Ali Omidi
Volume 15, Issue 41 , December 2014, Pages 9-45
Abstract
Abstract The ICJ Advisory Opinion (22 July 2010) through which the consistency of unilateral declaration of independence with international law was recognized , stands among the pivotal International instruments pertaining the relation between Territorial Integrity and the Right of Self Determination. ...
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Abstract The ICJ Advisory Opinion (22 July 2010) through which the consistency of unilateral declaration of independence with international law was recognized , stands among the pivotal International instruments pertaining the relation between Territorial Integrity and the Right of Self Determination. Therein, the Court after making implicit reference to Lotus Principle considered Kosovo’s declaration of independence as lawful, nonetheless, it strived to evade political controversies by raising technical issues on the merit of the UN General Assembly’s request for AO .There is little doubt that the court’s AO covertly contains political elements and has thereby brought about legal challenges as to consistency of the Right of Self Determination and that of Territorial Integrity. Scrutinizing the Court’s Opinion is of grave importance since as of Feb 2012, 88 states (47% of all) have recognized Kosovo’s Independence. This paper through descriptive – analytical approach shall review both the supporting and the opposing views on the court’s AO.
Ehsan Javid; Saber Niavarani
Volume 15, Issue 41 , December 2014, Pages 47-70
Abstract
"The right to the enjoyment of the highest attainable standard of mental & physical health" is defined as a fundamental right which has critical important for the realization of the other rights. Belonged to the second generation of human rights, however, the right to health is in close linkage ...
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"The right to the enjoyment of the highest attainable standard of mental & physical health" is defined as a fundamental right which has critical important for the realization of the other rights. Belonged to the second generation of human rights, however, the right to health is in close linkage with other generations of human rights. This right entails a range of different rights which play inevitable role in its realization. To this end, enjoyment of the clean drinking water, adequate food, clean environment, access to essential medicines,… have been regarded as underlying determinants of the right to health. By virtue of this, we can argue that all human rights are interrelated, interdependent and inalienable. The realization of the highest attainable standard of health also depends on the maximum use of the available resources of states. Moreover, it would essentially be realized progressively.
Homayoon Habibi; Soodeh Shamloo
Volume 15, Issue 41 , December 2014, Pages 71-114
Abstract
Absract In its normal practice the ICJ settles International disputes exclusively in accordance with International law and where there is an absence of law, it abstains to make new laws as to substantiate its decision. Beyond its primary function as to settle disputes between states however, the Court ...
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Absract In its normal practice the ICJ settles International disputes exclusively in accordance with International law and where there is an absence of law, it abstains to make new laws as to substantiate its decision. Beyond its primary function as to settle disputes between states however, the Court is actively involved in the development of international law through its production of precedent. Development involves change and creativity which may not be obtained solely by applying positive law. The Court being conscious of its limits imposed both by its statute and general expectation of states, has somewhat diverted from rigid positive approach and has made attempt to fulfill its primary function without jeopardizing legal limits. It contributes in development of international law inter alia by teleological interpretation of existing rules. On the other hand, even though the characterization of precedent or stare decisis may not apply to the decisions of the ICJ, the Court constantly refers to its precedent and thereby has promoted the importance of its judgments from an auxiliary to a real source of international law.
Mohammad Habibi Majandeh; Mahdi Abdolmaleki
Volume 15, Issue 41 , December 2014, Pages 115-141
Abstract
Abstract The convention adopted in UNESCO on protection of underwater cultural heritage prescribed that the sunken state vessels and warships, whether regarded as cultural heritage or otherwise, shall remain under exclusive sovereignty of the flag state, unless it abandons and/or explicitly waives its ...
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Abstract The convention adopted in UNESCO on protection of underwater cultural heritage prescribed that the sunken state vessels and warships, whether regarded as cultural heritage or otherwise, shall remain under exclusive sovereignty of the flag state, unless it abandons and/or explicitly waives its rights and title to such vessels. Nonetheless, the relationship between costal and flag states shall take form on cooperation basis. Meanwhile ,although excluded from the text of the convention , there are ancient set of rules and principles (e.g. the law of finds and the salvage law ) which in certain conditions ( consent or authorization of the competent states involved) may be applicable to marine issues ,namely exploration operations and recovery of underwater cultural heritage or sunken vessels.
Mohammad Ali Solhchi; Ramin Dargahi
Volume 15, Issue 41 , December 2014, Pages 143-168
Abstract
Abstract The efforts made by human rights scholars has led to its classification according to the notion of “generational human rights”. Such generations include; the first generation (negative rights), the second generation (positive rights) and the third or solidarity ...
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Abstract The efforts made by human rights scholars has led to its classification according to the notion of “generational human rights”. Such generations include; the first generation (negative rights), the second generation (positive rights) and the third or solidarity rights which is also referred to as collective rights based on which some regard it as body of rights belonging to group of people or masses. On the contrary, some scholars believe that masses may not enjoy rights as such. Considering the criticism targeted against the third generation of human rights, some scholars do not recognize it as rights, but instead a set of moral virtues or universal values, while there are others that maintain that the third generation of human rights is essential as to compensate for deficiencies attributable to the first and the second generations. Notwithstanding the above, the question has yet remained as to the true nature of third generation of human rights. This paper shall attempt to study the third generation of human rights concept , besides reviewing the criticism targeting the same.
Ali Mohammad Falah Zadeh
Volume 15, Issue 41 , December 2014, Pages 169-206
Abstract
AbstractNowadays the Right to Hearing has become a part of procedural justice and good administration. “Hearing” in administrative law is significantly affected by the context in which it takes effect. In English administrative law the distinction between judicial and administrative decisions, ...
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AbstractNowadays the Right to Hearing has become a part of procedural justice and good administration. “Hearing” in administrative law is significantly affected by the context in which it takes effect. In English administrative law the distinction between judicial and administrative decisions, and the separation between rights and privileges have imposed a number of limitations on Hearing. Such limitations tend to diminish in 70s though still linger on thus far. To tackle the issue, English administrative law besides recognition of the right to fair treatment provided for “legitimate expectations” in its legal body of rights and privileges which in turn helped developing the Hearing concept. Moreover ,the developmental approach taken by the European Human Rights Court has progressively affected Hearing in English administrative law. Iran’s administrative law however, suffers deficiencies in this area. Despite Iran’ Court of Administrative Justice’s progressive approach towards Hearing concept, the decisions taken by the same yet seem to suffer Legal and judicial vacuum.
Zahra Mahmoodi Kordi
Volume 15, Issue 41 , December 2014, Pages 169-236
Abstract
Abstract While debates on the linkage of trade and environment first initiated around 8 decades ago, it has been nearly over the past three decades during which the subject has become a topic of heated discussions between scholars of both sides. Given the major role WTO plays in regulating the International ...
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Abstract While debates on the linkage of trade and environment first initiated around 8 decades ago, it has been nearly over the past three decades during which the subject has become a topic of heated discussions between scholars of both sides. Given the major role WTO plays in regulating the International trades relations , conservationists have maintained a close scrutiny on the way WTO’s has dealt with environmental issues .Although WTO lacks a special agreement on environment , most agreements formulized within its domain include environmental regulations that require member states to insure the environment is duly protected. This paper seeks to illustrate the paramount importance of environmental issues in WTO’s activities, work out relevant solutions as how to strike a balance between trade and environment and shall discuss ways to assume more responsibility and accountability for WTO and its organs with regards to environmental issues .
