INTERNATIONAL LAW REVIEW
Year:2018 | Volume:- | Issue:58|Papers Count:12

Providing the legal systems with stability and dynamism requires the existence of stable rules and at the same time with a necessary degree of flexibility to ensure that the legal system would be practical and effective if important and real changes occur in social situations. International judicial authorities, in the course of litigation, identify the basis and reality of the rules and legal principle through interpretation and adaptation with the subject matter of the cases, and in this way, meet the needs arising from developments in the international situation. The European Court of Human Rights, whose main function is to resolve disputes arising from the European Convention on Human Rights, in some cases, through the use of a static interpretation, against dynamic interpretations, has insisted on the provisions of the Convention and, in some cases, having due regard to the structure of the European community, used the evolutionary and dynamic interpretation of the provisions of the Convention. The Court, in many cases, referred to a concept called “ the European Consensus” to justify implementing the dynamic interpretation of the Convention and responded to the new situations. This approach has been faced with various agreements and disagreements. The European Court of Human Rights by applying the dynamic interpretation method takes into account the will of States as a key element in the evolution of rules and obligations in international law and at the same time has undermined the need for expressing State’ s will to accept these developments. In this way, the human rights rules and obligations enshrined in the Convention are evolving with changes in the requirements of the present time and social realities.

Growing involvement of intellectual assets in today’ s international commerce has inevitably increased international disputes concerning intellectual property rights between private parties. Given that many of such disputes involve parties from different countries and intellectual properties arising under the laws of more than one country, the parties to the dispute may find it undesirable or cumbersome to recourse to national courts. In particular, the territorial nature of intellectual property renders these disputes incapable of being resolved on an international basis. The multiplicity of litigation proceedings is susceptible to serious inconsistencies coupled with uncertainty and expense of enforcing foreign judgments in certain jurisdictions. International arbitration, as an interesting alternative to court litigation, can offer genuine advantages to settle intellectual property disputes. Yet, in many legal systems, the arbitrability of intellectual property disputes has been far from settled. Since Intellectual property rights are in fact monopolies granted by States and many of them must be registered with a State authority if they are to subsist, the question of whether parties can validly submit intellectual property disputes to arbitration has given rise to a historical national resistance to arbitration of intellectual property disputes in general and registered intellectual property disputes in particular. Today, national legal systems tend to take different approaches to this issue; from excluding arbitration on registered intellectual property disputes together with recognizing full arbitrability of all disputes concerning registered intellectual property rights. Nevertheless, a comparative study of modern legal systems and their developments shows that the prevailing trends are shifting toward making most intellectual property disputes arbitrable.

The International Court of Justice, by way of applying the law through the interpretation of the rules and regulations of the international community, has played a significant role in developing International Law that entails the concept of change and innovation. The main function of the Court is to settle legal disputes submitted to it by States. In this regard, the Court in some of its Judgments has resolved ambiguities in international law by applying dynamic interpretation to correspond the true intention of the parties and finally discovering their true intention with considering circumstances and requirements of the international community. By making a relationship between the International Court of Justice which is unable to make rules expressly, and the dynamic interpretation, that some believe it can make a rule, this paper tries to analyze how dynamic interpretation besides other effective mediums in this regard can determine and make clear the existing ambiguities and fill the gaps in International Law.

Oil is one of the most important environmental pollutants which is mostly transported across the sea. The marine environment is always at risk of contamination. Given the incidents that occurred during recent years, global society gradually developed and approved international instruments to address the issue of offshore oil pollution liability and compensation for relevant damages. At the same time, some instruments are approved which require compliance with the standards whether in transport or on ships and their agents and try to prevent accidents or collaborate to mitigate the harmful effects. In this paper, in addition to the classification and introduction of international instruments in this field, it has been tried to analyze the strengths and weaknesses of these instruments and compare them. The 1969 Convention on Civil Liability is extremely important in this regard because many of the instruments that have been approved after this date while maintaining its principles are more to complete its shortcomings.

The right to nationality is the basic and fundamental human rights and it may be interpreted as the right to have rights. Nowadays, the fact that each State determines the conditions of acquisition or loss of its nationality according to its own laws has become an internationally accepted principle. With the increase in terrorist attacks in recent years and the subsequent legislation on the laws of deprivation of nationality aimed at punishing such actions, including in France, as well as the government of Bahrain’ s actions in deprivation of the nationality of its political opponents, the present article seeks to answer the question of whether the ban on deprivation of nationality is legitimate under international law? Deprivation of nationality is legitimate if it abides by the three rules of customary international law including the prohibition of arbitrary deprivation of nationality, non-discrimination and avoidance of statelessness and in case of violation of these rules would be illegitimate. Bahrain's government action is illegitimate due to its arbitrary and discriminatory nature. States practice for unwillingness toward the deprivation of nationality as a punishment is changing.

The article provides an overview of ISIS attacks against the cultural heritage of Syria and classifies these attacks as war crimes and crimes against humanity. The cultural property as defined in this article are protected under many international law instruments such as the Hague Convention of 1954 and its 1999 Additional Protocol but the question to be answered is the applicability of the international treaties to non-state actors involved in contemporary armed conflicts such as ISIS. To answer this question, the authors have studied a wide range of international documents such as the Resolutions of the UNSC and Awards rendered by international criminal tribunals and finally have reached a positive answer to the above-mentioned question. The article also contains some practical alternatives to deal with violations of IHL committed by non-state armed groups.

Certain substantial issues including interpretation of contracts have not been sufficiently touched upon in international commercial arbitration debates. Compatibility of the outcome of interpretation with logic is a very important issue. In fact, the main question is “ could an illogical outcome of an interpretation be considered legally valid? ” In this article, an attempt has been made to show some illogical outcomes resulting from interpretations and to examine the international arbitrators' approach to this subject. Finally, in view of the fact that international arbitrators enjoy more freedom than domestic judges, and in light of arbitral practices, it has been concluded that arbitrators always avoid irrational outcomes resulting from an interpretation. Therefore, it is argued that “ logic” might be used as an original criterion in international commercial arbitration to rule out irrational outcomes.

Internal armed conflict in Syria has been the basis for the widespread violations of international law as well as the growth and formation of terrorist groups such as the Islamic State of Iraq and Syria (ISIS). In this regard, the Security Council despite adopting resolutions condemning radicalization to terrorism, could not take any appropriate and binding decision to end this crisis because of the existence of the opposing viewpoints of the great powers and the intervention of some Arabic and regional countries. This factors led the US to establish theGlobal Coalition along with some other countries to combat ISIS. Although this was a positive move and showed the international community’ s concerns to inhumane acts, it has given rise to questions as to whether its formation and activities are legitimate in the light of international law or not? These countries have attempted to interpret different categories of international law in the form of coalition partners. They also challenged the fundamental principles of the UN Charter by using force in the territory of the host State, because the use of force without three preconditions (the authorization of the Security Council, valid consent of the government and recoursing to article 51 of the charter regardless of its legal status) has no legal effect in contemporary international law and brings the international order back to the legal order prior to the adoption of the UN Charter.

Due to the widespread use of arbitration to resolve disputes arising from bilateral or multilateral investment treaties, and necessity of paying attention to the public interest in these arbitrations, UNCITRAL approved a set of rules in July 2013 that aimed to ensure transparency in investor-state arbitration. Although these rules require provisions concerning the publication of information and documentation relating to arbitration and are not the first experience and perfect criteria of transparency in arbitration, they are of great importance since they represent only transparency instead of confidentiality and privacy. With due regard to the adoption of the Convention on the Transparency in Investment Arbitrations, the use of these rules could result in further coordination and harmonization of provisions on arbitration.

There are different types of awards in international commercial arbitration and the arbitral tribunal may issue a variety of awards concerning different issues. The arbitral tribunal's authority to issue different types of awards has been explicitly provided for in certain laws. The fact that there are different types of awards may be implied from the International Commercial Arbitration Act of Iran. The most important awards are final, partial and interim awards cited by almost all international instruments. Another category of awards, including default, declaratory and constitutive awards are among those not been referred to in any arbitration rules and laws. In Iranian law, the International Commercial Arbitration Act, contrary to provisions concerning national arbitration, contains distinctive and comprehensive provisions concerning interpretative and supplementary awards. In this analytical-descriptive article, the authors have tried to study different types of awards and put forward some suggestions to amend the Iranian Act.

The Convention on the International Sale of Goods (CISG) is one of the most significant documents ratified in the field of harmonization of substantive law. Accession to the CISG needs a precise study of its pros and cons. The convention decreases costs, improves legal certainty, modernizes domestic law and increases trade. Simplicity, certainty, fairness, success and uniform interpretation are among those reasons stuck to by the proponents of accession to the CISG. But opponents of the CISG call into question the harmonization coming from the convention and believe that it is a reconciliatory and unworkable document, and because of this, legal certainty is not secured by this Convention and contracting parties often enter a reservation to it in international transactions. However, the general assessment shows that the reasons given by the proponents are stronger and the Convention improves the legal system, decreases costs, boosts trade and economy and consequently brings about public welfare and with regard to these results, accession to the Convention is recommended.

The international law is a legal system tasked with securing the rule of law on the international scene and attainment of common values such as humanity, justice, and security. This system consists of interlinked values and norms which represent social, political and moral purposes of law, therefore the international law is more based on normative foundations than rules. There are different ways to display the norms, the most important one is the main sources of international law. Despite the significance of the general principles as foundations of legal structure, they remain unknown. The purpose of this paper is to examine the nature of general principles and to evaluate their different functions. Given that, international law is a system with constant renewal and dynamism, the functions of general principles play an important role in preventing the stagnation of international law. They help for growth and responding to new challenges of international law.