bagher ansari
Volume 16, Issue 43 , February 2015, Pages 9-46
Abstract
Freedom of expression in regard to criticism directed toward government orpublic officials is faced with some challenges. On one hand, it reveals potentialor actual deficiencies and failures in their actions, decisions or institutions.Hence, it would be very constructive and beneficial to the public ...
Read More
Freedom of expression in regard to criticism directed toward government orpublic officials is faced with some challenges. On one hand, it reveals potentialor actual deficiencies and failures in their actions, decisions or institutions.Hence, it would be very constructive and beneficial to the public interest. On theother hand, through criticism, there might be potential false or unprovedattributions which can be considered as defamatory, subversive or revolutionarystatements. This essay tries to elaborate the legal standards based oninternational experiences and Islamic law, which seems to be proper for makingbalance between political speeches and protection of reputation of publicofficials or public trust to government. For this purpose, in the first chapter,theoretical basis for extensive protection of political speeches and in the secondpart, balance-standards are identified and studied.
hamid reza oloumi yazdi; somayeh mohammadi
Volume 16, Issue 43 , February 2015, Pages 47-80
Abstract
The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals ...
Read More
The Umbrella Clause has nearly become one of the most common rules of the mostinvestment treaties, which provides more protections for foreign investor. Providinga proper and true sense of this clause has become highly controversial issue ininternational investment law that has led many arbitral tribunals to adopt specificstance in this respect. Here, the fundamental point is whether the forum stipulated inthe bilateral investment treaty is competent to settle disputes, which are arisen frominvestment contract between host State and foreign investor, or not? If it so, then thenext question would be: what will be the effect of the determining the forum bystipulated dispute settlement clause in the contract. Does this clause turn contractclaims into the treaty claims? And what will be the impacts and limits of this clause?Answering to these questions, the arbitral tribunals have responded in two differentways. Some of them have interpreted the clause in a narrow sense; they havedistinguished sovereign from non-sovereign act of host State. According to theirpoint of view, the Umbrella Clause of BIT may be violated if the host State measure,in breaching its contractual obligation, is applied on the basis of its sovereignty. Incontrast, the other tribunals have interpreted this clause in a broad sense which theviolation of any contractual obligation of host State leads to a breach of this clauseand consequently the forum in the investment treaty is qualified to hear the dispute.It seems that the broad interpretation and second approach is more logical in theinterpretation of the clause; it is also more consistent with the purpose and historyof the emergence of this clause and makes it more efficient.
seyd ghasem zamani; mona sadat mirzadeh
Volume 16, Issue 43 , February 2015, Pages 81-108
Abstract
Attribution of private-person’s act to a state is accepted in international law insome exceptional matters. Acting under the direction or control of the state is oneof those exceptional cases; by proving state control over private persons andentities, their actions are attributable to the state. ...
Read More
Attribution of private-person’s act to a state is accepted in international law insome exceptional matters. Acting under the direction or control of the state is oneof those exceptional cases; by proving state control over private persons andentities, their actions are attributable to the state. However for understanding therequired level of the control and direction, we shall review and inquiry the judicialjurisprudence in order to make these theoretical concepts more tangible. Iran-U.Sclaims tribunal, as the most prominent international arbitration, has separatedjurisdiction and the merit phase in some of its cases.From jurisdictional point ofview, the tribunal has applied a looser standard while in the merit, tribunal’sapproach has more affinity for theory of effective control. In such cases, as ageneral rule,stateshave notbeenliable for the conduct of non-state actors unlessthe tribunal could find the conduct in question intensely controlled by the state.Indeed the tribunal, in place of determining standard of control in these kinds ofcases, has not lowered the threshold for imputing private acts to statesbut treatedwith it in an exceptional manner. The purpose of present article is to examinestandard of direction and control, while the focus is on the jurisprudence of Iran-U.S claims tribunal.
asadollah yavari; mohammad ghasem tangestani
Volume 16, Issue 43 , February 2015, Pages 109-134
Abstract
There is a history behind the strike as a collective protesting act againstunpleased conditions of working. This phenomenon is derived from theinequality of the contract of work’s parties and lack of appropriate mechanismsfor solving the disputes; both Employers and governments would prohibit andquell ...
Read More
There is a history behind the strike as a collective protesting act againstunpleased conditions of working. This phenomenon is derived from theinequality of the contract of work’s parties and lack of appropriate mechanismsfor solving the disputes; both Employers and governments would prohibit andquell this social phenomenon. It is just less than a century that this “right” hasbeen legally recognized. However, some systems has not recognized strike yet asa right; they have considered it as an act having some legal immunities whichmight led to responsibility in some situations. Nevertheless, legal systems havenot had the same approach toward strike and legal regime of its recognition,conditions, procedure of implying and its restrictions. Regarding the differencesin political, economic, social and legal systems in different states, this sort ofvarieties might be regarded totally normal. Accordingly, France and Britain asrepresentatives of maximum and minimum approaches have had differentstances toward this phenomenon. Understanding of these differences would haveeffective results for the systems such as Iran that are in period of recognizingand regulating this right
hamid alhoii nazari
Volume 16, Issue 43 , February 2015, Pages 135-162
Abstract
It has widely been accepted that no subject is irrevocably fixed within thereserved domain. The ICJ has been frequently faced with claim of reserveddomain, whether in determining jurisdiction or merit. The ICJ standard in suchclaims is based on its precedent; it states that the clause “merely within ...
Read More
It has widely been accepted that no subject is irrevocably fixed within thereserved domain. The ICJ has been frequently faced with claim of reserveddomain, whether in determining jurisdiction or merit. The ICJ standard in suchclaims is based on its precedent; it states that the clause “merely within thedomestic jurisdiction domain” in in the case (issued commands in Tunes andMorocco), includes the cases which has not been regulated in the light ofinternational law. According to the relativity of the concept of the reserveddomain, a State cannot cite to its domestic provisions permanently in reply toalleged breach of its obligations under international law.
sadeq salimi
Volume 16, Issue 43 , February 2015, Pages 163-184
Abstract
The interaction and interrelationship between the International Criminal Courtand the Security Council of the United Nations have always been one of thecontentious matters of the Court’s Statute. According to the Articles 12 and 13of the Statute which was codified in 1998, the Security Council ...
Read More
The interaction and interrelationship between the International Criminal Courtand the Security Council of the United Nations have always been one of thecontentious matters of the Court’s Statute. According to the Articles 12 and 13of the Statute which was codified in 1998, the Security Council may refer a caseto the Court to investigate into the crimes committed by natural persons; in thiscase the Court will be qualified to hear even though the relative state(s) is not aparty to the Statute. Under the Article 16 of the Statute, the Security Councilmay request the Court to suspend, inquire or prosecute for a renewable periodof 12 months. This is a clear-cut political intervention in judicial affairs. In 2010Review Conference, the States Parties to the Statute reached an agreementunanimously on the definition of the Crime of Aggression and the circumstanceunder which the court may exercise jurisdiction over it. In spite of the oppositionof some of the permanent members of the Security Council, the exercise ofjurisdiction by the Court was not subjected to the approval of the SecurityCouncil; it indicates the determination of the States Parties to reinforce theauthority and independence of the Court
roohollah rahami
Volume 16, Issue 43 , February 2015, Pages 185-211
Abstract
Individual security with insist on safety of human body and soul against individualdamages and violence, as one of the seventh aspects of human security , in theHuman Development Report in 1994 of United Nations Development Program, iscome from “right to life” , “human dignity” ...
Read More
Individual security with insist on safety of human body and soul against individualdamages and violence, as one of the seventh aspects of human security , in theHuman Development Report in 1994 of United Nations Development Program, iscome from “right to life” , “human dignity” , “right of security” and “right of to besecured” for public.Importance of these public rights as most important human rights, has occupiedspecial seat in important international human right documents and also in countriesconstitutional law.The states which appear to protect their people, under these national andinternational binding documents, were largely responsible to provide the individualsecurity.Regarding to these binding international documents, we can talk about fundamentalchanges of states duty in the case of individual security. cause , the states that was incharge of protecting their citizens , according traditional perception , in this newone, are responsible to keep safety of human beings , by promoting concepts andinternational commitments and also by appearance of international human rightsspeech and human security paradigm.So, because of vital important of individual security for peoples, states are boundedto keep these rules to all (citizens or others) to respect their personality and dignity
