience of 20th-century Europe, the emergence of totalitarian regimes in Germany and the Soviet Union, and her life experiences in America have influenced these ideas. regard to Arendt is increasing day by day in the world of legal thought and philosophy, and many aspects of Her thinking still need to be discussed.
Research Interests:
1. Introduction Constitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often... more
1. Introduction
Constitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage of time has highlighted the constraints of fixed principles when confronted with the dynamic demands of evolving societies and emerging generations. Should these principles fail to evolve in sync with contemporary concerns, even the most meticulously crafted written constitution risks becoming an archaic relic, relegated to obscurity on library shelves. Constitution Revision functions as an equilibrium between the twin poles of stability and transformation. It serves as a counterbalance that wards against the pitfalls of constitutional instability and ceaseless amendment, while simultaneously safeguarding the elasticity that codified principles. need to accommodate evolving circumstances The concept of constitutional revision is mentioned in the texts of codified constitutions in many legal systems. However, unwritten constitutional adjustments and revisions remain. Notably, in Iran, the interplay of customary transformations alongside formal amendments revealed an intriguing omission—namely, the absence of explicit reference to constitutional revision in the face of shifting societal paradigms. A parallel scenario arose post-Islamic Revolution when the developing Constitution of the Islamic Republic of Iran neglected to incorporate a provision for the revision of its textual framework. Only after the decree of Ayatollah Khomeini (RA) was the principle of revision formally enshrined within the constitution's text. Yet, despite this articulation, after more than three decades this principle still lays dormant. Simultaneously, in reality and practice, there have been undeniable modifications to the implementation and utilization of certain constitutional principles, alluding to a state of "unofficial" revision that contrasts with the structured processes outlined in the Constitution.
2. The Comprehensive Nature of Constitutional Change
A constitution, despite its comprehensive purview, seldom possesses the capacity to encapsulate the entirety of a political system. Irrespective of its encompassment of legal principles, even the most autocratic or democratic political framework grapples with the challenge of reflecting the evolving tapestry of political changes within the confines of a constitution. In instances where a nation's constitution remains ostensibly unaltered over prolonged periods, the possibility of a subtle, unwritten evolution looms large. This article tries to elucidate the framework of informal constitutional modification through established customs. Drawing from historical precedents predating the Islamic Revolution, as well as post-revolution occurrences, alongside a comparative exploration of revision experiences in global jurisdictions, the article embarks on a quest to address the central query: Can the constitution undergo revision by way of constitutional customs?
3. Research Background
Regarding unwritten constitutional principles, the specific concept of constitutional revision remains shrouded in relative obscurity, with an absence of comprehensive articles or treatises delving into its intricacies. Iranian legal scholars, while contributing to the discourse surrounding formal revision within the constitution, have largely overlooked its informal, customary dimensions.
4. Methodology
This article embraces a descriptive-analytical methodology, an approach that holistically examines the subject matter in both its historical and contextual dimensions. The descriptive aspect entails a meticulous dissection of the historical progression of unwritten constitutional revision, tracing its evolution from pre-revolutionary times to the contemporary landscape. This chronological expedition provides invaluable insights into the genesis, evolution, and possible trajectories of unwritten revision. on the other hand, the analytical dimension engages in cross-examination of these historical occurrences, thereby identifying patterns, disparities, and commonalities that serve to shed light on the possibilities of informal constitutional change. This dual-method approach fosters a comprehensive comprehension of the subject matter by situating it within both its historical and contemporary setting.
5. Conclusion
Amendment and review of legal statutes are an essential part of societal development. The underlying philosophy of legislative endeavors centers on catering to societal needs, and as long as these needs persist, the volume of legal regulations inevitably increases. However, refinement and revision of existing laws rather than a sheer accumulation of statutes is an astute strategy. While the process of altering a constitution is inherently intricate, at its core, it is a form of legislation that demands responsiveness to contemporary demands. When textual revisions are hindered or fall short of aligning with the evolving demands, customary revision acts as a potential alternative. The identification and utilization of foundational customs play a pivotal role in the process of constitutional amendment. Nonetheless, caution must be exercised to prevent the misuse of these customs as tools for political manipulation. These fundamental customs, when synchronized with the tenets of governmental institutions, political actions, and the constitution's fundamental spirit, can facilitate the refinement and adaptation of core legal texts. The ambit of their influence, however, is subject to the limits and powers of governmental bodies and political actions. However, they cannot overrule the individual liberties enshrined within the constitution. In essence, these customs should function as instruments of societal progress in harmony with prevailing needs, rather than mechanisms for advancing political agendas.
Constitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage of time has highlighted the constraints of fixed principles when confronted with the dynamic demands of evolving societies and emerging generations. Should these principles fail to evolve in sync with contemporary concerns, even the most meticulously crafted written constitution risks becoming an archaic relic, relegated to obscurity on library shelves. Constitution Revision functions as an equilibrium between the twin poles of stability and transformation. It serves as a counterbalance that wards against the pitfalls of constitutional instability and ceaseless amendment, while simultaneously safeguarding the elasticity that codified principles. need to accommodate evolving circumstances The concept of constitutional revision is mentioned in the texts of codified constitutions in many legal systems. However, unwritten constitutional adjustments and revisions remain. Notably, in Iran, the interplay of customary transformations alongside formal amendments revealed an intriguing omission—namely, the absence of explicit reference to constitutional revision in the face of shifting societal paradigms. A parallel scenario arose post-Islamic Revolution when the developing Constitution of the Islamic Republic of Iran neglected to incorporate a provision for the revision of its textual framework. Only after the decree of Ayatollah Khomeini (RA) was the principle of revision formally enshrined within the constitution's text. Yet, despite this articulation, after more than three decades this principle still lays dormant. Simultaneously, in reality and practice, there have been undeniable modifications to the implementation and utilization of certain constitutional principles, alluding to a state of "unofficial" revision that contrasts with the structured processes outlined in the Constitution.
2. The Comprehensive Nature of Constitutional Change
A constitution, despite its comprehensive purview, seldom possesses the capacity to encapsulate the entirety of a political system. Irrespective of its encompassment of legal principles, even the most autocratic or democratic political framework grapples with the challenge of reflecting the evolving tapestry of political changes within the confines of a constitution. In instances where a nation's constitution remains ostensibly unaltered over prolonged periods, the possibility of a subtle, unwritten evolution looms large. This article tries to elucidate the framework of informal constitutional modification through established customs. Drawing from historical precedents predating the Islamic Revolution, as well as post-revolution occurrences, alongside a comparative exploration of revision experiences in global jurisdictions, the article embarks on a quest to address the central query: Can the constitution undergo revision by way of constitutional customs?
3. Research Background
Regarding unwritten constitutional principles, the specific concept of constitutional revision remains shrouded in relative obscurity, with an absence of comprehensive articles or treatises delving into its intricacies. Iranian legal scholars, while contributing to the discourse surrounding formal revision within the constitution, have largely overlooked its informal, customary dimensions.
4. Methodology
This article embraces a descriptive-analytical methodology, an approach that holistically examines the subject matter in both its historical and contextual dimensions. The descriptive aspect entails a meticulous dissection of the historical progression of unwritten constitutional revision, tracing its evolution from pre-revolutionary times to the contemporary landscape. This chronological expedition provides invaluable insights into the genesis, evolution, and possible trajectories of unwritten revision. on the other hand, the analytical dimension engages in cross-examination of these historical occurrences, thereby identifying patterns, disparities, and commonalities that serve to shed light on the possibilities of informal constitutional change. This dual-method approach fosters a comprehensive comprehension of the subject matter by situating it within both its historical and contemporary setting.
5. Conclusion
Amendment and review of legal statutes are an essential part of societal development. The underlying philosophy of legislative endeavors centers on catering to societal needs, and as long as these needs persist, the volume of legal regulations inevitably increases. However, refinement and revision of existing laws rather than a sheer accumulation of statutes is an astute strategy. While the process of altering a constitution is inherently intricate, at its core, it is a form of legislation that demands responsiveness to contemporary demands. When textual revisions are hindered or fall short of aligning with the evolving demands, customary revision acts as a potential alternative. The identification and utilization of foundational customs play a pivotal role in the process of constitutional amendment. Nonetheless, caution must be exercised to prevent the misuse of these customs as tools for political manipulation. These fundamental customs, when synchronized with the tenets of governmental institutions, political actions, and the constitution's fundamental spirit, can facilitate the refinement and adaptation of core legal texts. The ambit of their influence, however, is subject to the limits and powers of governmental bodies and political actions. However, they cannot overrule the individual liberties enshrined within the constitution. In essence, these customs should function as instruments of societal progress in harmony with prevailing needs, rather than mechanisms for advancing political agendas.