محمد حبیبی مجنده

Today, due diligence obligations have a special significance and undeniable role in international law. One of the first and most important fields of emergence of these obligations can be considered international investment law. This study attempts to locate the position of due diligence in international investment law and examine the protective obligations of host state in the light of this overarching concept and furthermore to establish the obligations flowing from due diligence on foreign investors jurisprudence with reference to arbitral tribunals.This article concluded that due diligence standard serves as a general obligation to impose a duty on the host state to protect foreign investment and at the same time it puts a duty on foreign investor to conduct responsibility to strike a balance between the interests of both sides. As a result, there is no field in international investment law in which due diligence has no role to play.

Foreign policy can be considered as a set of goals, plans, and actions aimed at safeguarding a country’s survival and enhancing its position in the international system. However, the concept of survival extends beyond mere physical existence; it encompasses other critical factors such as economic development, political security, and social stability. The key question is: What factors influence a country’s foreign policy decisions and how do these policies manifest themselves?
There are generally different approaches to answering this question. The first approach is related to structural realists, who assert that the factors influencing foreign policy are rooted in the macro levels and structures of the international system. In contrast to this view, another group of theories—regardless of the role of structural components—believes that internal factors within countries play a more decisive role in shaping foreign policy than structural factors. Finally, some other theories, instead of strictly separating the influence of structural (exogenous) and internal factors, emphasize the interaction between these two groups of factors and the impact of the structure through internal (endogenous) level factors.
Influential factors operate at two levels within the international system and geopolitics, ultimately shaping a country’s foreign policy. At the innermost layer, decision-makers play a pivotal role. Much of this layer operates through the constitutional mechanisms of countries. Notably, the constitution of the Islamic Republic of Iran contains several principles and clauses that delineate the goals and priorities of its foreign policy.
 
Clause C of the second constitutional principle emphasizes the rejection of tyranny, oppression, and domination—a critical indicator within Iran’s system. Substantively, the constitution outlines rules governing the government, addressing the relationship between the government and the people. It emphasizes comprehensive public supervision over government affairs and regulates crucial matters within the political society. From the constitution’s content, we deduce its complete supremacy over all subjects, authorities, and laws. Given that this law establishes qualifications, it inherently surpasses all institutions and authorities listed therein. Consequently, no authority or institution should act contrary to the Constitution, as doing so would compromise its competence.
Foreign policy consists of four principles (principles 152 to 155). Even though foreign policy measures fall under the duties of the executive branch, their importance warrants an independent chapter. The constitution unequivocally rejects any form of hegemony in foreign policy, emphasizing the preservation of all-round independence and territorial integrity. It prioritizes defending the rights of all Muslims and maintaining non-commitment to hegemonic powers, promoting mutual peaceful relations. Additionally, the constitution designates non-belligerent countries as a crucial foreign policy goal. To this end, it prohibits any contract that would result in foreign domination over natural and economic resources or other national affairs.
 
Furthermore, within this chapter, the Islamic Republic of Iran upholds the ideal of human happiness across the global human society. It recognizes independence, freedom, and the rule of truth and justice as fundamental rights for all people worldwide. Despite avoiding interference in the internal affairs of other nations, Iran actively supports the rights-seeking struggles of the oppressed against arrogance wherever they occur.
Accordingly, fundamentalization is one of the most effective approaches in shaping and advancing the movement to safeguard the fundamental rights and freedoms of citizens against governmental authority. This issue has garnered significant attention within the realm of public law. One of the primary functions of public law is precisely to protect citizens’ rights and freedoms from government intervention.
 
Basicization, as defined and operationalized, involves elevating the value and status of laws and regulations—commonly referred to as “normal norms”—to align with the principles and validity of the constitution. Essentially, basicization grants these normal norms the same value and legal standing as constitutional norms. This process occurs through judicial proceedings and the application of legal interpretation tools.
The foundation and keyword of the foreign policy of the Islamic Republic of Iran originate from Islamic beliefs and values, verses, narrations, valuable views of Imam Rahal (RA), and the leaders of the system. These principles align with the Constitution and emphasize preserving human dignity, realizing happiness, and promoting human well-being within the global community under the umbrella of peace. The foreign policy encompasses interactions with the world, security considerations, human freedom, and equality. It also underscores maintaining independence while rejecting domination.
 
Given the significance of this subject, the constitution of each country outlines and elucidates the foundational principles and strategic directions of foreign policy. Consequently, a clear vision and roadmap are established for various nations in this regard.
In the end, it should be pointed out that the Islamic Republic of Iran has made all efforts to secure national interests, prosperity, and security within the turbulent international system. This endeavor is pursued with a hopeful approach, aiming to achieve the lofty goals of the Islamic Revolution—a vision derived from the profound teachings of Imam Rahal (peace be upon him). The country’s foreign policy aligns with the deep insights of the great leader of the Islamic Revolution, Imam Khamenei Dam Zaleh Al-Ali.
“In this direction, the diplomatic system warmly welcomes the companionship, participation, and critical perspectives of society’s elites. Their collaboration contributes to achieving the country’s foreign policy objectives within a broad and consensus-based framework. The foreign policy apparatus remains committed to addressing issues closely tied to national interests and security at both macro and national levels. It actively seeks to prevent internal political disputes from encroaching upon foreign policy matters and emphasizes the importance of diplomacy in navigating these complex challenges.”
In particular, the provisions contained in the principles of the constitution have had a significant impact. Over the past four decades, different governments have employed various strategies to achieve the constitution’s stated goals, particularly in securing and guaranteeing national interests, including national security. They have embraced a comprehensive approach.
 
However, an important consideration for future researchers is to what extent the Islamic Republic of Iran’s system exemplifies the goal of promoting human happiness within the global human society—a society of which Iran is undeniably a part. Is this achievement fully realized? Reflecting on this matter may even prompt a reevaluation of certain constitutional principles related to Iran’s foreign policy.

The right to participate in cultural life, at the global level in Article 27 of the Universal Declaration of Human Rights and Article 15 of the International Covenant on Economic, Social and Cultural Rights, and at the regional level in Article 17 of the African Charter on Human and Nations Rights and Article 14 of the Additional Protocol to the Convention on Human Rights. It has been accepted in the American and Iranian legal system, in the constitution, ordinary laws and even soft law. At the level of international human rights, this right means real and guaranteed opportunities for all groups or individuals to freely express their works, communicate, act and engage in creative activities with the aim of development In Iran's domestic laws, by studying the principles of the constitution and related ordinary laws, it can be said that the said right has two different meanings: the enjoyment and benefit of different individuals and groups from cultural goods that are in the form of various written, visual and audio media. It is conceivable and the right to belong to a specific culture and to participate in its prosperity, which brings up the discussion of subcultures and cultural participation. Today, the issue of people's participation in the administrative system has been accepted as one of the indicators of good administration, participation has different dimensions and one dimension is cultural participation in the structure of the cultural administrative system, examining this right in terms of administrative law is also important.

Environmental considerations have always been a challenge for foreign investment. The need to observe environmental minimums from the beginning to the end of the investment is also a concern of environmental law activists. In the meantime, the host state faces sometimes conflicting commitments. State dual obligations to foreign investors on the one hand, and the whole citizens on the other, has in many cases led to disputes, rooted in environmental norms. The main question is how the arbitration mechanism can take an active stand in the face of such disputes? The main purpose of this study is to examine the reflection of these conflicts in investment arbitration and the importance and role of arbitration in improving the environmental status. The authors of this paper believe that the arbitration system has tools that it can use in resolving disputes to balance these conflicting obligations. Some of these legal tools are directly or indirectly related to investment agreements, and others are beyond the treaty and based on international principles, rules, customs and practices.

Humanitarian assistance such as food, water, sanitation products, medicine, grants, etc.., should be distributed among the affected population, after the gathering process by the damaged State, and in some cases, with the support of other governments, international and non-governmental organizations. At this stage, created opportunities and numerous resources will provide the ground for corruption of individuals and groups and slow down the process of relief and reconstruction. Consequently, preventive measures by governments to fight corruption are important before and after disasters. Despite the importance of this issue, the international community has so far only tried to address this fundamental problem on a case by case basis and it suffers from the lack of an independent body to fight corruption, especially in times of relief. For this reason, in this article, while describing the actions of governments, governmental and non-governmental organizations, in particular, Transparency International to fight corruption, international treaties and conventions and their solutions to prevent and combat corruption during natural disasters will be examined.

The aim of this research is the considerate attitude three main approaches including government oriented , no government approach or minimal government involvement and participatory approach .This research is analytic descriptive and author investigate by library method and arrangement index card and reference to various books and papers .The findings indicate that in government oriented approach including the views of Socialists and Marxists , Fascist and Nazi governments, welfare and green states, The state's role in protecting the environment is emphasized. The non-governmental or minimal intervention approaches also include the views of liberals, postmodernists, and Anarchists and environmentalists emphasize the limited and minimal role or lack of involvement of governments in the field of the environment and collaborative approach, that is the most appropriate and logical approach emphasizes the role of NGOs and the role of local organizations as public sector supplementing organizations on the environmental issues of countries.

If there is a foreign factor in intellectual property disputes, then the matter of choice-of-court and choice-of-law will be arisen. The most important question in the parties’ minds is that whether they can choose the competent court and applicable law by agreement and also prevent from the complicated and vague process of the forum interference. The freedom of choice is accepted as a principle in the determination of competent court and applicable law in the intellectual property disputes and there are few exceptions. According to all international documents the choice-of-court agreements will cause exclusive jurisdiction unless otherwise is specified. Those agreements shall govern all rules except those of subject-matter jurisdiction. Choice of law is valid in IP contracts but there are hesitations over the ownership and infringement of IP rights. According to the most acceptable opinion, choice of law on the ownership of intellectual property including existence, validity, duration, infringement, assignment, … is not valid because of imperative nature of regulations over those subjects. Also choice of law on infringement can be enforceable only after the commitment of infringing act.

Human Rights as inherent unwairable and inseparable rights from human personality has no role in private law and contract law conventionally. But today contractual unequal relationships and abuse of weak party employment of human rights (particularly human dignity, equality) due to contract s control and balance establishment in contractual relationships in necessary. This matter means that content of contracts must not be contrary to basic values of human rights. Human rights override contract law in many ways. The best way is indirect influence. This way help to protect contract law independence. In this way contracts interperated under general rules of human rights. This influence sometimes is storing and sometimes is weak.in some legal systems the function of state about protect and guarantee of fundamental rights in horizontal level is anticipated in constitution. This matter in both Roman law and Common law has precedent. In German and England courts judgment private contracts held void by adduce to human rights. This research has show that Constitutional structure and main rules referring to human rights in contract law in Iran is indirect influence. Prohibition of abuse of right and privation of right at all are two samples of this capacity

Historical and contemporary evidence shows that for technologically backward countries, development without commercial support (where tariffs are the main pillar) and subsidies, if not impossible, will prove difficult. Trade liberalization only works well if it is gradually selected as part of a long-term industrialization policy. Almost all of today's developed countries have organized their economies through the use of tariffs and subsidies in the nineteenth and twentieth centuries and after years of continuous efforts and pursuit by developing countries to adjust for economic inequality, and in particular by addressing the issue. UN-affiliated institutions and assemblies, including the United Nations Conference on Trade and Development (UNCTAD), have agreed that the world's industrialized nations should reduce discrimination in international trade, as well as provide an opportunity for other nations to increase foreign trade and increase their share. They trade in commodities and commodities exported to developing countries Expanded and less developed, take advantage of bilateral and mutual concessions in the Doha Round, thereby enabling the developing world to market their exported goods and products more readily to industrialized countries. The first step taken in this regard is the creation of a "general system of preferences", which has been established in collaboration with and under the support of UNCTAD. Under such arrangements, most industrialized countries, including EU members, favored many of the goods and products manufactured in developing countries.Such tariffs are usually lower than the full tariffs, and in addition to these arrangements, developing country groups in the developed countries market have better competitiveness and are also encouraged to importers. To meet their import needs from developing countries on equal footing, that is, to create conditions of competition and economic flexibility. This initiative, aimed at empowering production and quality improvement in developing countries, has goals in the WTO system of preferences. Preferential trade agreement is the mildest type of economic convergence that the signatory countries agree to impose preferential tariff rates on imports of each other, which is necessarily accompanied by trade liberalization and discrimination against third parties. In the four paragraphs of this article, we first analyze the reasons for preferential tariffs and the WTO's attention to them, and in the second paragraph, we consider trade liberalization, which is one of the main goals of the WTO in the light of the use of preferential tariffs. Paragraph 3 also assesses the necessity of tariff system integration in developing countries and, in paragraph 4, outlines the new and qualitative criteria to be applied in tariff system integration using preferential tariffs. We have made a decision.

The research is descriptive-analytical.

In the discussion of this paper, we examined the impact of preferential tariff agreements on the integration of WTO tariff systems, and although trade tariffs may be due to preferential tariffs among economic blocs, diversion of trade between countries is generally possible. It has been proven that it will lead to the creation and development of commerce and industry and, in the short and long term, will require countries to comply with the principle of good national behavior, and in particular the full ethics of all nations but the WTO empowerment clause, as prescribed by the General System of Preferences and Customs Unions, should be followed by careful monitoring and setting the initial rates for negotiating membership or issuing harmonized customs codes at the time of the announcement of the preferential tariff agreement and timetable for The gradual liberalization of trade will support the industries that support it. However, according to the rules of origin, the use of preferential tariffs for bilateral and multilateral trade is to some extent seen with the allocation of at least 40% in WTO and bilateral or multilateral and regional regulations and are emphasized the stages of producing a commodity for trade between the countries of an economic bloc, but in order to integrate tariffs, in a notice board and a regulatory plan by the organization, this minimum participation rate of 40% must be established by creating a mechanism. In the medium term, up to 60%. The research findings also show that the creation of free trade and customs zones and the reduction of tariffs by signing preferential trade agreements will increase the volume of intra-group trade, exports and imports, as well as welfare effects for members.The research findings also show that creating free trade and customs zones and reducing tariffs through preferential trade agreements will increase the volume of intra-group trade, exports and imports as well as bring benefits to members. so:(A) The WTO, in order to achieve the goals of the Doha Round, and reduce tariffs, must provide the conditions necessary for the empowerment of southern countries through the transfer of technology to industrialized countries.(B) Subject to the provisions of Article 24 of the GATT Agreement, States Parties to the Regional Blocs shall, for the purpose of integrating and integrating their internal tariffs into the World Trade System, provide a means other than to establish a timetable for reducing tariffs and moving towards the establishment of a free zone; They do not have trade, and through which regional institutions act as a gateway to the WTO and free trade.(C) The industrialized nations, in accordance with the rules of the organization, apply the general system of preferences and tariff agreements to political pressure and to accompany developing countries (not for commercial liberalization and tariff integration) and in return for their markets. Providing them with exports and heavily using the WTO's more powerful means of restraining exports to those countries for reasons such as dumping, support tariffs and subsidies in the agricultural sector, the EU is a prominent example.(D) The World Trade Organization shall set the basic tariff rate for the member countries and the negotiation process in relation to the different categories of harmonized codes and its relative and absolute advantage in the production of goods and shall be monitored more closely by the developing countries. The supplier of the rules of origin with at least 40% of the production process of the product reaches to over 60% with a 10-year and 25-year long-term plan to achieve the goal of liberalizing and integrating tariff rates within the organization.

The undesirable effects that impose on environment by various economic activities is not hidden to anybody and it is caused the demolition of uncompensable environmental sources. Our country environment is not safe too in contrast damages done by harmful economic activities and is susceptible various uncompensable injuries. In regardless harmful effects of economic activities to environment, the goal of this paper is the consideration the economic methods for protection of environment and effects of competition and monopolization of economic activities to emphasis in legal system of Islamic Republic of Iran. This research is analytic descriptive and author investigate by library method and arrangement index and reference to various books, papers and statute laws. The findings indicate that regardless the existence the economic and financial methods in all countries specially Iran in various statute laws, the government has been successful in liability the private section to the regard to environmental standards but it has not been successful in liability the governmental section to regard to environmental laws because more of big factories in Iran is governmental and also the management of department of Environment is governmental too.

The Syrian Arab Republic has been the scene of political protests since early 2011, which soon became a non-international armed conflict. In these clashes, chemical weapons were used, the most important of which happened on 21August 2013, with more than 1,400 people killed. Legally speaking, it was argued whether the use of chemical weapons (CW) in the internal conflicts of Syria was considered an international crime under the Court’s jurisdiction, in light of the fact that the use of CW was not counted as a crime in the Statute of the International Criminal Court (ICC); and is it possible for the Court to exercise jurisdiction over Syria's situation in light of the fact that Syriais not a party to the Rome Statute of the International Criminal Court? In this paper, the researchers have considered the use of CW in Syria's internal conflicts as a war crime, by analyzing the subject, interpreting the Statute and applying it to elements of the crimes under the jurisdiction of the ICC. Also, the study indicates that, according to the amendments to the Statute of the ICC in Kampala, Uganda, in June 2010, if the Security Council refers the "situation" of Syria to the ICC, it will be possible for the Court to exercise its jurisdiction.

The International Court of Justice, by way of applying the law through the interpretation of the rules and regulations of the international community, has played a significant role in developing International Law that entails the concept of change and innovation. The main function of the Court is to settle legal disputes submitted to it by States. In this regard, the Court in some of its Judgments has resolved ambiguities in international law by applying dynamic interpretation to correspond the true intention of the parties and finally discovering their true intention with considering circumstances and requirements of the international community. By making a relationship between the International Court of Justice which is unable to make rules expressly, and the dynamic interpretation, that some believe it can make a rule, this paper tries to analyze how dynamic interpretation besides other effective mediums in this regard can determine and make clear the existing ambiguities and fill the gaps in International Law.

In parallel with development of international criminal courts in recent years, they have been reviewed and criticized too. Part of these criticisms and reviews is formulated under the title of “democratic realization of criminal justice”. Based on these criticisms, to enhance effectiveness of international criminal courts and their ability to achieve justice more, on one hand the method of establishing international criminal courts must become democratic, and on the other hand the quality of the court's behavior and interaction with victim populations must change in a way that leads to participation of them in investigation process. By studying these criticisms, this article concludes that although practically there hasn’t been considerable support for democratic establishment of the International criminal court, the need of victims’ participation in investigation process has been realized gradually and it is obvious in regulations of international criminal court. This process, to some extent, has helped the democratization of these institutions

The International community officially paid attention to terrorism in early 1960s, in term of legal and international aspects of the issue, through ratifying the first-ever international convention in this regard, i.e, the Tokyo Convention (1963). By adopting resolution 3034 (1972), the UN General Assembly introduced the issue in the UN literature. Half a century after the first global attention to this phenomenon, and despite ratification and adoption of some 150 conventions and UN resolutions, international community still suffers from lack of a coherent legal approach in fighting terrorism. This article aims to analyze the evolution of terrorism in international legal instruments, and provide an assessment on the legal gaps and their implications on self-defence and fighting terrorism.

Copyright or author’s right and right to access to information have become common discourses in cyberspace. There is an apparent or real tension between the two, since copyright grants to its holderchr('39')s exclusive rights to control access to information contained in their works while everyone’s right to access to information as a manifestation of the fundamental right of freedom of expression requires access to information. The tension, once confined to domestic level, has recently captured international attention due to advances and expansion of communication technologies and digitization of copyrighted materials. WIPO was the first international body to notice the tension and express the idea that the historical mechanism of exceptions and limitations to copyright is capable of solving the potential conflict. But the adequacy of this mechanism is faced with challenges stemming from various factors.

This paper will argue that the traditional mechanism needs reinforcement through a pro-right to access approach to exceptions and limitations to copyright, on the one hand, and the States’ obligations to respect, protect and fulfill the human right to access to information on the other.

The study attempts to answer whether strategies of social and cultural “destruction” should be considered “genocide” under international law in the absence of systematic killing, or at least widespread physical attack. Given that at the moment cultural genocide is not within the scope of the Convention on the Prevention and Punishment of the Crime of Genocide, this study makes it clear that physical or biological acts are not the only ways to annihilate a group. It is possible to wipe out a human group without actually killing its members, i.e. by destroying its language and religious institutions and objects, restricting traditional practices, persecuting its clerics and intellectuals, in short, by destroying its cultural heritage. There have been many cases of cultural genocide throughout contemporary history, for example by Israeli government against Palestinians. To ignore this means to deny the protection of fundamental human rights of those who need it the most.

The United States of America has long violated or reduced the immunity of certain states in a unique manner, an action that is rather unusual in International Law. In this paper, the practice of the US is briefly described and the long-standing customary rule of Immunity will be discussed from the International Law perspective. Then, the US conduct in the context of International legal rules will be assessed. Eventually, with a glance at the ICJ judgment of 2012, the performance of the US will be evaluated in light of the guidelines referred to in that judgment. By comparing the practice of the US with the rules and principles of International Law as well as the ICJ Judgment of 2012, it is observed that this practice, in most cases, is not consistent with International Law and the findings of the ICJ Judgment of 2012.

Environmental challenges of ships’ ballast water discharge have attracted the international community’s attention. Discharge of ballast water is one of the most important sources of the degradation of marine environment threatening biodiversity and human health. Two sets of challenges are posed by ballast water: oil pollution that is caused by the discharge of oil-mixed ballast water that is a type of vessel-source pollution mainly dealt with by MARPOL Convention and the introduction of alien species carried by ballast water is addressed by the IMO 2004 Convention for the Control and Management of Ships’ Ballast Water and Sediments. There are also some non-binding guidelines that IMO and its marine environmental protection committee have adopted to encourage the countries to oblige the ships under their jurisdiction to conform to these standards. This article tries, first, to highlight the ballast water environmental challenges and, secondly, to assess the above mentioned efforts.

The convention adopted in UNESCO on protection of underwater cultural heritage prescribed that the sunken state vessels and warships, whether regarded as cultural heritage or otherwise, shall remain under exclusive sovereignty of the flag state, unless it abandons and/or explicitly waives its rights and title to such vessels. Nonetheless, the relationship between costal and flag states shall take form on cooperation basis. Meanwhile, although excluded from the text of the convention, there are ancient set of rules and principles (e.g. the law of finds and the salvage law) which in certain conditions (consent or authorization of the competent states involved) may be applicable to marine issues, namely exploration operations and recovery of underwater cultural heritage or sunken vessels.

At first glance it may seem there is no mutual supportive relationship between copyright or rights of the authors of literary and artistic works, on one hand, and freedom of expression on the other. On deeper analysis, however, there are areas of such mutual support. This article attempts to examine these areas. The author is of the opinion that copyright and freedom of expression help and support each other in various ways. Copyright contributes to increase the production of literary and artistic works through granting exclusive rights to the authors and in so doing, creates a marketplace of ideas and information to be available to those who intend to exercise freedom of expression and thus allows them to have access to a variety of ideas and information in order to form their own points of views and express them. On the other hand, copyright empowers the community of authors and helps free them from being dependent on the state. Freedom of expression, in its turn, creates suitable environment for flourishing creative activities and removes the shadow of censorship and undue prosecution. In examining the issue, the article first deals with some key points in copyright and freedom of expression and then explores the ways of mutual support.

Economic sanctions whether imposed unilaterally or on the basis of the chapter VII of the UN are a powerful means for enforcing a state to fulfill its international obligations. Sanctions, like or not, would have lasting negative impacts on the people of the targeted state. The right to education as an empowering right would not be excluded from the detrimental effects of the economic sanctions. Since this right is related to other human rights including the right to food, the right to water, the right to a basic standard of living, etc., it is directly or indirectly susceptible to breach. This right is considered as an inalienable right so that even the UN Security Council cannot ignore it for the purpose of protecting international peace and security. However, the Council, by adopting resolution 1737 (17) against Iran’s nuclear program, has violated the right to education of the Iranian citizens.