نشریه مطالعات حقوق عمومی
سال پنجاه و چهارم شماره 3 (پاییز 1403)

The topic of citizen’s rights is one of the most pressing issues of contemporary law and is an emerging concept that focuses mainly on prioritizing justice. It, therefore, has a distinct  place in social and political theories. Citizen’s rights consist of the duties and responsibilities of individuals towards each other and the government. It also covers political, civil, social and cultural rights. An individual who is part of a city, district, or state is considered a citizen. Citizens can act legally and according to the law and have the right to demand the protection of the law. Citizen rights are realized against the backdrop of good governance. Good governance is a new concept in today's governance practices. In this research, using a descriptive-analytical method, the challenges faced by citizen’s rights in Iran's administrative system are studied and solutions to remove them are recommended. Moreover, challenges related to the rule of law, transparency, responsibility, accountability, access to information, and citizen participation (all good-governance factors) in administrative decisions have been examined and analyzed.

Based on the definition of foreign investment and its elements in law, it is contended that the investor should contribute to the economic development of the host state so that the latter’s action is considered an investment. In recent decades, with the growing importance of subject-areas like human, environmental, and labor rights, the act of investing has gone beyond the mere economic/financial concept and, has developed in line with the concept of sustainable development. In this regard, some commentators have considered it permissible and necessary to limit the scope of the permitted activities of the foreign investors within the frame of the concept of sustainable development. So much so that in recent arbitral decisions and international investment agreements, creating a platform for the development of the host state is considered a new component of foreign investment in line with the requirements of human rights, labor and environment rights.

Since the beginning of trade liberalization in the 1970s, many financial crises have occurred in various countries. Following the financial crisis of 2008, macroprudential regulation in banking has emerged, emphasizing the importance of overall financial stability rather than the stability of individual banks. Many countries have established a new institution for this regulation, known as the "financial stability council." While most countries have formed such councils, Iran has yet to do so. A new government bill is attempting to establish this council, but its structure is not clearly defined, necessitating further research. Using a descriptive-analytic approach and library sources, we aim to answer the question: how the legal framework for the financial stability council should be designed? Our findings suggest that the financial stability council of Iran should operate independently of the government, the central bank, and the finance ministry. Its members should include representatives from the central bank, the finance ministry, and external experts.

The Internet is like a huge iceberg and the greatness of its visible part (the surface web) has enchanted mankind so much that no legal system can claim to be able to completely control or adequately and respond to. Still, the invisible part of the Internet- which is known as the "dark web" - is also crucially important and the attention paid to this subject by national and international law is very limited. This paper focuses on dark web and tries to explain the importance and necessity of paying attention to it. By studying international and regional instruments, national legislation and legal scholarship the we aim to examine the anonymity of the dark web from the perspective of international human rights. The main research question is the following: is it possible to invoke the right of anonymity in the dark web in international human rights? It is claimed that there is not sufficient evidence to validate the existence of an independent right to anonymity in international human rights law, which fully covers all dimensions of anonymity in dark web. On the other hand, the principles of international human rights law also reject the approach of banning anonymity.

Various political, economic, social and cultural theories share the common point that a revolution causes huge changes in political, social, economic and cultural relations of a society. In the 1979 Iranian revolution, three political discourses were active namely, Islamic jurisprudence, Islamic and none-Islamic leftism and the centrist right, each of which had their own unique interpretation of the concept of fundamental freedoms. This subject became the dominant issue in the first post-revolution constitution adopted in 1979. Although the Islamic jurisprudence discourse - which was dominant in the first decade after revolution - was affected by the liberal democratic discourse it was something different. It had a profound impact on the constitutional legislator’s attitude to the concept of fundamental freedoms which can be analyzed on the basis of author-centric hermeneutics.

Considering that neither customary international law nor international treaties have specifically addressed the legality of autonomous weapons from the point of view of international humanitarian law, the law on autonomous weapons should be analyzed under the fundamental principles of international humanitarian law. The first purpose of this study is to explain the autonomous weapons and then to analyze the legality of such weapons through the lens of international humanitarian law. The basic question of the paper is whether the deployment of autonomous weapons is legal in light of technological and legal limitations? On the other hand, the paper also seeks to examine the legalization of autonomous weapons. In fact, the findings of our study will show that although autonomous weapons currently violate international humanitarian law, they have the potential to be more consistent with the principles of international humanitarian law in the future.

Cryptocurrencies have been presented as a destructive and resistant technology against the governments’ rule since their creation. The lack of uniform international standards in the field of cryptocurrencies, leaves room for interpretation by government actors. As a result, the attention of the governing institutions is mostly focused on the potential blocking of cryptocurrencies. But with the increasing move towards the smart economy, governments need to change their position from the policy of restriction to the policy of regulation and legislation and to strengthen their supervision over cryptocurrencies. The question is, how should government regulation and legal requirements on money laundering be applied to cryptocurrencies? Authentication of clients to buy cryptocurrency, creation of a regulatory and supervisory organization, registration of all contract-based cryptocurrency transfers, are among the answers to this question. This paper aims to determine the appropriate framework for regulation in terms of combating money-laundering through cryptocurrency.  Using a descriptive analytical method and library resources, we will comparatively study the Iranian and Italian government's strategy in this field.

Iron and its numerous alloys are one of the essential needs of today's mankind, whose supply and demand must be properly managed. Destruction and recycling of end-of-life ships is one of the important sources of steel supply for other industries, which requires new management and legal methods due to the human and environmental hazards during the dismantling of this extremely large structure. In this research; considering the management challenges and legal restrictions, while justifying the need for ship recycling, using the library research method, considering the situation of steel industries in the persian gulf countries and using the production statistics of steel industries, the need for ship recycling and economic value added should be explained. The ship recycling industry, as it is done in countries like Bangladesh, India and Pakistan, is dangerous and pollutes the coastal and sea environment; but according to the current situation and the country's need to establish this industry, its development is conditional on providing environmental standards. Such a thing seems necessary considering the way it is being done in the border country of the Persian Gulf and the Oman Sea, i.e., the United Arab Emirates, due to the similarity of the climate with the south of the country.

Separation from the family, deprivation from education, lack of access to nutrition, health, treatment, and humanitarian aid are examples of the dangers to disabled children during an armed conflict. The legal status of children with disabilities - who are considered to be the most vulnerable minorities during armed conflict due to their special circumstances – is an important issue in international humanitarian law in recent years. The present study seeks to answer the question: what are the rights of these children in armed conflict and how to ensure them? Our assumption is that by relying on relevant human-rights and humanitarian instruments in this area and the practical actions taken by the international community, the rights of these children is moving in a direction that puts them on an equal footing with others in terms of general humanitarian protection and prioritizes them in benefiting from the humanitarian aids.

When studying the texts of international law, we always come across terms such as the teachings of the most highly publicist of international law and doctrine; the terms that are mentioned especially in the international law resources section, looking at Article 38 of the Statute of the International Court of Justice, as the subsidiary means of determining the rules of international law. However, when we go through the authoritative textbooks, in the section of teachings and doctrines of international law, not much detail is seen by the most prominent writers of international law. In recent years, the International Law Commission has tried to focus on the issue of sources of international law, to deal in detail with the sources listed in Article 38 of the Statute of the Court, and the issue of doctrine under the title " subsidiary means of determining the rules of international law" is currently being studied by the Commission. The question addressed in this article is whether there is a difference between the doctrine and the teachings of the most highly publicist of international law? What are the criteria for determining the teachings of the most highly publicist of international law and doctrine in international law? It is assumed that there is a difference between these two terms in international law, and it seems that there are criteria to distinguish between these two concepts.

In the Iranian legal system, use of legislative history (including parliamentary materials) in legal interpretation is quite prevalent. Judges and jurists always try to remain faithful to the legislative history and refrain from giving any interpretation contrary to it. Despite the role of legislative history in interpretation, it’s been widely neglected in our legal literature. The following paper explores this matter with regard to Iranian law. It develops arguments based on legal theory, constitutional law, and thus affords deeper insight into the current discussion on legal methods. Despite the role of legislative history in legal interpretations, its nature, types and criteria are unclear and unresolved. In this paper, first a precise definition of legislative history and its types is provided, and then the validity of legislative history is discussed , and explained how legal schools can invoke legislative history based on the assumptions they have previously accepted. In the second part, the main criteria for applying legislative history in legal interpretation is stated. Finally, (Part 3), it has been tried to identify the main applications of legislative history in legal interpretation along with real examples in the Iranian legal system.

Today, the world depends on the rules governing transnational corporations, and transnational corporations have become one of the main concerns at the national and international levels. The method of traditional standards does not meet the requirements of traditional standards in all countries and does not have the guarantee of proper implementation. Internal and even existing regulations in companies are considered. Following the activities of these companies, the question arises as to what is the obligation to comply with legal laws or violate these laws and standards? It seems that globalization and structural changes in the performance of governments can be considered as one of the most important reasons for increasing power and, consequently, the role of transnational corporations and attracting foreign investment at the domestic and international levels. Legal ethics are automatically observed, and in others, legal standards are violated, so they need to establish legal order and standardization. In this paper, using a descriptive-analytical method, the objectives of foreign investment by transnational companies as the main goal and the challenges in this field are examined.

Freedom has a special place in Kant's philosophy; whereby many concepts in the field of practical reason should be read in relation to the meaning of freedom. One of these basic concepts is the notion of right, to which Kant's Copernican revolution has given special prominence through a subjective approach. According to Kant, the essence of reason is freedom and the law of practical reason makes sense in relation to the original meaning of the right can be understood only in the light of Kant's freedom. Kant considers the relationship between right and freedom to be profound, in that, the individual’s right is a set of conditions under which his freedom is harmonized according to the general law of freedom; and on the other hand, freedom is the only inherent human right and in a negative sense means being free from any kind of dependence. In a positive sense, this means the power of the legislature relies on its essence, and in relation to the right, the main condition for the validity of the right is the preservation of freedom. Just as freedom is an a priori concept, so are legal principles, and they have no purpose other than to unite the free will of human beings.

Provisional measures constitute an integral part of international proceedings including those conducted by judicial and quasi-judicial bodies dealing with human rights complaints. As international legal proceedings have proved to be time-consuming, one could expect the rights asserted by one of the parties to the dispute would incur irreparable prejudice while the final judgment is pending. This would justify issuance of provisional measures. International judicial and quasi-judicial bodies have made provisional measures contingent upon satisfactions of certain requirements. The most important of these requirements are the risk of irreparable prejudice and urgency of the measures requested, because they provide the basis for legitimacy of provisional measures. In the present article, the concepts of the risk of irreparable prejudice and temporal urgency of the risk are analyzed through the jurisprudence of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The study reveals that the said requirements are ascertained by these two human rights bodies through a careful consideration of the facts and circumstances of a given case and the interpretation of the claimed rights in line with the protection of the beneficiaries’ rights with emphasis on clear and convincing evidence in terms of plausibility of the alleged harm.

The disruption of contemporary representative democracies in the reflection of the public will in legal-political systems has led to the rotation of the formal system of transfer of power to the informal system, depleting democracy and confronting contemporary societies with numerous crises, including the crisis of legitimacy. This article examines the concept of constitutional Power and the constitutional form in Jürgen Habermas's legal philosophy in order to determine the ideal system of exercising power. The paper argues that the concept of the constitutional Power must be embedded in a constitutional theory that can explain the difference between legitimate law and the mere use of power. Accordingly, Habermas a participatory democracy based on structural principles including a world life outside control of government and market, a public sphere based on communicative actions and the principles of behavior including legitimate law that has passed the filter of public discourse, realization of the ethics of discourse including freedom, equality and absorption and the backgrounda of modern society with Self-founded Reason prescribe foundation as a solution to crises of contemporary societies. Habermas's theory can convincingly state the general conditions of constitutionalism and legitimate legislation that exercise private and public autonomy in the legal system.

One of the most challenging issues in the legal and political systems of countries is to consider a mechanism that can create a reasonable balance between protecting the interests of society on the one hand and respecting the private life of citizens on the other. Article 8 of the European Convention on Human Rights addresses this issue. In paragraph one of this article, the Contracting States are obliged to respect the private life of their citizens and in Paragraph two, while prescribing the interference of governments in the private life of citizens in certain circumstances, enumerates the requirements for this. The present study addresses the question of what is the meaning of private life in Article 8 of the European Convention on Human Rights and what are the requirements set forth in paragraph 2 of Article 8 of the Convention which allows governments to interfere in the private life of citizens? The study conducted in this article showed that private life is a broad and dynamic concept according to the European Convention on Human Rights, which encompasses various dimensions and is updated in accordance with cultural and social changes. The interference of the Contracting States in the private life of its citizens shall be permitted only if it is lawful, pursues a legitimate aim and is deemed necessary in the eyes of a democratic society.

According to Article 15 of the Iranian constitution, documents, correspondences and official texts like legislative acts, should be in the Persian language and script. The Guardian Council is obliged to return enactments contrary to the said principle to parliament of for correction. The concept of »Persian language and script« is not limited to Persian words (minimal approach) and the Guardian Council should also consider grammatical, dictational, editorial conceptual errors as prescribed  by the Persian Language and Literature Academy as well as common calligraphy and the writing rules (maximum approach). So it is necessary that the Guardian Council's proceedings based on the mentioned principle include observing the principles and norms of “communal Persian language “ and "legal Persian language" in the enactments. This procedure causes accuracy, clarification, and sustainability of legal literature in parliamentary acts. Ignoring these rules may also be contrary to nineteen clause of General Policies on Legislation and the first clause of Article 110 of the Constitution. The research method is descriptive-analytical and explains the identifiers and metrics of the legal Persian language in the legislation.

In the current age, one of the most important challenges of the international community is the phenomenon of bioterrorism, which has been used by some non-state actors in addition to states. Given the destructive effects and irreparable damage that the bioterrorist actions of non-state actors have on human life, the present article examines the legal aspects of this issue. In this regard, in the first part of the article, the concept of non-states actors and their approach to the use of biological weapons were explained. In the second part, the approach of the international law system to the use of biological weapons by non-state actors is examined, and finally in the third part, the approach of governments regarding the bioterrorist actions of non-state actors and their responsibilities in this field are explained. The findings of this article indicate that some non-state actors tend to use biological weapons to commit terrorist acts for a variety of reasons. Although several international instruments on terrorism and bioterrorism have been adopted so far, these instruments have not been able to prevent the bioterrorist activities of these groups. In addition, many governments in their domestic legal systems do not have adequate legal mechanisms to counter the bioterrorist activities of non-state actors, or for economic and political reasons are reluctant to counter the bioterrorist activities of these groups.

Conflict of laws in the cyber space is a very fundamental challenge since the lack of clear demarcation in this area and ultimately the impossibility of implementing "territorial jurisdiction" - as a key factor in determining jurisdiction - leads to the application of other jurisdictional principles. When this applies to several countries and two or more states consider themselves competent to prosecute a crime, there is a "positive conflict of laws" in cyberspace. This paper examines this issue using an analytical-descriptive method, and seeks to find out what are the causes of these jurisdictional conflicts, what are their solutions and whether the establishment of rules in this field is conceivable or should the conflict be resolved on a case-by-case basis?

In times of civil conflict, UN peacekeeping operations play a vital role in safeguarding human rights norms and ensuring security in the affected countries. Ensuring security and upholding norms in these operations leads to a dual approach: one that emphasizes human rights principles and another that focuses on guaranteeing and restoring lasting peace and stability in the host country. This dual approach ultimately places the legitimacy of the operation in conflict between "procedural legitimacy"—based on norms and principles—and "output legitimacy"—based on the effectiveness of the actions taken. This results in a dual identity for UN actions, influencing how the international community judge the legitimacy of these actions. It can also lead to distrust in the efficiency of the UN. The peacekeeping operations in the Democratic Republic of the Congo, Liberia, and East Timor serve as clear examples of these functional disorders, which have even been interpreted as "organizational hypocrisy" in some international legal commentary. This article, using an inductive analytical method, examines the challenges in analyzing the criteria of legitimacy for the actions of UN peacekeepers and emphasizes the need for a comprehensive view of this issue.

If a biological or harmful toxin agent is used as weapon in armed conflict or terrorist acts, that agent is classified as a biological weapon. Biological weapons, which have a long history of being used in military conflicts, have received special attention from developed states .Due to their unique characteristics, these weapons are considered a serious threat to human health and the peace and security of the international community. The danger of such weapons is greater than nuclear and chemical weapons because they can destroy tens of millions of people in a short term, and the effects can be transferred to future generations. The results of this paper, which uses a descriptive-analytical method, show that under international law, the use of biological weapons in terrorist acts and armed conflicts violates legal rules and disrupts public order. Therefore, the use of such weapons can be criminalized both as a crime against humanity and as a war crime.

Pursuant to the Law on Respect for Legitimate Freedoms and the Protection of Citizenship Rights adopted in 2004 and its executive instruction, paragraph (15), central and provincial boards were established with oversight of how the law is implemented, complaints are sent and followed up, and finally reporting and monitoring. What appears to be much criticism after nearly two decades of the law's implementation has been doubts about its effectiveness. So, while evaluating the performance and reforming the legislative system related to legitimate freedoms and protection of civil rights, it is necessary to take urgent action to review the institution of the Civil Rights Supervisory Board in order to revive the rights of citizens by comparative study of similar institutions, including ombudsmans and specialized types of them. However, the question of this article is "What are the disadvantages of the Civil Rights Monitoring Board in its structure and performance, and what solutions can be offered to address these issues?" Therefore, in the present article, after examining the harms of the board, suggestions were presented in the areas of cooperation and coordination, promotion and protection of human rights and citizenship, and indicators in restructuring the structure and organization in order to improve the position of the board of civil rights. The research method of this article is descriptive-analytical.

The conceptual evolution of peace and security has extended the term beyond the narrow concepts of war and military threats; to the extent that today the establishment of peace and security in the international community is considered dependent on the provision of human needs and a dignified life. A humanitarian approach to the concepts of peace and security, on the one hand, and the inevitability of having access to sufficient and safe water to meet human needs, on the other, raises the idea of exploring the relationship between water resource management and international peace and security. Therefore, the main question of the research is: what is the relationship between water and international peace and security and what is the political-legal mechanism for achieving international peace and water security. Using a descriptive-analytical method in this paper, based on library data and review of the views of political thinkers and international instruments, show that water and international peace and security are closely related to each other so that water, on the one hand, can be a factor in establishing international peace and security, but on the other hand, if this valuable material is not properly managed, can be a stimulus for disrupting peace and security at various national, regional and international levels. Meanwhile, the water cooperation policies of governments facilitate and supply water security in the international community, and international law can regulate, strengthen and guarantee this cooperation.

Due to the complexity of the nature and manner of committing corruption-related crimes, mechanisms to combat these crimes also require special requirements. One of the most important of these mechanisms is the establishment of national anti-corruption institutions, which specialize in combating corruption and have been expanding in recent years. This paper’s findings, using a descriptive-analytical method and a comparative advantage measurement, indicate that the model of institutional unity is more compatible with the legal order of the Islamic Republic of Iran in contrast to institutional pluralism. Also, in designing the proposed single institution, the principles that have been ignored in the current anti-corruption institutions should be considered. Among the most important of these principles is the immunity of the  anti-corruption institution’s officials, the independence of the institution in providing financial credits and its internal and external accountability.

Recourse to the capabilities of artificial intelligence has undoubtedly affected human life. Activists in this field always talk about the effective role of artificial intelligence in ensuring human welfare and security. Countering terrorist acts in cyberspace is one of the issues that have been raised under the title of advantages of artificial intelligence. But the use of this technology, despite its various benefits, has raised serious concerns among human rights defenders for violating some fundamental human rights principles. Concerns of this kind and the lack of comprehensive and enforceable regulations in the field of monitoring and controlling the effects of using artificial intelligence, led the European Union to present a draft law on artificial intelligence (AIA). But given some ambiguities and shortcomings in the content of the draft, have the authors of this instrument been able to take into account the various dimensions of the human rights challenges posed by the use of artificial intelligence? The present paper, with a critical look, seeks to find the answer to this question, by using the analytical-descriptive method.

One of the important issues in the Statute of the International Criminal Court is the jurisdiction of the Court, which has been challenged since the Rome Conference and has caused many debates. This id exemplified by the debate over the preconditions of applying the Court's jurisdiction to international crimes subject to its statute. The possibility of extending the jurisdiction of the Court to nationals of non-member States has always been raised by those in favor of the Court's comprehensive jurisdiction, and an attempt is made to grant such a capacity to the Court by broadly interpreting the preconditions to exercising the Court's jurisdiction. The present paper, by examining the views of the proponents and opponents of this issue, seeks to answer whether it is possible to exercise jurisdiction over the nationals of non-member states within the framework of the principles of international law. Using a descriptive-analytical method, we come to the conclusion that not only the rules of international law do not allow this, but also the normative order of the international community does not tolerate such an evolution.

The budget as the government's financial plan is considered an important issue and approach of the legal system to the steps of offer, approval, implementation and supervision of the budget, will have a direct effect on the proper budgeting and good governance. Article 52 of the constitution, has enumerated competent authorities for offer and approval the budget bill and has emphasized on the accordance with the procedures prescribed by law in this process. With collecting information in a library manner and adopting a descriptive-analytical research method and focus on the phrase ”accordance with the procedures prescribed by law " in Article 52, this paper has analyzed the limits of the authority of executive branch and especially the legislature in finalizing the annual financial plan of the country .In response to the question, what does the basic legislator mean by the above-mentioned phrase and has the legislative body so far adopted a permanent and upper-level legal statute as a budgeting framework? The result of this paper is that the “statute about reforming the country's budget structure” is the newest legal framework that governs on the budgeting process, which the institutions are obliged to offer, approve, implement and supervise the budget based on the provisions of this statute.In addition to the legal criticism of maximum parliament intervention in the executive's budget initiatives, the author has mentioned the idea of the adaptive competence of legislature in adapting the budget bill with the above-mentioned statute and has analyzed its capacities and defects.

Article 244 of the Direct Taxes Code was amended in 2021. There have been developments in this article that need to be discussed. In this regard, the research question of the present paper is, from the perspective of public law, with the amendments made in 2021, what are the most important legal criteria in Article 244? In answer to this question, using the descriptive-analytical method, the following conclusion has been reached. First, it seems that in the context of these amendments, the legislator has moved away from the classical tradition of documenting and, where appropriate, has specified legal principles and criteria in the text, so that within the framework of this article, explicitly or implicitly up to 20 legal principles can be extracted. In the tradition of tax legislation, however, the provision of so many legal principles or criteria in one article is unprecedented. Secondly, some legal criteria and principles can be clearly extracted from the text. Thirdly, some of them can be deduced from the context of the article. Fourth, despite the legislature's commendable efforts, some of the principles envisaged in this article seem to be ineffective from the outset due to competing mechanisms in the same article and in that sense, this amendment deserves to be amended again.

The European Court of Human Rights has, in several instances, equated life imprisonment with Article 3 of the European Convention on Human Rights, which prohibits torture. Over time, the judges have shifted from a conservative to a more progressive viewpoint, considering life imprisonment contrary to the principles prohibiting torture, as well as inhuman and degrading treatment. In this research, through descriptive and deductive analysis, we will explore the criteria laid down by th European Court's for life imprisonment not to be violative of Article 3 of the European Convention on Human Rights. These criteria include: the proportionality between crime and penalty, the provision of future prisoner release not only in rules and norms but also in practice, the allowance for parole for those convicted of crimes related to public security, and the prohibition of extradition to third countries that do not adhere to the standards set by the European Court. While these viewpoints undoubtedly enhance the safeguarding of human rights for those sentenced to life imprisonment, they may also pose challenges to the defense of public order in the member states of the convention.

The International Court of Justice (ICJ) has jurisdiction over all matters involving two parties bringing their case to the Court, as well as over specific cases anticipated by the United Nations Charter or current treaties and agreements. Essentially, advisory opinions are not binding on the international organs and institutions that request them on behalf of their respective governments. Nonetheless, the statutes of international organizations or conventions may stipulate that advisory opinions shall be binding. Section 2 of Article 94 of the UN Charter specifies judgments. Advisory opinions possess a binding character similar to treaties, statutes, and charter interpretations, achieved through adversarial proceedings, the role of requesting organs, or customary rules. However, rather than being two separate and independent entities, judgments and advisory opinions share many commonalities as well as differences. The present research draws on library and online materials, as well as documents from the International Court of Justice, to scrutinize the interactive function of judgments and advisory opinions of the ICJ and their role in the evolution of international law.