فصلنامه پژوهش حقوق عمومی
سال بیست و یکم شماره 66 (بهار 1399)

International Environmental Law is one of the branches of international law that has been developed several decades ago, especially after 1970. Since then, the process of humanization of international law has begun and extended to various branches of international law. The humanization of international law had begun with an individual-oriented approach, and changed to humankind-approach afterwards, which means it seeks to achieve common high goals among all humanity as a whole. International environmental law is one of the branches of international law that is influenced by this process and based on objective and subjective factors in the environmental field has a humankind-approach. To the authors, the influence of the dignity elements on the basis of invoking to human dignity in the field of environmental law and human dignity capacities, has led to humanist and the humankind-approach of environmental law.

Investment arbitrations have their own challenges due to their asymmetric nature, which arise from the essential difference between the parties to the claim. The investor on the basis of the investment agreement can bring a claim against the host State, but on the contrary, the counterclaim by States for changing the current process of investment arbitration, in which the ultimate conviction is usually for the State, faces with a number of fundamental challenges. This is due to the non-anticipation of the possibility of counterclaim by States and the difficulty of imposing the obligations of international law on investors. These gaps along with the possibility of violation of human rights by the investor, ultimately, lead to non-compensation of third-parties, who are in many cases the direct victims of human rights abuse in this process.  Urbaser  v. the Argentina is the first ICSID case which the ICSID arbitration tribunal accepts a counterclaim of a State based on human rights violations and puts it into detail analysis; although finally the State remained unable to prove its claim, and the counterclaim had been rejected in merits.

The rapid development of the aviation industry depends on the safety of aviation. Aircraft safety is one of the most important issues in aviation and is not only an internal matter, but also a transnational one due to its nature. The development of the aviation industry is not the same in all countries. Non-compliance with international regulations and standards affect other countries’ aviation safety and may lead to aviation accidents and incidents. No country can take steps to ensure air safety without considering other countries situation. Since the National Aviation Organization is the main body in charge of aviation safety and the implementation of these regulations in the country, this organization shall make efforts to perform its assigned duties. This article seeks to explore the role of this organization based on international recommendations and standards and national rules and regulations to ensure the safety of aviation.

Internet Multi-stakeholder governance is the latest achievement of the legal doctrine on how to regulate the rules governing the Internet (as a clear indication of the cyberspace). After the first World Summit on the Information Society (WSIS) which was held in 2003, and faced with the acceptance of governments and other stakeholders in the cyber space, it draw serious attention and became operational. In fact, the promoters of this form of global governance are striving using the common concepts and rules of international law to organize the field which unlike the classic international law its only active actors are not the governments, and to some extent, international organizations and this time, other stakeholders such as social groups (individuals) and companies have a major role and influence. This paper uses an analytical-descriptive method to study the role and effectiveness of each stakeholders in the future of internet governance and the context, implications of applicable international law in this area, such as soft law, related international organizations and, finally, its existing problems and disadvantages.

The Council of Money and Credit, as one of the most important components of the central bank of Iran, is responsible for regulating macroeconomic policies of the country’s banking and supervision over banks and financial and credit institutions. In order to carry out its duties, the Council has laid down many approvals that are binding on the banking system. However, in some cases, these decisions are in conflict with current laws and regulations or have been outside the scope of the legislative authority of the Council. Hence, there are many questions and ambiguities regarding the position and legal scope of the decisions of the Council of Money and Credit. For instance, are the council’s regulations mandatory for other executive organizations in addition to banks and financial and credit institutions? Otherwise, if the rules are contrary to the Constitution, or the ordinary law, what is the duty of the executors? Given the lack of anticipation of the prior assessment of the above-mentioned approvals, in the course of a dispute and a lawsuit, does the court have a duty to assess and have the right to disregard the effects of such decisions, which have not yet been canceled?

The Technical Barriers to Trade (TBT) Agreement is one of the covered agreements of the World Trade Organization (WTO), one of the main objectives of which is to harmonize regulations in the area of technical barriers to trade. While under the TBT Agreement, governments can legitimately apply technical regulations and standards for the purpose of protecting public interest, including health and safety, this Agreement, establishes four basic principles including non-discrimination, prohibition of creating unnecessary obstacles to international trade, harmonization and transparency thereby balancing those interest with free flow of cross-border trade. The Purpose of this essay is to evaluates the Iranian regulatory landscape in light of these TBT provisions and the relevant provisions of the WTO Trade Facilitation Agreement. It demonstrates that Iranian legislator, with some exceptions, has substantially disregarded the concepts and principles of TBT Agreement. The same holds true with respect to the recently adopted law titled "Reinforcement and Development of Standard System Act”, enacted as of October 2017, leading to increase in trade costs and therefore undermining Iran’s export competitiveness.

Distinction between airspace and outer space, despite its theoretical benefits and practical effects, has been controversial. The legal system of airspace is based upon sovereignty principle of territorial state; contrary to that of outer space which is based upon freedom to use. Where does space begin or at what altitude does airspace end, determines the domain of states powers in exercising sovereignty over the space. The present study examines with a critical approach the criteria of this distinction, the status of outer space ownership; comparison of airspace with sea area. By resorting to general principles of law, due to absence of an accepted legal rule, reliance must be made on incontrovertible criterion under which, the lowest point of an orbital flight to be considered as the beginning of outer space, and, the maximum altitude of a plane capable of flying as the airspace located in the air territory. Given the rules governing outer space are specific regime, where there is doubt as to state sovereignty, its existence should be presumed. Therefore, the area between airspace and outer space is governed by air law.

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.

Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility of multidisciplinary in law is of concern here. 
In this study, it is argued that, sociology of public law as a multidisciplinary field of studies has affected theory of state. The study of public law and sociology rests on the belief that legal rules and decisions must be understood in the context. Public law is not autonomous, standing outside of the social world, but is deeply embedded within the society.
In this paper, it is illustrated how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law. It is concluded that sociology of public law is based on “legal realism” and the concept of rule of law is shaped from this theory.

One of the aspects of the synthesis between religious freedom and freedom of teaching is the correct description of the legal system of religious education in schools. The aim of the research is the explanation of this system in the Council of Europe member States, especially in consideration of respect for the teachings of minorities, focusing on the situation of Turkish Alevis. These descriptions will help us to answer the following question i.e. what are the parameters of the European Court of Human Rights in outlining a legal system of religious education that requires States to respect the faith of minorities and whythe Turkish government does notrecognize Alevis as an independent minority. The result of our research is that from the point of view of European Court, a State can teach a particular religion in its education system, but these teachings must not affect the rights of Alevis. Ankara wants to strengthen its national and religious unity; hence it does not recognize Alevis as an autonomous community. All this is in contrast with the jurisprudence of the European Court and against Turkish secular system.

From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition received its legitimation from God’s will and people as  peasants, by accepting this issue, considered this power transformation as a kind of charisma. However, because king’s volition came out of king’s characteristics, it was considered to have a variable basis and their derived rule had characteristics such as unpredictability, lack of equality element, uncertainty, lack of continuity and limitation. These features in contrast by modern legal paradigm could not have structure based on natural justice or legal justice and eventually led to the Constitutional Revolution. The major goal of this research is to analyzing the characters of traditional voluntarism frome the perspective of the modern voluntarism. Therfore, it would be possible to clarifing the structural challenges of the pre-revolutionary legal system.

Undoubtedly, one of the conditions for the realization of peace is the participation of all strata and social and political groups. Therefore, the widespread process of peace requires attendance. The obstacles on this path indicate that we need to know more about why and how women participate in the peace process. It is therefore necessary to pay attention to the participation of women as one of the groups most affected by war and violence. The challenges women face in the peace process are, in most cases, gendered factors. In this regard, the present study seeks to examine the implementation of United Nations Security Council Resolution 1325 on women's participation in the process of peace building in Afghanistan, using a descriptive-analytical method. The results of the study indicate that the Afghan National Action Plan is slowing down with regard to Security Council resolution 1325. This is largely due to the growing conservative position of the government on the role of women and the controversial views of the peace process, on the participation of women in the peace process and the international institutions that provide funding to the Afghan National Action Plan. Women's participation in the peace process in Afghanistan is faced with serious doubts.

The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, it was attempted to explain the concept of the term "issuing of the referendum" based on an intentionalist approach and in the form of descriptive-analytic studies, in order to explain the authority of the Supreme Leader in the process of substantive and legislative referenda. Analyzing the discussions of the members of the Review Council and considering other relevant indications, it could be argued that the term "issuing of the referendum" was intended to identify the practical action of Imam Khomeini in issuing the decree on the beginning of the process of the "Constitutional Revision Referendum" and it should be considered as the Replica of the first sentence of Article 177. Therefore, this authority of the Supreme Leader does not extend to referendum subject to Article 59 of the Constitution.