فصلنامه پژوهش حقوق عمومی
سال شانزدهم شماره 43 (تابستان 1393)

Freedom of expression in regard to criticism directed toward government or public officials is faced with some challenges. On one hand, it reveals potential or actual deficiencies and failures in their actions, decisions or institutions. Hence, it would be very constructive and beneficial to the public interest. On the other hand, through criticism, there might be potential false or unproved attributions which can be considered as defamatory, subversive or revolutionary statements. This essay tries to elaborate the legal standards based on international experiences and Islamic law, which seems to be proper for making balance between political speeches and protection of reputation of public officials or public trust to government. For this purpose, in the first chapter, theoretical basis for extensive protection of political speeches and in the second part, balance-standards are identified and studied.

The Umbrella Clause has nearly become one of the most common rules of the most investment treaties, which provides more protections for foreign investor. Providing a proper and true sense of this clause has become highly controversial issue in international investment law that has led many arbitral tribunals to adopt specific stance in this respect. Here, the fundamental point is whether the forum stipulated in the bilateral investment treaty is competent to settle disputes, which are arisen from investment contract between host State and foreign investor, or not? If it so, then the next question would be: what will be the effect of the determining the forum by stipulated dispute settlement clause in the contract. Does this clause turn contract claims 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 different ways. Some of them have interpreted the clause in a narrow sense; they have distinguished sovereign from non-sovereign act of host State. According to their point 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. In contrast, the other tribunals have interpreted this clause in a broad sense which the violation of any contractual obligation of host State leads to a breach of this clause and 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 the interpretation of the clause; it is also more consistent with the purpose and history of the emergence of this clause and makes it more efficient.

Attribution of private-person’s act to a state is accepted in international law in some exceptional matters. Acting under the direction or control of the state is one of those exceptional cases; by proving state control over private persons and entities, their actions are attributable to the state. However for understanding the required level of the control and direction, we shall review and inquiry the judicial jurisprudence in order to make these theoretical concepts more tangible. Iran-U.S claims tribunal, as the most prominent international arbitration, has separated jurisdiction and the merit phase in some of its cases.From jurisdictional point of view, the tribunal has applied a looser standard while in the merit, tribunal’s approach has more affinity for theory of effective control. In such cases, as a general rule,stateshave notbeenliable for the conduct of non-state actors unless the 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 of cases, has not lowered the threshold for imputing private acts to statesbut treated with it in an exceptional manner. The purpose of present article is to examine standard of direction and control, while the focus is on the jurisprudence of Iran- U.S claims tribunal.

There is a history behind the strike as a collective protesting act against unpleased conditions of working. This phenomenon is derived from the inequality of the contract of work’s parties and lack of appropriate mechanisms for solving the disputes; both Employers and governments would prohibit and quell this social phenomenon. It is just less than a century that this “right” has been legally recognized. However, some systems has not recognized strike yet as a right; they have considered it as an act having some legal immunities which might led to responsibility in some situations. Nevertheless, legal systems have not had the same approach toward strike and legal regime of its recognition, conditions, procedure of implying and its restrictions. Regarding the differences in political, economic, social and legal systems in different states, this sort of varieties might be regarded totally normal. Accordingly, France and Britain as representatives of maximum and minimum approaches have had different stances toward this phenomenon. Understanding of these differences would have effective results for the systems such as Iran that are in period of recognizing and regulating this right.

It has widely been accepted that no subject is irrevocably fixed within the reserved domain. The ICJ has been frequently faced with claim of reserved domain, whether in determining jurisdiction or merit. The ICJ standard in such claims is based on its precedent; it states that the clause “merely within the domestic jurisdiction domain” in in the case (issued commands in Tunes and Morocco), includes the cases which has not been regulated in the light of international law. According to the relativity of the concept of the reserved domain, a State cannot cite to its domestic provisions permanently in reply to alleged breach of its obligations under international law.

The interaction and interrelationship between the International Criminal Court and the Security Council of the United Nations have always been one of the contentious matters of the Court’s Statute. According to the Articles 12 and 13 of the Statute which was codified in 1998, the Security Council may refer a case to the Court to investigate into the crimes committed by natural persons; in this case the Court will be qualified to hear even though the relative state(s) is not a party to the Statute. Under the Article 16 of the Statute, the Security Council may request the Court to suspend, inquire or prosecute for a renewable period of 12 months. This is a clear-cut political intervention in judicial affairs. In 2010 Review Conference, the States Parties to the Statute reached an agreement unanimously on the definition of the Crime of Aggression and the circumstance under which the court may exercise jurisdiction over it. In spite of the opposition of some of the permanent members of the Security Council, the exercise of jurisdiction by the Court was not subjected to the approval of the Security Council; it indicates the determination of the States Parties to reinforce the authority and independence of the Court.

Individual security with insist on safety of human body and soul against individual damages and violence, as one of the seventh aspects of human security, in the Human Development Report in 1994 of United Nations Development Program, is come from “right to life”, “human dignity”, “right of security” and “right of to be secured” for public. Importance of these public rights as most important human rights, has occupied special seat in important international human right documents and also in countries constitutional law. The states which appear to protect their people, under these national and international binding documents, were largely responsible to provide the individual security. Regarding to these binding international documents, we can talk about fundamental changes of states duty in the case of individual security. cause, the states that was in charge of protecting their citizens, according traditional perception, in this new one, are responsible to keep safety of human beings, by promoting concepts and international commitments and also by appearance of international human rights speech and human security paradigm. So, because of vital important of individual security for peoples, states are bounded to keep these rules to all (citizens or others) to respect their personality and dignity.