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Home / Published archives / Journal of Legal Research – Number 25

Journal of Legal Research – Number 25

Journal of
LEGAL RESEARCH

Number 25

Vol. XIII ● No. 1
Spring – Summer 2014

CONTENTS

Articles

HUMAN RIGHTS TRAINING FOR BANISHING VIOLENCE
Reza Eslami (Ph.D.) & Abbas Behroozikhah

THE CHALLENGES OF WTO GLOBAL GOVERNANCE ON OIL
Mohammad Aghaei (Ph.D.)

ENGINEERING HUMAN SPERM CELLS IN THE TRIANGLE OF COMMON HEALTH, DEVELOPMENT AND IDENTITY RIGHTS
Fatemeh Torof

THE LAUNCHING STATE OF SPACE OBJECTS AND EFFECT OF SEA LAUNCH PROJECT ON DEVELOPMENT OF ITS CONCEPT
Hosna Khalvandi
Seyed Hadi Mahmoudi (Ph.D.)

REFERENCE OF SOCIAL SECURITY ORGANIZATION TO RESPONSIBLE EMPLOYER IN INJURING TO INSURED EMPLOYEE
Mahmood Saber (Ph.D.) – Nasrin Tabatabaie Hesarie (Ph.D.)

LEGAL RESPONSIBILITY OF THE STATE IN NATURAL DISASTERS
Zohreh Rahmani (Ph.D.)

CONVENTION AGAINST TORTURE: THE PROSPECT OF THE REPARATION FOR VICTIMS OF EXTRATERRITORIAL VIOLATIONS
Niloufar Nazaryani

SUBSTANTIVE REQUIREMENT OF INNOVATIVE STEP IN THE MIRROR OF ACTS AND RULES: A STANDARD FOR IRAN’S LEGISLATION
Hamed Najafi & Mahsa Madani

IRAN AND THE INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW (UNIDROIT): LOOKING TO THE FUTURE
Koorosh Jafari

INTERVIEW
With Mr. Jose Angelo Estrella Faria, Secretary General of UNIDROIT

Articles

 

Human Rights Training for Banishing Violence

Reza Eslami (Ph.D.)
&
Abbas Behroozikhah

Abstract:
This article reviews the roots of violence in human society in individual and social levels, and studies the negative impact of violence on peace and peaceful coexistence of citizens in any given society. The article argues that, in many instances, the violence is derived from, and motivated by, certain cultural beliefs and practices which threaten peace in both domestic and international scenes, and in turn, lead to more violence and discrimination. The article also provides that this vicious circle should be replaced by the circle of dialogue, mutual understanding and tolerance. The article argues that human rights education helps societies raise awareness, build capacities and empower the citizens so that the differences among them are settled by peaceful means, and ultimately, violence is eliminated from human societies.

Keywords:
violence, discrimination, culture, human rights training, tolerance, human rights education.

The Challenges of WTO in Global Governance on Oil

Mohammad Aghaei (Ph.D.)

Abstract:
The World Trade Organization (WTO) as a global organization with its160 members has claimed the global governance on international trade. It is said that, nowadays, about 90% of world trade (in terms of world population) are under WTO’s fundamental principles control. Also, some Energy Law Experts from oil importing countries / oil consumer countries believe that WTO’s fundamental principles can govern on crude oil and oil derivatives as they are applied on industrial commodities. However, On the one hand, a unique features in the crude oil make it except from industrial goods and, as a result, make it outside the legal framework of the WTO, and on the other hand, a set of inherent limitations and shortcomings of the WTO legal system might cause serious legal challenges in the global governance of the organization in the oil field.

Keywords:
fundamental principles, OPEC, Peak Oil, World Trade Organization, challenge, oil law, sovereignty, global governance, exceptional strategic commodity, GATT, natural resources, petroleum, world supply of oil and manufactured goods.

Engineering Human Sperm Cells in the triangle of Common Health, Development and Identity Rights

Fatemeh Torof

Abstract:
“Germ line gene engineering” is a method that is researched with the purpose of perennial hereditary mutations in herbaceous, animal and human generations. Its imminency and so the urgency of its use for human subjects, has been led to abundant arguments and discords among ethic and law experts. In this article, aiming at attaining a moderate legal approach, we will analyze this course of biotechnology regarding to three human law guidelines: right of health, right of development & human common identity.

Keywords:
Engineering human sperm cells, development right, health right, human identity.

The Launching State of Space Objects and Effect of Sea Launch Project on Development of its Concept

Hosna Khalvandi
&
Seyed Hadi Mahmoudi (Ph.D.)

Abstract:
The concept of “Launching State” is a key concept in international space law; because under Liability Convention, adopted in 1972, the launching state is liable for damages caused by launched space objects. On the other hands, under Registration Convention, adopted in 1975, the launching state is committed to register the launched space object.
At the beginning of space age and in time of codification of international space law treaties, states were launched their space objects from their territory and with their facilities. By and by, cooperation of two or several states led to multiple launching states that are anticipated in liability convention. But nowadays, new situation have occurred that the concept of launching state has affected. One of the new situation is “Sea Launch project” that due to launching from high seas, launching from mobile platform that is registered in a non-member state of the Liability Convention, and also presence of non-governmental entities in the form of an international consortium that among them so far no agreement has been concluded, the subject of determination of launching state(s) and possible liability has affected. In a short while, considering the problem which exists in the application of the concept of launching state and the legal gap that was created within Sea Launch project, it became the subject of the agenda of the Committee on the Peaceful Uses of Outer Space (COPOUS) and then the UN General Assembly issued a resolution on “the Application of the Concept of Launching State”. The purpose of this article is based on the study of the concept of launching state of space objects according to documents of international space law and also study of the effect of the Sea Launch project on the concept of “Launching State”.

Keywords:
Launching State, Liability Convention, Launching from sea, Sea Launch project, General Assembly Resolution 59/115.

Reference of Social Security Organization to Responsible Employer in Injuring to Insured Employee

Mahmood Saber (Ph.D.)
&
Nasrin Tabatabaie Hesarie (Ph.D.)

Abstract:
The most common methods to help injuries of professional illness and work accidents are methods based on system of Social security. Plus, these manners it is possible to reference to responsible person. This subject is anticipated in article 66 of Iran Social Security Act (S.S.A.). Thematic and personal domain’s, determination of this article is important considering its special tools. There are disagreements between jurists and practical procedures in determination of its domain. These disagreements rise of challenge between supportive function of social security system and specific tools anticipated in article 66 S.S.A. Being specific of these tools cause district and limited interpretation. Reference of S.S.O. to responsible of accident depends to realization of three conditions: payment, compensation being, existence of fault. This subject has formalities which have ambiguities and objections. Such as, mode of reference of S.S.O. in subjects that link with provisions of blood money.

Keywords:
Employee, Employer, Insured, Insurer, Civil Liability, Social Security

Legal Responsibility of the State in Natural Disasters

Zohreh Rahmani (Ph.D.)

Abstract:
In our country, discussing about responsibility of the state is one of the new subjects. In the past belief was that the state have immunity and cannot be reprimanded for their acts. But gradually by emergence of constitutional states and the principles of liberalism and human rights, the responsibility of the states was considered as a basis of accountability of the state, in return to the damages of the citizens.
A natural disaster is a suddenly and unexpected event that causes damages on people s life. In this field because of unawareness of individuals, responsibility and accountability of the state is no longer imaginable in relation to their failure and negligence. According to the internal laws and rules and international documents all the states should provide the minimum standards of the life and right to product life when a natural disaster takes place.
Keywords:
Responsibility of the state, accountability, natural disasters, emergency

Convention against Torture: The Prospect of the Reparation for Victims of Extraterritorial Violations

Niloufar Nazaryani

Abstract:
Indeed it is true that Sovereignties are hypersensitive about their sovereignty acts. Same is for torture, when it done through sovereignty power. This sensitivity has been mitigated through immunity rules. International Court of Justice accepted absolute judicial immunity of sates in Jurisdictional Immunities case (Germany v. Italy) on 3 February 2012. Therefore, victims of human rights violations, including prohibition of torture, cannot bring a claim against the violator state in the foreign courts. Now, the question is that, is it possible that a torture victim bring a civil litigation in foreign court without facing immunity obstacle?
This article is intended to prove this hypothesis that at the end of this contention, it wouldn’t be an absolute judicial immunity for states, With This argumentation that, the Committee against torture rendered the General Comment No 3 in respect of article 14 of the Convention against torture on 19 November 2012, and requires state parties to provide civil remedies for all of the victims, Regardless of territorial or nationality links.

Keywords:
Convention against torture, state immunity, Committee against torture, General Comment, universal civil jurisdiction, interpretative declaration.

Substantive Requirement of Innovative Step in the Mirror of Acts and Rules: A Standard for Iran’s Legislation

Hamed Najafi
&
Mahsa Madani

Abstract:
Ambiguous and indeterminate place of substantive inventive step requirement in the article 2 of the registration of inventions, trademarks and industrial designs act approved on 1386,is one of the sensible defects of the aloft tentative act. In this act that has come that an invention is patentable which has inventive step and industrial application. Such a statement produce the doubt of the unity of two requirement of novelty and inventive step, while is not such and inventive step requirement has state independent from after requirements in the major near the all of the foreigner acts and rules weather national, local and international, also and in different legal systems and various economies In present article we going to with the statement of place of inventive step requirement in the national, local and international acts, rules and document in the various countries and systems, to obtain a paper standard for legislation of our country after the end of space of tentative enforcement of the act of 1386.
Keywords:
inventive step requirement, national, local, international rules, Iran’s law, act approved on 1386.

Iran and International Institute for the Unification of Private Law (UNIDROIT): Looking to the Future

Koorosh Jafari

Abstract:
The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental Organization with its seat in Rome. Its purpose is to study needs and methods for modernizing, harmonizing and coordinating private and in particular commercial law as between States and groups of States and to formulate uniform law instruments, principles and rules to achieve those objectives. Iran has been a member of this Institute since 1951. Thus far, and despite more than half a century membership, we have not been able to benefit from opportunities and benefits of the Institute.
The translation of the book on the principles of International trade agreements by Shahre Danesh is a welcoming sign for a better understanding of the activities of the Institute. It is earnestly hoped that, the visit of the UNIDROIT Secretary General to the Islamic Republic of Iran, could even more, highlight the importance of the work of the Institute among officials and scholars in our country.
Along the same line, the following article in Farsi, also aims at better introduction of the UNIDROIT to the academia.

Keywords:
UNIDROIT, Private Law, Unification, Iran, International trade agreements

Interview

With Mr. Jose Angelo Estrella Faria, Secretary General of UNIDROIT

“In the Name of God”

Key questions in the interview with Mr. Jose Angelo Estrella Faria
The Embassy of Islamic Republic of Iran in Italy-Rome is grateful to you for taking the time to have this press interview.

۱- By way of introduction for our interested Iranian jurists, could you further explain the role of UNIDROIT in the legal scope of the current world and its achievements for the international law community? What has been your role in leading such institute?

Response: The International Institute for the Unification of Private Law (UNIDROIT) is an independent intergovernmental Organisation seated in Rome. It was originally set up in 1926 as an auxiliary organ of the League of Nations and, following the League’s demise, was re-established in 1940 on the basis of a multilateral agreement known as the UNIDROIT Statute. UNIDROIT currently has 63 Member States, including Iran, from across the world. UNIDROIT’s mission is to study needs and methods for modernising, harmonising, and coordinating private international law, in particular commercial law, between States and to formulate uniform law instruments, principles and rules. In this role of harmonising and formulating private international law, UNIDROIT is joined by, and works together with, the Hague Conference on Private International Law and the United Nations Commission on International Trade Law (UNCITRAL), where I served as a Senior Legal Officer prior to being appointed Secretary-General of UNIDROIT in 2008.
Despite being the smallest of these organisations – in terms of budget, membership, and staff – UNIDROIT has a number of significant achievements, including for example the UNIDROIT Principles of International Commercial Contracts, most recently revised in 2010, the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, and the Convention on International Interests in Mobile Equipment, known as the Cape Town Convention, and its related Protocols on aircraft equipment, railway rolling stock, and space assets. In connection with its recent instruments, such as the Cape Town Convention and related Protocols, UNIDROIT has been designated as the Depositary and operates a system for receipt and notification of all instruments and documents presented, as well as assisting States that are contemplating acceding to such instruments.
UNIDROIT has essentially a three-tiered structure, which is made up of a Secretariat, a Governing Council, and a General Assembly. As Secretary-General, my role is to lead the team of international civil servants and supporting staff that make up the Secretariat in carrying out UNIDROIT’s Work Programme, which is established by the General Assembly and supervised by the Governing Council. Since being appointed Secretary-General, I have worked to ensure continued production of important UNIDROIT instruments that positively impact the development of private law, promotion of UNIDROIT’s many existing instruments, increased co-operation with other international organisations, and modernization of the operations of the Secretariat.

۲- As you may have already learned, Iran has been lately making efforts to improve its reciprocal relation and collaboration with the institute in order to establish a mutual exchange of legal culture. In your opinion what approaches would help this end happen?

Response: The Secretariat welcomes Iran’s efforts to further collaboration with UNIDROIT and there are different approaches to make this happen. First, Iran should continue to participate actively in all phases of UNIDROIT’s work. This includes providing experts to UNIDROIT’s negotiations and study groups as the Secretariat seeks to ensure as balanced a representation as possible of the world’s different legal and economic systems, as well as geographic regions.
Second, Iran could promote and support opportunities for Iranian law students to participate in the work of the Secretariat. Each year, UNIDROIT welcomes a limited number of interns from across the world and has hosted Iranian interns in the past. Interns typically conduct research on specific aspects of subjects on UNIDROIT’s Work Programme. They assist the Secretariat with its work not only by performing such research but also by offering their input and insights from the perspective of their own legal system and background. Such collaboration is extremely useful both for UNIDROIT, which gains that input and those insights, and for student interns, who gain an enriching legal experience and understanding of UNIDROIT’s work methods and instruments early in their legal careers.
Third, for those who are unable to make it to Rome to participate in UNIDROIT’s work in this way, Iran could identify a UNIDROIT depository library within Iran that could be supplied with the latest UNIDROIT documentation, including reports on all aspects of UNIDROIT’s activities and copies of the Uniform Law Review, a quarterly UNIDROIT publication that extensively covers and analyses UNIDROIT’s existing instruments and ongoing work. This, together with UNIDROIT’s website, makes UNIDROIT’s work more accessible and promotes enhanced collaboration. Iran, as well as universities and organisations, could also host events within Iran promoting UNIDROIT instruments, analysing them, and providing feedback on their strengths and weaknesses. The Secretariat would welcome such promotion, analysis, and feedback.

۳- UNIDROIT with over 80 years of productive work in adopting international conventions, holding international conferences and providing Model Laws in various topics of law, has had important role in unifying the private law of the nations and with great legal achievements it has several resources which can be useful and constructive for the young Iranian jurists.
In your opinion, what facilities and opportunities your institute can offer for our jurists in order to take advantage of such achievements?

Response: The instruments prepared by UNIDROIT are helpful tools for the modernization of a country’s legal framework for international transactions, and sometimes even for domestic law reform. I note that Iran has ratified the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which is a logical step for a country with a millenary history that possesses such a wealth of cultural treasures. The recently adopted UNESCO- UNIDROIT Model Provisions on State Ownership of Undiscovered Cultural Objects contains useful advice on clarifying a country’s ownership over archaeological treasures with a view to facilitating restitution claims in case of unlawful removal from its territory. In respect of both texts, together with UNESCO,
offers technical assistance and training courses for policy-makers and lawyers of interested countries.
Furthermore, an important addition to the other opportunities that I mentioned earlier, in particular the hosting of interns that support the fulfillment of UNIDROIT’s Work Programme, UNIDROIT also welcomes jurists, professors, and other legal professionals to conduct independent research at the UNIDROIT Library in Rome. This research culminates in the required submission of a report on the research carried out, and submissions of a sufficiently high quality occasionally are published in the Uniform Law Review. The importance of this type of collaborative research cannot be underestimated as researchers gain an enriching experience and familiarity with UNIDROIT instruments that they can then take back to their home countries and the Secretariat gains from those researchers’ insights and perspectives, leading to even better and more well-rounded UNIDROIT products going forward.
Lastly, I would encourage Iranian jurists to take advantage of the documentation that UNIDROIT regularly makes available and to examine and analyse UNIDROIT instruments that fall within their scope of work. This includes not only the instruments themselves, but also any official commentary and related scholarly works. The Secretariat welcomes feedback on UNIDROIT instruments and ideas for future projects.

۴- Mr. Secretary-General, in our opinion “UNIDROIT Principles of International Commercial Contracts” is one of the masterpieces of your institute which has been translated into various languages. We have been honoured to conduct the Persian translation and further editions of the years 1994, 2004 and 2010 with the permission from the General Secretary of the institute while conforming to the relevant intellectual property rights.
What is your opinion on the Persian translation and how would you evaluate this work?

Response: Without being able to evaluate the substance of the translation as a non-Persian speaker, I believe it is a very significant contribution to UNIDROIT’s harmonisation work because the UNIDROIT Principles of International Commercial Contracts are addressed to the world’s legal and business communities. Thanks to this
important translation effort, the Persian-speaking legal and business communities, part of the more than 100 million Persian-speakers worldwide, can access and benefit from the UNIDROIT Principles in that language, leading to greater use of the Principles. Legal translation can be difficult and time-consuming and the Secretariat
much appreciates this effort.

۵- As you are aware, University of Tehran being amongst the first and most important universities of our country is planning to hold a conference on UNIDROIT, its achievements and other relevant topics in Tehran with the cooperation of certain governmental and private organisations which are active
in the field of law. On March 2014, Sultan Qaboos University with the cooperation of UNIDROIT and John Hopkins University held an international conference introducing the Arabic version of the Principles in Oman, Muscat. Do you think holding similar conference in a university for presenting the Persian version of the Principles would be useful?
Would you and other officials from the institute participate in such conference upon invitation from Iran?

Response: The UNIDROIT Secretariat is proud of its work and appreciates any efforts to promote its instruments, analyse them and consider related topics. The Secretariat would welcome the holding of such a conference, collaboration with Iran and the University of Tehran, and co-operation with Iranian governmental and private organisations. With thanks to Iran, and time- and resources-permitting, I would endeavour to attend, if possible, or otherwise work to ensure UNIDROIT Secretariat representation at the conference.
In closing, I would like to take this opportunity to thank you for your time and hope to have further cooperation with you and your esteemed institute.
Response: Thank you for the opportunity to speak about UNIDROIT’s work and for your questions and interest. I look forward to further collaboration and co-operation with Iran.

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