فهرست مطالب زهرا محمودی کردی

Globalization and emergence of global governance have changed the traditional structures of international law. As the result of a gradual undermining of the border between the domestic and international law and the expansion of interaction between global actors, having the mechanisms to manage them is necessary, mechanisms which create global administrative law. One of the important purposes of this new order is to increase the accountability of international organizations to external stakeholders, especially people and civil Society. Accountability as a new concept, has conjoint components ie participation, transparency, complaint. Application of these elements in international organizations system will increase the legitimacy of these actors.The question is, what is the practical status of accountability in international organizations? To answer this question, at first the article to describe the concept of accountability using the descriptive method, and then with analytical method and by virtue of the practice of some international organizations evaluate the status of accountability`s elements. The article finds that under pressure of public opinion and growth of the rule of law in international law, accountability have been applied sporadically in some international organizations but its integrated implementation international organizations, the strengthening of global administrative law is an undeniable necessity.

Since the 1980s, ocean fertilization has attracted much attention among various methods of climate engineering. Some foreign researchers have examined ocean fertilization from environmental, legal, and commercial perspectives. since 2007, as the London Convention / Protocol regulates ocean fertilization, and then with the adoption of the 2013 Amendment to the London Protocol on this technology, Legal research in this area has been Increased. Although the ocean fertilization process has not yet been widely operated and remains at a limited experimental level, but legal research has been written specifically to examine the conventional position of this technology. The present article aims to explore ocean fertilization technology as one of the methods to deal with global warming, to examine its potential environmental benefits and challenges, and to examine the approach of the principles of international environmental law to this challenging technology.

Data collection of this research is library method and the procedure is descriptive analytical; Accordingly, after describing the process of ocean fertilization, it is most important environmental consequences have been studied, and finally, how international environmental law has dealt with this emerging technology has been analysed and Finally, we analyze this emerging technology in the context of the principles of international environmental law.

By strengthening the biological pump of the ocean, ocean fertilization as one of the new ways to deal with climate change, seeks to increase the absorption of carbon dioxide by the ocean and ultimately deal with global warming. Countering global warming, increasing of the fish resources, promote marine scientific research and the carbon trade have been cited as potential benefits of ocean fertilization, but in addition to these benefits, the possibility of environmental problems such as ocean acidification, toxic algal blooms and anoxia is not out of the question. The transboundary environmental effects of ocean fertilization — whether in the internal waters It is a testament to the need to intervene of international environmental law to regulate this technology and its consequences. Therefore, in the present article, we intend to examine the role of the principles of international environmental law in responding to issues arising from the ocean fertilization and its regulation and elimination of its treaty gaps.

The ocean fertilization can be described as a double edged sword that on the one hand is able to overcome one of the most important environmental challenges of the present age, namely global warming and consequently climate change, and on the other hand is the cause of marine environmental damage. First of all, the findings of the present paper show that, there is insufficient scientific certainty about the environmental consequences of ocean fertilization, and further studies and experiments are needed to achieve scientific certainty. Second, a review of international treaties that have addressed this technology directly or indirectly shows that the Biodiversity Conventions, the London Convention / Protocol, have severely restricted ocean fertilization, citing scientific uncertainty and the need for a precautionary approach. But they face criticism such as non-global participation and an absolutely negative attitude. And Third, in the circumstances mentioned, the application of the principles of international environmental law to fill existing gaps and complete treaty documents can be very helpful.

Although the goal of technology is to facilitate human life and increase the welfare, emerging technology has challenges that can have short-term or long-term destructive effects on human life and other creatures. The greater and more widespread these effects and dangers, the more tangible the need to regulate technology by international law in response to a common global concern will be.  Nanotechnology, as an emerging form of technology, has enabled human beings to manipulate and engineer materials in molecular and sub-molecular dimensions. It is one of the most important technologies with many known and unknown dangers which must be regulated by legal rules. The present study seeks to answer the fundamental question of why, despite the rapid progress and astonishing speed of nanotechnology transfer from laboratory research to production lines and the commercialization of related products, the process of regulating this technology in international law is challenging, and if there is a solution to overcome this challenge. The primary conclusion of this article is that due to the global dangers of nanomaterials and insufficient human knowledge about their novel properties on the one hand and the inadequacy of existing treaties to cover nanomaterials on the other hand, the regulation of this technology should be aimed at risk management and precautionary approach.

Climate change is considered to be the biggest crisis of the present era, and traditional approaches have not been very effective to deal with it yet. Thus, in recent decades, geoengineering which includes two main methods of carbon dioxide removal and solar radiation management has come to the attention of countries. Like other emerging technologies, besides its benefits, most important of which to combat climate change, due to scientific uncertainty, they might have harmful effects on the environment. The present article has aimed to describe geoengineering methods and their environmental pros and cons. The findings of the article show that although the geoengineering methods in international environmental treaties are scattered, mostly in the form of implicit expressions, the rules and the actions of member states indicate the different and sometimes contradictory attitudes toward geoengineering, which varies from explicit or implicit approval of some methods, especially in treaties related to climate change, to explicit and implicit opposition of others, such as the Convention on Biological Diversity, the London Protocol, and the Ozone Conservation Convention. This dispersion is so great that a specific legal system cannot be assumed.

According to the Aarhus Convention, the realization of environmental democracy is based on the three elements of access to information, participation in making decisions and access to court in environmental matters. Given that environmental damage also leads to human harm, some states, in order to achieve environmental democracy, have established environmental judicial and quasi-judicial authorities in their domestic system to provide the right of access to the courts in environmental issues. Due to the high but fragile biodiversity and environmental threats in Iran such as the existence of endangered plant and animal species, environmental pollution, dust, desertification, etc., the lack of such an institution is felt in the country's legal system. The present article descriptively-analytically examines the documents, international jurisprudence and authorities in the domestic law of some states and then assesses the status of the Iranian legal system And in response to the question of which model of environmental courts is more appropriate for Iran, it is concluded that according to the history of specialized courts in the Iranian legal system, the establishment of a special environmental court In the Iranian legal system can provide the grounds for the realization of environmental democracy and consequently sustainable development.

Previously, Dominik Anderska in the research entitled "coastal state’s competence in the prevention of pollution arising from ships; protection of the marine environment or Freedom of navigation" in 2017 has investigated subject of protection of the marine environment against pollution arising from ships from the coastal state, in contrast to the principle of the sovereignty with freedom of the seas but as the name implies, it focuses solely on pollution from ships and two conventions of the Law of the Sea and the MARPOL Convention Mohammadi et al. In the article entitled "Evolution of the International Legal Regime for the Protection of the Marine Environment against Inshore Pollutants; from Montego bay to Cartagena" in 1394, while emphasizing on Conversion of the problem of land-based marine pollutants to a concern for the international community and lack of The effectiveness of the provisions of general international law in combating these pollutants examines existing regional conventions that have been concluded to address gaps in general international law in this area, and examines the mechanisms contained in these instruments to identify potential gaps. Ports and their activities are the most important and significant land-based pollutants that directly or indirectly affect the marine environment. This article reviews the obligations of the port state dealing with damages that can threat environmental ports and areas outside of competence of the port state. Formerly, it was assumed that most of these damages were caused by ship traffic but now the range of environmental threats have increased and taken new dimensions. New environmental challenges of ports include issues such as the effect of climate change on ports, noise and Thermal pollution, invasive species, development of industrial and economic activities, sustainable protection of marine resources and endangerment of port biodiversity. In this study, we intend to review the environmental obligations of the port state, which include taking precautionary measures, environmental impact assessment, providing appropriate facilities, inspection of ships, reporting incidents involving oil spills, dealing with discharges at sea and dealing with Illegal, unreported and unregulated fishing, Justify the need to grant extraterritorial competence beyond the current system.

In order to answer the question of what are the port state’s obligations to protect the marine environment, international documents including treaties and regulations of international organizations (soft law) and library data such as reliable scientific essays and articles have referred.

According to the studies, the current system of port state’s environmental obligations is largely based on territorial competence and traditional role of ports (Trade and Navigation). However, in today's world, with the emergence of new generations of ports, the functions of these strategic points have also changed, and this evolution, along with the emergence of global environmental challenges, has created an unfavorable situation for the marine environment and Despite their extraterritorial effects, they are not covered by the current port protection system.

Extension of the port state's competence, to consider the necessary protections and safeguards along with dispute settlement procedures at the national and international levels can fill the gaps of the flag state system. The only way to hold balance between the functions of the new generations of ports and marine conservations is to change the jurisdictions from the limited and voluntary to comprehensive and compulsory.

The Iran-United States claims Tribunal as an international ad hoc arbitration institution has attempted to resort to the equitable devices for applying justice and equity in its awards. The devices via which be able to issue an award for the claims that no contractual basis exist and also for the real ownership claims. The devices that cause to increase the motivation of the Iran-United States Claims Tribunal for pursuing the principles and rules of international law and the enforcement of the issued awards.This article is intended to develop and extend the practice and function of the Court in applying the equitable devices such as the principle of unjust enrichment ,principle of quantum meruit and beneficial ownership among the devices applied by the Court and will review whether the Court basically has been enjoyed the power and authority to accept such devices in its issued awards.

Due to the advancement of industry and increasing economic activities, environmental interferences have been raised, which has led to the emergence of transboundary harm. Given the widespread effects of transboundary harm, governments have departed from a traditional compensation-based approach to a preventive approach. Experiences and scientific findings show that in addition to its environmental benefits, the preventive approach is economical and therefore is known as the Golden Rule and the Environmental Watch Tower. This article seeks to identify the main elements of the states’ obligation to prevent transboundary harm, using international instruments and precedents. It is concluded that firstly, the obligation to prevent includes two elements: substantial (or due diligence) and procedural (or cooperation), each of which has their structures or components whose existence is essential in identification of the responsibility of the state of origin. Secondly, considering the extent and the negative effects of transboundary harm, the two elements are intrinsic and inseparable, both necessary to fulfill the state’s commitment to prevention.

With  the growth of transactional commercial arbitrations in the 20th century, the theory of ‘Transactional Commercial Law’ was proposed by jurists such as Goldman and Schmitthoff, according to which, there is a third legal system along with the system of international law and national law which adjusts transnational commercial relations. There is no consensus among legal scholars about the concept, nature and other issues surrounding transnational commercial law and its study invites ambiguities. Considering the history of transnational commercial rules, some scholars consider this new legal system equivalent to traditional and customary trade law of medieval merchants (Lex Mercatoria), whereas Lex Mercatoria has never had a fixed concept and its meaning has developed over time. Based on a library study and a descriptive-analytical approach, this article studies and assesses the evolutionary process of Lex Mercatoria and clarifies its interrelationships with Transnational Commercial Law. Finally, it is concluded that the comprehensive definition for Lex Mercatoria is not equivalent of Transnational Commercial Law (including in its broad or restrictive sense) without specifying certain characteristic such as classical, modern, and post-modern in which the post-modern Lex Mercatoria comes closer to the concept of Transnational Commercial Law in its restrictive sense.

The "General Principles of law" have always been the important source of transnational commercial law that their scope has expanded in line with the development of transnational law, so that today it embodies two types, including "common principles" between legal systems and "specific principles" of international trade. In international law, "General principles of law" as norms that are rooted in national legal systems, obtained through "comparative" studies by international judges and in accordance with Article 38 of the ICJ statute, they are source of international law. Because of their "supranational character" and "dual nature" that stemming from their fundamental personality, these principles have the potential to be present in any legal system, including transnational commercial law. They enter into transnational commercial law through "comparative" method and “codification-based” method; thus, to resolve transnational commercial disputes, the arbitrators are using common principles as result of the studies of international judges. The purpose of this article is to evaluate the role of "general principles of law" in linking transnational law to international law and to this end, the "nature" of the general principles and their “entrance” in transnational law are discussed by analyzing the theories and arbitral awards. The finding of this paper is that the general principles of transnational commercial law are the same general principles of law which recognized by civilized nations as source of international law; these have been entered into transnational commercial law by the actors of international law and in the accepted forms of international law.

The deep Seabed or oceans floor beyond national jurisdiction of states, is rich of mineral resources. Industrial and technological progresses has been leading to increased need for minerals, , many states with the aim of meeting their industrial needs made efforts to explore and exploit the mineral resources of the Area. Since the human knowledge about the Area,s environment is not comprehensive mining and the exploitation may leads to the pollution and environmental damages. In order to protecting the marine environment, the Law of Sea Convention (1982), imposed previsions, whether for provide full protection for the marine environment, or for the full and complete compensation. The protection duty leads to talk about the responsibility or liability of sponsor state.Since the Area is the common heritage of mankind, the Major issue is whether the liability system envisaged by the Convention and related regulations, are a comprehensive system to protect the Area's environment or not?.The present Article with a descriptive-analytic approach identify and analyze various aspects of international responsibility of the sponsor state arise from the activities in the Area.

The international law is a legal system tasked with securing the rule of law on the international scene and attainment of common values such as humanity, justice, and security. This system consists of interlinked values and norms which represent social, political and moral purposes of law, therefore the international law is more based on normative foundations than rules. There are different ways to display the norms, the most important one is the main sources of international law. Despite the significance of the general principles as foundations of legal structure, they remain unknown. The purpose of this paper is to examine the nature of general principles and to evaluate their different functions. Given that, international law is a system with constant renewal and dynamism, the functions of general principles play an important role in preventing the stagnation of international law. They help for growth and responding to new challenges of international law.

The "Agreement on the Application of Sanitary and Phytosanitary Measures" is one of the main agreement under the auspices of the World Trade Organization (WTO) which is called SPS. This agreement includes the rules on application of sanitary and phytosanitary measures. The purpose of the first measure is protection of human health and life of animal. The aim of the second is on the protection of the health of the plant. Nevertheless, the ultimate goal is to protect human health and environment. Well-known examples of the measures can be noted as nutrition standards, licensing procedures transportation rules, and quarantine.
Contracting States of the SPS can legitimately take the sanitary and phytosanitary measures to prevent the importation of hazardous materials, which are considered as a threat to health and life of their citizens, into their territory.
Since the purpose of the WTO is to liberalize trade, the imposition of any trade restriction shall be in accordance with related terms and requirements which ignoring them may lead to the responsibility of the State. SPS and its supplements regulate the terms and conditions of resorting to these measures under the main obligation of the contracting States. These terms and conditions are necessity, scientific justification and risk assessment. These requirements are decisive criteria for finding the legitimacy of contracting State’s action.
This article will examine and analyze these three requirements along with the related case law from the perspective of health protection.

Although the concept of soft law has existed in international law arena for years, international community have not reached consensus on the identical definition of soft law. The subject why states use soft law is remains vague too. In this paper, firstly the various definitions of the soft law concept and the reasons of choosing selected definition are expressed. Then the greatest strength of soft law is investigated. However the point of gravity in the paper is analyzing nonbinding interpretations that international judicial and semi judicial bodies put on the international binding legal rules. From the legal point, except occasionally the decisions of mentioned bodies are Binding with respect to the facts and parties to the dispute before it. However under special circumstances can affect all states subject to the underlying rules regardless weather they have consented to it or not. It is worth noting that soft law plays a major role in the effecting Process which remains largely unknown.

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.

Novelty, human with the new technologies has obtained such a power in which he enables to interfere in his environment and in his own functions. In the new environment science and technology have been forced to consider the non science challenges, including social, ethical and legal issues.At the same time, the most complicated issues are those that cause to changes in the natural position of the Human being. These elements cause to enact various regulations in different areas. Such process also leads to the appearance of the fourth generation of human rights called bioethics.Therefore, the fourth generation of human rights has been formed as a result of progressing both science and technology. This article investigates the relationship between bioethics and human Rights by focusing on their fundamental principles, then we try to response this fundamental inquiry that what are the mutual interactions of the bioethics and human rights?