نشریه مطالعات حقوق عمومی
سال پنجاه و چهارم شماره 1 (بهار 1403)

Since the 1980s, due to the emergence of complex threats and the increasingly intertwined relationship of internal and external issues, the concept of national security has become common in international parlence. In such a situation, the need to address the concept of national security, which became a universal concept, was an essential step from the perspective of international law. The International Court of Justice (ICJ) began the process with three judgments issued in the Nicaragua case in 1986, and the Nuclear Weapons case in 1996, and the Oil Platforms case in 2003, which introduced national security concepts such as "fundamental interests, vital interests, and emergencies" into the international law literature. The first manifestations of this practice appeared in international human rights law and then international  disarmament law in the form of treaty terms. By analyzing the above-mentioned views, practices and sources, this paper will examine the formation of a "national security regime" in international law. A coherent and basic regime of specific rules and norms on national security, which is developing.

Despite the specific reference in the Statute of the International Court of Justice to general principles of law as a source, they are seen as  inherently a subsidiary source. Subsidiarity means that if there are no applicable treaty or customary rule, these principles prevail. The ICTY has often used article-38 sources, namely international treaties, custom, and general principles of law, to identify the applicable law in its cases. This paper  uses a descriptive-analytical method to study the jurisprudence of the ICTY, to explain the application of general principles of law in international criminal law. The findings of this paper show that the the ICTY chambers have resorted to general principles of law to fill legal gaps, interpret ambiguous legal rules, and strengthen legal reasoning in their decisions. The Tribunal's frequent referral to general principles of law to fill legal gaps may be due to the fact that international criminal law is a relatively new field and therefore not significantly developed. Thus, general principles of law have played a significant role in filling the gaps in international criminal law.

Free trade/industrial zones, which have been created with the aim of facilitating trade activities, especially in underdeveloped areas, have expanded in the Iranian legal system. This study focuses on the legal system of free trade/industrial zones from the perspective of the relationship between the governing organizations of these zones and the governmental bodies in their territory. The study shows that the laws governing the administration of free zones have not been able to provide a suitable model for coordination between responsible organizations inside these zones. The mechanism embedded in the laws (specifically article 65 (A) of the Act on Permanent Provisions of the Development Plans) faces challenges due to non-compliance with the principles of public administration and administrative law. Accordingly, in addition to the need to repeal the above provision, it is necessary to stipulate that exercising the powers of the free-trade/industrial-zone organizations does not negate the legal powers of the relevant governmental bodies in these zones. Also, the powers of the above-mentioned organizations should be limited to commercial and industrial affairs of their respective zones. To establish executive coordination between the governmental bodies and the free-trade/industrial-zone organizations, it is recommended that a council composed of the director of the free-trade-zone organization and the highest governmental officials of the zone be established.

Transparency in international law refers to the accessibility of information about decisions and actions of the parties involved in international economic relations. In spite of existence of principle in various aspects of international economic law, its nature and content remains ambiguous. So, the question is whether transparency can be regarded as a binding legal principle. The present article through a descriptive-analytic study shows that transparency as a legal principle is a fundamental principles of international economic law that can be seen in state practices and international case laws. It also has all features listed for a legal principle. Thus, this concept can be recognized as an obligatory principle in various areas of international economic law, such as international investment law, international trade law, international monetary and financial law, and International commercial law. But, it should be considered that positivist approach to international law appears as an obstacle to implement and exercise of the principle in all detailed sub-division of above-mentioned areas.

The thought and legal system in relation to the concreteness that traces the historicity of affairs, is a problem against what is observed by legal normativism. Legal norm with an abstract mechanistic view of concepts, categories and legal matters confront the determined reality, abandons concreteness and the historical view of affairs. Although concrete thinking about affairs among legal thinkers has different schools and sects, one of these significant and influential schools is Neo-Kantianism, which  at first appears to be in conflict with historical thinking about affairs, but throughout its continuity some of its thinkers such as Gustav Radbruch attempted to pay attention to the matter. While he maintaining the separation of "is" from "ought", he presented the historical in his thought, concepts and legal categories, and accordingly he considers the development of legal thoughts on the basis of historical periods and observes the specific definition of a certain type of human in each period. Dealing with the place and role of human in determining order and legal thought is one of the important insights that this perspective provides for the legal situation of Iran, especially regarding the codification of laws and statutes according to their own requirements.

The discussion of the ethical ontology of states and the relationship between the legal system and the moral system and their influence on each other is one of the most important topics in contemporary legal philosophy and the trend of public law. The moral paradigm of states, which are divided into two spectrums of neutral and perfectionist states, is different. Neutral states, meanwhile, often fall into the category of moral non-realists due to their individualistic structure and belief in the contractual legitimacy of power and their acceptance of moral relativism. Proponents of anti-realism believe that moral values and requirements are not outside the minds and perceptions of individuals, and that the standard of morality is determined by individuals. In this theory, it is emphasized that ethics has no spatial ends and is relative. Therefore, this paper tries topresent the views in the field of moral anti-realism with an analytical and descriptive method, describing the theoretical foundations of neutral states and the intellectual foundations of the school of anti-realism - in cases such as relativism, subjectivism, and non, emotionalism and non-driven is from ought.

While most research focuses on the issue of humanitarian aid from an ethical and not mandatory viewpoint, this paper seeks to study humanitarian aid from the perspective of Islamic. In the international human rights system, with the extensive interpretation of these rights and adopting a positive approach, the only obligation to accept humanitarian aid has been proven. From a different perspective, this research seeks to examine the duty to provide humanitarian aid from in Islamic jurisprudence. The paper argues that the religion of Islam  provides a positive approach to humanitarian aid. In this regard, the pre-Islamic principles of human dignity and justice and the Islamic obligation to preserve human life and the principle of “taliif al-qulub” (winning hearts) by using “zakat” (religious tax), prove the obligation to provide humanitarian aid to all people exposed to natural and unnatural disasters, especially to non-Muslims.

Montesquieu is one of the Enlightenment thinkers that investigates the nature of the "law" with a distinct approach. By the means of a descriptive-analytical approach, this paper examines the effect of subjectivity on his theory of law. According to Montesquieu, in a liberal state, everyone has the spirit of freedom and must be under their own will. The autonomy of the will in the realm of society manifests itself in the "law;" as a result, following the law is tantamount to freedom. Although Montesquieu addresses "natural law", his thoughts concerning the origination of natural law from the right of self-preservation and separation from theological and metaphysical referents, bring him closer to the modern approach. Under the influence of subjectivity, nature ends with the entry of man into society, and contract law replaces natural law. Although human law is the manifestation of the self-determined human will, it arises from the nature of social organism .Therefore, Montesquieu emphasizes the non-interference of religion in the field of human law. Although subjectivity can be traced in Montesquieu's thought, there are signs of its incompleteness and the existence of eclectic aspects in the relationship between modern and pre-modern literature in some of his expressions.

The relationship between human rights and humanitarian law is now understood as a complementary one, insofar as human rights rules are no longer applicable in peacetime but at all times. The International Court of Justice has emphasized this issue in numerous Decisions. In international law literature, the main focus is on the interaction between these two branches of law, while less attention is paid to the complementarity of their rules and the interpretation of one’s rules in light of the other especially in light of the principle of systemic integration. The present paper examines the utility as well as the challenges and potential harms of using this approach in the general context of international law. Finally, it concludes that using systemic integration principle can strengthen application of human rights rules through international humanitarian law, or prevent normative conflict between different norms of the two branches of law, especially in regard to forceful and  arbitrary detention.

The idea of protecting the public interest by incorporating specific provisions in private contracts or in international treaties has been accepted in some legal systems. The provision of Article 139 of the Constitution of the I.R. of Iran concerning settlement or arbitration of public or state property is one such requirement. The international arbitration practice of the last forty years indicates, that except in cases where observance of article 139 is stipulated in the contract, arbitral tribunals have been reluctant to apply its limitations. Explicit or implicit references to the necessity of observing article 139 of the Constitution in the documents of ratification of bilateral investment treaties are a form of unilateral reservation by one party to the treaty. In the absence of stipulation as to the need for obtaining the authorization of article 139 in the text of the treaty, the principle of respect for the integrity of the bilateral treaty is applicable. Accordingly, it is feared that the unsuccessful experience of invocation by Iranian public law entities of the objections based on Article 139 in previous international commercial arbitration cases would be repeated in the field of investment arbitration in the future.

The fragility and instability of peace issues in the world, requires investigating the factors of this instability from the perspective of international law, especially, Chapter VI of the United Nations Charter. This paper seeks to examine the reason for the instability of peace from a legal point of view and also to provide legal and objective solutions in order to help the peace process to end the armed conflicts, adapting the negotiations, agreements to the rules of international law. In this context, the premise of this paper is the  chapter 6 of the charter, the agreements made, the role of the security council, the general assembly and international judicial institutions, but in order to synchronize these processes, we need a legal evaluation so that peace is realized and the end of this process really contributes to the establishment of peace, not a peace to start the war again. What we are witnessing, the opinionated approaches to the fight against violence and its symbols. Inspite of inequalities and injustices, it is naturally not possible to talk about lasting peace without considering strong legal structures. Therefore, investigating legal solutions for creating a constructive and sustainable peace are necessary to protect the peace-making process.

After coup d'etat of 1953 in Iran, Iran's relations with the United States entered a new phase and continued until the Shah's departure from Iran on 9th Jan. 1979, and perhaps shortly thereafter that. Meanwhile, many contracts were signed to commerce  military items between the two countries. But with the end of friendly relations between the two countries and the subsequent signature of Algiers Accords and the establishment of Iran-United States Claims Tribunal, allegations of breach of these contracts formed the basis for a case filed by Iran in the tribunal which is still pending. Given the lack of governing law in these contracts, it is important to determine their governing law which is subject to determination of their legal nature. Thus, this paper seeks to determine legal nature of arms and military equipment contracts between the United States and Iran by conducting analytical research. Given the five reasons as a strong sign of the existence of treaty elements in these contract, it can be concluded that the contracts in question are in fact treaty under the in the sense of Vienna Convention on the Law of treaties.

Armed Conflicts, despite all the efforts made globally and regionally, still exist. Different groups of people are affected by this phenomenon in dissimilar ways. Women, due to various reasons, are amongst the most vulnerable groups in armed conflicts. Many efforts have been made by the International Committee of the Red Cross to provide maximum support for women in the form of instruments and procedures. Although human rights and international humanitarian rights are considered two separate legal systems, but because in most cases the boundary between them is not properly distinguished and also because of the Committee's practice in recent decades to integrate the two systems during armed conflicts; in the following study, we intend to address the most important principles for protecting women in both international humanitarian rights and human rights, through investigating ICRC's Documents with an analytical approach.

Human rights is a superior and valuable system and an evolved and modern form of natural rights, which consists of four fundamental principles: "the principle of human dignity and dignity", "the principle of freedom", "the principle of equality" and "the principle of fraternity" and other principles and rights proposed in the human rights instruments are under the mentioned principles. On the other hand, administrative law, which is a sub-branch of public law and defined in the constitution of every political system, and compared to other legal trends,  is nascent and new,  deals with regulating the relations between the administrative apparatus and government organizations with individuals and citizens. Recent developments regarding the duties and performance of governments in the social arena and their use of public privileges in order to "advance public order and social services" have caused violations of human rights standards in the field of administrative law system. The important point is the impact of human rights standards on the decisions of administrative courts and the effectiveness of administrative proceedings from human rights standards. In this research, according to the examination of the administrative laws of Iran, England and Australia, it has been tried to take advantage of the judicial procedure that has led to the development and implementation of the principles and rules of human rights. The research method in this paper is based on library studies and analyzesinformation in a descriptive-analytical way.

The growing use of cyberspace has been the source of new challenges in how to organize and regulate people's relationships in cyberspace. There are two different approaches in this regard. The first approach seeks to create a new legal system for cyberspace by emphasizing the characteristics of cyberspace and the other one considers it possible to regulate this space with the existing legal by focusing on the capacities of the legal system and the tools of cyberspace, systems. Adopting any of these approaches in the field of implementation is confronted with challenges; Therefore, this paper using a descriptive-analytical method and library resources concludes that by adopting the middle approach, which eliminates the shortcomings of each approach, the preparations for organizing cyberspace can be provided in a more appropriate way.

Extrajudicial killing in international law, is the use of intentional and lethal force by states, which is not justifiable under the rules of the right to life and can be carried out arbitrarily without legal authorization and without a fair trial. On January 3, 2020, a US drone strike killed General Qassem Soleimani and his entourage at Baghdad Airport, killing him and his entourage. The United States immediately took responsibility for the attack. This paper seeks to answer the question whether the United States' action against General Soleimani and his entourage at Baghdad airport could be considered extrajudicial killing in international law. The present paperr using a descriptive-analytical methos concludes that the United States has committed extrajudicial killing against General Soleimani and his entourage by arbitrarily depriving them of life, without legal authorization and without a fair trial. In addition to the violation of human rights of the individuals, US action also violated the rules of international humanitarian law and international criminal law. Of course, it should not be forgotten that General Soleimani and his entourage were never sentenced to death in a competent court and through a fair trial.

Undoubtedly, human rights are among the achievements of modern international law. One of the most controversial topics in this field is the binding origin of its rules. It is obvious that those human rights rules that have a contractual origin are accepted by the signatories. But the problem starts precisely from the fact that some subjects of international law (international organizations) are not members of human rights treaties, except in exceptional cases such as the European Union, and in case of violation of the mentioned provisions, they will not be held responsible. To solve this problem, it is necessary to find a non-contractual source  which can cover all subjects of international law, especially international organizations.

The outbreak of the Covid-19 pandemic, whether naturaly or designed in biological laboratories with strategic goals, is an alarm bell in regard to biological threats. Extensive development of biological sciences and the possibility of genetic manipulations remind us of the possibility of genocide and generational abuse, and the increasing threats of bio-terrorism intensify this concern. This demonstrates the necessity  to strengthen the universal efforts for the destruction of biological weapons and their agents. The main obligations under the biological weapons prohibition system are outlined in the 1972 Convention on Prevention of Biological Weapons (BWC). But the lack of oversight by the monitoring body, as well as the lack of sufficient and independent guarantees to monitor violations of obligations, have made the effect of its function impaired and ambiguous. Identifying biological scientists, compiling codes of conduct and limiting terrorists access are among the strategies that can be made possible only in a new multilateral and comprehensive instrumentt which includes provision of an independent international monitoring body and sufficient guarantees.

Nowadays, fiscal decentralization and strengthening local governments are welcomed among many countries. Fiscal decentralization is the transfer of expenditure responsibilities and revenue assignments to local governments. Local governments need revenue to implement local policies. In fact, the independence of local governments is directly related to their financial independence. To achieve financial independence, there is a need to define a source of revenue and give authority on how to spend it. Since the most important source of income for governments is tax, tax decentralization plays an important role in decentralizing governments financially. This paper, seeks to answer what public law bases of tax decentralization are and what mechanisms for designing an efficient decentralized tax system in which the principles of tax law are also respected exist. A review of tax decentralization from the perspective of public law shows that tax decentralization is rooted in the principles such as public participation, transparency and public oversight, public interest, equity, conformity and the distribution of tax legislative power, designing an appropriate administrative system and oversight are the most important mechanisms of tax decentralization.

According to the predominant narrative, the concept of human rights is founded within the context of modernity and based on the secular theories of Enlightenment philosophers. However, there is a minority view that traces the roots of modern theoretical and political movements such as humanism, liberalism and socialism, which form the intellectual foundation of human rights, in Christian theology and ethics. Nietzsche is one of the pioneer philosophers who considers the basic principles of the international human rights system, including inherent dignity, freedom, equality and universality, to be influenced by Christian moral values which are based on the representation of the morality of slaves against the morality of masters. This theory is different from the westernization of human rights claimed by cultural relativism and postmodern theorists, although both opinions lead to the same result; challenging the universality of human rights. The present paper tries to investigate the course of this intellectual flow by focusing on the works of Nietzsche and to give an appropriate answer to the question of how the universality of human rights has a paradox with its Christian roots.

Mankind's effort to not extend the scope of militarism to outer space on one hand and the fear of great powers from the superiority of competitors in space activities on the other hand caused the necessity of peaceful use of space to be repeated in almost all existing instruments about the activities of states in outer space, which has turned this necessity into a binding rule.  The necessity of using this principle in media communication is even greater due to the numerous examples of using the media to promote war and the like. In addition, the use of media is closely related to human rights and states sovereignty. The question is whether the principle of peaceful use of space in media communication is valid and enforceable. The hypothesis that we seek to prove is the principle of the necessity of peaceful use of space in media communication to play the role of a filter in not turning the media into a means of harming the rights of individuals or the sovereignty of states.

The fluent and simple structure of the ordinary language philosophy paved the way for many analytical philosophers in England to turn to this field, so that they based their analysis on current propositions in people's daily lives. J. L. Austin as one of the most influential philosophers in the intellectual law in the UK, especially the thoughts of Herbert Hart, has been taken into consideration. In The concept of law, Hart does not explain the philosophical foundations of his discussion, but uses the results of the views of analytical philosophers, especially the philosophers of ordinary language, in explaining and analyzing the concept of law. Therefore, this study tries to explain the view of J. L. Austin as the most influential philosopher of conventional language in Hart's thought, in order to get acquainted with Hart's philosophical thought and to clarify the quality of application of these principles in legal issues.

The WTO is the main institution regulating international trade. Raising living standards and expanding trade are important goals of the WTO. On the other hand, this organization is a place for settlement of disputes that arise from states conflict of commercial interests  and in this regard, it must interpret the relevant agreements and binding instruments in an impartial manner. International trade regulations have not been enacted only to protect trade interests, but also the interests of consumers This is because the trade process of goods such as GMOs, due to the importance of maintaining public health and food safety in them, requires a balance between trade and consumer interests, in other words, economic considerations of exporting countries and social considerations of importing countries. The problem is that by applying the provisions of WTO agreements to the trade of GMOs on one hand, and other international and domestic instruments on the other, disputes have arisen between the trading parties, which has led to legal challenges. This paper, using a descriptive-analytical method, attemts to explain these challenges in the WTO normative and procedural system, and to provide solutions to the said challenges.

The people with visual impariments are an important part of the society. Their special condition requires them to have special civil rights in addition of their general civil rights. Human dignity and positive discrimination can be the fundamentals of law to support the blinds rights which the roots of these principles can be found in religious precepts and fundamentals of legal laws. In this study we are going to achieve a desirable model of legal system to support the blinds in addition to the privileges and rights that citizens generally have; which, on one hand, this model can illustrate the harms, disadvantages and defects of the existing legal system in support of the people with visual impariments, and on the other hand, it can show the desirable horizon of these rights. Dispersal of supportive rules, deficiency of executive dysfunction, lack of guarantee of proper performance in enforcing legal rules, lack of effective participation of the people with visual impariments from the codification to legislation of laws and lack of using NGOs for people with visual impairments in the field of making and enforcing the law are the most important bugs and disadvantages of the existing legal system. In addition, the appropriate model should be drawn at three levels: structural, normative and behavioral level so that lead to an effective, efficient and transparent legal system.

The theory of constitutionalization of administrative law is one of the methods by which the constitution is protected. It is used when the fundamental rights and values as well as the principles in the constitution are implemented by administrative law. The system of administrative law is clearly influenced by the principles that constitute constitutionalization. Protection of the constitution is one of the most important issues in any legal system. [The Iranian] legal system is no exception to this rule, and judges have an important role to play in safeguarding the constitution. This theory is almost a decade old in our country. The results of this study, which is written in a descriptive-analytical method, indicate that due to the lack of a constitutional court [in the Iranian legal system], the two institutions of the Guardian Council with it’s priori supervision and the Court of Administrative Justice with its posteriori supervision, have taken steps to implement the neglected principles of the constitution and in this way the constitutionalization of administrative law has been gradually achieved.

Common categories in the field of human rights generally refer to three groups or three generations of human rights, the first and second generations are called civil and political rights and economic, social and cultural rights, respectively. This division is mainly due to the existence of conflicting views on the nature of these two categories of rights. Economic and social rights in the international human rights literature have no long history and therefore the conceptual discussions around them are insufficient and few. This paper will make a comparative study of the views of two important international instruments on the nature of economic and social rights. The Universal Declaration of Human Rights is the most important United Nations instrument in the field of human rights and the Cairo Declaration on Human Rights in Islam, expresses an Islamic view of human rights that is also in itself critical of the universal declaration of human rights. This paper analyzes the views of the two declarations on the nature of economic and social rights, and then will discuss in detail the dimensions and characteristics of labor rights and the right to education from the perspective of the above declarations.

Humans created plastic in order to make their lives more convienient, however its indiscriminate consumption has turned into a menace to themselves. Simultaneous release of environment images drowned in plastic and trapped organisms, the entry of plastic into the food-chain and the detrimental effects on tourism and the economy with the rise of environmental movements; the effects of consideration to plastic and its prevention have been reflected in conventions such as MARPOL, London, Basel and more comprehensively in EU documents. Regardless of the significance of these documents inaddressing the issue of plastics, by valuing the models provided for drafting an agreement on the particular matter of plastics and accepting structural and normative flaws,it should not be forgotten that the international environmental law principles and custom in this field have simply responded to the requirement to limit and ban the production and consumption of plastic and its entry into the environment and countries have confirmed these preventions in their policies and national laws. The role of raising public awareness in plastic replacement with education and the impact of the media, the activities of NGOs to introduce replacements and encouraging legal foundations to make obligatory regulations along the path of environmental liberation from plastic is undeniable.

The aim of this paper is to explain the legal nature of state companies in the Islamic Republic of Iran. Analyzing the various definitions of state companies, as enacted in different statutes demonstrates the historical trend of cumulative ambiguities that were synergicly enhancing the ambiguity of the nature these companies. The meta analysis of these ambiguities has shown that these definitions were not based on a theoretical system regarding the substance, goal, and the quality of the legal institution; therefore the legal  nature of a state company is not clear. Moreover, the solution cannot be based on an interpretative act by the parliament; rather the first basic step is establishing a theoretical system of the substance, goal, and the quality of the legal institution of state companies. This system can be the basis of a comprehensive act on state companies. The preposition is a set of principles as the basis of the system.

The discourse of good governance in the field of public law and international law is one of the new topics in the administration of the country, which is initially defined as the exercise of political, economic and administrative power to manage public affairs at all levels in a good, efficient and appropriate manner. However, this new concept neither among academics nor domestic and international bodies has clear definition, dimensions or territory. Each definition usually looks at some aspects of it, and finally it is not clear what effects and Elements it has. There is also disagreement about its legal nature. Among the international bodies, the European Court of Human Rights has one of the most prominent case law in recognizing and explaining good governance, which itself has gradually evolved. Examining the procedure of the court, while giving a better understanding of the concept of good governance, shows that the concept of good governance has been developed in the case law of the ECtHR and has been introduced as a legal principle with binding obligations and specific dimensions and areas. To the extent that in the light of that case law, provisions of the European Convention on Human Rights, which make no reference to good governance, have also been developed.

Development law is a branche of law that facilitates human achievement of basic needs and is of interest to various nations. Achieving development requires planning that takes place in the form of a planning system. There are various models for achieving development through which governments exercise sovereignty and public authority, based on the ideology, ideals, principles and goals of society. Based on the constitution and other upstream instruments, governments plan for development according to a purposeful element. Using a descriptive-analytical method, this paper seeks to explain the legal status of development planning in the Iranian legal system and identifies different patterns of development and finally answers the question which development modell matches the legal system of the Islamic Republic of Iran? The findings of this study show that development planning in Iran is not consistent with current economic models and by explaining the legal system of development planning in Iran, an appropriate model will be proposed.