Public Law Researsh

Abstract Traditionally, there have been two acceptable theories regarding the legitimacy of any phenomenon in international law, inter alia international organizations: acceptability among people and acceptability among States. However, the evolution of international law makes it inevitable to revisit the issue to create a new criterion for considering legitimacy. Nowadays, the level of commitment to international values seems to be the criterion for legitimacy according to which the situation of international organizations could be evaluated and it will make their challenges obvious. Specifically, the case study of the World Bank, the organization which has been criticized for many years could determine the way this pattern is used to address the legitimacy challenges in international law. It also, explains the reasons behind challenging World Bank structure and operation by the International Community. The organization faces serious problems from the perspective of conformity with international values. Without addressing those problems, the legitimacy of the organization will remain under question.   

Abstract With the establishment of the European Union, the concept of traditional sovereignty underwent changes; Because on the one hand there is the issue of the sovereignty of European governments and on the other hand there is the issue of the sovereignty of the European Union. In the past, absolute sovereignty was defined for governments; But the developments that took place made it possible to define relative sovereignty for legal entities. There are three approaches to governance in the EU. One approach favors the sovereignty of states over the sovereignty of the Union, and the other approaches the sovereignty of the Union over the sovereignty of European states. The third approach is to take the middle ground that neither of the two is superior to the other; in which that the territory of the Union and the member states are defined as two separate territories that do not conflict with each other. In fact, there is no conflict between the tasks of the Union and the member states; Rather, their tasks are in the interests of each other, and the reason for the formation of the Union from the beginning has been to better serve the common interests of European governments.

Abstract Criminal liability of the corporations as credit creatures has always been the subject of discussion, and due to the important role of corporations in the social life and their frequency in committing crimes, their criminal liability has undergone many changes at the national and international level over the last two decades. In parallel with it, our legislator accepted the corporations criminal liability in 2013 as a general rule. However, the rejection of criminal liability of the governmental corporations and the government has no preferred justification according to circumstance in national law or in the international documents due to non compliance with the accepted principles in the world such as the necessity of respect for the principle of justice. In this descriptive analytical study, we seek to investigate and analyze the basics of liability and possible flaws in the national law in comparison to the international documents by understanding the importance of the issue and criminal status and the effect of corporations, governmental and non-governmental law on economy, industry, and daily life of societies. Additionally, we aim to suggest some solutions for the above mentioned problems by understanding the public necessity of law with the society developments at the national and international level.

Abstract Freedom of expression includes the freedom to express, access and dissemination of information, whereas copyright, by protecting the original works of authorship, restricts use, access and dissemination of the protected works. When an expression is protected by copyright, freedom of expression or press can be restricted. Some are of the opinion that these two rights are, in fact, not in conflict with each other but rather derived from the same social values seeking to protect each right. Common goals such as flow of cultural ideas or promoting creativity in the society causes interaction and synergy between the two. Idea-expression dichotomy by determining the scope of the copyright and distinguishing what belongs to the public domain, which is not a protected, will ensure a constructive interaction between the two and protects the public interest and dose not restrict freedom of expression. This article will discuss how to strike a balance between the public interest in freedom of expression and the private interests of the copyright owners without undermining the other. Idea-expression dichotomy as a counterbalance between these two rights is the cornerstone of this article.

Abstract The State in the general sense is competent to make binding decisions to protect the public interest, on behalf of the people in response to the events of social life. One of the issues that governments have responded in the last two centuries in various forms such as lawmaking, adoptions of economic policies and the issuance of judicial rulings has been economic crises. Given the impact of judicial rulings on resource allocation and the effectiveness of government economic policies and its constructive role in achieving the rule of law, it is important to provide an analysis of the fluctuations and characteristics of judicial rulings in times of significant economic crisis; Therefore, in this article, by examining the rulings of the Court of Administrative Justice during the currency crisis of the 1990s and the current economic crisis in Iran, it is intended to provide an appropriate analysis for the above question. The results of these studies indicate that in times of economic crisis, the performance of the Administrative Court of Justice is very significant and this issue is due to the excessive intervention of executive bodies through overregulation. The Administrative Court of Justice is also negligent for not considering the fact that the occurrence of economic crisis is the main cause of overregulation.

Abstract With the development of human rights in all aspects of human life, its impact on private law (horizontal relationship) and consequently on contract law cannot be denied. Human dignity has two individual and social aspects according to human nature. Human social dignity expresses rights such as freedom of employment, freedom of education, freedom of expression, freedom of religion and freedom of access to information that are necessary for social life in a democratic society. Regardless of which generation of human rights these rights are, the main question is how these rights apply in contractual relations and whether it is possible to waive or violate any of the rights enumerated through the contract. In this regard, while analyzing different opinions in the case of some European countries and the European Court of Human Rights, it can be said that in Iranian law, these rights are among the general civil rights that cannot be revoked by contract, even in part, and in case of violation of the mentioned rights, the result will be the annulment of all or part of the contract.

Abstract According to Article 170 of the Constitution, judges of courts are obliged to refrain from enforcing regulations contrary to Islamic laws and regulations. In the form of descriptive-analytical research, based on the application of the phrase "judges of courts" in this principle, the Statute of the Administrative Court of Justice in the Iranian judicial system and the procedure of that Court, proved that the judges of the branches of the Administrative Court of Justice are subject to this principle and obliged to refrain from enforcing such during their proceedings. In this regard, according to Article 11 of “the 2013 Law on the Organization and Procedure of the Administrative Justice Court” that obligated the convicts in the branches of this courts to observe the provisions of the court's decision in their subsequent decisions and actions, it was concluded that, contrary to the supervision of other judges, if the judges of the branches of the Administrative Justice Court find the regulations to be contrary to the Islamic laws and regulations, in some cases it will be possible to invalidate them in general, which was referred to as the "implicit Revocation of Government regulations". However, this situation is inconsistent with the interpretive competence of other judges of the courts in Article 73 and the wording of Article 170, which states that "the effect of the supervision of the judges of the courts is occasional".

Abstract The Aviation Industry and its governing law are vulnerable to the outbreak and pandemic of contagious diseases. It is possible that the industry takes part in the spread of disease and endanger lives, while on the other hand, with the spread of contagious diseases, the economic cycle of actors and beneficiaries of the aviation industry is seriously threatened and faced with numerous difficulties, which eventually is to the detriment of the economy in whole. Studies illustrate that the norms and rules related to counter the spreading of disease through air navigation are mainly taken from the International and regional laws but the norms and rules dealing with the economic effects of such pandemics are largely attained from national laws. This article, using the same structure and classification, analyzes legal aspects of contagious diseases in the aviation industry with emphasis on the novel Coronavirus disease. The results indicate that the law of contagious diseases in the aviation industry should have three important characteristics: “cooperative or collaborative”, “supportive” and “temporary”.

Abstract International Criminal Court (ICC) accepted the Prosecutor demand to start the investigation on the crimes by the American troops in Afghanistan, in March 5, 2020. But the challenge that ICC will be faced is that there is an Agreement (called SOFA) between United States and Afghanistan that if American troops commit a crime in Afghan territory, they will be under the exclusive jurisdiction of their own country namely USA. The United States has Argued that Afghanistan has no right about the American troops so they cannot hand over this right to ICC due to the membership in ICC. So we face with two contradict conventions that Afghanistan has signed: First the Statute of the ICC and second the agreement between Afghanistan and USA. The aim of this article is to study the challenges that ICC is faced to start the investigation on the American troops in Afghanistan and to answer the conflicts between the conventions signed by Afghanistan.

Abstract Environmental considerations have always been a challenge for foreign investment. The need to observe environmental minimums from the beginning to the end of the investment is also a concern of environmental law activists. In the meantime, the host state faces sometimes conflicting commitments. State dual obligations to foreign investors on the one hand, and the whole citizens on the other, has in many cases led to disputes, rooted in environmental norms. The main question is how the arbitration mechanism can take an active stand in the face of such disputes? The main purpose of this study is to examine the reflection of these conflicts in investment arbitration and the importance and role of arbitration in improving the environmental status. The authors of this paper believe that the arbitration system has tools that it can use in resolving disputes to balance these conflicting obligations. Some of these legal tools are directly or indirectly related to investment agreements, and others are beyond the treaty and based on international principles, rules, customs and practices.   

Abstract Over years simultaneously with the formation of the concept of government, the ideal of creating unity between governments and the formation of a single international community has always been discussed. Nowadays international unity as an expanding topic comes first in the international community. But along with the expansion of the process of international unity and consequently the relations between governments, international problems specially in international governance domains and management of the process of globalization started to increase as well. As a result, thinkers, by taking tradition-breaking measures, have put aside the governments as the main role players of the international community and government officials have replaced the independent presence of the governments with the formation of parallel networks in line with special topics related to themselves. In this survey, using historical, descriptive and analytical methods, at first, the aim of the article to examine the background of these networks which under the name of transnational networks try to emerge a more advanced general structure in the international community and in law in general was dealt with. Finally, the acceleration of solving international problems due to the existence of transnational networks was inferred.