مجله حقوقی بین المللی
پیاپی 66 (بهار و تابستان 1401)

According to article 4 of the Convention on International Civil Aviation (Chicago Convention), each contracting State agrees not to use civil aviation for any purpose inconsistent with the aims of this Convention. The preamble also reads that the "abuse" of future development of international civil aviation can become a threat to the general security. This article tries to explain the concept of misuse of civil aviation in the light of the provisions of the present Convention in a deductive method and by presenting a new approach tries to criticize perceptions about its concept so far expressed. Finally it concludes that the application of aviation sanctions that are in some circumstances contrary to the principles and purposes of the Chicago Convention is an example of abuse of civil aviation.

The protocol to prevent, suppress and punish trafficking in persons, especially women and children, is currently the main international instrument in the field of human trafficking which provides a well-defined definition of human trafficking for the first time. After adoption of the aforementioned instrument, the Law on Combating Human Trafficking was approved by Iranian Parliament in 2004. With the aim of eliminating the shortcomings in this law, on March 29, 2017, “the Bill on Combating Trafficking in Persons and Organs and Punishment of Migrant Smugglers” was approved by the Iranian Cabinet which will repeal contradictory laws, including the law of 2004, if approved by the Parliament. A comparative study of the elements of the crime of human trafficking in the Human Trafficking Protocol, the Anti-Trafficking Law of 2004, and the recent Bill reveals shortcomings in domestic laws and makes it possible to address them in the new Bill. This article shows that despite some amendments, there are still several defects in the Bill. Considering the possibility of ratification of the Palermo Convention and its protocols in the Parliament, filling the existing gaps and conforming the definitions provided in this Bill to the human trafficking protocol would eliminates the need for further amendments.

Like any other legal system, the international legal system requires both recognizing and justifying legal rules therein. Formalist approaches have arisen in international law in order to identify legal rules from other legal inference based on formal logic and deductive argument. However, staying within the formalistic and formal frameworks of international law, as defined in formal sources such as treaties, custom, general principles of law, and some resolutions, is incompatible with the dynamics of this branch of law. Critical approaches to law have marked the failure of formalism in the emergence and justification of the rules of international law. Each of the formalist and critical approaches claims that their own method is right in identifying, explaining, justifying, and interpreting the rules of international law. The present article seeks to review and theoretically analyze the contribution of each of them in the logic of international law through reviewing and reflecting on the origin and methods of each of these two approaches in recognizing the rules of international law.

The present study attempts to investigate the problem of unilateral violation of international law through the lens of the recently released doctrine of interactional international law and the way this theory deals with unilateralism. According to this theory, international law inherently confirms the necessity of unilateral action, but at the same time, if powerful States violate any principle of law unilaterally, there is no guarantee to enjoy legitimacy and legality and sustain that action in international relations. Also, this phenomenon of unilateralism is useful in the social practice of international law-making; however, to enjoy legality it must conform with the common understandings of other actors. Otherwise, it would end up in exceptionalism-exemptionalism, lacking any degree of legality and legitimacy. Eventually, the research concludes that going beyond the dichotomy of violation-punishment, the impotence of great powers in imposing and legally justifying their behavior would be obvious in case they cannot come along with the common understandings of the whole international interactional network. To do so, as a primary question at stake, this paper attempts to answer the following questions: how will the theory of interactional international law respond to the unilateral violation of international rules by powerful States? Also, how will it cope with the re-emergence of domination within the international legal system?

It was difficult to understand how the acquired rights were formed until the new theory made it clear that the acquired rights are rights that are recognized by the legislation and acquired by the implementation of the citizens, and are validated by acceptance by the judicial authorities. According to this theory, acquired rights are valid not only in domestic and private international law but also in public international law. Looking at the law of the European Union, through the Lens of this theory, it is obvions that rights such as citizenship and the right of permanent residence are among the rights that have been formed in the Union as acquired rights, from which other acquired rights have also arisen. Therefore, in cases such as the Brexit it has been respected and their continuation has been supported. With the new understanding that is gained from the formation of acquired rights, more appropriate and precise arrangements could be considered in international negotiations to demand in cases such as the withdrawal of a state from a treaty.

The EU enhanced waste prevention to the first step of waste management hierarchy and laid down considerable regulations, directives, and communications to call the Member States to take the necessary measures in minimizing the waste in production processes. Developed with a descriptive-analytical approach, the present paper tackles the status of waste prevention in the EU laws and evaluates the EU integrates waste prevention enactments in its general policies on the natural resources preservation and eco-efficiency of its production systems. It concludes that the EU regards the matter of waste prevention not only as an environmental protection policy, but also as a part of its long-term resources efficiency and circular economy policies. Evolution of the EU legal approach in waste prevention reveals a significant shift in environmental and natural resources law and it sounds that a new enviromental law principle is progressively being emerged in this legal system as a soft law.

Today, legislative, executive, and judicial functions have apparently proved to embodied in international legal system, and among these essential tripartite functions, the judicial system has been greatly developed in particular in recent decades. Despite the fact that the increasing number of adjudicative tribunals have led to the fragmentation of international law, it demonstrates judicialization in the broader context of legalism in the aftermath of the World Wars. Moreover, functional transition has been firmly attached to the plurality of tribunals and courts beyond their formal jurisdiction. Notwithstanding, as the international adjudication is based on the consent of States, nowadays, adjudicative forums have actively proved to be international multifunctional actors, contributing to international law, whether in their formal role (i.e., enforcement, administrative, constitutional review, and dispute settlement) or in the material role (i.e., the production of legal knowledge, creation of legal rules, formation and establishment of norm expectations, and strengthening the international rule of law and justice).constitutional review, and dispute settlement) and the material role (the production of legal knowledge, creation of legal rules, formation and establishment of norm expectations, and strengthening the international rule of law and justice).

Numerous treaties in the field of human rights have entrusted express legal obligations to States in order to respect for and observance of human rights and fundamental freedoms of all individuals under their territorial jurisdiction. Yet, the existence of a state of public emergency of significant magnitude may put States in special circumstances that are unable to fulfill some of their human rights obligations. In order to avoid legal confusion in such circumstances, the International Human Rights System tries to reduce human rights violations by means of providing a legal mechanism. The rapid outbreak of COVID-19 can be considered as an example of the realization of a state of public emergency that threatens the lives of all human beings. Accordingly, many States have adopted measures and arrangements for derogation from human rights treaties by declaring a state of emergency. This article seeks to answer what may be the legal regime governing the States derogation from the human rights treaties and how it would correct its shortcomings and deficiencies, especially in the era of the COVID-19 pandemic. The hypothesis put forward in the present article is that the existing legal regime, despite its legal strengths, has certain shortcomings and deficiencies. The findings of the present study show that there is the possibility of States' derogation from some of their human rights obligations in the form of the derogation clause; yet, some reforms in the existing legal regime seem necessary.

The Convention on the Legal Status of the Caspian Sea, known as the "Aktau Convention" has been the result of the fifth summit of the Caspian Sea littoral States in 2018 in the city of Aktau, Kazakhstan. Although this Convention has divided the Caspian Sea into different maritime zones, including the Fishery Zone, to ensure security and stability in the Caspian Sea region, nevertheless, the implementation of this important matter requires the determination and clarification of the provisions governing the Fishery Zone in light of the rules and regulations of international law, in particular the Convention on the Law of the Sea (UNCLOS). The present study using descriptive-analytical method focuses on answering the question of how the rights and obligations governing the Fishery Zone in the Aktau Convention is compared to the rights and obligations governing the Exclusive Economic Zone in the UNCLOS . The assumption is that a significant part of the rules of the Fishery Zone in the "Aktau Convention" is inspired by the rules of the Exclusive Economic Zone in the UNCLOS. However, some of the regulations in the Fishery Zone are specific to the Aktau Convention, hence unique. This paper concludes that in comparison with the UNCLOS, the Aktau Convention has taken three active, moderate, and passive approaches with regard to the Fishery Zone. In the first approach, the Aktau Convention opens new horizons in the field of ​​provisions governing the Fishery Zone and, as a result, protection of the sovereignty of the Caspian Coastal States has set its own pattern. In the second approach, the Aktau Convention has moved aligned with the UNCLOS, and in the final approach, the Aktau Convention, unlike the UNCLOS, has remained silent on some specific legal issues.

With more than a century of activity in the international community, the oil and gas industry, due to its unique characteristics and actors, has developed lex petrolea. Research experts in the field of international petroleum law believe that international petroleum contracts could be considered as one of the sources of lex petrolea that has influenced the formation, development and growth of lex petrolea since the emergence of the oil industry. The question is how lex petrolea affects the international petroleum contracts. Utilizing a descriptive-analytical approach, it is concluded in this article that international petroleum standards, domestic petroleum laws and regulations, and international arbitration awards issued in the petroleum disputed cases establish that although international petroleum contracts make one of the sources of transnational petroleum law, lex petrolea along with other sources such as laws and regulations, general rules and principles of law, the customary practices and usage in the oil industry, court proceedings and arbitrations, and even petroleum legal doctrines shall affect international oil contracts. The impact determines that despite the lack of contractual expression, lex petrolea could be an implied source of governing law on the international petroleum contracts. The research also shows that lex petrolea may also lead to the development of the terms and conditions of the international petroleum contracts and can be used as the model law for these contracts.

Today extremism and any type of violent activities based on extremist ideas have become one of the most controversial threats to international peace and security. In order to combat extermism, a comprehensive policy that encompasses all dimensions and related matters including any emerging and expanding of its roots must be used. In addition to suppressive measures, the policy has to consider preventive ones. The preventive measures is seeking to prevent the emergence of extremism or mitigating individuals’ tendency to extremist ideas. The measures aim is also to prevent its expansion by increasing public awareness that follows condemnation of extremism. As far as possible, preventive measures shall include any and all aspects of extremism. Because of the crucial role that children play, education may be considered as a preventive measure. By assessing the education as a means of combating extremism, the present research analyzes the capabilities that children's education could play a part in this respect.

Education is a fundamental human right and is essential for the exercise of other rights. Afghan refugees are one of the largest refugee populations, and instability at home has driven many of them to Iran since the 1980s. Displaced and asylum-seeking children require special protection due to their vulnerability. Given that the focus of international instruments and reports in the field of the right to education is on the realization of free, compulsory and universal primary education, the question arises as to how the right to education of Afghan refugee children in Iran can be analyzed in the light of the international refugee law system? It seems that imposing additional costs of the education for Afghan refugees not only violates the national standard of conduct, but also violates the commitment to provide free and universal education for children in Iran.