Intergenerational Justice in International Environmental Law
Mohsen
Mohebi
Associate Professor, Faculty of Law, Theology and Political Science, Azad University, Science and Research Branch, Tehran
author
Faranak
Feizollahi
PhD Student in International Law, Faculty of Law, Theology and Political Science, Azad University, Tehran Science and Research Branch
author
text
article
2021
per
Throughout history, justice has been regarded as the object of legal knowledge, and in terms of value, it has been defined as comprehensive of values. However, the scope and subject matter of justice are less deliberated. The question of this kind of justice in recent years - in the light of technological advances and the expansion of human hands in nature and, consequently, the danger of destroying the natural and human environment - has become particularly important. Intergenerational justice is trying to make the current generation recognize the right of future generations in natural resources and the environment and to find a way out of the current world of destruction. This effort, of course, has been somewhat effective and has been able to open the door to special literature on international environmental law in international political and judicial institutions. However, such justice cannot yet be considered one of the binding rules for the implementation of existing international law. Intergenerational justice is, at best, a doctrine to move existing rights toward desirable rights and to interpret the rules of international law in a fair and just manner based on the needs of the international community as a whole, which must move towards preserving the common heritage of mankind.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
7
30
https://www.cilamag.ir/article_243887_65b77c8acced49657b34ceeca1255746.pdf
dx.doi.org/10.22066/cilamag.2021.243887
Judicial Policy of the International Court of Justice: Judicial Restraint or Judicial Activism
Seyed Jamal
Seifi
Associate Professor, Faculty of Law, Shahid Beheshti University
author
Vahid
Rezadoost
PhD in International Law, Faculty of Law, Shahid Beheshti University
author
text
article
2021
per
In dealing with various cases and circumstances in the international community, international courts and tribunals do not always act in the same way. Rather, they try to perform their judicial function and in so doing they adopt different approaches to maintain an equilibrium between the requirements of the international community, on the one hand, and the wishes of the disputing parties, on the other. The choice of these approaches to a large extent depends on the underlying ‘judicial policy’ of each tribunal which can, in turn, be distilled out of the jurisprudence constante of that tribunal. During its lifetime, the International Court of Justice has generally strived to stay in harmony with the needs of the contemporary international community to perform its judicial function in the best way possible. Thus, in times in which the international community was experiencing crisis or instability, the Court has attempted to adopt a rather passive judicial policy (judicial restraint.) Conversely, in times of stability, it has tried to adopt a proactive judicial policy. However, due to the special circumstances of each case, the Court has sometimes shown more affinity to one of these approaches.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
31
56
https://www.cilamag.ir/article_243892_525f6a56e4d5c9458b4a8e48a84a630f.pdf
dx.doi.org/10.22066/cilamag.2021.243892
The Evolution of Normative Status of Sustainable Development in International Law
Mahshid
Ajeli Lahiji
Ph.D in International Law, Department of law and political sciences, Allame Tabataba'i University, Tehran,
author
Pouria
Askary
Associate Professor of Allame Tabataba'i University, Tehran
author
text
article
2021
per
Development could be considered as the outcome of the third-world’s engagement and demand for participation in international law. Over the years, the concept and normative position of the rules of development has undergone a historical evolution. The right to development initially conceived with a purely economic perspective and essential to create a new economic order, gradually took on new conceptual dimensions, such as social development. Reception of these aspects has led to the establishment of new concepts such as human development, millennium development, and also sustainable development. The latter has been regarded as the self-actualization of the concept of development by combining the three pillars of economic, social, and environmental development in the form of a sustainable construction. Explaining the nature of sustainable development has been one of the most challenging subjects in the current international law system in which scholars have yet to come to a consensus in this regard. Considering the evolution and the functions of sustainable development, this article using a descriptive-analytical method tries to determine the normative position of sustainable development as an international obligation in international law.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
57
78
https://www.cilamag.ir/article_245925_74eaca2c59b134d00fb546c47204c96e.pdf
dx.doi.org/10.22066/cilamag.2021.245925
Analytical Survey on the Use of Ballistic Missile Weapons in International Humanitarian Law
Seyyed Fazlollah
Mousavi
Professor, Public Law Department, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.
author
Amir
Lohrasbi
MA. Student in International Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran
author
text
article
2021
per
Since the launch of the world's first ballistic missile, the nature of warfare has changed forever, with profound military and political developments around the world. Ballistic missiles made it possible for a nation to move away from the battlefield and, with the relative immunity gained, to strike deep into the enemy's territory and inflict heavy losses. The distinctive feature of the ballistic missile is its ability to carry heavy nuclear warheads weighing 40 megatons, which, in addition to its 12,000-kilometer range, has raised concerns among international powers. To this end, in the absence of consideration of specific international rules, they have made political and exclusive decisions about the legitimacy or illegitimacy of the use of this weapon. This study tries to provide the answer to the legal status of ballistic missiles in international humanitarian law. The findings of the study indicate that, despite the legal nature of ballistic missiles, the assessment of the legitimacy or illegitimacy of the use of this weapon depends on the examination of experimental data from each missile exercise, which does not provide a general conclusion about the legal status of ballistic missiles, unless the experimental data of the launched missile be reviewed and verified.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
79
102
https://www.cilamag.ir/article_246019_aefee9ec7dc639394b69e3c8b771b0c5.pdf
dx.doi.org/10.22066/cilamag.2021.246019
Countering Starvation in International Law: From a Human Rights Violation to an International Crime
Haleh
Hosseini Akbarnejad
Assistant Professor of Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin
author
Hoorieh
Hosseini Akbarnejad
Assistant Professor, Faculty of Law, Tarbiat Modares University
author
text
article
2021
per
Deliberate starvation is a violation of human rights and a crime whose perpetrators have long enjoyed total impunity. Recently, however, the international community has taken steps to prevent and combat it, including provisions in the Rome Statute. Although, its provisions have been criticized for lack of transparency about the elements of crime, especially the subjective element (mens rea), or for limiting the commission of that crime to international armed conflict, therefore, its conceptual development is essential. Because of these considerations, the present article seeks to examine and analyze how gradually and by violating a human right such as the right to food by governments (with political, military, and economic motives) the commitment of an international crime as starvation takes place. Also, what is the capacity of international law, including in the international criminal law system and the international human rights system, to prevent the occurrence of this crime and the strategies to combat the impunity of its perpetrators? The answer to this question is very important and vital in the effective guarantee of human rights standards, and over time, it can accelerate and facilitate the international prosecution of serious and gross human rights violations.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
103
144
https://www.cilamag.ir/article_243889_4c3fe1aea58df084888e99a5a21e82f9.pdf
dx.doi.org/10.22066/cilamag.2021.243889
Legal Aspects of Forced Population Transfer as an International Crime
Mohsen
Ghadir
Assistant Professor, Faculty of Law, Qom University
author
shaho
jafari
Ph.D student of faculty of law. university of qom
author
text
article
2021
per
The human right to live in one's homeland has been one of the basic human rights throughout history. Forced deportation and transfer of persons from the motherland has occurred in abundance across the ages, and its harmful effects can still be seen. This heinous act has been committed for various purposes, including the exploitation of human beings, the deprivation of their property rights in their homeland, and so on. With the establishment of the International Criminal Court and its jurisdiction to deal with international core crimes, explicitly transfer of persons as one of the forms of International crimes specifically identified as crimes against humanity and war crimes. In this article, the dimensions of the above-mentioned phenomenon as crimes against humanity and war crimes are examined and its distinction with similar concepts such as exile, genocide, and the relationship of the two is discussed. Finally, with a critical approach to the case-law of the International Court of Justice in examining cases of forced transfer in the Bosnia's Genocide Case against Serbia and Montenegro in 2007, the lack of a unified approach between the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda and the International Criminal Court has been addressed.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
145
168
https://www.cilamag.ir/article_244156_2781ac8efd80e4608d89415057902dfb.pdf
dx.doi.org/10.22066/cilamag.2021.244156
International Responsibility of the U.S. Arising from the Impacts of Its Sanctions on Iran’s Covid-19 Response
Laya
Joneidi
Associate Professor, Faculty of Law and Political Science, University of Tehran
author
Sepideh
Razi
PhD student in Private Law, Faculty of Law and Political Science, University of Tehran
author
text
article
2021
per
Economic sanctions imposed by the United States of America have affected various sectors of the economy, health, and treatment in Iran for many years. Although the Sanctioning government always claims that the sanctions do not include the health sector and medical equipment, yet in practice, sanctioning banking sectors blocks the purchase of essential pharmaceutical items. In addition, foreign companies' fears of US secondary sanctions, despite the explicit provisions of the International Court of Justice's provisional measures excluding transactions in food and medicine, have prevented them from cooperating with the Iranian individuals and entities. With the outbreak of the Coronavirus, especially in the early stages, the shortage of drugs and medical supplies has disrupted the country's treatment system for effective and rapid response to the Coronavirus, which is a gross violation of fundamental human rights, the very rights which have been repeatedly emphasized in numerous international instruments. The purpose of this study is to prove the legitimacy of Iran in claiming this fundamental right in national and international fora, to provide better management of this crisis, and the possibility of compensation for damages caused by sanctions.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
169
202
https://www.cilamag.ir/article_245095_11524a09483f9be7fa6a7ad1a041204b.pdf
dx.doi.org/10.22066/cilamag.2021.245095
Granting British Citizenship to Hong Kong Citizens from the Perspective of International Law
Siamak
Karimi
Adjunct Professor of University of Tehran (Farabi College)
author
Reza
Esmkhani
Consul at the Consulate General of the Islamic Republic of Iran in Hong Kong
author
text
article
2021
per
On the execution of the Sino-British Joint Declaration in 1985, which had detailed resuming the exercise of China's sovereignty over Hong Kong, there was also an exchange of memoranda between the two sides. The British Memorandum to China stated the United Kingdom's pledge not to confer the right of abode in the United Kingdom on Holders of the British National (Overseas) passports who are Chinese inhabitants of Hong Kong. Following the occurrence of political turbulence in Hong Kong during 2019 and 2020, which led to strained relations between Britain and China, the British government unveiled plans to offer Hong Kong residents the chance to settle in the UK and ultimately apply for citizenship. The new immigration arrangements sparked a furious reaction by China. There are doubts about the binding effect of the commitments embedded in the above-mentioned Memorandums, for several reasons. Scrutinizing the characteristics of a binding legal obligation in international law, this essay concludes that the UK's pledge is a legally binding and unilateral one. Then it argues that revoking unilateral acts, which has been termed an “inherent right” by the ICJ, exceptionally could not be applied on the British Memorandum in this case.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
203
227
https://www.cilamag.ir/article_245094_e437c0525af523c02a9f1f9e04334979.pdf
dx.doi.org/10.22066/cilamag.2021.245094
Reflective Loss Claims in Internationals Investment Arbitration: Feasibility and Foundations
Mohamad Ali
Bahmaei
Assistant Professor, Department of International Trade Law, Faculty of Law, Shahid Beheshti University
author
Mohammad-Reza
Narimani
Master of Private Law, Faculty of Law, Shahid Beheshti University
author
text
article
2021
per
Reflective losses concern damages resulting from losses sustained by the corporate entity which are felt by shareholders in the form of devaluation of their shares. Shareholders’ suits seeking compensation for such damages are barred under corporate law systems but have caused lengthy debates in international investment arbitration: On one hand, foreign persons often organize their investments in host States through acquisition of shares in a local company. On the other, current arbitral precedence allows foreign investors/shareholders to seek compensation for devaluation of their shares resulting from host States’ illegal measures against the local company. The present article studies the said arbitral precedence and reviews the arguments put forward by tribunals for allowing such damages to be sought in investment disputes.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
229
262
https://www.cilamag.ir/article_244155_a771c0a39d1e1fd3b6eab9a3c43c4f39.pdf
dx.doi.org/10.22066/cilamag.2021.244155
Challenges Facing Singapore Convention on Mediation and the Possible Accession of Iran
Ali
Moghadam Abrishami
Assistant Professor, Faculty of Law and Political Science, Allameh Tabataba'i University
author
text
article
2021
per
Singapore Convention on Médiation was signed by 46 countries, including Iran, in August 2019 and came into force in September 2020. The promulgation of the Convention aims to provide an effective mechanism, akin to the New York Convention, for enforcing settlement agreement resulting directly from mediation. The process and result of negotiations indicate that the future of the Convention is uncertain. The unwillingness of the EU, European countries, and Japan on the one hand, and the lack of cultural and legal foundations in a given country that may consider the ratification of the Convention, on the other hand, may amount to the unsuccessful application of the Convention. This article illustrates problems and controversies raised at the time of drafting the Singapore Convention. It also demonstrates the advantages and disadvantages of the possible ratification in Iran. It concludes that the Iranian legal system is currently lacking a legal basis in terms of commercial mediation, and hence before the possible accession, Iran should adopt a legal framework for commercial mediation by inspiriting from UNCITRAL Model Law on Mediation.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
263
280
https://www.cilamag.ir/article_243888_f226d54dc477aa3cdd52433d9c53f346.pdf
dx.doi.org/10.22066/cilamag.2021.243888
The EU Law and the Challenge of Data Ownership in the Era of the Digital Economy
Shima
Attar
PhD student in Private Law, Faculty of Law and Political Science, Allameh Tabataba'i University
author
Farhad
Parvin
Associate Professor, Faculty of Law and Political Science, Allameh Tabataba'i
author
text
article
2021
per
The rapid development of new information technologies and data analytics has caused the awareness of the economic value of data, turning it into a new kind of asset. In the European Union, the acceptance of data as a new legal object is not revolutionary, but what has changed is the concept of ownership. By introducing data as the vital resource of the digital economy, the development of legal rules, including ownership rights, becomes necessary. This paper discusses the concept of data, identifies the challenges in defining the property rights in data by analysing for and against arguments, and studies the position of data in intellectual property rights, trade secrets, data protection, contracts, and competition law. Attitudes towards ownership as a fundamental concept, concerning data, face various uncertainties, and focus on data ownership could arise new economic concerns and legal issues. However, the lack of legal rules on data ownership should no longer be ignored. The mentioned legal systems also do not provide a sufficient basis for ownership of data. The solution is to regulate data, based on a clear definition of ownership while respecting the fundamental rights of individuals and providing the means of success in the digital economy.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
281
304
https://www.cilamag.ir/article_245186_dd7e399758b64c112f50d411c037e270.pdf
dx.doi.org/10.22066/cilamag.2021.245186
The Application of Religion as a Governing Law in National Judicial Precedents and International Instruments
Reza
Maghsoudi
Associate Professor, Department of Private law, University of Guilan
author
Firozeh
Seyednejad
MA. Student in Private law, University of Guilan
author
text
article
2021
per
The increase in the number of Islamic financial institutions and the emergence of Islamic banking in recent decades has led to the expansion of Islamic contracts and religious-based commercial activities in the international arena, and hence the possibility of recognition and application of religious laws in international commercial contracts has been notable and interesting. Therefore, this paper with an analytical-descriptive method seeks to examine the status of religious law as a non-state law in international instruments and to explain the possibility of choosing and applying it as governing law in the international commercial contracts in the judicial precedent. It is concluded that, although the practical procedure and the realities of the international business world do not allow such a choice, Article 3 of The Hague Principles on the choice of law in international commercial contracts 2015 by applying a new approach and extending the scope of party autonomy, supports choosing religious law as governing law in the contract. In recent years, rendered judgments have also been given a more flexible stance on the choice of religious law and recognizing greater authority for the parties to the international commercial contracts.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
305
326
https://www.cilamag.ir/article_246020_9c72dda8d6f68eda1d56155bd6e800fa.pdf
dx.doi.org/10.22066/cilamag.2021.246020
Index to International Law Review: Issues Nos. 63 & 64
text
article
2021
per
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
38
v.
شماره 65 (پاییز- زمستان)
no.
2021
327
330
https://www.cilamag.ir/article_247706_3243f571e5707ff530743df041c8081d.pdf