Public Law
Seyed Naser Soltani; Faezeh Salimzadeh Kakroudi
Abstract
IntroductionConstitutions 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 ...
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IntroductionConstitutions 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. The Comprehensive Nature of Constitutional ChangeA 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? Research BackgroundRegarding 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. MethodologyThis 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. ConclusionAmendment 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.
Public Law
Fardin Moradkhani
Abstract
IntroductionAlthough 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, ...
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IntroductionAlthough 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”.Literature ReviewThe 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. MethodologyIn this article, we have researched and discussed issues with a descriptive-analytical method and by relying on the writings of Arendt and her commentators. ResultsThe 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. ConclusionHannah 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.
Public Law
Mohammad Javad Javid; Qudsia Frotan
Abstract
IntroductionPeace, 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 ...
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IntroductionPeace, 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 QuestionThis 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.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.MethodologyThis 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.ResultNot 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. DiscussionThe 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. ConclusionTo 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.
International Law
Mohsen Abdollahi; Seyed Reza Hosseini
Abstract
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 ...
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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. Literature ReviewThe 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. MethodologyFirstly, 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. ResultsFrom 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. ConclusionToday, 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.
Public Law
Ayet Mulaee; Sayed Ali Mousavi; Farshid Bandehali
Abstract
IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce ...
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IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce rights, or promote benefits beyond its own existence, and only in this capacity can it be recognized by everyone as a right. On the other hand, in his theory, the divine and intrinsically purposive government is trying to incorporate all the desirable features of these schools, despite all these criticisms. notwithstanding this paradox, this research, whose sources have been collected through the library research method and descriptive-analytical study, aims to prove the hypothesis that the Hegelian state emerges from within the traditional liberal and democratic state-building philosophies in a special and distinct way. It is trying to answer the question “What are the characteristics of the ideal state in Hegel's view, In a practical look at the political philosophy of the state?”, The results show, while proving the hypothesis; that contrary to the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, Hegel's state is ‘a reasonable and inevitable institution of society that everyone must recognize its by force and accept its obedience’. Research Question(s)What are the characteristics of the ideal state in Hegel's view? Literature ReviewSeveral research papers have been published Related to the subject of the research, including; Zahra Vashqani Farahani's thesis titled: "State Theory in Hegel's Political Philosophy" published by the Faculty of Literature and Humanities of the Islamic Azad University (Central Tehran Branch), as well as an article titled "The Importance of Hegelian Separation, State and Civil Society" written by Azim Rahin, Prepared and published in No. (1.2) of Social Sciences Quarterly. However, the distinct feature of this research is the examination of Hegel's paradigmatic view of the government, which is in many ways against or in favor of democracy and liberalism. MethodologyConsidering that research in most humanities disciplines is mainly focused on theoretical solutions, the present study has used a library research method to collect the desired data and examines the data with a descriptive-analytical method. ConclusionHegel's philosophy, methodology, and valuable critiques present an outlook that thinks about modernity, instead of being oriented towards the Enlightenment era of his time. Because, basically, from Hegel's point of view, modernity is a bridge in the evolution of the soul towards freedom, and in this way, the self-awareness of the soul is the most important characteristic of the new era. In summary, for the purposes of this research and its main question, what is certain is that Hegel rejects the political theory of social contract that philosophers such as Locke and Rousseau established and views them as inefficient abstract concepts and, by rejecting the abstract idealism of "Reason" and the empiricism of "History" as an independent and durable ground for authority, established a dialectical relationship between reason and history and thereby resolved some of the contradictions raised in the state's founding phase. He also, based the political right on having an independent nature from the state and supports the concept of political right where it maintains its idealistic aspect, but is based on a certain historical era. On the other hand, even though Hegel criticizes the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, his divine and intrinsically purposive government tries to incorporate all the desirable features of these schools and support them. Hegel's goal was to achieve the desired political power system for Germany, and so in this way, he presented his government specially and distinctly from the democratic and liberal state-building philosophies of his time.But what are the characteristics of Hegel's ideal government? The key to understanding this question lies in the ideal concept of political right in Hegel's belief and his opinion about the inherent rationality of the state. From Hegel's point of view, the state is the manifestation of realized freedom and the perfect ethical life. Therefore, the state is an ethical soul that emerges in the form of an essential will by becoming more transparent and definite. Therefore, the state is nothing but "the action of the spirit in the world" realized in a self-conscious form. But since the soul in Hegel's philosophy has an absolute, and even divine essence, according to Hegel's definition, the state is God's will in the world. Such a government is not a responsible or parliamentary government, and this was at a time when the belief in a responsible government was considered the most important feature of 19th-century liberalism. Overall, by studying the philosophy of rights that Hegel talks about, it cannot be said that he does not explicitly accept responsible government, nor can it be said that he explicitly rejected such a government.
Public Law
Mohjtaba Vaezi
Abstract
Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts ...
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Introduction“Competence” is one of the few words on which the history of modern administrative law can be said to be based. Despite the importance of this concept, little attention has been paid to its principles and different aspects, and the main discussions have focused on the dual concepts of “ministerial power and discretionary power”. Given the place of foreign law in the field of administrative law, analyzing the origins and aspects of words can help prevent mere adaptation with no attempt at conformity. Examining the concept of competence and its types distinguishes public law, in particular administrative law, from civil law, and consequently makes it easier to identify the appropriate legal rules. The division of competence is not limited to the two types of ministerial and discretionary power. These divisions Affect the manner of judicial control, the type of civil liability regime, and the quality of the principle of legality. Contrary to popular belief, it has also been shown that the principle of "assumption of no authority" does not apply equally to all areas of administrative law. Competence also has its own reflections in the field of administrative contracts, unilateral actions, management of internal affairs of the administrative organization, public order, and public service, which, of course, should be examined on a broader basis.Regarding discretionary power, valuable books have been written, which are mostly focused on the two types of discretionary and ministerial power, such as the book " Discretionary Power" by Dr. Ali Mashhadi in 2013 and the book "Discretionary Power in the context of Modern Public Law" " published in 2014 by Dr. Reza Fanazad.Despite the importance of the two concepts above, it seems that diving deep into analyzing and clarifying the main concept of competence is still necessary and can help to provide appropriate legislation and more accurate judicial decisions in this area. Method and PurposeThis article, through a comparative-analytical method, discusses the different types and functions of competence in the field of administrative law, after dealing with the concept and similar concepts. Also, with a library research method of data collection, we seek to provide as much precision as possible to the key legal concepts in the field of administrative competence, to further explain the nature of administrative functions and facilitate judicial supervision over them. Main Text Competence in the judicial sense, simply, is the lawsuits and complaints that a judicial authority can, and must, deal with.With the provided definition, it should be possible to distinguish the concept of "competence" from "authority". The authority of a judicial authority can be considered as a set of legal facilities that a judge possesses and uses to discover the truth and verify the validity of the parties’ claims, in his capacity of adjudicating and after establishing his jurisdiction. Despite such a distinction in the field of judicial law, in the specific topics of administrative law, the concept of competence includes both the authority and scope of action of the agent. Therefore, it can be said that in Article 170 of the Constitution, in the phrase " or lie outside the authority of the executive power " authority means the field of action of executive authorities.Administrative competence in its strict sense, i.e., inherent or special competence, regarding its content and raison d’etre, has three basic characteristics:1- Undertaking affairs of others: The authority is basically a set of powers and duties that are provided to the administrative officer to perform a public mission or serve the public interest. Therefore, administrative competence is actually the power to administrate the citizens' affairs, or in the words of civil law, administration of another’s affairs.2- Exclusive tenure of a mission: competence is the exclusive responsibility of a public matter which is determined by thematic, temporal, or geographical criteria.3- Possessing legal powers and privileges: the mission of securing the public interest, in principle, requires the possession of a special privilege of authority.- Categories of administrative competence:1- Discretionary competence vs. ministerial competence: The most common and familiar division of administrative competence is ministerial and discretionary. ministerial competence in the shortest definition is where only one option is available to the administrative officer, and on the other hand, discretionary competence is where more than one option is available to the administrative officer based on which he has to decide and act.2- Instituting competence (constitutional) vs. diagnostic competence (declarative): when discussing diagnostic competence, it is noteworthy to check its resemblance with the discretionary competence of the administration. There is a fine line between these two types of competence. The diagnostic competence oversees the identification and diagnosis of the subject and has similarities with the judicial function, in the sense that the relevant authority checks whether the subject of investigation is in accordance with the legislative decree or not. For example, the interview board for PhD selection or employment interview committees identify people who possess the scientific and moral capabilities required by the law. In other words, diagnostic competence is basically declarative in nature and therefore has a quasi-judicial function. Also, to prevent errors and personal conflicts as much as possible, diagnostic authority is usually assigned to a council of experts. The said council is speciallyfounded based on this type of competence, and it has no other functions, so it can be said that the mentioned competence is the reason d’etre of these bodies of authority. On the other hand, instituting authority is where the administrative officer takes an initiative decision and creates a right or obligation or a new legal situation and so, it can be said to be a completely administrative measure. Also, the holder of instituting authority can be an individual officer or a council consisting of people. In addition, the range of functions of an officer with instituting authority is not limited to one or more cases, and to fulfill his multiple missions, he may have ministerial authority in some cases and discretionary authority in other cases.3- General competence vs. special (inherent) competence: administrative competence in its common sense is special or intrinsic competence. The authority of the administration in the legal actions it takes can be divided into two main types according to the nature of its function and goals: general authority and specific or inherent authority of the administration.General authority is the total authority that the administrative body has like any other legal entity. As a legal entity, the administration is considered to have a legal personality and should have the powers that every legal person needs to carry out its affairs. Competences such as concluding contracts and the capability to possess property rights to meet specific needs are among these common competencies.specific or inherent competence of the administration are the powers that the administration has as an official for public service. Not only do private legal entities not have this type of authority, but in many cases, it is specific and exclusive to a certain public person, and for this reason, they are called the special authority of the administration. For example, supervising the standards of urban buildings is the responsibility of the municipality, and in this regard, it can change them if necessary where deemed necessary.In the following, we have discussed the concept and basis of the principle of assumption of no authority in administrative law and we show that the said principle has different functions in different areas of administrative contracts, unilateral actions, internal affairs of the organization, public order, and public services.finally, we have discussed the consequences of different types of competence and their relationship with the scope of judicial control, the regime of civil responsibility, and the principle of legality. ConclusionAdministrative authority, due to belonging to the field of public law and conducting public affairs, has two important characteristics of exclusiveness and authoritativeness. In addition, other classifications of competence which have a practical impact in determining the applicable legal regime should also be recognized. Classification of competence into two types of instituting and diagnostic, on one hand, and into two types of general and special competence on the other, as well as identifying the characteristics of the principle of “assumption of no authority” in terms of its basis and function, require more reflection.It is needed to separate the scope of the implementation of the mentioned principle in the two areas of public order and public services and consider the different circumstances. The public law nature of the concept of competence makes the role of the administration important in administrative contracts, unilateral actions, management of internal affairs of the organization, and the fields of public order and public services, so much so that one cannot expect acceptable function from administrative bodies if this concept is not accurately defined in the field of public law.
International Law
Soroosh Falahati; Mirghasem Jafarzade
Abstract
IntroductionIn 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 ...
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IntroductionIn 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 othertribunals 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? Literature ReviewThe 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. MethodologyThis 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. ConclusionTreaties 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.
Public Law
Hadi Tahan nazif; Ali Ariannezhad
Abstract
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 ...
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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 QuestionThis 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? Literature ReviewBefore 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. MethodologyThe 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. ResultsAccording 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. ConclusionA 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.
