فهرست مطالب حیدر پیری

It is impossible to legislate for every feasible situation. Therefore, in all legal systems there are silences and gaps, issues and matters as to which it seems to regulate. This is also true of the Iran’s legal system, and perhaps particularly true of the international legal system due to the slow legislative process and its normative and institutional weaknesses. This paper provides an analytical framework to develop a comprehensive understanding of non liquet in both systems, with an emphasis on the range of possible solutions. The author is of the opinion that, rather than being a complicated issue, non liquet and its solutions which have significant consequences for any legal system, goes back to the very heart of our understanding of that legal system.In Iranian legal system which is based on Islamic jurisprudence (figh), the Islamic Consultative Assembly (the legislator) has not only enacted general principles and rules in order to fill gaps in the system, but also on the adoption of reference to authoritative Islamic sources or authentic fatawa and legal principles that are not contrary to the Shari’ah, the judge has to deliver his judgment and settle disputes based on sources other than the law. But in the international legal system, it is necessary to distinguish between two issues. The International Court of Justice cannot refrain from delivering judgments in contentious cases. By resorting to the source-based (general principles of laws, equity, Martens Clause and the residual principle), or method-based approach (analogy, a contrario reasoning) the ICJ can take steps to avoid non liquet. However, in advisory proceedings, it is possible to face non liquet without being necessary to fill it. As a result, the court shall not be held to be in denial of justice and convicted, even by making a non liquet declaration to the effect that the law is non-existent or unclear on a particular issue.

Realization of justice in international criminal proceedings requires objective criteria and standards due to the multilingual nature of this process. The right to a fair trial includes a number of technicalities (procedurals) designed for the criminal justice process as an umbrella guarantee. Some aspects of this guarantee are directly related to the language. Language is both a means of doing justice for all the rights of the accused (prosecute claim) and one of the criteria for the realization of a procedural justice by providing free interpreter assistance in situations where the accused does not understand or cannot speak the working language of the court. The right for having an interpreter for such defendants is recognized both as a conventional international rule and is visible in the statutes of the International Criminal Courts, but the mere expression of this right without proper and practical application does not guarantee the right to be respected in international proceedings. Therefore, the question that is raised is what role does language and interpreter as a communication factor play in realizing a fair trial in the international criminal justice system that is full of multilingual proceedings. The author believes by following the legal doctrines, documents and judgments of international criminal courts that the right of a defendant who does not speak the working language of the court to have an interpreter is not only closely related to all the principles of fair trial and defense rights of the accused, but in fact, failure to observe this right can mean a violation of other formal principles in the trial. The logic of this right lies in effective communication by enabling the accused in order to protect the accused against arbitrariness and the minimum guarantees of a fair trial, especially where the trial is conducted in more than one language which has provided a hopeful structure for prosecuting claim of linguistic rights in criminal proceedings.

Argument is live of law, explaining the correct way of legal reasoning is of great importance in deducting legal judgment. Sometimes, it is practically useful to prove a proposition indirectly rather than directly. Ad Absurdum Argument is a special mode of indirect proof by contradiction that seeks to establish a contention by deriving an absurdity from its denial.In legal theory, the ad absurdum argumentation is normally analyzed as a kind of logical reasoning. Reductio ad Absurdum is one of the main functions of reason in deducting various legal issues. According to historians, the origin of ad absurdum argumentation and its application in scientific controversies can be traced back to antiquity, i.e., the era of the Megarians and the Elias[1]. In fact, the use of argumentation ad absurdum as a valid form of reasoning comes from the ancient Greek mathematics and the expression "hê eis to adunaton apagôgê", meaning reduction to the impossible[2] or absurdity, and can be found in Aristotle. In the new logic, this argument is considered as a special form of reduction to the impossible. This is an indirect method of proof that requires the assumption of the contradiction of what one wants to prove (self-contradiction) and then deducing logical implications from this assumption that are inconsistent with each other.In contemporary literature regarding legal reasoning, two different types of ad absurdum argument have been recognized: the strictly logical form which rise to the introduction of proof by contradiction and the pragmatic. An example of the first ad absurdum argument can be judicial argument based on which it is absurd to accept that someone may be in a state of intoxication without having actually imbibed alcohol. Although someone who has drunk alcohol does not necessarily become intoxicated, it is meaningless to say that a person who is in a state of intoxication has not imbibed alcohol, because it is impossible that the intoxication state is not caused by drinking alcohol. The pragmatic type of ad absurdum argumentation is based on demonstrating that a given stance or interpretation, although in logical terms imaginable, is for some reason undesirable or unacceptable. An example of pragmatic version of ad absurdum argument is where a tribunal finds that, in a specific procedural situation, it is absurd to demand that a copy of a submission be delivered to the person that sent it. Although delivery in this situation is of course logically and physically possible, based on the common-sense principle, interpreting the law in this way would be absurd.Purposes and Research Question(s)The aim of this article is to analysis the nature, basses and structure of ad absurdum argument which have been used in the declaratory reasons of the courts. For this purpose, the questions which raises are that, what is the position of ad absurdum in inferring various legal issues? If we recognize ad absurdum arguments in law as a technique to help lawyers to reach their purpose, in what ways can it correctly be deployed in legal reasoning? And to what extent has this form of legal argumentation been used in legal documents and jurisprudence? In order to answer these questions, in this article, first it has been tried to explain how to use reductio ad absurdum in legal reasoning. Second, a set of brief instructions have been formulated in order to help lawyers and judges for justifying their pleadings or the basis of their decisions in such arguments. The main point of this effort is to state the basic and fundamental rules of interpretation, which can be derived from the structure of the ad absurdum argument and its main assumptions. By explaining such rules of ad absurdum argumentation, one can understand the normative importance of ad absurdum argumentation, i.e, the requirements that stem from this argument and the conditions to which a person can rely on as a stable and sturdy basis for legal decisions.MethodologyThe article has been performed based on the descriptive and analytical research method. The necessary data has been collected by library method.ConclusionBy following various opinions, it seems to be an inevitable conclusion that ad absurdum argument deals with interpretive and hermeneutic arguments that generally prevent logical errors and may be used only in specific cases. In addition, lawyers may use this form of reasoning to justify their decisions, because this argument enables them to avoid conflict between norms and conflict between results and consequences of applicability of these norms. The context in which reduction ad absurdum is used is a controversial argumentation regarding the proper interpretation of a legal document. The speaker analyzes his interpretation in the light of an alternative (second clause) which seems implausible. Therefore, the ad absurdum argument is always a comparative argument that has two core grounds, i.e., the traditional and ontological. The above analyzes lead us to the conclusion that the ontological basis of ad absurdum argument may replace the traditional ground based on the assumption of a rational legislator. This is primarily supported by the fact that the ground proposed have more internal consistency and provide similar benefits, such as the elimination of contradictions between norms and contradictions among their results. The ad absurdum argumentation grounds of universal rationality concept, allows us to use a more objective criterion to evaluate the level of absurdity than the traditional grounds based on personal rationality. Therefore, applying and controlling the ad absurdum argument is easier, and the risk of using discretionary power will be reduced as well.The analysis above shows that there is an essential common ground between the ad absurdum argumentation and the assumption of the rational legislator. The principal basis of these two forms of argumentation can be found in the principle of reasonableness and rationality which intend to supply a normative standard for legal reasoning. The rational legislator and ad absurdum argumentation are both normative structures that require the interpreter to fix the meaning of a norm in a sense that is rational and reasonable. What is clear is that the interpreter is responsible for the rationality of the law and not the rational legislator. In fact, an interpreter (a judge or lawyer) cannot determine what is reasonable without determining what is absurd, for these predicates are correlatives in the sense that whenever one is present, the other will be absent.

In identifying the functions of analogy in international law, the role of analogy is often neglected in the process of law-making, codification and progressive development of international law. It is due to the historical origin of analogy in the process of decision-making in international tribunals. However, this practical aspect of analogy is one of the potentially important aspects in which analogy has been played an important role in the work of the International Law Commission, both as a general method of legal reasoning and as a gap filler. This paper provides an analytical framework to develop a comprehensive understanding of legal analogy in humanity scopes of international law.The author is of the opinion that, in spite of significant limitations on the application of analogy in these areas and by considering the dynamics of international tribunal decisions and the absence of human rights law and IHL rules indicate that states, the international community, and other international institutions have a real need for analogy as one of the most important forms of legal reasoning. The emergence of analogy from the necessitatis in these fields shows that analogies have an accomplishment for achieving not only a coherent and up-to-date legal system but also for making the international legal system more efficient. The use of legal analogies by maintaining and observing the lege lata of international law can make the legal rules compatible with the current needs of the international community.

Argument is the life of law. In order to prove a legal issue, the science of law goes through the tortuous path of judicial reasoning to prove the legal fact of a civil or criminal case. The traditional concepts of legal reasoning and the process of inferring legal rules in international law, in addition to the traditional basic forms of logic, are based on analogical reasoning. Analogy as one of the common methods of reasoning in international legal system is not limited to the decisions of international courts, but it can be stated that the judicial decisions is only an important instance of the functions of analogical reasoning. Otherwise, this type of reasoning plays significant role in different and wide range of law particularly in the awards of international arbitration tribunals. International arbitral tribunals have been widely used analogy and legal transplant by referring to the jurisprudence of domestic courts on the one hand and to the former decisions or awards of arbitral tribunals and other international courts on the other. The analysis of the awards of arbitration tribunals shows that analogy is one of the effective methods for filling gaps and silences of law, eliminating the ambiguity and brevity of the rules and development in this field of international law. Arbitrators often explain the driving force of analogy based on justice and fairness and the idea of like cases should be treated alike or establishing the uniformity and coherence of the system. This paper, while considering the jurisprudential-legal aspects of the concept of analogy and the ground of its formation and historical background in the Islamic legal system and other legal systems, by using the descriptive-analytical method is focused on analyzing the role of analogy in the awards of international arbitration tribunals.

The environment has become a silent victim of armed conflicts around the world. Armed conflict, for whatever reason or justification, causes significant damages to the environment. In this regard, international humanitarian law has protected the environment in a few of its provisions. These provisions which is limited to damages by widespread, long-term and severe nature, are vague and provide only superficial protection. The provisions of international environmental law as well, as an alternative option, is less than adequate to protect the environment during armed conflict. Due to non-liquet in international law and to clarify the meaning and scope of environmental protection, in 2013, the International Law Commission (ILC) decided to include the topic in its programme of work. Six years later, the ILC adopted ‘‘draft principles on protection of the environment in relation to armed conflicts’’. In principle 12, the ILC setting out the Martens Clause in a new form. This inclusion in the draft principles, reflects the role and positon of the Martens Clause in protecting the environment in armed conflicts. The author, with a new direction for the Martens Clause, believes that implementing the Clause in this context will result in the emergence and facilitating the emergence of other principles and rules that can protect the environment during armed conflict.

In any legal system, it is not possible to foresee legal rules for every imaginable situation or matter. No legislature can claim that it has predicted codified laws for all legal issues, and that under no circumstances the judge will face non liquet on the ground of brevity, deficiency or silence of law in order to decide disputes. This matter has been acknowledged in article 42 (2) of the International Centre for Settlement of Investment Disputes (ICSID Convention), according to which, ‘‘The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law’’. Hence, the arbitrator has to issues an award. He, on the pretext of the silence of or obscurity of law in the matter, or its brevity, cannot refrain from doing so. Since the establishment of the ICSID under the Convention on the settlement of investment disputes between states and nationals of other states and other investment treaty arbitrations, different methods have been used to fill gaps, ambiguity and brevity of the laws, the most obvious of which is analogical reasoning. Although the Court, in most cases, has been silent about resorting to analogy in its methodologies; it is suggested that analogy plays an important role in the arbitration of ICSID and other investments treaties, as a means of filling gaps, determining the meaning of the provisions of the treaties, eliminating the ambiguity and brevity of the concepts, rules and the principles of international investment law, as well as identifying the legal rule governing each cases. This article, while using the descriptive-analytical method, is focused on analyzing the role analogy as a basic method of legal reasoning in the judicial award of investment disputes tribunals.

In recent years, one of the old, yet controversial doctrines of the law of neutrality -called "unwilling" and "unable"[1] doctrine- has been reformulated in the jus ad bellum discourse, according to which some states may use force in self-defense against non-state terrorist actors operating within the territory of host states based on the unwillingness or inability of the territorial state to control them. The unwilling or unable doctrine has one of the lowest standards with which it determines when non-state terrorist organizations can legally be attacked in third states based on the right of self-defense,[2] even though the legality of such use of force against non-state actors in weak host states, without the consent of the host state, is unclear. In the context of legal positivism, this article seeks to prove whether the current sources of international law allow states to recourse to the unwilling or unable doctrine in the host state. Since these concepts have not been mentioned in any legal document (besides Article 17 of the Rome Statute and the 1951 Refugee Convention) or even international case law, it is not clear whether it is possible to accept such use of force in international law despite its prohibition in the UN Charter, denying its legitimacy by most publicists, very little occurrence of it in the practice of states and subjectivity of the concept of unwillingness or inability. The International Court of Justice and some scholars also deny the legality of the use of force in an ineffective host.This article seeks to critically examine and demonstrate the evolution of the use of force in the name of self-defense against non-state actors in the territory of host states, which is justified by the unwilling and unable doctrine. The purpose of this research is not only to identify the unwilling and unable doctrine but also to offer a practical solution to the challenges regarding extra-territorial self-defense against non-state terrorist organizations.

Research Question(s):

This article, by examining de lege lata, seeks to verify whether treaties, customary laws, and international judicial practice allow states to legally resort to the unwilling and unable doctrine in another state (the host state). In other words, has the unwilling and unable doctrine become a part of international law (as it exists)? Moreover, does the doctrine provide a legitimate way to use transnational self-defense against non-state actors, particularly in a situation where the host state is willing to repress the non-state actors but is unable to do so? Based on which criteria is it determined that the host state is unwilling or unable to fight the threat posed by the non-state actors? Finally, is it possible for the acting state to make this decision unilaterally or does the host state also play a role in this regard?

The article has used descriptive and analytical research methods. The necessary data has been collected through the library research method by reference to relevant books, essays, and international judicial decisions.

This article shows that although the right to self-defense in ineffective host states may be desirable in light of the contemporary security and safety threats, the existing data about the doctrine is incomplete and has many gaps. The "unwilling" and "unable" doctrine presents a significant challenge to the “rule of law” in international law. This doctrine based on self-judgment theories in international law and providing exceptions to the jus ad bellum regime, not only leads to the instability of this regime, but also its legal justifications are a serious attack on the fundamental legal concepts that are generally accepted in international law. This article, with a legal positivist look, believes that any resort to the "unwilling and unable” doctrine is subject to the following criteria: an armed attack according to Article 51 of the Charter, lack of control of the host state over its territory, proof of inability and unwillingness of the host state by the victim state, act of the victim state with the consent and cooperation of the host state, giving the host state a reasonable time to effectively deal with the non-state actor, and the inability of the host state based on duty of due diligence, lack of cooperation by the host state and refusal to accept international assistance.

According to the above, the inevitable conclusion is that it’s very difficult to balance the unwilling or unable doctrine with the jus ad bellum regime. This doctrine lacks both a legal underpinning and a clear, distinct content. The criteria for the unwillingness and inability, the legality of self-defense, and the permissibility of resorting to force in an ineffective host state do not have a valid basis in either treaty law or customary international law; It is not mentioned in Article 51 of the UN Charter, nor have the states accepted it sufficiently. The International Court of Justice and the most highly-qualified publicists have also refused to recognize such use of force. Due to the change in the nature and power of terrorist organizations, the rules in this field remain unclear and this field is replete with legal uncertainty. It is not surprising that the UN charter is not able to provide clear answers for these situations.Despite the relative success of the jus ad bellum regime in preventing armed conflicts between states, the mentioned doctrine undermines the legal framework regulating prohibition on the use of force and poses a threat to the UN Collective Security System. The doctrine distorts the concept of imminence and damages the definition of armed attack[3] 3 enshrined in Article 51 of the UN Charter by lowering the threshold for the justifiable use of force in self-defense. It also destabilizes the fundamental principle of necessity in self-defense. Finally, by providing weak governing standards for the victim state may make unilateral decisions as to the necessity of the use of force, in spite of the  disapproval or unwillingness of the host state, the doctrine extremely over-privileges the interests of the powerful states at the expense of the rights and interests of typically weaker host states. Consequently, it should be acknowledged that the doctrine created to address the limited and specific threat of transnational terrorism cannot be a justification for weakening the regime designed to maintain international peace and security.If we apply this doctrine, any state will be allowed to start military operations simply on the pretext of the host state’s inability to suppress a terrorist group. Accepting to such a view by the international community and allowing to create this new legal order will lead to a fundamental change in the UN system if it is not completely damaged. By granting discretion to any state to adopt unilateral actions in the war on terror, through the unwilling and unable test, it simply ignores some fundamental provisions of the Charter (Article 39) and challenges the entire Collective Security System of the Charter. Creating unwritten exceptions to the principle that prohibits the use of force not only causes problems for the integrity of international law but also leads to disorganization in international law.Finally, within the framework of the lex lata, the only point that can be said regarding self-defense against attacks by non-state actors in situations, lower than the threshold that the ICJ has stated in the Nicaragua case, is that such actions are undoubtedly illegal. In the framework of the Lex ferenda, we believe that the customary law is evolving regarding the applications of Article 51 of the UN Charter, defensive action in the territory of target states, and the use of force against non-state actors in host states. Even in the light of Lex ferenda, it cannot be said that the unwilling and unable doctrine is currently an established rule of international law.

By applying the theory of "Balance of Interests" developed by Randall Schuller within the theoretical framework of neoclassical realism, this research attempts to answer the question: what consequences will the Abraham Accords have on Iran's national security? The research hypothesis is that highlighting Iran as the greatest threat in the security perceptions of the Persian Gulf countries will lead to their synergy in making challenges to Iran's national security in terms of political, military-security and economic dimensions. By using a descriptive-analytical method, the results of the research show that by signing Abrahamic agreements with the Persian Gulf countries, the Israeli regime is trying to protect itself from diplomatic isolation and jeopardise Iran's national security. Other findings show that various factors at the international, regional and domestic levels have played a key role in the formation of these agreements, which reinforce and support each other. Therefore, increasing Israel's power in West Asia will have many consequences against Iran's interests and national security and will lead to regional power rivalry in favour of the Israeli regime.

The Martens Clause is undoubtedly one of the fundamental provisions of contemporary legal order of the international community. In addition to other areas of international law, international criminal law has been an arena for the presence and objective impact of the Martens Clause and its constituent elements.The formulation of the Martens Clause of the principle of humanity and the requirements of public conscience as a determining point for entry into the international law documents, has formed part of the idea of international crimes, because these two related elements that are threatened by the commission of crimes, are an important part of the protected areas which justifies the existence of a crime under international criminal law. this article shows how the principle of humanity and public conscience resulting from the Martens Clause have played a role in the codification and formation of international crimes, especially crimes against humanity and genocide. Following the legal doctrine, international documents and jurisprudence, we conclude that by legal acceptance and an extensive and protective judicial interpretation of criminal court, the Clause has played a key role in criminalizing international crimes and attacks on human values. In fact, the culmination of the Clause in international criminal law has been manifested in filling legal gaps,combating impunity,immunity of perpetrators in international arena, and prosecuting those who violate human values

This study examines the areas and contexts of the New Arab peace and Israel deals in the light of Iran’s regional policies.   

The present study uses descriptive-analytical method and library resources to analyze the issue. Based on the “neoclassical realism” approach, the question has been raised that what are the basic grounds and contexts of the new Arab-Israel peace in the light of Iran’s regional policies? In answer to this question, the proposed hypothesis is that the both feel common threat and it is a security issue that seeks to change the order of the area to their advantage.

The analysis of this study shows that the Arab countries in the region, especially after the recent developments in west Asia including the Arab Spring and the strengthening of the resistance axis, have resorted to this peace strategy with Israel in order to maintain their security.

Research findings show that Israel’s due to withdrawal from diplomatic isolation in the region and also with the aim of isolating Iran in the region and the Arabs also because of ensuring their security and the survival of the monarchy and the fear of gaining the liberation movements did this important thing.

Analogy as an applied matter does not have the same credibility in the logic and the different areas of the contemporary international law system. In international criminal law, like most domestic legal systems which interdict analogical reasoning in criminal law, according to art.22 (2) Rome Statute of the ICC:the definition of a crime shall be strictly construed and shall not be extended by analogy. Nevertheless, in the international community as evolving, Criminal rules are not always able to accommodate all the crimes that occur.Hence,the lack of comprehensiveness of law and the emergence of new issues,as well as the use of ambiguous terms such as "other inhuman acts" in most of international criminal documents, made it inevitable to use analogy in international criminal law,not only as a useful tool in identifying applicable rules, but also as a form of interpretation.However,the authors believe that the use of analogy in international criminal proceedings does not have the power to make new crimes and imposes punishment without resorting to a valid criminal code. In addition to expressing a normative framework for analogical reasoning in international criminal law,this article analyzes the role of analogy in the decision-making processes of the international criminal courts and Tribunals

A contrario reasoning has been widely used in the Permanent Court of International Justice & its successor (International Court of Justice) on various occasions. The questions ariseing are, what is the criterion for the existence and non-existence of a contrario in the statutory law and legal propositions? To what extent and how has a contrario reasoning been used in the PCIJ and ICJ jurisprudence? What is the importance of this essential argument? And finally, have they contributed to the creation of a predictable legal framework and the coherent development of international law? Analysis of the judgments and advisory opinions regarding this concept help us to understand the nature of the concept and to assess its scope in a better way. Having Followed up the judicial procedure, it is concluded that a contrario reasoning is one of the basic and flexible methods of reasoning in international law. The ICJ and its predecessor have used this form of reasoning to justify their decisions, in the process of interpreting a treaty to discover the spirit of the law, and as a supplementary means for the determination of the content of rules to be applied in certain cases. This form of legal reasoning has also been cited many times and in various contexts in all major substantive fields of international law.

Analogy in international legal system, is one of the complex and multifaceted concepts that have always been discussed among international law scholars, and have been widely used in the International Court of Justice proceedings for various occasions. Although the Court, in most cases, has been silent about resorting to analogy in its methodology; but analysis of ICJ judgments and opinions regarding this concept in particular helps us to understand the nature of the concept and assess its scope in a better way. The Court, have made effective inferences by using the capacities of analogy and its effective role in the interpretation process, clarifying the content of the rules, blowing the spirit of innovation and the element of advancement into the international law as a whole, and filling gaps, eliminating the ambiguity and brevity in the international provisions, that make it possible to understand the content, functions and its legal criteria. This paper, while considering the philosophical- legal aspects of the concept of analogy and proper understanding of its capacities for the development, dynamism and integration of international law, is focused on analyzing the role of analogy in the judicial procedure of the ICJ.

One of the most controversial issues, as well as complicated and fundamental concepts in international legal system and international relations, is the debate on the national interest between different schools. Theorists and analysts have used the concept of national interest to study and analyze the objectives, goals and behavioral patterns of international actors and the states’ foreign policy. The paper methodology is trying to analysis the most important theories - Realism, Neorealism, Idealism, Marxism, Anarchism, Liberalism and Constructivism - around the so-called national interests and also important theoretical frameworks in this context. Therefore, it is attempted to provide a theoretical evaluation of this concept between above mentioned theories so that to fill the gap of national interest Assessment by the major theories of international relations.

Internal armed conflict in Syria has been the basis for the widespread violations of international law as well as the growth and formation of terrorist groups such as the Islamic State of Iraq and Syria (ISIS). In this regard, the Security Council despite adopting resolutions condemning radicalization to terrorism, could not take any appropriate and binding decision to end this crisis because of the existence of the opposing viewpoints of the great powers and the intervention of some Arabic and regional countries. This factors led the US to establish the Global Coalition along with some other countries to combat ISIS. Although this was a positive move and showed the international community’s concerns to inhumane acts, it has given rise to questions as to whether its formation and activities are legitimate in the light of international law or not? These countries have attempted to interpret different categories of international law in the form of coalition partners. They also challenged the fundamental principles of the UN Charter by using force in the territory of the host State, because the use of force without three preconditions (the authorization of the Security Council, valid consent of the government and recoursing to article 51 of the charter regardless of its legal status) has no legal effect in contemporary international law and brings the international order back to the legal order prior to the adoption of the UN Charter.

Increases in the number of internal tensions and disturbances particularly in the last few decades have caused States seeing their security and sovereignty at risk. So, they have committed severe violations of the fundamental rights of people. Nevertheless, they ligitimize their activities and claim the observance of International Law. Documents and international institutions governing the behavior of states consider these measures as the exercise of rights violations and greatly prohibit them and declare that internal tensions and disturbances are no longer considered in the exclusive sovereignty of states and to prevent domestic violence tragedies and disasters, extensive and appropriate measures should be taken at national and international level. Therefore, the new approach of the international community demonstrates the extension of the minimum standards of International Humanitarian Fundamental Law irrespective of time and place to any situation of internal tensions and disturbances and other life-threatening emergencies which lead to threat the existence of a nation. In this article, we’ve tried to investigate International rules (customary and conventional) governing the conduct of states during internal tensions and disturbances and their impact on the protection of International Humanitarian Fundamental Law and state authority facing such situations from the perspective of international law.

One of the most common and widespread phenomena in international society developments as well as most controversial issues in Islamic and International Law is suicide operations (Kamikaze) which unfortunately during the latter decades have been extended. Due to the novelty of the phenomenon in the contemporary world and lack of definitive rules in this regard, there are different interpretations between Islamic doctrine and legal literature. On the other hand, in light of the international law especially international humanitarian law suicide operation has been considered as a prominent sample of terrorism- unless in some very restrict exceptional situation of international armed such an operation could be authorized. So, in this paper comparative analysis in Islamic jurisprudence and modern international law, with their various aspects of both areas will be explored.

Monopoly rights in our legal system is one of the new issues that there is no comprehensive bill to understand all its dimensions and aspects, and the existing laws do not have the required efficiency due to its dispersion. To solve this problem, a new law entitled the “General Policies of Article 44” and “Amendment of the Fourth Development Plan and the implementation of the general policies of Article 44 of the Constitution” were adopted that caused economic opportunities for the development of competitive environment and to cancel. state monopolies and at the same time it resulted in serious problems, as far as, despite the reduction in government ownership, desired results have not been achieved. Therefore, in this article have been tried to analyze the following matters in the legal lexicon: History, definitions, origins, resource and the basis of applying the anti-monopoly rules application, civil responsibility, law enforcement and finally the losses incurred to persons in violation of anti-monopoly laws in Iranian regulations. With respect to analysis positive regulations, we can concluded that the main basis for competition law and monopoly is public order because it results in achieving justice in society and public interest, And ‘Principle of no Harm’ can be invoked only when we are certain about the losses. About law enforcement of monopolies, unfortunately, due to the vagueness and deficiency of the Iran’s law, legislatives regarding the validity of the contract. Therefore, in many cases there are no appropriate legal enforcement and specific legal order. In other word, relative deficit of executive mechanisms in the regulations has made it difficult to control monopolies. In association with the basis of compensation in violation of anti monopoy and competion law, persons aggrieved by monopoly and violation of competition law based on ‘Principle of no Harm’ and civil liability provisions (especially article 1 of the law of Civil Liability) and special conditions of this regulations, have the right to claim damages.

International Law, by referring to the vital national and security interests has been used as a shield against legal’s, as an instrument to escape from legal obligations and as a justification for breaking up the treaties, therefore it limits the appliance of International Law Rules especially International Humanitarian Law, yet claiming of the observance of International Law. This notion and other similar concepts, are considered as one of the main obstacles against development in universalizing International Law especially IHL, because It can cause intractable misuses by states as well as justifying anything by reffering to national interest. IHL norms bring a serious challenge to the governments holding the fundamental logic of sovereignty and national interests. According to primary precedence of human norms in international law, The vital national interests only in compliance with the international law rules and provide the ground for legitimate government functioning. Therefore, governments have always tried to explain and interpret the vital national interests in a way that results the least loss to the universal international values.

Undoubtedly, one of the most ambiguous and controversial concepts in the international law documents is the debate on the vital national interest which is as old as the concept of nation-state itself and every country due to its own situations and conditions gives a specific interpretation of this concept. The concept of vital national interest, has created a juridical gap and as an essentially political concept has kept its place in juridical texts, which is considered as one of the main obstacles for developments and progresses of international law, because it has been used by states in many ways as a shield against legal standards, as well as as a tool to escape from legal obligations. Therefore, it lays some restrictions on the application of international law rules, yet it looms its acts and claims for regarding international law. International Jurisprudence expresses that, in the relationship between the vital national interests and international legal orders, it is the legal system which has the prior importance. owever, contrary to the government’s view, they allow restricted vital national interest and declare that national interest subordinates to International Law and it is not subject to the of each state. International Law has always tried to interpret thevital national interests in a way that results in the least loss to the universal International values.

The international process of disarmament and arms control is an arena for constant disputes and conflicts between international tendencies and vital national interests of states. The conflict between vital national and security interests of states has sterilized the system of nuclear disarmament and arms control. The international law of disarmament and arms control treaties as an evolving legal system are evaded by resorting to different excuses by states under the pretext of preserving vital national interests. However, states claim that their actions do not violate the principles of international law. Therefore, the concept of vital national interests and similar concepts with political natures are among the main obstacles to the development of universal law on disarmament and arms control treaties, because they pave the way for arbitrary misuse of rights by states. For this reason, the slow process of developing principles of international law in this sphere stems from the national interests and sovereignty of states. Also, this area compared to other areas involves more limitations on the sovereignty and national interests of states to the benefit of international sovereignty and interests. This is due to the content of undertakings and monitoring mechanisms to ascertain the compliance of states to the regulations. This article tries to address the impact of vital national interests on the process of the development of principles of law on disarmament and arms control with an emphasis on the International Court of Justice judgments.