نشریه مطالعات حقوق عمومی
سال چهل و نهم شماره 4 (زمستان 1398)

International law has developed via conclusion of specialist agreements in diverse fields like international environmental law and international law of trade. However, this development has been accompanied by the worries about fragmentation of international law since in cross-sectoral trade-environment dispute settlement, due to divergent goals of these two regimes, the dispute settlement bodies may be biased and settle the dispute to their own benefit. The present article is to, via the examination of environment-trade disputes, introduce the impact of different application of environmental precautionary principle in international law regime, as a challenge to the unity of international law.

The discussion about the absence of “logic of legal " and the expression of the type, nature, function, and dimensions of it, in order to explain and rationally interpret the rights and avoid the cruelty, is one of the most important fundamental issues in each legal system. In this regard, each of the legal systems has devised a specific logic. In this research, the main issue is the explanation of the specifications of logic governing the legal system of revelation and the expression of the rules governing the understanding of law in order to attain its ends from a rational and reasoning path. In this paper, using a descriptive-analytical method and in response to the question of which logical system of revelation for legal perception is logical? The explanation of the logic of rights and the stages of study is the proper understanding of the legal system of the divine. The summary of the findings and the results of the research is that by relying on the logic of intermingling and strengthening the role of reason and inspiration from the "Fourth Travel" and ascending from the material to the source and the origins of the foundations, principles, and rules of law, and the explanation of material and legal provisions in the light of the rules of the ruling logic, can be argued, arranged, and coordinated.

Border conflicts between states along the water like the lands are various and controversial. In most of these conflicts islands are present and differences opinion in the way of influence on delimitations would prevent the states to reach an agreement. Not reaching an agreement would provide a background to determine applicable laws on the subject and would lead the states to arbitral and judicial courts. The articles of the Law of the Sea Convention are too few in order to determine the rules which are regulate maritime zone delimitation between opposite or adjacent states. There are also no regulations in terms of the role of islands in this process. Instead, international jurisprudence have tried to fill this gap. This article aims to find the given effect to the islands in international arbitral and judicial Judgments and awards, and discuss and analyze the side taken by these courts and tribunals. The methodology of this research is descriptive-analytical which was done with the help of library sources

"Right to defense “and "Openness” are important rights of citizens at the tax trial. In the British legal system inspired by old ideas “Procedural fairness" and "natural justice" primarily observation of these rights with other concepts and principles of a fair trial, was devoted to civil and criminal matters. with development of human rights approach and efforts of judges, particularly from the nineteenth century onwards, has become an undeniable necessity, observation of these criteria in administrative proceedings, including the tax authorities. Right to defense incorporated in regulation of tax tribunals an in the tax trials with all component and principle is openness. In the Iranian legal system, elements of right to defense have faults significant and some of them don’t recognition for taxpayers. About openness not mention in Tax dispute resolution commission trails and supreme council tax as authorities of special administrative trial, too and about procedural review on tax trials by administrative court of justice procedure is closed. Shortcomings in Iran legal system is basic defect about fairness of tax trials and it is essential to legislature think of about recognition and incorporated whole components of right to defense and openness in tax trials.

The existence of antinomic currents within the paradigm of modern law, can lead to the crisis and passing that as well. Bruno Oppetit, considers the formation of European law, the elevation of the place of the custom being source, and the elevation of the role of the judges in the legal order, as influencing factors of the legal relativism. He believes that relativism or pluralism is at odds with modern law. However, the theoretical framework of the modern law of Oppetit is only the substantial legal positivism. In rejecting this theoretical framework and insisting on the fact that modern law must be explained, either in the context of metaphysical rationality or within the framework of spontaneous social rationality, this article aims to answer a this question: Are the factors set out by Bruno Oppetit is contradicted to modern law? Or have they come to the resurgence of this Law, after a period of dominance of legal positivism?

With the rise of investment treaties, investor-state arbitration became the main solution to adjudicate the investment disputes and therefor diplomatic protection claims have declined in numbers. Most investment treaties also provide that each treaty party can bring a state- state arbitral claim against another treaty party concerning disputes about the interpretation or application of the treaty. Furthermore, home state of investor can bring a diplomatic protection claim for violations suffered by it's nationals against the host state. As there is an applicable investment treaty between the dispute's parties, this kind of diplomatic protection claims is subject to distinct rules and prerequisites, governed by the treaty rather than by customary international law. A peculiar focus is placed hereby on the necessity to exhaust local remedies before proceedings may be initiated and on mixed claims that entail espoused claims as well as claims for an own and direct violation of the state.

In the legal system of Iran, the "Guardian Council" is an Election Observer Organization that, in the framework of general election policies, the regulatory requirements of this institution have been announced to enhance the electoral system of the country, to achieve the desired status and to achieve a fair monitoring system. The leading text seeks to answer the question with the descriptive-analytical "What is the mechanism of the Guardian Council's supervisory processes, to what extent do they provide the provisions of general election policies?" By reviewing general policy, it seems that the laws governing supervision There are deficiencies and gaps that need to be reviewed and reformed based on these policies. In this paper, with a pessimistic view of the Guardian Council's oversight process analysis, based on the principles and criteria derived from the general policies governing election observation, consideration is given to deficiencies and gaps in the monitoring mechanisms.

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.

The principle of the Public Trial, which is taken into account in international documents, principles 165 and 168 of the Constitution and some other ordinary laws, is one of the basic features and characteristics of a fair trial and is one of the most important guarantees of that. However, the fact is that in spite of the undeniable nature of the the principle of the Public Trial, this principle has not been fully implemented in Iranian law and its implementation has encountered many obstacles and challenges, And just this, the necessity of discussing obstacles to the realization of this principle is inevitable. In this regard, the present article analyzes the barriers to realization of the mentioned principle in Descriptive and analytical method, including theoretical barriers and legal barriers, , in order to identify these obstacles in the legal system of Iran and to develop appropriate measures in this regard To identify these obstacles in Iran's legal system and to take appropriate measures to eliminate them, an effective step towards real and desirable realization of this principle is to be taken.

One of the main reasons for choosing the mechanism of arbitration by the parties to the international investment disputes is the "principle of finality" in the arbitration awards; that is, generally they can not be appealed in merits. But at the same time, the principle of finality has led to different arbitration investment tribunals issued contradictory and sometimes mistaken decisions (final and binding), which, of course, can not correct them in merits. Issuing of such decisions by the tribunals has caused a crisis of incoherence and inconsistence in the international arbitration awards. In order to resolve this crisis, commentators and scholars have proposed various reforms to the international arbitration system that one of the most prominent of which is the creation of a appeal mechanism. This research seeks to analyse the basis of the call for, as well as the potential advantages and disadvantages of an appellate mechanism and its possible effects on the principle of "finality." Finally, it concludes that existing international or regional mechanisms could be used to resolve investment disputes in order to make future reforms to the international investment arbitration system.

In general, the issue of the relationship between economic power and political power has attracted the attention of many scholars of law and politics. The major concern is that political power can also be achieved by economic power and democracy falls to the hands of affiliates of wealth. The uncontrolled flow of money and financial resources into the political arena and electoral competitions can seriously endanger the key values ​​of democracy. One of the channels for the entry of these resources into the political scene is the donation of the wealthy to political parties, which also threatens the perceived influence of public influence on public decisions, and endangers the principle of equality of persons. In this article, a descriptive-analytical method was used to examine the financial safeguards of parties' financial interests. It was found that to achieve this goal, the limitation of donations to parities, election costs, disclosure and, finally, financial monitoring and reporting by parties is essential.

Following the outbreak of crisis in Syria and the subsequent internal armed conflicts, a large number of Syrians had to leave their home country in order to save their lives. Some fled to the neighbouring countries and some went to the European ones. In the present article, we will first discuss certain international law concepts to see which is more suitable to classify Syrian migrants thereunder. Then we will proceed to identify the rules of international law applicable to them. Finally, a legal assessment will be made of the measures undertaken by the host countries in response to the flow of Syrian migrants into their soil.

Since the cultural property of nations is an unrepeatable heritage of all humanity, the need to prohibit reprisals against these property is inevitable. The most important conventional and customary international documents in this regard are article 4 (4) of the 1954 Hague Convention, article 53 (3) of the First Protocol 1977, and Rule 147 of the Customary International Humanitarian Law (2005). Despite of these documents, the hostile parties still do reprisals  against the cultural property of the nations and destruct them continuously. An example of this claim is the reprisals by Iraq against Iran's cultural property during the War of Iran and Iraq, and these  actions in the ancient city of Dubrovnik during the Yugoslavia wars. The present study indicates the structural weakness of the existing rules and the need to focus on the guarantee of the implementation of these documents.

Development in our country has faced many ups and downs. Iranians’ general feeling and historical experience imply that national development faces fundamental challenges. From the past to the present time, this question has been raised in public and among the elites: ‘ Why Iran has not been developed as it ought to be or has not reached sustainable development, and what is the main impediment in its way to progress.’To answer the above-mentioned question this paper tries to show that lack of institutionalization and establishment of rule of law should be regarded as the main barrier to the Iran’s national development. In the system level analysis, we believe that the root of rule of law challenges rest on the underdevelopment of the legal system. Studying the inter-connection between the main concepts such as rule of law, legal development and national development leads to the conclusion that ‘the way of Iran’s national development goes through the country’s legal development.’This paper has taken advantage of the theoretical framework  and conceptual model of rule of law and the concept of legal development. The main approach of this article includes a novel viewpoint based on the concept of ‘law as dispositif,’ ‘constitutional amendment,’ ‘codification and purification of general policies, rules and regulations,’ and ‘securing and regulating fundamental citizenship rights.’

Substantial issue of this research based on enumerating of reciprocal effect of Non-proliferation nuclear Armament's Rule and Iran Nuclear Deal (JCPOA& RES2231,UNSC) through the interpretation and  possible change of obligations of mentioned Rule and Deal and also, its profits and damages for Iran and nuclear international law system. For this purpose, identification and analysis obligations of Non-proliferation nuclear Armament's Rule, Iran Nuclear Deal and reciprocal effect of two variant to each other become under the agenda. In spite of, obligations of the rule applied immediately and completely and explicit ignorance of procedural effect of mentioned deal to the rule, but, the effect become clear in three separated scopes. First, in technical field; restrictions in uranium enrichment, heavy water and totally nuclear fuel full cycle and second, in nuclear international law system; main related issues are admitted through "Additional protocol", "Modified Code 3.1 of the Subsidiary Arrangement to Iran’s Safeguards Agreement" and "Roadmap for Clarification of Past and Present Outstanding Issues".Third scope admission and performance of non-legal  and soft regime such as Nuclear Supply Group (NSG) and Missile Technology Control Regime(MTCR) and Proliferation Security Initiative (PSI).

The article 27 of ICC's statute does not recognize immunity of Heads of States as an obstacle for punishing them and states that this principle is for all persons including Heads of States. This matter is correct about the parties states to this statutes because they have implicitly abandoned from immunity of heads of states by accepting being a party to statutes if they were committed the crimes within the jurisdiction of the court. The problem is where the Security Council refers the situation to the prosecutor under article (b) 13. In this case some of international law principles such as imposing an obligation to the third states and customary rule of immunity of Heads of States place against possibility of deal with international crimes and that establishes this challenge in which how should apply provisions of article 27 about such a state? Of course, court faces with another article in the statute i.e. the article (1) 98 in which it explicitly states that court must obtain the cooperation of that third state for punishing the it's head of state. The fact is that the article 27 should been considered in the light of others rules of international law and it can be said that court cannot deal with the crimes which committed by the Heads of States that is not a party of statute , even by referring the security council, unless it applies the article (1) 98. According to this paragraph of article 98 The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Enemy alien is used to refer to those aliens that are nationals of a country that you are fighting with. Theory and practice rightly distinguish between expulsion of alien in peace and war. A war will make nationals of your opposite state to enemy aliens. The belligerent state may consider it convenient to expel all of the aliens present in its country, including permanent or temporal residents. However this act may seem hard and unfair to aliens, but this has been accepted that this act is justifiable. International humanitarian law studies different situations including deportation or transfer of citizens such as aliens which are related to an armed conflict. However, states use this right largely by the excuse of internal security and public order. But the power of expulsion of aliens should be considered a special one and be used in special situations.

Law area is affected by globalization and follow-change stages that in some areas inevitably have to be removed quickly to take advantage of globalization. In the areas of criminal laws specially laws in cyber space and the crimes committed in this space need to globalization and apply coordinated and unified international regulations approval. The borderless cyber space has created the physical and parallel world that in fact, law control and administer isn`t under control of sovereignty. So, we need a coordination and international regular assistance-that can control this space and rule it not to remain unpunished any guilty and this will not obtain without developing a coordinated and unified international regulations. because the crimes committed in this space leftbehind their traditional and geographic boundaries and because of their characteristics, it could be considered as international crime. In this regard, it is necessary to create universal jurisdiction. Despite various activities, international organizations have   not meet to its goals yet, to submit proposed regulations to homogenization and synchronization regulations relating to cybercrimes, so, uniform regulations that rectify deficiencies of other provisions, must be implemented and can be obtained universal acceptance, is essential.