جستجوی مقالات مرتبط با کلیدواژه « diplomatic protection » در نشریات گروه « فقه و حقوق »

The protection of nationals is a significant issue in international law, albeit not contemporary. However, such protection is recognized by the respective State only if the injured individual has exhausted all available legal avenues for remedies (both administrative and judicial) within the domestic authorities of the defendant State. This requirement, serving as a precondition for initiating a lawsuit before international courts or tribunals, affords the host State the opportunity to investigate the alleged violation and provide redress. This article examines how the International Court of Justice (ICJ/ the Court) addresses preliminary objections and claims of non-compliance with the exhaustion of local remedy rule in cases brought before the Court. Employing a descriptive-analytical method and relying on library sources, the article explores the concept of access to justice and the exhaustion of local remedy rule in international disputes, with a particular focus on the ICJ's judgment of March 30, 2023, regarding the case of Certain Iranian Assets. The primary finding of this study is that the Court, departing from its previous approach and emphasizing the efficacy of remedies, dismissed the United States' objection that Iran failed to comply with the rule. The Court emphasized that the exhaustion of local remedy rule should be assessed on a case-by-case basis, taking into account the prevailing circumstances.

Diplomatic immunity is a type of legal immunity according to which political agents and envoys of states will not be prosecuted. In otherwords, two countries are committed to each other not to prosecute each other's diplomats and senior government officials. Karamba was a Zimbabwean diplomat in the United States who was accused of beating or torturing his son violently. But he was not punished due to his immunity. This article aims to examine the problems of diplomatic and consular representatives abuse and their impunity, and especially the need to compensate the victims. which has plagued human societies today. Article 32 of the 1961 Vienna Convention provides only one exception for prosecuting diplomats, which is related to waiver of immunity. What is the solution to assert the rights of the victims of widespread crimes committed by diplomats and prevent them from abusing their diplomatic immunity to escape punishment and pay damages to these victims? This research tries to answer this question with a descriptive-analytical method. In addition to explain the Karamba case, the purpose of this article is to provide solutions to prevent diplomats with immunity to commit crimes. The results of this research is to show that paying attention to the effective factors about of immunity abuse is an effective way to prevent and deal with such violations.

State right to exert diplomatic protection of its nationals, who have been harmed in other countries, is an incontestable subject matter, provided that they prove their nationality, exhaustion of local remedies, and commit internationally wrongful acts. However, the possibility of diplomatic protection of those with dual nationality in other subject country and resort to human rights of the protected individual is among issues that have been well-established in international practice. Detention, trial, and condemnation of Mrs. Nazanin Zaghari, an Iranian-British Subject, in Iran and UK diplomatic protection of her, and the probability of UK litigation in ICJ once again raised the question of dominant nationality of protected individual and resort to human rights as a basis for diplomatic protection. In this survey, conducted by a descriptive-analytical method, Britain justifications for diplomatic protection of Mrs. Zaghari on the basis of dominant nationality and human rights have been investigated and it has been criticized based on national regulations of Iran in the context of nationality and the principle of prohibition of abuse of rights and estoppel. Additionally, political negotiations with Britain to solve the dispute or Iran withdrawal from the protocol on compulsory admission of ICJ jurisdiction annexed to Vienna Convention on Consular Relations before filing a lawsuit before ICJ can be considered as possible solutions.

The State's diplomatic protection for its national against another State of nationality is the most challenging issue in international law which most recently highlighted by the announcement of the UK for diplomatic protection for Ms. Nazanin Zaghari who is an Iranian-British dual national. Although the non-responsibility of the State of nationality has been frequently taken into account in such situations in traditional international law, it is now possible to have diplomatic protection against another State of nationality by a State that a multiple nationality has its dominant and effective nationality. Regardless of Ms. Zaghari's dominant nationality, UK's practice in its national and international activities shows that it does not believe to do diplomatic protection against another State of nationality, except in cases where the latter consider him British. Therefore, the UK may be affected by its practice. The UK may resort to the International Court of Justice by reference to the optional protocol attached to the Vienna Convention on Consular Relations (1963) and alleging the violation of Article 36(1) of the Convention by Iran. However, Ms. Zaghari's release, which the UK is seeking, will not be a direct result of this resort.

One of the most important features of the law governing the work relationships of international organization staff is its protective character. Functional protection for staff in cases such as protecting staff from interference, arbitrary actions of governments or even their international organizations or influence, as well as providing functional protection to staff of international organizations in matters relating to immunities or compensation for damages. They are crystallized in their area of rights and organizational duties.
In the case of damage done to the staff of international organizations, the right to exercise Functional protection with organization for staff is recognized, and, on the other hand, the state of the affected employee of the organization can exercise diplomatic protection for his or her nationals. Functional protection by the organization is not a barrier to diplomatic protection, or inherent superiority over the diplomatic protection of a state to support an employee who is a national of his own. So there may be a synchronization between them, which must be resolved in any particular case by an agreement, in which case none of these two types of protection is superior to another at a single time.

For long Diplomatic Protection was considered the patrimonial rights of states, and some international cases such as “Mavrommatis” 1924, Barcena Ttraction 1970, Avena 2004 have bolstered this view. Today, as a result of the development of human rights, it is assumed that the protection afforded to an injured individual by his government is based on the fact that whose human rights have been violated abroad by an internationally wrongful act of another State. The United Nations International Law Commission in its efforts since 1995, through the Draft Convention on diplomatic Protection, has been able to show that no longer may diplomatic protection be considered as the exclusive right of state. This indicates that human rights have developed to such extent that they have gone beyond the traditional boundaries of the three conditions for the exercise of this rights, i.e. nationality of Claims, exhaustion of local remedies, and clean hands. In Islamic Law, protection of injured person is a basic principle, without regard for the issue of whether protection of an individual is the exclusive right of his government. The alliance (Agreement) of “Helf al-Fodul” before and after Islam is an example of institutionalized protection of injured person in Islamic history. The present article, by focusing on the efforts of the ILC Draft Articles on Diplomatic protection with its human rights orientation as well as by reviewing the foundations and sources of Islamic jurisprudence, attempts to prove that the preconditions such as nationality and exhaustion of local remedies, to exercise diplomatic protection, are only effective to the extent that it is in accord with human dignity and as long as the individual is not made an instrument for the securing of the potential interests of states. In any event, the International Law Commission isthe harbinger of a new legal work in the field of Diplomatic protection, (lex ferenda) and is not an indication of existing international commitment. (Hard law)

International court of justice as main judicial organ of United Nations not only has duty to resolve disputes between states but also has duty for protecting values which are accepted by members of international community. However, it has duty to resolve disputes according existing rules not according lex ferenda, changes in the area of human rights affected function of ICJ. We can observe clearly these changes in function of ICJ in the case of Guinea against Congo. In this judgment, ICJ by refocusing on human rights rules as a part of corpus of rules of international rules, through helping solidarity of international law, prepared a field for respect and compliance of human rights. Another important outcome of this case is changing the material domain of diplomatic protection and verdict to payment of compensation for reparation of nonmaterial damages.

This essay is an attempt to answer the question of whether Iran as the national State of shareholders has a right to protect companies, whose place of incorporation is a foreign state, but its headquarter and place of business is in Iran.  To this end, the decisions of the International Court of Justice and those of the International Tribunal, the views and opinions of national and international lawyers, the bilateral investment agreements and some national legislations are examined and thereupon it is concluded that because of the existence of a genuine and effective link between Iran and the companies under examination the former has the right to protect the latter.