PUBLIC LAW STUDIES QUARTERLY
Year:2021 | Volume:51 | Issue:3|Papers Count:20

Human Rights Council Advisory Committee is a consultative body of the Human Rights Council that provides the council's requested consultations. Its studies and reports lead to draft some international instruments. It is important to recognize the advisory committee to understand the mechanisms of the UN system for protecting human rights. The present study was designed to identify the advisory committee and examine and review its function and role. This research has shown that the Advisory Committee has an international advisory role and it issues recommendations. Another function of the advisory committee is providing suitable area to interact, exchange ideas, debate, and dialogue between experts of the Advisory Committee and representatives of governments and NGOs about human rights issues. The Advisory Committee protects and promotes human rights through shaping public opinion, informing and increasing knowledge and information production on various human rights issues through studies, preparing reports, and drafting some international instruments. The Advisory Committee has strengthened the functions and efficiency of Human Rights Council.

This article discusses how the standard of compensation for expropriation of foreign investments employed by international investment tribunals can affect State parties’,preferences reflected in international investment agreements as well as the efficiency of these standards in light of an economic analysis of law. It is suggested that State parties to these agreements often pursue their own economic development as well as protecting their nationals who invest in the territory of the other contracting State. In so doing, the State parties try to diminish the externalities associated with their measures and decisions on foreign investors on the one hand, and to reduce the risk of investment in their territory for foreign investors, on the other. By comparing the standard of full reparation established in customary international law to the standard of prompt, adequate, and effective compensation due immediately before the expropriation, usually agreed upon in investment agreements, this article concludes that the former standard-i. e. the standard of full reparation-is not entirely compatible with the preferences of State parties to international investment agreements and, thus, cannot always be considered as an efficient standard.

The "right to life" is the base of taking advantage of all other human rights. According to the foundations of contemporary human rights, life has been considered equal to the biological life, and the meaning of life has no effect on getting benefits from the right to life. According to this thesis, awareness and knowledge about the meaning of life are the basis of forming the right to life, and the meaning of life is the essential part of the right to life. Depending on the way the meaning of life is formed, taking advantage of the right to life and determining its boundaries are different. For example, in the cases of children and or environments, the right to life is the result of others awareness about the meaning of their life. Contemporary human rights can preserve its own meaningful order besides other meaningful orders. Respecting the biological dimension of life as well as recognizing the right to choose could be considered as the dominant principles of the meaning of life.

Postmodernism, which emerged after the crises of modernity, has undertaken the mission of filling the void of modernity as a more flexible and peaceful approach than modern vision. In this sense, it should not be regarded as the end of modernism, but as a critique of it and its continuation and completion in the context of criticism of modern elements. The coincidence of its heyday with the increasing speed of the establishment of international institutions, including the United Nations, obviously has made the charter affected. The Charter and the Statute of the International Court of Justice (as an integral part of the Charter and the United Nations' legal arm) have passed numerous challenges by establishing postmodern approaches in order to safeguard its mission.

Modification of legal system based on implementing “, law”,idea, was among fundamental approaches of Iranian intellectuals during the confrontation with modernity. Law as the radical core of modern legal system is a self-autonomy and self-founded item considered as the symbol of freedom and self-autonomy of modern human which philosophers of Age of Enlightenment have interpreted it. On the other hand, Iranian intellectuals in their researches about Iran's backwardness and advancements of Western countries have concluded that “, law”,is the only solution for all problems in Iran. The main purpose of the present study is to investigate what is analysis of Iranian intellectuals when confronting modern law? Whether Iranian intellectuals have accurately and correctly confronted with concept of modern law? To answer the above questions through analytical-comparative method, it has been concluded that three approaches of “, similarity of religion and law”, , “, completion and cooperation of religion by law”,and “, conflict between religion and law”,have been created about the relationship between religion and law. Theoretical confrontation of two approaches formed in relation with law without realization of bases, philosophical and cognitional support of law concept, and beyond this perspective consistency and convergence between religion and law have been achieved. Although consistency between law as a self-founded item and religion as an other-founded and God-centered item is philosophically impossible.

For more than one decade, Treaty Shopping is at the center of the discussion of the International Investment Dispute Settlement. Generally, treaty shopping is a practice which international investors (natural and legal persons) through various methods, in particular, nationality planning, corporate structuring or restructuring, and by transfer of claims deliberately are seeking to use or take more benefits of the more favorable advantages of the BITs which the home country probably conclude with the host or third countries. The arbitration courts are faced with this question that they should dismiss the disputes containing treaty shopping or not? And is nationality planning or changing the corporate nationality by investors which occur aiming at utilization of the treaties advantages would be “, Legitimate Nationality Changing”,or “, Treaty Abuse”, ? The aim of this article is to consider and analyze the notion of treaty shopping, methods which treaty shopping will be occurred and the quality of determining treaty shopping, in particular, in line with the foreign control notion based on the jurisprudence of the arbitration courts and investor-State arbitrations, in particular, ICSID and the solution for decreasing its possible effects.

Governments have always sought to obtain the secret and strategic intelligence of other countries in order to protect national security and respond to domestic and international threats, thereby applying their covert policies in the target country. This, in most cases, inflicts numerous injuries on the victim country. But the question is, can espionage make the government responsible for that act? Given the absence of any regulations in international law on espionage, there is a strong disagreement over the legal status of espionage. The present study first elucidates the position of espionage in international law and then assesses the attribution of espionage to the responsible State. Finally, the terms of the international courts' proceedings and alternative measures are analyzed. Research results show that espionage is a wrongful international act because of its incompatibility with the principles of international law, but it is not usually possible to take legal action in international courts. The best solution is to use political ways and countermeasures in espionage cases.

In 1976, the United States enacted the Foreign Sovereign Immunity Act (FSIA). The Act disregarded the immunity of States committing terrorism in U. S. courts. On 19 January 1984, the U. S. Ministry of Foreign Affairs designated Iran as a State sponsor of terrorism. In 1996, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) was enacted by the U. S. Congress, which in lawsuits against terrorist States provided for financial compensation. As a result of these Acts, numerous lawsuits have been filed by U. S. nationals and in the U. S. courts against Iran. The U. S. courts sentenced Iran to compensation and confiscation of the Central Bank assets instead of State-owned property. The pleading of the Central Bank to the U. S. judicial authorities during the review and appeal proceedings was not successful and the Central Bank assets were confiscated. On 14 June 2016, Iran filed an application against the U. S. in the ICJ, referring to non-observance of State immunity and violation of the 1955 Treaty. The judgment of the Court on jurisdiction was issued on 13 February 2019. The present article examines this judgment in two areas of legal personality of State-owned corporations and immunity of State-owned assets and concludes that the ICJ, according to its inherent obligation, emphasized on the common intention of the parties as the basis of its jurisdiction.

These days it has been recognized that NGOs have a significant role in international law, from decision-making to rule implementation. This article analyzed the influence and role of NGOs in fighting corruption. NGOs have repeatedly demonstrated their ability to make a valuable contribution to the fight against corruption. The phenomenon of corruption is a very big problem in many countries of the world, which can include any governmental and non-governmental sector. Corruption distorts resource allocation and State's performance. Consequently, States have to take measures to enable and strengthen NGOs participation. Today, the role of international NGOs such as International Transparency, Freedom House, World Economic Forum, and International Chamber of Commerce is significant as global non-governmental pioneers against corruption.

Women with disabilities, due to the two features of being a woman and having a disability, are subject to double discrimination and are more vulnerable to all types of violence and injustice. Confinement of women with disabilities to their living environment, whether home or residential centers, on the one hand, and the lack of skills and training needed to identify and deal with dangerous situations, on the other hand, would expose them to multiple, prolonged, and different types of domestic violence. Access to justice is the legal remedy for violence, but women with disabilities are often reluctant to receive appropriate compensation due to multiple barriers. International efforts to address domestic violence and access to justice for women with disabilities, such as providing training materials, making governments provide accessibility, reforming the law, and public awareness raising, would be be considered in this paper. In fact, the present article seeks to provide an analyticaldescriptive study of the approach and solutions of the international human rights law in preventing domestic violence against women with disabilities, and in case of violence, to facilitate their access to justice.

Following the adoption of UN Security Council Resolution 1737 in 2007, the European Union imposed sanctions on individuals and entities, including some Iranian banks. Sanctions imposed by the European Union have prompted Iranian banks under sanctions to seek relief from the Court of Justice of the European Union, seeking sanctions relief and compensation, which they have sought in some of the lawsuits until 2015. Some of these cases were successful. In contrast to this practice, after the conclusion of the Joint Comprehensive Plan of Action in 2015, certain applications were dismissed. This article will first briefly outline the legal bases and legal framework for sanctioning Iranian banks by the EU, and after referring to the status of Iranian banks in this regard in the post-JCPOA period, three examples of lawsuits filed by Iranian banks against the EU will be analyzed to answer the essential question of the article on how and why the banks are sanctioned and the Court's approach to the lawsuits.

Negotiations in the area of international relations, particularly with the aim of peaceful settlement of international disputes, should be done in good faith. This is because negotiate in good faith is like an international rule and in some cases,it is the pre-requisite for a treaty or agreement. Whenever there is an explicit agreement for negotiating, whether the term "good faith" is used or not, the parties shall continue negotiations based on the principle of pacta sunt servanda, and Article 26 of the Vienna Convention on the Law of Treaties in good faith. However, the principle of good faith will be applied even in voluntary negotiations. In other words, even in the absence of an explicit agreement between the parties, or an inherent obligation in some branches of international law, compliance with it will be essential. Thus, in both cases of the obligation to negotiate, the Pactum de Negotiando (obligation of conduct), and Pactum de Contrahendo (obligation of the result), the parties, regardless of their legal obligations base, should negotiate sincerely and purposefully and compromise in good faith to achieve the desired results.

While today it is widely accepted that organized armed groups are obliged to respect and implement international humanitarian law, however, given the nature of the State-centric of international law as well as the incapacity of organized armed groups to ratify and accede to international instruments, the legal basis for Obliging organized armed groups to respect and implement international humanitarian law and how to do so is vague. Legal writers and international tribunals have presented various arguments and opinions to determine the legal basis of obligation of organized armed groups to respect and implement international humanitarian law. These arguments are: customary international law, general principles of law, the consent of organized armed groups, the theory of succession, and theory of legislative jurisdiction. It should be noted that this is not just an academic debate, but this issue is of great importance when international criminal courts and tribunals try to enforce the principle of the legality of crime and punishment. In this paper, while analyzing these arguments, given the shortcomings and deficiencies that the other arguments have, we conclude that the theory of legislative jurisdiction is a good argument for obliging organized armed groups to respect and implement international humanitarian law.

Outer space is a kind of space which begins with the last point of the upper airspace of territory of any country and consists of the moon and other celestial bodies. The law of outer space has also consisted of laws on exploring and exploiting this space. One of the activities considered by human beings since the beginning of access to space until now has been the discussion of commercial activities and consequently the protection of intellectual property rights related to these activities in this area. Patent and copyright in space activities have an important role in the further development of space commercialization. It is clear that the process of development and innovative ideas in space will continue to human products with every growing potential to take advantage of the special opportunities offered by the space environment. Therefore, the question arises as to what approach international space law has in relation to intellectual property and whether it has anticipated and dealt with it or not? It should be said that the international law of space, just as it did not deal directly with commercial activities, did not directly address the issue of intellectual property of commercial activities but only dealt with it implicitly.

The bill to add a note to Article 5 of the “, Law on Assessment and Admission of Students in Universities and Higher Education Centers of the Country”,in order to impose a sentence of deprivation of education for people with a definite criminal conviction for organized crimes of human trafficking, moharebeh, and espionage. Therefore, the present study descriptively and analytically seeks to answer the question of whether convicts can be denied access to the right to education as an accessory punishment. Findings show that deprivation of education is not an example of deprivation of enumerated social rights in Article 26 of the Islamic Penal Code,the bill also violates domestic law and international documents to eliminate undue discrimination, provide fair access for all, equal civil, social and cultural rights, and the provision of higher education facilities.

Microsoft Corporation has access to the emails of its users and their contents from the United States territory. However, this information is stored and held in a crossborder data center that is considered to be alien to the Microsoft Corporation and the territory where the center of its activity is located. Access of the United States is interference in internal affairs of the Irish government, which is location of the Microsoft data center. But location of the Microsoft and its ability to access it from the territory of the United States to the information stored by its users, even in crossborder is important and obtaining criminal jurisdiction for United States Courts. Whereas United States criminal law is effective and enforceable on the territory. Accordingly, the approach of the United States courts is not justifiable on the basis of territorial rules for access to cross-border stored data. The research question is, what is the mechanism of cybercriminal investigation in the cross-border data center and its challenges? Findings of the research show that approve of a treaty about legal cooperation in criminal investigations and adherence to its provisions are the only mechanism for access to the cross-border data center, whose implementation is facing serious challenges.

Victory and initiative in many of today's wars are with a country that has air superiority. Air superiority is using drones and this requires a full understanding of the legal principles that govern it. The purpose of this study is to examine only a part of the legal rules which govern the flight of drones in air warfare from the perspective of international law. This article, regardless of domestic law and national security concerns and with regard to international legal issues, states that a drone, based on its capabilities and limitations, may violate or comply with humanitarian law. Due to the position of this type of aircraft among the principles of international arms control, the arms control regulations do not apply to them, while the basic principles of humanitarian law include the principle of separation, the principle of necessity, the principle of proportionality, and the principle of precaution must be taken into account. When using this instrument the issues of territorial integrity, State sovereignty, and countries' airspace should be considered.

The right to seek asylum recognized as a fundamental human right, encompasses international protection of people seeking asylum. Protection of children's right to asylum, particularly for unaccompanied minors (UAMs) who are at risk of several physical and psychological problems on the forced migration route, is one of the challenging issues. This paper attempts to answer this question that to what extent international refugee law and European refugee law are providing international protection for unaccompanied and separated refugee children? In this study, the rights of asylum-seeking children and particularly their right to family reunification have been examined according to international documents. Further, it deals with recent European Union instruments concerning legalization of protection of UAMs and affirmation of the family reunion right to represent the UAMs best interest principle. Children as the most vulnerable group of refugees are known to be half of the global refugee population, whom never has been included sufficiently in the International Refugee Law instruments. Thus, there is no comprehensive international binding instrument for their protection yet and there is no official definition for UAMs in biding international instruments. Therefore, legislating a comprehensive international convention about their protection is necessary.

Maintaining peace and security is one of the main goals of the United Nations. The United Nations created peace-keeping operations to maintain, restore and consolidate peace. In spite of the important role they play in maintaining and restoring peace, peacekeepers have committed violations of human rights and humanitarian law. Considering that the sending State of the peacekeeping forces still retains some qualifications, the fundamental question of the research is that if there is a violation of human rights and humanitarian law, what is the criterion for attributing responsibility? Despite the numerous judicial decisions issued in this regard, according to the Draft Articles on the International Law Commission on the Responsibility of International Organizations and judicial procedures, it seems that the effective control criteria of attributing of responsibility for peace-keeping operations is more than any other criteria are the subject of judicial action.

Constitutionalism in recent centuries has sought to establish the constitution with new goals. In this sense, constitutionalism gives the constitution a modern meaning and content. Based on this, it is very important to know what perceptions the authors of the constitution had on concept and content of the constitution in 1979. Therefore, relying on descriptive-analytical methods, the authors have tried to explain the theoretical foundations of constitutionalism by extracting, explaining, and describing the details of the 1979 negotiations. These perceptions are: reductionist, Islamist or a variety of perceptions of Islamic government, value-oriented, idealistic, contentoriented or legal and modern, cosmopolitan, and task-oriented. The basic premise of this article is based on the fact that it seems that there has been a multiplicity of interpretations of the concept and content of the constitution in the minds of constitutional experts in 1979. In other words, among the various views in the Assembly of Experts for Constitution, the ideological and revolutionary views have prevailed, because in addition to legal readings, these non-legal readings also stood out in this force. On the other hand, the product of the attitude of constitutional experts in the texts approving the constitution was often a legal and modern interpretation, although the value-oriented interpretation was evident in the preamble to the constitution.