RAHBORD
Year:2011 | Volume:20 | Issue:58 (SPECIAL SECTION ON LEGAL STUDIES)|Papers Count:15

The concept of territory as "the geographical frontiers for political sovereignty and range of the state competence" is of eminent significance in the disciplines of political sciences and international law. The Constitution of the Islamic Republic of Iran has been derived from the Islamic Revolution of Iran in which two peculiarities are prominent: introspection and extrospection. The Constitution of the Islamic Republic of Iran has had an eye onto the geographical frontiers while passing through the political borders via ideological assessments. This article argues that the combination of political realism and legal idealism in the adoption of the concept of jurisdiction is affected by the atmosphere created after the Islamic revolution. Every text is influenced by its context: historical, social, economic, ideological, cultural, and so on. The text of the Constitution of Islamic Republic of Iran is not an exception to this rule. After the triumph of Islamic Revolution of Iran, a constituent assembly was founded by the supreme leader of the Islamic revolution in a popular electoral process. Assembly of Experts drafted a new legal text for the newly established political system. The author tries to test his hypothesis by the text analysis based on the proceedings of the Majles-e- Khobregan (Assembly of Experts).

On the basis of the 1982 Law of the Sea Convention (LOS convention), the construction of artificial islands is not illegal and these islands are considered as research and investigation areas. Moreover, the LOS convention stipulates that artificial islands do not have sea borders and the constructor countries cannot create sea areas for them. Until now, due to the confirmation of the LOS convention, there has not been any objection to the construction of artificial islands. However, nowadays the complexity of international security, particularly the extension of security concept to new domains such as environmental security, has caused some anxieties about negative impacts due to the construction of these islands.According to many reports and inrestigations, the Persian Gulf is one of the most polluted seas in the world and oil pollution in the Persian Gulf is twice as much as environmental standards. Therefore, the study of probable environmental consequences of constructing artificial islands is very important, especially that some countries intend to construct these islands for various purposes.In this article, the relation between the LOS convention, construction of artificial islands and the environmental impact of these islands is studied. In conclusion, the author recognizes that LOS and international law cannot respond to new cases created due to the construction of artificial islands, so countries need to compile new regulations. At the end of the article, there are some proposals for improving the situation.

Legislative assemblies are one of the institutions involved in the policy making process. The range of their intervention varies from determining policies to formally influencing policies. This variation is affected by two categories of factors: structural factors and actors. The structures include the internal organizations of the Parliament and its jurisdiction, power distribution in the political system as well as external structures. The actors include the speaker of the Parliament, the head of the executive branch, representatives and interest groups. With regard to policy making, three types of assemblies are detectable on the basis of the relationship between these structures and actors: decisive assemblies, influential assemblies and weak assemblies.

Nowadays, the legal security is used widely in law as well as in political discussions. On the contrary, there is limited knowledge about it in the acts and jurisprudence. It must be noted that the legal security principle has a dominant position in legal systems and is the basis of the rule of law. In other words, one of the governmental imperatives which is stipulated in law (rule of law), is the citizens' awareness of their legal rights and duties. Consequently, as the other constituents of rule of law, this principle is guaranteed by Constitutions.The other important point which shall be noted in this principle is its role in facilitating the function of other elements of rule of law such as procedural security and protection of the citizens' rights and freedoms. In all legal systems, as their first duty, the rights and freedoms of citizens should be protected, so that other aspects of legal system are defined according to it. This article studies this aspect of legal security and defines legal security as a necessary condition for the realization of the procedural security.In this regard, the legal security is realized when citizens become aware of their rights in legal procedures, and more importantly, it is a guarantee for stability and transparency of the legal system.

The Caspian Sea is the largest completely enclosed body of water in the world containing vast oil and gas deposits in its subsoil. Following the collapse of the Soviet Union in 1991and increase in coastal states from two to five, we have witnessed long negotiations; conflicting political and legal views; conflicting economic interests of coastal states; and contradictory theses presented by law experts regarding the legal status of the Caspian Sea without any success in resolving the problems related to it. Although sovereignty over the sea bed and subsoil resources is one of the uninfringeable principles of international law of the sea and one of the inherent rights of states, the extent of acting upon this right is tightly related to maritime delimitation. The Caspian Sea is geographically a border lake which is not subsumed under the definition of closed or semi-closed sea stipulated in 1982 Convention. On the other hand, from legal point of view, the Caspian Sea has some features which distinguishes it from others. These features require a special legal regime for it; a regime which should be formulated with the agreement of littoral states and by taking its historical record, former contracts, and new facts into account. At the same time, studying other regions in the world shows hat the lack of maritime delimitation is not an obstacle for exploiting seabed and subsoil resources and states can exploit these fields through adopting measures such as common development of oil and gas fields and establishing common institutions.

Wetlands are one of the most precious eco-systems of the earth. The need for protecting these rich eco-systems led the international community to formulate Ramsar Convention for protecting wetlands in 1971. The convention as the sole and most important convention on wetlands embodies the commitments of its member countries, including Iran to plan for the wise use of wetlands. Despite this commitment, Orumieh Lake, as one of the most important Iranian wetlands registered in Ramsar Convention is facing shrinking which could lead to drying due to the implementation of developmental-economic projects such as the construction of Shahid Kalantary highway over it and storage dams on its nourishing rivers. It seems that implementing economic projects has negative impact on the environmental situation of Orumieh Lake and is contrary to the wise use of the lake and other principles of environmental international law. Iran should use existing internal and international potentials to improve the environmental situation of Orumieh Lake.

One of the way to defend rights is to design and review affirmed theories of rights and evaluate their justified principles. This article introduces one of these theories entitled "the egalitarian theory". By adopting a justifiable theoretical approach, it aims at putting forward a plausible basis for designing the idea of rights as a guaranteed claim against other claims on the basis of two elements: human dignity and moral agency.In this theory, the idea of rights attaches an unconditional worth to the existence of each person, irrespective of her particular value to others. The assumption of unconditional worth is based on the importance of life for every person, irrespective of her wealth, power or social status. The affirmed theories may be subject to weaknesses, but without any doubt, their positive aspect in justifying a theory of rights constitutes their dominant aspect.

The international community is witnessing the emergence of new horizons in international law. The substitution of the classical notion of the sovereignty by the new humanitarian one, and the emergence of “Responsibility to Protect” doctrine hold states and international community responsible to protect humans from genocide, war crimes, ethnic cleansing and crimes against humanity. All these efforts have been attempted with aim of prohibiting gross violation of human rights and guaranteeing the worth and dignity of humans. Sudanese Darfur crisis - which has not been resolved yet, despite the international associations’ interference - is one of the human tragedies which took place during the first decade of the 21st century, and led to the gross violation of human rights. The UN Security Council has referred to the “Responsibility to Protect” principle in its numerous resolutions concerning this calamity, but given that there are some misinterpretations about this doctrine, some scholars’ opinions about its failure in Darfur do not seem rational. This article tries to elucidate the aspects of the “Responsibility to Protect” doctrine by presenting a concise review of Darfur crisis, and studying international community’s perceptions of this doctrine in Darfur. It finally gives a realistic assessment of this doctrine’s effectiveness in the said calamity.

According to the statute of the International Criminal Court and the UN Charter, it is possible that the Security Council participates in the punishment of the criminals, especially those in countries which try to create a security fence for themselves by resorting to the concept of the national sovereignty. So, the Security Council can cooperate with the ICC in wrestling against impunity and respect for the justice.The case of Sudan which has been opened following its referral to the Security Council under the Resolution 1593 (2005), adopted under Chapter VII of the UN Charter, and then the issue of warrant by that Court for the President Omar Hassan Al Bashir, could symbolize the beginning of a new phase in the development of international criminal law.But, even if this case could show the cooperation of the two international organizations to combat impunity, the diplomatic attempts made by some countries for putting pressure on the Security Council to adopt a resolution suspending the decision of the Court, have created uncertainty about the final result of this dossier.

The international document of human rights have identified and protected certain rights and freedoms and under some conditions, have considered that their violation constitutes a crime. But this could be regarded a serious intervention in human rights and a major violation of these rights by states. Therefore, it should be attempted under certain conditions. The importance of this issue becomes clearer, given the possibility of the states' abuse of and intervention into the individuals' rights and freedoms under the pretext of protecting the rights and freedoms of the society.This article tries to enumerate the common characteristics of such crimes by examining the crimes stipulated in the international documents of human rights to reach a model compatible with human rights principles. The most important of these characteristics are the legality and necessity of intervention into rights and freedoms in a democratic society. Also the utility, applicability and transparency of crimes are among other characteristics which are considered binding in human rights documents.

Bankers have access to private and sensitive financial information of their clients, due to the nature of their professions. So, legal systems consider that “secrecy” is a fundamental precept of the banks and customers relationship. In other words, they are subject to an obligation to keep their customers financial affairs confidential.In (English) common law jurisdiction, confidentiality is a contractual (or implied contractual) duty as well as statutory duties especially in relation with data protections.According to the Civil Law jurisdictions, such as the law of France, Switzerland, Germany, Egypt, Lebanon, and Iran, the duty of confidentiality arise, under the civil code or related statutes.The “secrecy” is not absolute: almost in all countries this duty has exceptions: anti money laundering laws observations, when disclosures is required in the interest of the bank, where according to banking ordinary operation, exchange of information and data about the client’s credit, between the banks is usual and necessary for being ensured about banking operation, and the like. Due to the importance of this duty, any breach of confidentiality has penal and civil sanctions. Thses sanctions are different in legal systems and in different countries.In securitization transactions, serial parties such as SPV, rating agencies, liquidity provider’s trustees and servicing agents, may need potentially confidential information concerning the financial assets and loans. Sometimes, it is necessary for them to have access to the documents relating to the receivables. This contradiction is one of the main questions about the securitization of banking receivables that must be solved. The ideal way is to obtain the underling debtor’s consent about data transferring; obtaining of debtor's consent is very complicated and hard work to do.Another alternative is to amend forms and contracts which banks uses in relation with their customers. Finally, the best alternative is that securitization of transactions to be excluded from confidentiality duties, by legislation.

Managing culture is an extensive and deep realm. There are many factors which can affect culture and change it. Cultural protection refers to an identity which has deterred culture from decadence and tries to create a positive change in it. Among many efforts made for stabilizing and enhancing culture, this research tries to identify factors contributing to cultural protection. To this end, firstly it defines culture and then while introducing cultural protection, explains the factors influencing it that are: inherent factors (relevant beliefs, values, products and cultural power); internal factors (socialization, social control and institutionalization); external factors (cultural exchange and invasion). The extent of effectiveness of all above factors was measured by consulting the experts involved in cultural affairs. In conclusion, based on the findings of this research, some solutions are presented for better management of cultural affairs.

The theoreticians and strategists of international relations believe that the Persian Gulf region is one of the most important and sensitive points in the world. The increasing importance of oil and gas in global economy equations and the strategic situation of the Persian Gulf are the elements adding to the considerable role of this region in the international equations. Among the issues considered by regional countries including great powers is the necessity of establishing security in the region. Undoubtedly, the fact that more than 90% of the annual revenue of the countries situated in the Southern part of the Persian Gulf comes from crude oil sale makes necessary the establishment of security in the region. The Islamic Republic of Iran, as a regional power, will play a historical and determining role in regional security. This article tries to take a new look to the regional security model in the Persian Gulf by studying the fifth development plan as well as the recent advances of the Islamic Republic of Iran in different economic, technical, military, etc fields and especially in obtaining the indigenous and national nuclear knowledge capability. The main question of this article is that which are the instructions and principles stipulated in the fifth development plan which could be relied upon to create a sustainable security regime in the region and how could change in the concept of international security influence the establishment of a stable security model in the region and whether it is possible that based on the developments in international security and drawing upon the constructivist theory and emphasis on confidence building and correcting the security perceptions of regional countries towards the Islamic Republic of Iran, to devise a sustainable security model for the Persian Gulf.