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Public Law Studies Quarterly Director-in-Charge: Mohammadreza Takhshid

Editor-in-Chief: Abbasali Kadkhodaee

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Elham Aminzadeh, Janet E. Blake, Kheirollah Parvin,

Mohammadjavad Javid, Mansour Jabbari Gharabagh, Tavakol Habibzadeh,

Amirhossein Ranjbarian, Seyed Ghasem Zamani, Mohammadreza Ziaee

Bigdeli, Mohammadjafar Ghanbari Jahromi, Reza Mousazadeh,

Seyed Bagher Mirabasi

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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


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


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


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


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


2. Assistant Prof., Department of Law, University of Payame Noor, Iran. Email: [email protected]

Received: December 26, 2018 - Accepted: March 11, 2019


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.


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


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.


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


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.


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


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


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


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


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


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


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).


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


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


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


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


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


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.


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


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


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

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