PUBLIC LAW STUDIES QUARTERLY
Year:2020 | Volume:50 | Issue:2 |Papers Count:20

Privatization of mother industries has been a focal issue in investment disputes in the last few decades. Thus far, there have been five major investment arbitrations regarding privatization of water industry in all of which the human right to water has been invoked by the host States or NGOs. At present, there are no binding human rights instruments that recognize the right to access water as an independent human right. The Committee of Social and Economic Rights goes so far as to infer the existence of this right from other human rights such as right to food, right to health, and right to housing. This article traces the human right to water from its birthplace, human rights law, to ICSID arbitration.

Central banks should act independently in regulating monetary, currency, credit policies and not be subject to political and governmental influence, but must at the same time be accountable for their performance. Given that central banks are not part of the three branches of government, their accountability is challenging. Therefore, in the present paper, the concept of accountability of central bank is considered as one of the means of controlling and evaluating its performance. In this way, the concept and characteristics of accountability of central banks as well as mechanisms of accountability to executive, legislative and judicial branches of government are expressed and transparency of central bank is analyzed in response to accountability. Finally, a comparative review of accountability in Iran and the United States is being considered, and it is concluded that in the legal system of Iran, there is no mechanism for accountability of Central Bank and it lacks transparency.

Following the adoption of the Responsibility to Protect (R2P) in the summit of Heads of State in the United Nations General Assembly in 2005, the Security Council which was eager to expand its powers after September 11, 2001, in international sphere, tried to justify some of its actions by this doctrine. The R2P can be used as an effective tool for protecting nations from the oppression and international crimes to which SC may refer it in some situations. Regarding the practice of SC, it seems that SC normally considers the interests of P5, while in some cases e. g. Libya, Ivory Coast and Darfur it actively applies R2P, in some other urgent cases e. g. Yemen, Syria and Bahrain simply ignores it.

In the post-industrial age, the institution of the family, which is the basis of civilized societies, is on the verge of collapse and the right to family life is exposed to serious violations of human rights. The importance of the subject matter of the family has prompted the authors to elucidate the position of this right in various human rights instruments and assess the confrontation of international human rights with the family and its changes and related measures. Although some of these documents are international non-binding regulations, it can be used to formulate a mandatory family-based document. Also, the provision of basic services in family and the promotion the attention to family in international policy is positively evaluated. But in spite of these positive efforts, unfortunately, the individualism and equalization of people in the center of the family, influencing the drafting of international documents while legitimizing the unusual patterns of the family, have weakened the family and somehow its collapse is continuing.

Labor law arose to protect workers' rights and seeks a balance between interests of worker and employer. International instruments and domestic laws have been enacted to ensure human working conditions. Providing incentives for obeying these laws and regulations needs sanctions which are penalties or other means of enforcement. Regarding criminal law principles, this paper poses a question of whether using criminal sanctions in labor law is justified or not. Finally, we argue that concerning the principle of criminal law as the last and the least resort, using criminal sanction in labor law cannot be justified except in a few cases.

The reason which consular protection (CP) institution was established based on is supporting people to recover their violated rights. In traditional international law, prevailing view was that CP is the exclusive authority of States and individuals have no right to resort to it. Now this question may raise that if a person’ s rights and legal interests have been violated illegally in a foreign State and above-mentioned person couldn’ t recover his legal rights with exhausting to local remedies, does his government is obliged to exercise CP to its nationals or could to refuse this request due to its authority? In other words, the question is that CP is part of exclusive authority of States or is part of individuals' international human rights which States have to exercise it due to national request? Conclusion of this paper shows that today, in the light of changes and developments in international human rights, CP is part of individual international human rights and States have to exercise it due to national requests, at least in theory.

International humanitarian law is a branch of public international law trying to diminish the affliction and pain of mankind through regulation of behavior of parties to the armed conflicts. A considerable part of IHL rules devoted to the limitation of means and methods of warfare. According to the IHL, the right of the parties to an armed conflict to use means and methods of warfare is not unlimited. There are inhuman means and methods of warfare which have been banned or limited by multilateral disarmament and arms control treaties. Technological Advancement has led to the emergence of new inhuman means and methods of warfare. Fully autonomous weapons are an example of new inhuman weapons. In lack of disarmament and arms control treaties, fundamental principles of IHL are applied to such means and methods of warfare.

Most-Favoured-Nation (MFN) clause has been always regarded as one of the cornerstones of international investment treaties which is the most important guarantee of non-discrimination among different foreign investors in the host country. Traditionally, the MFN Clause has been used to avoid discrimination based on substantive rights. After Maffezini Case Award, application of the MFN clause to procedural rights especially to dispute settlement clauses has moved this standard to an advanced level of practice in international investment law. In many cases, investors succeeded to prove jurisdiction in arbitrations in which Defendant State has never consented to prerequisites needed to be fulfilled before referring the case to international arbitration. Regarding the fact that MFN Clause, without any exemption, is enshrined in all Iranian bilateral investment treaties with no explicit limitation on the application of the mentioned clause to dispute settlement provisions, the subject is critically of highest importance from the perspective of national interests and also the State policy about foreign investments. The present article, after giving a summary of the latest updates about the issue and also reviewing relevant jurisprudence, intends to scrutinize the possibility of Iranian BITs MFN Clauses being cited about dispute settlement provisions and to provide solutions for covering relevant risks.

With the emergence and development of cyberspace, protecting citizens' privacy is simply impossible with the traditional human rights rules. Therefore, domestic laws and regulations should be developed in accordance with international rules and transnational measures to protect privacy. Technology and emerging contemporary communication practices and requirements of living in cyberspace and also the rules of the organization, such as the International Telecommunication Union and the World Intellectual Property Organization should be considered to safeguard these important citizens' rights. In this descriptive-analytic study, the question is how far the laws and regulations of Iran can protect the privacy of citizens in cyberspace. It is obvious that adoption of national regulations, without taking into account the global scope of this space and without respect to the conditions governing the international community and the norms of modernity, not only not effective enough, but it also will create contradictions and problems.

For many years, Israel has pursued a policy of Targeted Killings of Palestinian fighters. Since the beginning of the Al-Aqsa Intifada in 2000, the targeted killings strategy has been clearly announced as one of the Israeli public policy. The legal regime governing this strategy for those suspected of attacking is always one of the most challenging issues in the realm of international law. Given that the applicable ruling regime must first be investigated in the context of the operation in a situation of war or peace, in this article, according to legal arguments, it is emphasized that the Israeli confrontation with the Gaza Strip, because of Palestine's statehood and the start of a Gaza blockade as an act of aggression is an international armed conflict. As a result, the legal regime governing the Targeted Killing of Israel in this area during armed conflicts is the international humanitarian law and in relation to other occupied territories and in times of peace, is the human rights regime.

Right to development is one of the examples of third generation of human rights by virtue of which every person is entitled to participate in economic, social, political and cultural development of his/her society as well as enjoy from its fruits. Right to development is a collector of civil and political human rights with economic, social and cultural human rights, so its fulfillment has great effects on realization of other human rights. In this regard, it seems that one of the important effects of fulfillments of right to development is on internal self-determination which means that every citizen is entitled to free and public participation in the various political, social, economic and cultural affairs of the society. The right has its foundation on public participation and as a result, fulfillment of main indexes of right to developments such as public education, fair distribution of revenues, and proper employment will have great role in its realization by empowerment of public participation and its tools such as free electoral system, civil society and free flow of information.

When the war ended and the era of construction started, limiting the government to sovereignty activities and reducing its role in commercial activities, was on the agenda of the country's planners. So the separation of sovereignty and commercial activities of government was pursued more seriously. This separation was extended to all sections, including petroleum industry. By passing the Acts on Implementation of Policies under Principle 44 of Constitution and the Duties and Powers Ministry of Petroleum, it was attempted to implement the aforementioned separation in petroleum industry. This research by investigating different laws and regulations, evaluated the separation between sovereignty and commercial activities and the relationship between the sovereignty and commercial bodies in this sector. We conclude that, firstly, the relationship between sovereignty and commercial activities is longitudinal, so even if the government is prevented from taking action in a section, it continues to play its role in sovereignty activities. Secondly, the Law on the Implementation of Policies of Principle 44 added the criterion of "investment, ownership, and management" to the criterion of “ separation of sovereignty from commercial activities". Thirdly, despite the separation of the sovereignty from commercial activities in petroleum sector, the duties between them are not completely divided.

The theory of "Social Contract" is one of the most important Post-Renaissance theories which is about the origin of sovereignty and government in the Western world. Any theory posed in the human sciences is influenced by the philosophical foundations of ontology, epistemology, and anthropology itself that the study of these bases and how they relate to the theory is called "Fundamental Methodology". This paper examines Hobbes's theory of the Social Contract with the descriptive and analytical method and with the approach of Fundamental Methodology and then has tried to explain Hobbes's philosophical foundations and how it affects the theory of his social contract. Ontologically, his ontology is based on humanism, subjectivity, and secularism. Epistemologically, Hobbes has been influenced by two trends of authenticity of experience and authenticity of reason. He also left the sacred rationality behind. Anthropologically, he has been influenced by the mechanical look to man and the pessimistic perception of human nature.

The technological progress has caused the States to deal with the ever-growing cyber-attacks. The most cyber-attacks that States usually faced are Distributed Denial of Service Attacks. Since these attacks do not have any direct and immediate harm, they cannot be considered as a use of force or armed attacks. Therefore, States usually ignore to trace and identify the attackers. Since there are no explicit and direct rules for addressing cyber-attacks, in accordance with the regulations of current international law, we conclude that some of these non-destructive cyber-attacks which are coercive can be counted as violation of the principle of non-intervention if those attacks are attributable to the States and consequently the international responsibility of those States can be arisen in competent international courts. In this essay, the authors endeavor to demonstrate not only the severe cyber-attacks violate the international law obligations but also the non-destructive ones such as Distributed Denial of Service Attacks which can breach international law too.

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence 2011 (the Istanbul Convention) is the most recent treaty that directly addresses the issue of violence against women (VAW). This Convention has created a comprehensive and multi-faceted legal framework including adoption of an interdisciplinary and multidimensional approach towards preventing and combating VAW and has presented a pervasive definition and interpretation of discrimination and its manifestations against women. Adopting an extensive method toward all forms of VAW and their criminalization, and generalizing the scope of Parties' obligations to armed conflicts and migration and asylum status in protecting women against all forms of violence are other features of the Convention. This Convention, through aforementioned characteristics, seeks to prevent, prosecute and eliminate violence against women and girls and domestic violence. Not only does it develop and strengthen the legal regime regarding gender-based violence, but the treaty can also be accessible to and acceded by third countries, which are not members of the Council of Europe. The present article aims to investigate the innovations and potential capabilities of the Istanbul Convention as regards the reduction and elimination of VAW under international law perspective.

The focus on the issue of Quality of Laws in the last decade in Iran necessitates conducting a study on and discussing a different aspect of the issue. Aspects and facets of quality of law are extended, complex, and they need high precision. The initial steps of the study include conceptual and theoretical underpinnings and final steps entail practical solutions for increasing the level of quality of laws. In the present study, five solutions to increase the level of quality of laws are introduced. The solutions are practiced in different countries; however, they have never been discussed as a set of ways to increase the level of quality of laws altogether. Three solutions increase formal and material characteristics of the laws, i. e. consultation prior to the tabling of the bill, use of linguistic experts, and use of experimental legislation. The other solutions, i. e. codification and adopting a specific law on quality of laws, provide the appropriate legal system environment for increasing the level of quality of laws. Undoubtedly, using these solutions, all of them as a whole, have a significant effect on achieving a Good Law.

With the transformation of political and economic systems, the world is becoming a global village, and the need to harmonize laws and regulations and globalization of rights is more and more concrete. In this study, the conditions and barriers to the recognition and enforcement of foreign judgments in Iranian law have been compared to EU rules, and the implementation and differences of judgments in both systems have been investigated. The results showed that the commonality of both systems is that only civil and commercial sentences can be identified and enforced, and criminal, administrative and tax decisions are excepted. The study found that EU regulations could be shared between countries with regional and religious communities, such as the Member States of the Islamic Conference, the ECO organization and the Non-Aligned Movement (NAM).

Removing of immunity from elements of international crimes under provisions of Article 27 of Statute is a prospect of cooperation of members with the ICC. However, this cooperation is specific to members and their status. Sudan is not an ICC member. Referral of his condition and the need for his cooperation with the ICC is not due to his membership, but because of the resolution, which has serious ambiguities regarding the recognition of Sudan's membership in the Statute and removing of immunity. This situation has led to the confrontation between the AU and its members with the ICC, which is purpose and subject of this article. A research question is; what is the impact of confrontation between the AU and its members with the ICC on international judicial procedures? The findings of this study indicate that judicial proceeding of the ICC has not only failed to narrow the scope of this confrontation for more than a decade but also has been weakened by the lack of cooperation of AU Member States in the arrest of Al-Bashir. This approach adversely affects the status of the ICC on protection of the Security Council in Sudan's situation, which is becoming increasingly evident.

In recent years, the international community has witnessed the emergence of a Non-State actress called "Daesh" that it constitutes a global and unprecedented threat to international peace and security. When Daesh occupied areas of northern Iraq, this event triggered an armed conflict between the Iraqi armies and the Daesh armed forces. The main focus of armed conflict, whether international or non-international, is respect for international humanitarian law, including fundamental principles such as the principle of distinction and proportionality. Daesh has contravened numerous international law provisions by its conduct in Iraq. The group has breached several of its IHL obligations as a Non-State actor in the conflict that occurred in Iraq. According to the findings of this article, it seems that Daesh's actions in many respects have provided the threshold for pursuing under international crimes of genocide, crimes against humanity and war crimes.

The constitution is described as the supreme social covenant, whose effectiveness and accountability require prediction of a review mechanism. For this purpose, the Islamic Republic of Iran Constitution sets out a mechanism for revision in Article 177 that is significant in terms of the role of the people in this process. The motivation for writing the present paper was to answer the question: What capacities have the Constitution of the Islamic Republic for the role of people in the Constitutional Review initiation? In response, it should be said that Article 177 merely considers the Supreme Leader to be competent to review initiative. However, in this paper, in a descriptive and analytical way, examining the fundamentals of people's participation in the revision initiative from the perspective of the fundamental rights set in the constitution, which implies the sovereignty of the people, as well as the reflection of the basic legislative and loyalties of the present Constitution to strengthen the role of the people in the Constitutional Review and with loyalty to the current Constitution, steps have been taken to strengthen the role of the people in the Constitutional Review Initiative by parliamentarians or presidents. The findings of this research indicate that the divine and inalienable right to social self-determination, the public duty of all people to Enjoy the Good and Forbid the Evil, and moreover, the duty of the Muslim Nation in the construction of the Islamic Community, have provided the legal capacity which is necessary to increase the people's role.