Public Law Studies Quarterly Director-in-Charge: Mohammadreza Takhshid
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Bigdeli, Mohammadjafar Ghanbari Jahromi, Reza Mousazadeh,
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Public Law Studies Quarterly Vol. 50, No. 1, Spring 2020
Table of Content
Theoretical Fundamentals of Economic Justice in the Light of Effectiveness in
Constitutional Law of Islamic Republic of Iran .................................................................... 1 Abbas Ali Kadkhodaee, Mahboobeh Abbasian
The Role of Non-Governmental Organizations in Support of Victims of International
Crimes before International Criminal Tribunals ................................................................. 2 Seyed Ebrahim Hosseini, Seyed Ghasem Zamani
The Concept of Law in Mustashār al-Dawlah’s Thoughts ................................................... 3 Bijan Abbasi, Reza Yaghoubi
Theoretical Authority of the International Court of Justice ................................................ 4 Mohamadreza Ziai Bigdeli, Hassan Bagherzadeh
An Investigation into the Legal Pathology of Labour Procedures in Iran .......................... 5 Vali Rostami, Ehsan Akbari
Russian Intervention in the Syrian Crisis and the Principle of Non-Intervention in
Civil War .................................................................................................................... 6 Siamak Karamzadeh, Masoud Alizadeh
Comparative Study on the Sub-Commission on the Promotion and Protection of Human
Rights with the Human Rights Council Advisory Committee ............................................. 7 Fariba Navab Daneshmand, Seyed Mohammad Hashemi, Amir Hossein Ranjbarian
Theoretical Foundations of the Basic Constitutional Review .............................................. 8 Seyed Mohammadmahdi Ghammam, Seyed Hasan Hoseini
Comparison between Codes of Conducts-Ethics of Multinational Companies in
International Law and Islamic Law ....................................................................................... 9 Mohammadjavad Javid, Arezoo Rangchian
Government Commitments to Guarantee the Right to Legal Literacy with a Glance at
Iran's Legal System ............................................................................................................... 10 Seyed Ahmad Habibnezhad, Zahra Ameri, Ahmad Khosravi
Emergence of Transnational Approaches to Animal Welfare Law ................................... 11 Amir Saed Vakil
Legal Approach to New Arrangements in Foreign Investments and its Impact on
Sustainable Development ...................................................................................................... 12 Hamid Reza Nikbakht, Meysam Beykmohammadi, Farhad Bagheri
Legal Analysis of Governments Intervention or Non-Intervention in Development
System: An Approach from Public Economic Law ............................................................ 13 Kheirollah Parvin, Mahdie Saneei
Assessing US Objections to the Interim Order in the Alleged Violations of the
Treaty of Amity ........................................................................................................ 14 Mohsen Mohebi, Vahid Bazzar
Baselines in the Convention on the Legal Status of the Caspian Sea ................................ 15 Sasan Seyrafi
Prohibition of Use of Force and US and Allies Attacks on Syria during 2014-2018 ........ 16 Ahmad Reza Mobini, Javad Mobini, Pouria Askari
Static Interpretation of the International Court of Justice in Establishing Responsibility
for Genocide: Scrutinizing the Case of Croatia v. Serbia (2015) ....................................... 17 Mostafa Fazaeli, Mohammad Setayeshpur
Obligation to Negotiation in Peaceful Settlement of International Disputes .................... 18 Aramesh Shahbazi, Mozhgan Khosronezhad
Solving the Minorities' Issue in the Light of New Approach to the Right of Self-
Determination ........................................................................................................................ 19 Mohammadali Parsamehr, Seyed Ali Mirmoosavi
Legal and Judicial Developments on Drugs Control in the UNGASS Countries ............. 20 Fatemeh Binazadeh, Leila Raisi
1 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Theoretical Fundamentals of Economic Justice in
the Light of Effectiveness in Constitutional Law
of Islamic Republic of Iran
Abbas Ali Kadkhodaee1, Mahboobeh Abbasian2*
Abstract Theories of success, justice and satisfaction in the field of efficiency are the most
important and significant scientific ideas in determining the relation between the two
terms "Economic Justice" and "Efficiency". The relationship between economic
justice and the efficiency of the system in the studies of the theoretical foundations
of the Constitution Law of the Islamic Republic of Iran can be characterized by three
approaches of neutrality, opposition and coordination, mainly based on the
coordination approach. Despite existing coherence between economic justice and
efficiency in theoretical studies, in terms of executive deviations in the realization of
justice in practice, the improvement of the efficiency of the system also faces serious
challenges. In addition, according to the Constitution Law and detailed negotiation
of parliamentary, the final review of that law, economic justice is coordinated and
aligned with economic efficiency such as "Efficiency" that can together bring the
sustainability of a political system. In terms of economic studies in the field of
ordinary laws such as tax laws, the contradiction between economic justice and the
sub-elements of economic efficiency is considered. It is therefore, necessary, that in
view of the existing coordination between economic justice and economic efficiency
in the supranational documents, at lower legislative and executive levels, the
greatest effort is made to strike a balance between some of the components which
are in contradiction.
Keywords Economic Justice, Social Justice, Constitution Law, System Efficiency, Efficiency.
1. Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran,
Iran. Email: [email protected]
2. Ph.D. in Public Law, Faculty of Law, University of Tehran, College of Farabi, Qom, Iran (Corresponding Author). Email: [email protected]
Received: August 31, 2015 - Accepted: October 31, 2015
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 2
The Role of Non-Governmental Organizations in
Support of Victims of International Crimes
before International Criminal Tribunals
Seyed Ebrahim Hosseini1*, Seyed Ghasem Zamani2
Abstract Victims of international crimes almost are in a weak and fragile state. Protection of
victims in the framework of international criminal tribunal is not strong protection
and if this limited protection remains in the rules of the statue there will be an
unbalance between the situation of victims and accused persons in proceedings.
NGOs that in the last few years expanded in form of quality of tasks and number,
have a considerable potential to balance this relation and protection of victims in
proceedings. The main protection is legal consultation to victims. Legal
consultations often achieve in forms of drafting applications and introducing
solicitors for victims. Sometimes NGOs do their protection as "Amicus Curiae"" and
inform the court of events. Thus, they could help in establishing justice. NGOs in
this area are almost popular and recognized organizations such as Amnesty
International, Human Rights Watch, International Bar Association, etc. they used
every means for reaching the objects of international criminal law, particularly
justice. Moreover to legal aids, they contact persons in danger of victimization, try
to increase their awareness and also contact States for persuading them to protect
victims.
Keywords International Criminal Law, International Criminal Court, NGOs, Victims.
1. Faculty of Law, Islamic Azad University, Najafabad Branch, Najafabad, Iran (Corresponding Author).
Email: [email protected] 2. Prof., Faculty of Law, Islamic Azad University Najafabad Branch, Najafabad, Iran.
Received: February 21, 2016 - Accepted: May 26, 2016
3 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
The Concept of Law in Mustashār al-Dawlah’s
Thoughts
Bijan Abbasi1*, Reza Yaghoubi2
Abstract The concept of law is one of the most fundamental concepts and theoretical bases of
rule of law and has an important role in formulating the constitutionalism theory.
With respect to the fact that no society has ever been lawless, and bearing in mind
that the concept of law includes a formative process and is in “modern” and
“traditional” forms and the modern concept of law is formed in “discontinuity”
and/or “continuity” of the traditional formation, the present study indicates that the
new concept of law is formed in continuation of the traditional concept with a
change in the themes. Mustashār al-Dawlah was the first philosopher who realized a
different fundament of law in two forms of “traditional” and “modern”. He
understood the necessity of establishment of a new understanding of law and to take
courses of action to realize the fact. This article entails that Mustashār al-Dawlah’s
understanding of the concept of law was different from his antecedents’, and his
monograph named Yek Kalameh (One Word) is the first one on the necessity of rule
of law. Utilizing a change in the theme of concept of law, Mustashār al-Dawlah
could change this concept, which rooted in the will of ruler and Sharia’s decree (as
two bases and origins of traditional concept of law) into a modern concept of law
which rooted in the will and intention of ordinary people in Mustashār al-Dawlah’s
vision. Taking a descriptive-analytical method, this article aims to inquire how and
what the bases and goals of Mustashār al-Dawlah were in making the change in
concept of law. It seems that Mustashār al-Dawlah took the course of action relying
on the bases and concepts such as “people’s will” and “people’s satisfaction” with
the aim of establishing “justice”, “equality”, and “progress” as the important goals
of rule of law and defined the modern concept of law from the heart of the
traditional one.
Keywords People’s Will, Justice, Law, Mustashār al-Dawlah, Constitutionalism.
1. Associate Prof., Faculty of Law and Political Science, University of Tehran, Tehran, Iran
(Corresponding Author). Email: [email protected]
2. Ph.D. Student in Public Law, University of Tehran, Alborz Campus, Tehran, Iran. Email: [email protected]
Received: May 25, 2018 - Accepted: December 31, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 4
Theoretical Authority of the International Court
of Justice
Mohamadreza Ziai Bigdeli1*, Hassan Bagherzadeh2
Abstract The logic of law could not be limited to formal logic, because law is the domain of
value judgments which are alien to mathematical demonstration and empirical test.
The logic of law is logic of persuasion and argumentation. Argumentation theory is
about arguments applicable to value judgments. One of the arguments in this theory
is "Argument from Authority". In this particular argument, theoretical authority of a
person or institution is utilized to argue in favor of a proposition. The Opinions of
the International Court of Justice as a renowned international judicial institution are
relied upon in many discourses at international level; but successful appeal to
theoretical authority of the court needs to meet certain criteria. The survey of these
criteria regarding the argument from authority of the international court of justice
would help us to understand the role of this judicial institution in international arena.
Keywords Argument from Authority, Persuasion, International Court of Justice, Theoretical
Authority, Logic of Law, Argumentation Theory, Individual Opinions of Judges.
1. Prof., Department of Public and International Law, Faculty of Law and Political Science, University of
Allameh Tabataba'i, Tehran, Iran (Corresponding Author). Email: [email protected]
2. Ph.D. in International Law, Faculty of Law and Political Science, University of Allameh Tabataba'i, Tehran, Iran. Email: [email protected]
Received: April 22, 2018 - Accepted: September 10, 2018
5 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
An Investigation into the Legal Pathology of
Labour Procedures in Iran
Vali Rostami1, Ehsan Akbari2*
Abstract The labour dispute systems in Iran are based on hearing of disputes of labor and
employer by specific or quasi-judicial bodies, and their structure and jurisdiction
explained in articles 157 to 166 of the Labor Code and the Labor Procedure
Regulations (adopted in 2012). According to mentioned legal rules, the settlement of
labor and employer disputes in the Iranian legal system is carried out by three ways
of compromise, assessment commission and commission of dispute resolution and
their organization is based on lack of formality and participation of the involved
parties in the formation of these bodies. However, by study of the ILO documents
and comparative study of the structure and jurisdiction of labor disputes systems in
Iran and the world, it can be understand that the labor dispute system in Iran has
significant legal deficiencies in the structure, jurisdiction and manner of hearing.
Lack of structural independence and extensive jurisdiction, conflict of jurisdiction
with other tribunals, failed to model from the civil procedure rules, and non-
conformity of structure and jurisdiction with the principles of fair trial and the
specific principles of labor procedure are the most important example of it.
Keywords Dispute, Trial, Structure, Jurisdiction, Labourer, Employer.
1. Associate Prof., Department of Public Law, Faculty of Law and Political Science, University of
Tehran, Tehran, Iran. Email: [email protected]
2. Ph.D. Student in Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran (Corresponding Author). Email: [email protected]
Received: December 15, 2018 - Accepted: March 11, 2019
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 6
Russian Intervention in the Syrian Crisis and the
Principle of Non-Intervention in Civil War
Siamak Karamzadeh1*, Masoud Alizadeh2
Abstract The Russian intervention in the Syrian civil war in 2015 has raised several legal
questions. These questions are generally relating to the legality of intervention.
Although the Russian Government has based its intervention on the consent of the
Syrian Government for combating terrorism, some believe that this intervention is in
contradiction to the principle of non-intervention in the civil war. Under this
principle, the foreign States are not allowed to intervene in the conflict to support
neither the central government nor the rebellions. In the 70s the International Law
Institute suggested that this principle has become a customary rule. However, there
is no consensus on the status of this principle as a customary principle of
international law. By considering the practice of States and the UN Security Council
relating to the Syrian crisis, we can conclude that it is difficult to observe such a
restriction on the intervention in the civil war in support of the central government.
While there still exist restrictions on the intervention in support of rebellions, the
consent of the central State negates the responsibility of the foreign intervening State
against the rebellions and in support of the government.
Keywords Principle of Non-Intervention in the Civil War, Syrian Civil War, Consent of States,
International Responsibility.
1. Assistant Prof., Department of Law, Faculty of Humanities, University of Shahed, Tehran, Iran
(Corresponding Author). Email: [email protected]
2. Assistant Prof., Department of Law, University of Payame Noor, Iran. Email: [email protected]
Received: December 26, 2018 - Accepted: March 11, 2019
7 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Comparative Study on the Sub-Commission on
the Promotion and Protection of Human Rights
with the Human Rights Council Advisory
Committee
Fariba Navab Daneshmand1*, Seyed Mohammad Hashemi2,
Amir Hossein Ranjbarian3
Abstract The 'Sub Commission on Prevention of Discrimination and Protection of Minorities'
was the main subsidiary body of “United Nations Commission on Human Rights”. It
was principal body within the United Nations system responsible for strengthening
the promotion and protection of human rights. The Sub-Commission renamed to
“Sub-Commission on the Promotion and Protection of Human Rights”. Its main
functions were to undertake studies and to make recommendations on human rights
issues and to carry out any other functions which may be entrusted to it. After The
Human Rights Council replaced by the former United Nations Commission on
Human Rights, the Council adopted its "Institution-Building Package" to guide its
work and set up its procedures and mechanisms. Among them was the “Advisory
Committee”. It has been replaced the former Sub-Commission on the Promotion and
Protection of Human Rights. The Advisory Committee provides the Human Rights
Council expertise and advice on human rights issues. This article was designed to
compare the two institutions and their functions and role to protect and promote
human rights and realization the UN’s goals in the field of human rights.
Keywords Human Rights, Human Rights Council, Sub-Commission on the Promotion and
Protection of Human Rights, Advisory Committee, Commission on Human Rights.
1. Law and Political Science, Islamic Azad University, Science and Research Branch, Tehran, Iran
(Corresponding Author). Email: [email protected] 2. Prof., Department of Human Rights, Faculty of Law, University of Shahid Beheshti, Tehran, Iran.
Email: [email protected]
3. Associated Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran. Email: [email protected]
Received: March 14, 2017 - Accepted: February 7, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 8
Theoretical Foundations of the Basic
Constitutional Review
Seyed Mohammadmahdi Ghammamy1, Seyed Hasan Hoseini2*
Abstract The Constitution is the result of the will of the supreme power in the name of the
founder, which is at the head of the hierarchy of laws. Hence, the review of the
Constitution is often different and more complex than ordinary law. A fundamental
review is the change in a number of fundamental values and underlying principles in
the Constitution. In the present article, in answer to this question, which is the basics
of the fundamental review of the Constitution, especially with emphasis on the
Constitution of the Islamic Republic of Iran, the authors have studied and analyzed
the subject using the descriptive-analytical research method. From the author’s point
of view, excluding some issues from the Constitutional review is critical. According
to the writers of the main legislator of Iran, the development of fundamental
principles, especially the foundations of faith, the goals of the Islamic Republic, the
republicans of the State and some other constraints, by accepting that the principle
of the political system based on religious democracy must be respected and
safeguarded by the reviewing authority, is extreme.
Keywords Fundamental Principles, Fundamental Review, Modernity, Constitution Law.
1. Assistant Prof., Faculty of Islamic Studies and Law, University of Imam Sadiq (AS), Tehran, Iran.
Email: [email protected]
2. MA. Student, Faculty of Islamic Studies and Law, University of Imam Sadiq (AS), Tehran, Iran (Corresponding Author). Email: [email protected]
Received: September 28, 2017 - Accepted: July 3, 2018
9 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
A Comparison between Codes of Conducts-Ethics
of Multinational Companies in International Law
and Islamic Law
Mohammadjavad Javid1, Arezoo Rangchian2*
Abstract Promotion of human rights concepts in the second half of twentieth century and
increasing stress on social, ethical, environmental and humanitarian values under
global focus, new concepts are established and multinational companies are not
exempted because of their unique role in international trade. Codes of conducts-
ethics are one of these concepts. On the other, hand Islamic jurisprudence and law
on international trade and transactions is based on the same rules governing private
law which encompass human rights and can be studied when dealing with
companies. This article endeavors to assess the status of codes of ethics and
principles of conducts in international law concerning companies and Islamic law in
three areas of human rights, labor law and environment law and to show that Islamic
Law and contemporary international law have common elements in human rights as
the basis of codes of conduct and ethics for companies.
Keywords Islamic Law, Human Rights, Labor Rights, Environmental Rights, Multinational
Companies, Codes of Conduct-Ethics.
1. Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran, Iran.
Email: [email protected]
2. Ph.D. in International Law, Faculty of Law and Political Science, University of Tehran, Alborz Campus, Tehran, Iran (Corresponding Author). Email: [email protected]
Received: March 28, 2018 - Accepted: September 10, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 10
Government Commitments to Guarantee the
Right to Legal Literacy with a Glance at Iran's
Legal System
Seyed Ahmad Habibnezhad1*, Zahra Ameri2, Ahmad Khosravi3
Abstract In the current era, which is an era of rights, legal literacy is recognized as one of the
components of power, ability and capability of citizens and awareness of the law is
power. Legal literacy, on the one hand, provides citizens with individual and group
rights and is considered as an introduction to their demands and on the other hand,
by identifying assignments to individuals, the predictability of citizens' lives will be
better. Examination of the measures taken in the Islamic Republic of Iran’s system
indicates that, although in most of the current laws and regulations, the legal literacy
category has not been explicitly mentioned, but the general emphasis on the need to
inform the public in some legal documents can be seen in a comprehensive
interpretation including the assignment to legal information and legal literacy
training. In the legislative field, it is necessary to formulate a solid legal framework
and in the realm of implementation, by providing formal and informal training of
legal literacy and also through active participation in civil society organizations in
this field, the right to full access to it is fully ensured.
Keywords
Government Commitments, Empowerment, Right, Citizens, Legal Literacy.
1. Assistant Prof., Department of Public Law, University of Tehran, College of Farabi, Qom, Iran
(Corresponding Author). Email: [email protected]
2. Assistant Prof., Department of Law, University of Bojnourd, Bojnourd, Iran. Email: [email protected]
3. Assistant Prof., Department of Law, University of Birjand, Birjand, Iran. Email: [email protected]
Received: March 28, 2018 - Accepted: July 3, 2018
11 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Emergence of Transnational Approaches to
Animal Welfare Law
Amir Saed Vakil*
Abstract Although contemporary human civilization has gained many achievements in human
dignity, current social movements are not limited to human life and there are some
initiatives towards respecting situations of domesticated as well as non-domesticated
animals. Consequently, relevant international rules are evolving. The International
Whaling Commission and the Dispute Settlement Panel of the World Trade
Organization on Seal Products Case show this fact that human concerns on health
and public sanitary, human obligations against animals, and environmental
considerations create a new concept under the title of ""Animal Welfare"", which
relies on scientific studies, emanates significant changes in national and
international legal approaches on human treatment with animals.
Keywords Animal Trade in WTO, Protection of Animals, Animal Welfare, International
Whaling Commission.
* Assistant Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran,
Tehran, Iran. Email: [email protected]
Received: June 22, 2018 - Accepted: June 24, 2019
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 12
Legal Approach to New Arrangements in Foreign Investments
and its Impact on Sustainable Development
Hamid Reza Nikbakht1, Meysam Beykmohammadi2, Farhad Bagheri3*
Abstract
Foreign Direct Investment is considered as a vital matter for every
countries’ economic progress and no country is needless to Foreign
Investment. The main paths for importing such investments are
bilateral or multilateral investment treaties. Although for a while, the
objective to attract foreign investment and import financial resources
to a host country was economic growth but as time advanced, it came
out that insisting on economic growth and disregarding sustainable
development would create several problems. Notwithstanding the new
atmosphere of foreign investment trend and international trade, the
query to new arrangements and proper to these evolutions seem quite
necessary. Such arrangements which the authors call new
arrangements, including investment for development, alliance of
policy- making, dynamism and promotion and protection of investor,
are intended to create and ensure sustainable development, both in
economic and environmental areas and also other areas as well. Their
implementation though, requires a concrete legal system with specific
enforcements in order to fulfil the defined objectives. This
contribution, with a descriptive and analytic approach with a socio-
legal method, first, study the concept of new arrangements in
investment which has not been dealt with dully. Then, it tries to
answer to this question that what is the concept’s relation to
sustainable development. Plus, studies the present legal order both at
national and international level and examines the impact of new
arrangements on foreign investment.
Keywords
Commitment to Development, Foreign Direct Investment, Sustainable
Development, New Arrangements.
1. Prof., Department of International Trade Law, Faculty of Law, University of Shahid Beheshti, Tehran,
Iran.
2. MA. Student in International Trade Law, Faculty of Law, University of Shahid Beheshti, Tehran, Iran.
3. Ph.D. Student in International Law, Faculty of Law, University of Shahid Beheshti, Tehran, Iran (Corresponding Author). Email: [email protected]
Received: February 26, 2017 - Accepted: March 18, 2018
13 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Legal Analysis of Governments Intervention or
Non-Intervention in Development System: An
Approach from Public Economic Law
Kheirollah Parvin1*, Mahdie Saneei2
Abstract The concept of development has had a great influence on the social-political system
of all countries and public economic laws. These effects have shown themselves in
the form of freedom, government and market failures, the birth of the institution, and
various methods of government intervention. These influences can be overcome by
modern developmental attitudes towards the classical principles of public economic
law. This article will explain the conceptual and structural foundations of
development in the traditional and structural approach and to analyze its effects on
the State and the methods of intervention, focusing on economic development in the
modern (institutional) approach in the field of public economic law to the analysis of
method and review types of government intervention. And it will answer the
question about government intervention and policies whether the development
system is faced with shortcomings and requires government intervention or is it
possible to repair everything and do not need government intervention?
Keywords Development, Economic Development, Development and Institution, Post-
Regulatory Government, Regulatory Government.
1. Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran,
Iran (Corresponding Author). Email: [email protected]
2. Ph.D. in Public Law, Faculty of Law and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran. Email: [email protected]
Received: May 30, 2018 - Accepted: December 31, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 14
Assessing US Objections to the Interim Order in
the Alleged Violations of the Treaty of Amity
Mohsen Mohebi1*, Vahid Bazzar2
Abstract The International Court of Justice, on October 11, 2018, responded unanimously to
Iran's request for an interim order in the alleged violations of the treaty of amity case
and required the United States to take the necessary measures on free exportation to
Iran about humanitarian needs, including medicines and medical devices, foodstuffs
and agricultural commodities, spare parts, equipment and associated services
necessary for the safety of civil aviation, and do not create no restrictions on the
payments and other transfers of funds related to these measures. In the course of the
proceedings of the Court, the United States, in addition to proposing multiple
objections to the conditions of issuing the interim order (prima facie jurisdiction, the
plausibility of the claimed rights and its relation to the interim order, the urgency
and irreparable prejudice), argued that the requested interim order will violate the
USA's sovereignty. The Court, in its conclusions, which often was as a result of the
acceptance of the arguments of the Iranian legal team, affirmed the necessary
conditions for the issuance of an interim order. According to The Court, the criterion
of irreparable prejudices is not merely financial damage, but damage to human lives.
Keywords United States of America, Islamic Republic of Iran, International Court of Justice,
Interim Order, Treaty of Amity, Humanitarian Needs.
1. Assistant Prof., Department of Public and International Law, Faculty of Law and Political Science,
Science and Research Branch, Islamic Azad University, Tehran, Iran (Corresponding Author).
Email: [email protected]
2. Ph.D. in International Law, Faculty of Law and Political Science, University of Allameh Tabataba'i, Tehran, Iran. Email: [email protected]
Received: November 5, 2018 - Accepted: May 26, 2019
15 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Baselines in the Convention on the Legal Status
of the Caspian Sea
Sasan Seyrafi*
Abstract The Convention on the Legal Status of the Caspian Sea has created a new and
unique legal regime which is based on the division of the Caspian Sea’s water-
column into the maritime areas of the littoral States as opposed to the Common
Maritime Space. Therefore, baselines fulfill an essential function in the new legal
regime of the Caspian Sea as the outer limits of the littoral States maritime zones
will be measured from their established baselines and the outer limits will, in turn,
determine the spatial scope of the common maritime zone. Meanwhile, the
Convention has adopted a singular approach to the issue of baselines. Aside from its
distinctive definitions and provisions on normal and straight baselines, the
Convention provides that the methodology for establishing straight baselines shall
be determined in a separate agreement among all the parties. On that account, a
critical element of the new legal regime of the Caspian Sea will be developed in
subsequent negotiations that are on-going as of this writing. What makes this
agreement even more significant is the key concession granted to Iran in this respect
as the other littoral States have undertaken to take Iran’s disadvantageous coastal
geography into account. This paper will examine the Convention on the Legal Status
of the Caspian Sea in terms of its provisions on baselines as well as the challenges
and solutions facing Iran’s legal diplomacy regarding the agreement on the
methodology for establishing straight baselines.
Keywords Normal Baseline, Straight Baselines, New Legal Regime of the Caspian Sea, Actau
Convention, High-Level Working Group on the Caspian Sea, Agreement on the
Methodology for Establishing Straight Baselines.
* Assistant Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran,
Tehran, Iran. Email: [email protected]
Received: August 16, 2019 - Accepted: September 23, 2019
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 16
Prohibition of Use of Force and US and Allies
Attacks on Syria during 2014-2018
Ahmad Reza Mobini1*, Javad Mobini2, Pouria Askari3
Abstract US and allies multiple attacks on Syria during 2014-2018 with the excuses of, inter
alia, fighting against ISIS and humanitarian intervention to prevent claimed use of
chemical weapons is in breach of Article 2(4) of the UN Charter. Several
unacceptable arguments including: “The unwilling and unable theory”, “Iraq
collective self-defense against ISIS in Syria”, “The creative and constructive
ambiguity of S/RES/2249” and “Implied consent or passive consent theory” have
been put forwarded to justify US-led coalition attacks on ISIS in Syria. On the other
hand, in an attempt to justify attacks on so-called Syrian chemical facilities, it has
been explicitly or implicitly resorted to some invalid arguments including: “Strikes
on Syria in retaliation for chemical attack”, “Humanitarian intervention for
Chemical Weapons Convention implementation” and “The distinction between the
legitimacy and legality of military intervention”. In order to answer the question that
“Why do the US and allies attacks against Syria during 2014-2018 are illegal?”, this
paper descriptively and analytically consider the deployed arguments supporting the
above-mentioned attacks and examines this hypothesis: “the aforementioned attacks
are international wrongful acts as they cannot be considered as self-defense or
collective security system outlined respectively in Article 51 and Article 42 of the
UN Charter. On the other hand, the valid consent of Syria, which may preclude the
wrongfulness of these attacks, has not been obtained; so, US and allies’ attacks
against Syria during 2014-2018 are illegal”.
Keywords Progressive Development of the Rules Governing Use of Force, Self-Defense, Syria,
Prohibition of the Use of Force, ISIS, SC/RES/2249.
1. MA. in International Law, Faculty of Law, University of Tarbiat Modares, Tehran, Iran
(Corresponding Author). Email: [email protected] 2. MA. in International Organizations and International Law, Faculty of International Relations, Tehran,
Iran. Email: [email protected]
3. Assistant Prof., Department of Public and International Law, Faculty of Law and Political Science, University of Allameh Tabataba'i, Tehran, Iran. Email: [email protected]
Received: October 15, 2018 - Accepted: December 31, 2018
17 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Static Interpretation of the International Court
of Justice in Establishing Responsibility for
Genocide: Scrutinizing the Case of Croatia v.
Serbia (2015)
Mostafa Fazaeli1*, Mohammad Setayeshpur2
Abstract Following the application of Croatia against Serbia and Serbian counter-claim,
before the International Court of Justice (ICJ), the court has delivered its judgment
in 2015 in respect of the crime of genocide that was after almost sixteen years from
the beginning of the case. Under the influence of the International Criminal Tribunal
for Former Yugoslavia (ICTY), the court could not hold that alleged crime of
genocide has occurred, that was because of a very high threshold for establishment
of mens rea, implicitly considered by the world court. In this case, ICJ has had the
opportunity to deal with some important aspects of the case, including specifically,
succession of States in respect of international responsibility and acquiring the
elements of genocide via solving the dispute. Despite its long process, this judgment
not only could not improve dynamic aspect of international law but would even
make The Convention on the Prevention and Punishment of the Crime of Genocide
as an inefficient document. These aspects of this case and practice are under
discussion in this paper.
Keywords Progressive Development, Succession of States, Genocide, Mens Rea, International
Responsibility.
1. Associate Prof., Department of International Law, Faculty of Law, University of Qom, Qom, Iran
(Corresponding Author). Email: [email protected]
2. Ph.D. Student in International Law, Faculty of Law, University of Qom, Qom, Iran. Email: [email protected]
Received: February 24, 2018 - Accepted: July 3, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 18
Obligation to Negotiation in Peaceful Settlement
of International Disputes
Aramesh Shahbazi1, Mozhgan Khosronezhad2*
Abstract Negotiations in the area of international relations, particularly with the aim of
peaceful settlement of international disputes, should be done with good faith. This is
because having negotiations with 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 in it or not, the
parties shall continue negotiations based on principle of pact sunt servanda, and
Article 26 of the Vienna Convention on the Law of Treaties with 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, comply 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 be sincere and
purposefully negotiate with good faith and compromise to achieve the desired
results.
Keywords Obligation to Negotiation, Pactum de Negotiando, Pacta de Contrahendo, Obligation
to Negotiation in Good Faith.
1. Assistant Prof., Faculty of Law and Political Science, University of Allameh Tabataba'i, Tehran, Iran.
Email: [email protected]
2. MA. Student in International Law, Faculty of Law and Political Science, University of Allameh Tabataba'i, Tehran, Iran (Corresponding Author). Email: [email protected]
Received: January 1, 2017 - Accepted: October 2, 2017
19 Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020
Solving the Minorities' Issue in the Light of New
Approach to the Right of Self-Determination
Mohammadali Parsamehr1*, Seyed Ali Mirmoosavi2
Abstract From the end of the decolonization, the issue of separatist demands in the light of
the right of self-determination by minorities and the violent response of
governments to it, which has been accompanied by widespread human rights
violations and threats to international peace and security, has been considered as an
important issue in international law. By the end of the Cold War and after the1990s,
a new approach to the concept of the right to self-determination emerged, which, by
reconciling the right to self-determination and the principles of international law,
including the principle of territorial integrity, could provide a solution to the issue of
minority conflict. In the new approach to self-determination, the right of people to
form a government turned to the right to organize the State by the people and the
minorities. In this approach, the right to self-determination is used as the basis for
the establishment of democracy and development of human rights as well as
guarantee the rights of minorities. The precise explanation of this approach by using
the legal analysis of related documents and their impact on the minorities' issue is
the main purpose of this article.
Keywords Principle of the Sovereignty of States, Principle of Territorial Integrity, Rights of
Minorities, Right to Self-Determination, Democracy.
1. Ph.D. Student in Public Law, Faculty of Law and Political Science, Islamic Azad University, Shiraz
Branch, Shiraz, Iran (Corresponding Author). Email: [email protected]
2. Associate Prof., Department of Law, Faculty of Political Science, University of Mofid, Qom, Iran. Email: [email protected]
Received: October 16, 2017 - Accepted: March 18, 2018
Public Law Studies Quarterly, Vol. 50, No. 1, Spring 2020 20
Legal and Judicial Developments on Drugs
Control in the UNGASS Countries
Fatemeh Binazadeh1, Leila Raisi2*
Abstract Looking at recent international developments on illegal drugs, we find that
discourses of international community actors' are changing and differentiating from
each other on counter drugs policy. While the US and Mexico, as destination
countries of drugs have a rigid policy; in opposite, Colombia and Afghanistan as
countries of origin of drugs have a more lenient approach. So, it seems there has
been occurred a shift from extremely rigid drugs policy making to a flexible regime
across the countries. This attitude change could result in a considerable cost saving
in counter drugs programs. Therefore, recently international drugs control
organizations have also been redressing the existing prohibitionist regime, as
evidenced by the launch of 2016 UNGASS and the emphasis on shared
responsibility of governments, hearing the voices of non-governmental
organizations on the one hand and expressing criticisms of alternative development
and indigenous peoples` livelihood on the other hand, and ultimately the reform of
drug-related treaties. The purpose of this research is a comparative study of Legal
developments in countries of origin and destination of illegal drugs. Also related to
the special session of the United Nations General Assembly, it is discussed that the
adoption of laws followed by less draconian penalties could play a more favorable
role to support human rights standards during drugs control programs.
Keywords United Nations General Assembly Special Session (UNGASS) 2016, Legal
Developments, Origin Country, Destination Country, Drugs.
1. Ph.D. Student in International Law, Faculty of Law and Political Science, Islamic Azad University,
Isfahan Branch, Isfahan, Iran. Email: [email protected]
2. Associate Prof., Faculty of Law and Political Science, Islamic Azad University, Isfahan Branch, Isfahan, Iran (Corresponding Author). Email: [email protected]
Received: March 14, 2017 - Accepted: March 18, 2018