مجله حقوقی بین المللی
پیاپی 70 (تابستان 1402)

* The opinions and interpretations adopted in this article are exclusively attributable to the author and in no way represent formal positions of I.R.I. on Iran’s Un-delimited Maritime Boundaries in Persian Gulf.
Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) pertains to the Regime Islands. While Article 121, paragraph (1) defines the term ‘Island’, paragraph 2 prescribes that an island belonging to a coastal state is entitled to the same maritime zones as the mainland, namely: the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. Paragraph (3) of Article 121, however, makes an exception to the rule stated in paragraph (2) and deprives “[r]ocks which cannot sustain human habitation or economic life of their own” from having an exclusive economic zone or continental shelf and thus cannot affect the delimitation of these maritime zones. But many ambiguities in the text of Article 121(3) have created many questions and controversies among legal scholars. The 2016 South China Sea arbitration award marked a turning point in the discussions on Article 121(3), insofar as it provided a comprehensive interpretation of this paragraph. This paper intends to address the following question: given the interpretation of Article 121(3) of UNCLOS in the South China Sea arbitration award, what is the exact meaning of this paragraph? Addressing this question is especially necessary due to the fact that some of the islands relevant to the maritime delimitation between Iran and Kuwait as well as Iran and the UAE may be covered by Article 121(3). The findings of this study suggest that the South China Sea tribunal’s interpretation of Article 121(3), particularly as regards the terms “human habitation” and “economic life of its own”, will deprive many islands of an exclusive economic zone and a continental shelf. Yet, regardless of how the tribunal’s findings are evaluated, it would seem that this interpretation can benefit Iran in its maritime delimitations with Kuwait and the UAE.

Article 51 of the United Nations Charter preserves the right of states to use force in self-defense "in case of armed attack" until the Security Council provides the necessary security. It is generally believed that resorting to force that establishes the right of self-defense must be a strong and unpreventable armed force that can justify self-defense for the victim state. In conformity with this, the International Court of Justice (ICJ) has affirmed the existence of a threshold for distinguishing between "the most extreme forms" and "less extreme forms" of the use of armed force. The theory of the accumulation of incidents refers to a series of minor incidents that have accumulated until they reach the threshold of armed conflict. In fact, this theory does not have the threshold of severity desired by the ICJ. However, certain governments have resorted to it in order to justify the existence of their right to self-defense. This article has come to the conclusion that there are signs suggesting that transnational terrorist attacks have caused serious problems for governments; As a result, the tendency to accept this theory, which previously had little support, has increased to some extent.

“Special rapporteurs” of the Human Rights Council as part of the special procedures are tasked with monitoring Human Rights situations of the countries on the country and thematic levels. Through time, these activities have played a significant role in informing and documenting the human rights situation of a country and norm-setting concerning emerging concepts. It is noteworthy that the result of the rapporteurs' evaluations is not focused and limited to the responsibilities assigned to them by the Human Rights Council; Rather, their reports are widely used and exploited as a reliable source by other institutions and organizations, including human rights treaty bodies, the United Nations General Assembly, the International Court of Justice and other national and international tribunals. In addition, they have been used by many international organizations and human rights defenders. Therefore, considering the extent of the use of special rapporteurs' reports by other mechanisms, it is necessary to know how and to what extent national, regional and international institutions, apart from the Human Rights Council, have used the activities of the rapporteurs and what challenges do special rapporteurs encounter in performing their responsibilities.

In Draft Articles on Responsibility of States for Internationally Wrongful Acts, the general notions related to the international responsibility of states are specified. However, this is doubtful whether these notions can be used in the ICSID arbitration process. According to the convention and the procedure of the ICSID Arbitration Center, in the absence of an explicit agreement in the arbitration agreement, state responsibility based on the ICSID Convention and the rules of customary international law can be brought to the attention of the ICSID International Arbitration Center. The absolute obligations of the investee state concerning investment security are compatible with the Draft Articles on Responsibility of States. The application of the provisions of the Draft Articles on Responsibility of States is another reason for ignoring domestic laws to avoid international responsibility in the ICSID arbitration procedure and will contribute to stability in the field of international investment. On the other hand, the development of the concept of human rights to support the foreign investor for the purpose of establishing the absolute responsibility of the investee state in the ICSID arbitration procedure indicates the absolute responsibility of the investee state for the benefit of developed countries, which consequently limits the sovereignty of the investee state and as a result will lead to the violation of national sovereignty, unilateralism, and finally, the states’ tendency to withdraw from the ICSID Convention.

One of the important issues in arbitration is to resolve the conflict between the competence of the court and the arbitration authority. Denial of the competence of the court arises from the principle of competence-competence. This rule means that because of the competence of the arbitral tribunal, the court does not have competence until the end of the arbitration proceedings due to the suspension effect. The competence of judicial authorities is a general ond, while the competence of arbitral tribunals is specific. Therefore, the competence of arbitral tribunals is exceptional, and while narrowly interpreting their competence in cases of doubt concerning the competence of arbitral tribunals, based on the principle of general jurisdiction of judicial authorities, the competence of arbitral tribunals has an exceptional nature. The agreement of the parties to the dispute to refer to arbitration does not negate the absolute jurisdiction of the court, and the court performs its assisting duties by the law during the arbitration process. The Negative Effect of competence-competence means that the arbitrators must be the first judges of their own jurisdiction. Therefore, the supervision of the courts is postponed until the stage of annulment or execution of the arbitration award according to the arbitration agreement.

The China International Economic and Trade Arbitration Commission-CIETAC is an important arbitration organization that many businessmen and investors from all over the world refer to annually to resolve international commercial disputes. This article tries to answer these questions: how and under what conditions does CIETAC have the jurisdiction to settle disputes, what is its scope of jurisdiction, and how does it increase the scope of its jurisdiction. The results show that by concluding a valid arbitration agreement within the personal and material scope determined by Chinese laws and the regulations of CIETAC, this organization acquires the jurisdiction to settle international commercial disputes. By recognising the possibility of a supplementary agreement between the parties, clarifying the ambiguity of the arbitration agreement and increasing its competencies by repeatedly amending its regulations, CIETAC has expanded its jurisdiction.

Arbitration, as a method of pacific settlement of disputes, is mentioned in Article 33 of the Charter of the United Nations, by which parties to any dispute endeavor to find a solution to eliminate their conflict. Yet, article 33 does not include other forms of arbitrations that the United Nations System deals with. International arbitrations are generally referred to as interstate arbitration, international commercial arbitration, and international investment arbitration. Although these arbitration-based methods of international dispute settlement are different, they all observe the same goal: the settlement of disputes by peaceful means and preventing the parties from resorting to adverse behavior. Due to their common goal, it calls the role of the United Nations in promulgating international arbitrations among its member States into question: Has the UN had any bold involvement in promoting and strengthening international arbitrations in the abovementioned fields? It seems that the influence of the UN on interstate arbitration is undeniable because of its main goal and principles; however, this article depicts that the UN policy regarding international arbitrations adheres to the forming and developing international commercial arbitration and international investment arbitration rather than inter-state arbitration. The UN also plays a mediocre role in developing thematic-oriented international arbitrations.