فصلنامه پژوهش حقوق عمومی
سال هجدهم شماره 54 (بهار 1396)

The internet is an important tool to support the right to freedom of expression; through facilitating publication, search, and access to information, it has prepared the ground for the application of this fundamental right. Today, there is no doubt that the development of the Internet and the continued application of the new communication tool requires a developed and coherent legal system. In addition to supporting the fundamental freedoms of media, and avoiding possible abuses of this freedom, the expected legal system should be able to ensure cheap, sustainable and secure access to the media. This paper attempts to examine and study the most important issues of the legal system of news websites, including the regulations around such issues as establishment, monitoring, assessment, as well as blocking. The results of the study shows how despite the effective measure, the existing legal system for news websites is not efficient and cannot meet the current needs.

Considering the successful experience of national sport arbitration centers in resolving the sport related disputes specifically with regard to huge amounts of money in sports disputes, makes it almost necessary to create a national forum to solve the sport related disputes based on national customs and rules. In doing so one should consider carefully all legal aspects, bearing in mind previous international and national efforts, in order to develop the best model for a national sport arbitration center. In this research the legal challenges against the Court of Arbitration for Sports and the patterns resulted from these challenges which should carefully be considered in creating a national forum for resolving sport disputes, would be discussed. Thus after studying the position of sport arbitrations in today’s world and in national levels, the necessity for existence and also the fundamental principles that can undermine the credibility of such entities would be examined.

Government supervises over artistic works on 2 forms including: Licensing and persuit System. In first, government shall issue license for creating and publishing artistic works and in this method, the right to freedom of artistic expression is limited. However, in second method, there is fundamental principle of freedom and upon creating and publishing artistic work only in case of violation of laws and regulations, the government may take duly action and there is no requirement for issuing license before producing or publishing artistic works. This article attempts to examine this issue within frame of constitutional legal system in relation to dramatic works and films since 1927 until victory of Islamic Revolution and it is concluded that on the contrary of complementary of The Constitution of constitutional system that has selected the principle of freedom, the statute law in all of the aforesaid years was based on licensing system. Moreover, finding out problems and formalities of aforesaid system refers to following weakness including: 1) Governmental structure of members of licensing system and negligence for holding related associations. 2) Lack of fair deadline for issuing license of producing and publishing artistic works.3) criminal sanction for violation of Licensing System in artistic works.

Legal obligation to provide reasons for administrative decisions is a principle that originated from judicial field moving to the administrative decision-making process, there seems to be profound differences between two areas. It is, therefore, very much context dependent, offering considerable room for the exceptional circumstances . The Iranian legal system paid its attention to the principle in judicial proceedings, yet its shortcoming in administrative procedures seems to be obvious. Although the Court of Administrative Justice in a rather isolated case seems to call for the observance of the principle in administrative procedures, it is hard to argue that this would lead to a legally binding rule.
(( Legal obligation to provide reasons for administrative decisions is a principle that originated from judicial field moving to the administrative decision-making process, there seems to be profound differences between two areas. It is, therefore, very much context dependent, offering considerable room for the exceptional circums...))

Over the past years, "arbitration" as a means of settling international disputes has gained popularity, but compared to international tax disputes, the possibility of applying the arbitration clause is disputed. After the successful use of arbitration to resolve tax disputes in EU arbitration convention, The Organization for Economic Cooperation and Development (OECD) in 2008 and the United Nations (UN) in 2011 were convinced to insert an arbitration clause in their model treaties. Skepticism to Arbitrability of international tax disputes due to its link to the sovereignty rights of states, resulted in utilizing such clauses by few countries in their tax treaties. Shortcomings in current methods of dealing with disputes between Contracting states (bilateral agreement procedure) on avoidance of double taxation agreements and lack of a binding mechanism for resolving disputes through direct negotiations between the two countries, has justified the need for an arbitration clause in these treaties. Regarding the nature of possible disputes arising from double taxation treaties, seems there’s no obstacle to use arbitration clause in Iran’s bilateral tax treaties and in order to draft a proper clause, it is recommended to use one of the model clauses of UN or OECD.

International development law, as an international rule maker system which is based on equity and solidarity, seeks to provide equal opportunities for cooperation of all countries in international relations regardless of their economic and social status. In this regard, international cooperation between developed and under developed countries, meaningful, real, and widespread participation of citizens in general, and NGOs, women and indigenous people in particular are the main tools for achieving development. The crucial point here is enhancing and promoting broad, informed and active participation of citizens within the international development law particularly in the fields of poverty reduction and environmental. Since the success of development programs is highly relied on the acceptance of stakeholders, empowerment, creation of opportunities and providing conditions for citizen's participation at all levels of decision making will not only create a ground for effective participation of citizens and fulfillment of human development, but also lead to achievement of sustainable development goals.

The rule of law meaning to limitation of arbitrary power and conservation of fundamental individual rights and freedoms , is one of the democracy foundations. The Rule of law in international level is instrument for preservation of international peace and promotion of human rights. In attention to structure and realities of international community , apply of rule of law differently in international level, therefore elements of rule of law such as determinacy , generality , clarity , stability, equality before the law and … must explain differently in international community. In addition to , horizontal structure and absence of compulsory jurisdiction and judicial review for the courts , don’t allow a regime based on the constitution. In this thesis , authors in the one hand explain to position of rule of law in international level and the other review of present challenges for the conservation and promotion of rule of law in international system

The origin of intention of public administration is the power which has been vested to the administration by law; therefore conformity of administration’s intention with law is the condition precedent of making legal effects resulted from administrative act. However, sometimes the administrative act has been established but it lacks a number of legal conditions which has been named as the so called “defective administrative act” which in turn needs to be dealt with by developing proper theories. In this article, the concept and nature of administrative act will be reviewed briefly and the necessity of making distinction between conditions of administrative formation with essential conditions will be discussed, based on which the grounds of annulment will be distinguished from the grounds of invalidation, in one hand, and on the other hand administrative act will be categorized in three respects: valid administrative act, defective administrative act and annulled administrative act. Later, focusing on defective administrative act, and its variations, including annulment, revocation, withdrawal, and curing, curing of administrative act, as well as its nature and conditions, will be discussed.

The Internet has always been an international law problem. Clearly the International institutions ranging from the International Telecommunication Union to the U.N. General Assembly are becoming increasingly involved in regulating the Internet. But it seems that still there is a long road to a coherence international system of rules and regulations concerning internet law in international community.
Apart from the question of the desirability of international rules and regulations, the problem of domestic censorship of filtering as a serious problem, to some extent endangered some human rights principles as free flow of information, principle of freedom of expression, right to privacy, openness and etc. in this article, by focusing on the universality and the unity of cyberspace and the place of co operation among states t enhance the international relations, we will consider the necessity and the possibility of extension of rules and principles of general international law to this context.

One of the most problematic in the initiation of law, is obeying the seventy-fifth article of the constitution that mandate the representatives to introduce the financial resource for execution of law, if that law leads to reduce the income of the government or increase the expense. The purpose of drafting of the fifty-second and seventy-fifth has being to mandate legislator to maintain financial discipline in the budget and not to limit the legislative authority of Parliament. The constitution by separation between the "annual budget" and "law of budget", says that preparing the "annual budget" dependent upon the cooperation of the executive and Parliament, But it seems that in preparation of "Budget Law" there is no need for this cooperation and such a law can be prepared similar to other laws. Therefore, Parliament can propose and enact legal bills that have a financial burden, if that law not to affect the budget of that year and simultaneously the law of budget be amended for next years.

From Aristotle era to globalization, political society has been divided into two sectors: sovereigns and subjects. In recent decades a new sector is recreated known as civil society. Civil society is the subject of law and the source of rights and duties simultaneously. Reconstruction of civil society has disrupted the planar structure of political society, moreover has redefined binding and sanction of legal rules. No more binding is the most important element of legal rules; civil society sets persuasiveness instead of it as the core element of legal rules. There is a direct relationship between civil society and democracy; this means that they enforce each other; consequently civil society finds a new role in the triangle of government, private sector and citizens hereupon enters into legal theories. All these changes caused by globalization. Former international law had intergovernmental structure; it means that just the governments and intergovernmental organizations were entities of international law; whereas now individuals claim that they are active entities of law while they are organized in institutions of civil society. This article focuses on the influences of above evolution on lawmaking.

Intervention by invitation is one of the most controversial practices that often takes place in internal crises. Governments debilitated by internal armed conflicts, resort to inviting their allies in order to reconsolidate their lost power and reassemble their territorial control. The validity of this invitation, however, has been a bone of contention. In this regard, ‘Effective control’ and ‘democratic legitimacy’ are the two established tests for examining such validity. The traditional standard of effective control suggests that the host government shall be able to exercise a minimum degree of control over its territory. On the other hand, the democratic legitimacy criterion, puts an emphasis on the origins of power. This means that, despite the significant losses of territorial control, the invitation of a democratic government must still be considered as valid. Also, in practice intervention upon invitation bears a close proximity to the legal issues associated with ‘collective self-defense’. With a view to these issues, this article critically analyses the practice of international community surrounding the practice of intervention by invitation.

Marine renewable energies are a form of renewable energy deriving from the various natural processes that take place in the marine environment and unlike non-renewable energy (fossil), capable of being by nature a short period of time, there again, or to be renewed. Because the use and operation of this energy is required to comply with standards and specific requirements, in this article we have tried to examine its rights and obligations of countries. In this regard, based on The 1982 United Nations Convention on the Law of the Sea (UNCLOS), the legal system governing the various maritime areas of the internal waters, territorial sea, exclusive economic zone, continental shelf and the high seas has been separated. The results show that depending on the area of the sea those renewable energy installations where it is established, rights and obligations is different. Most requirements related to protection and preservation of the marine environment and safety of navigation and most points is awarded to the high seas.