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Journal of Legal Research – Number 44

Journal of
LEGAL RESEARCH

Number 44

Vol. XIX ● No. 4
Winter 2020

 

Managing Editor: Vahid Eshtiagh

Editor-in-Chief: Seyyed Ghasem Zamani

 

 

CONTENTS

The UN Security Council Resolution 2231 & Withdrawal of the USA from JCPOA; From Supremacy of the Art. 103 UN Charter up to Diminishing Its Dignity
Dr. Seyyed Ghasem Zamani & Masoud Sabour

Investigating the Legitimacy of the Suspension of Obligations Based on Joint Comprehensive Plan of Action by Iran Using Hermeneutics of Interpretation
Dr. Aramesh Shahbazi & Katayoon Ashrafi

The Place of Due Diligence Principle in Prevention of Air Accidents: Shooting of Ukrainian International Airlines Flight (752)
Leila Salmani

Assessing the Possibility of Perceiving of Cyberspace as an Area of Common Heritage of Mankind
Dr. Ali Mashadi & Ehsan Shakibnezhad

Criminal Protection of Children against Online Abuses in Iran and UK Regulations and International Documents
Dr. Haleh Hosseini Akbarnezhad & Mohsen Javaheri Arasteh

Revising the Penal Code for Drugs and Psychotropic Drugs in Iranian Legal System
Dr. Atefeh Abbasi Kalimani & Melika Mahboubi

The Legal Status of Stem Cell Technology; Economic Threats and Challenges
Dr. Ahmad Pourebrahim

The Legal-Jurisprudential Basis and Limits of the Obligations of Security for Injuries Damages Fund
Dr. Sam Savadkoohi Far & Hassan Hajjafari

Management and Efficient Distribution of Risk in Oil and Gas Contracts through Contractual Clauses
Dr. Mohammadmahdi Hajian & Seyyedeh Sheida Salimi

Competitiveness of Government Procurements in Iranian Legal System, UNCITRAL Model Law and Agreement on Government Procurement
Dr. Hamid Bagherzadeh

Investigating Private Property Relationship on Petroleum Resources in Imamieh Jurisprudence and United States Law
Dr. Ghassem Khadem Razavi & Pooria Rastgoo Khiavi

A Comparative Study of the Electoral Justice Mechanism in England and the International Principles Governing Electoral Justice
Dr. Hosein Alaee

The Effect of Forensic Discourse on the Usage of Words in Civil Court Based on the Categorization of Conceptual Relations
Farangis Abbaszadeh & Dr. Bahman Gorjian & Dr. Elkhas Veysi & Dr. Mehran Memari

An Investigation of the Nature, Stance, and Performance of Tehran Regional Arbitration Center
Mohsen Hatamipoor & Dr. Nasrollah Ebrahimi

Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood
Author: Conrad Nyamutata
Translator: Seyyed Sadegh Mousavi Nezhad

Articles

The UN Security Council Resolution 2231 & Withdrawal of the USA from JCPOA; from Supremacy of the Art. 103 UN Charter up to Diminishing Its Dignity

Dr. Seyyed Ghasem Zamani
Professor, Department of Public and International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

&

Masoud Sabour
Ph.D. Student in International Law, Department of Law, Faculty of Law, Theology and Islamic Studies, Islamic Azad University, Najafabad Branch, Isfahan, Iran

Abstract: In mid-2018, the President of the United States announced the withdrawal of his government from the nuclear agreement also known as Joint Comprehensive Plan of Action (JCPOA). This document was signed in 2015 by the efforts of the Iranian government, permanent members of the Security Council, Germany and the European Union. Shortly after the conclusion of the deal, it was annexed to the binding Security Council Resolution 2231. This study, by resort to the implementing potency of Article 25 of the United Nations Charter and its reflection in Article 103 of the same document which declares the priority of obligations under the Charter over other obligations, and also after identification of the executive and binding character of United Nations Security Council through the interpretation methods reflected in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, seeks to indicate the ignorance and violations by the United States and other states of the thematic and binding resolutions of the Security Council in the past decades, as a strong reason for the descension of credit and validity of Article 103 of the United Nations Charter.
Keywords: Joint Comprehensive Plan of Action (JCPOA), UNSC Resolution 2231, Security Council, Article 103 of the United Nations Charter, Withdrawl of USA from Nuclear Agreement, Interpretation of Treaties.

 

Investigating the Legitimacy of the Suspension of Obligations Based on Joint Comprehensive Plan of Action by Iran Using Hermeneutics of Interpretation

Dr. Aramesh Shahbazi
Associate Professor of International Law Department, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
&
Katayoon Ashrafi
Ph.D. Student in International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Abstract: After much effort and long negotiations, on July 14, 2015, the Joint Comprehensive five-plus Action (JCPA) agreement was concluded between the Islamic Republic of Iran and the five plus one states, and the Security Council’s nuclear sanctions against Iran were lifted.
Following the change of government in the United States, on May 18, US President Donald Trump officially announced his withdrawal from the JCPA and the return of sanctions. On January 7, 2020, Iran announced a fifth and final step in reducing its obligations under this treaty after four stages of reducing its commitments.
According to Iran’s statement, the Islamic Republic of Iran no longer faces any restrictions in its field of operations (including enrichment capacity, percentage of enrichment, amount of enriched material, and research and development).
To examine and analyze the legitimacy of Iran’s suspensions, it is necessary to interpret these commitments and obligations under JCPA, which is possible by using the hermeneutic principles of interpretation and the rules of interpretation in the Vienna Convention on the Law of Treaties (1969).
By applying the context of this treaty, the legal principles applicable to it, including the principle of good faith and pacta sunt servanda, examining the circumstances of the time of the conclusion of the treaty, it is concluded that Iran’s suspensions are of international legitimacy. In addition, Iran’s good faith has been proven by emphasizing the full reversibility of the obligations based on the JCPA agreement.
Keywords: Hermeneutics, Joint Comprehensive Plan of Action (JCPOA), Interpretation, Security Council, Suspension, Treaties.

 

The Place of Due Diligence Principle in Prevention of Air Accidents: Shooting of Ukrainian International Airlines Flight (752)

Leila Salmani
M.A. Student in International Law, Payame Noor University, Garmsar Branch, Semnan, Iran

Abstract: On 8 January 2020, the Boeing 737-800 operating the route was shot down shortly after takeoff from Tehran Imam Khomeini International Airport. All 176 passengers and crew died. The shoot-down occurred five days after U.S. President, Donald Trump, launched a drone strike that killed Iranian General Qasem Soleimani. The Iranian government initially denied responsibility for the airplane’s destruction, but investigations revealed that the aircraft was shot down by a surface-to-air missile launched by Iran. The purpose of this summary is to address Role of Due Diligence Principle in Prevention of Air Accidents as such Ukrainian International Airlines Flight (752). It seems that by shot down of Ukrainian International Airlines Flight (752) Iran has violated its international obligations, as such the due diligence principle as a general principle of law, and consequently bear international responsibility.
Keywords: Due Diligence Principle, Ukrainian International Airlines Flight Accident (752), State Responsibility, Reparation, Qasem Soleimani.

Assessing the Possibility of Perceiving of Cyberspace as an Area of Common Heritage of Mankind

Dr. Ali Mashadi
Associate Professor of Public and International Law, Faculty of Law, Qom University, Qom, Iran
&
Ehsan Shakibnezhad
M.A. in International Law, Faculty of Law, Qom University, Qom, Iran

Abstract: Since the advent of cyberspace, the method of governance has always been challenged. The first insight into the regulation of this space that accepted by the states was the doctrine of absolute sovereignty. According to this view, only states have the jurisdiction and necessary authority to govern and legislate in cyberspace and this implies cyber realm is aligned with the geographical boundaries of countries. Gradually, this idea was established that in according to fluid and boundless nature of cyberspace as well as the prevention of discriminatory domination of the generally western countries, this space has to be fallen out of the sovereignty of states and with the principle of common heritage of mankind, the ground for the transfer of sovereignty from absolute authority of states to people should be provided. The supporters of this view, by plotting the similarities between cyberspace and other international spaces, argue that the application of any national law in the cyberspace lacks democratic legitimacy in a global network. Furthermore, the perception of cyberspace as common heritage of mankind prevents governments from unilateral actions and reduces the risks of cyber warfare. Although accepting this principle in the cyberspace is based on the creation of new legal rules in the form of acceptance in the international treaties. The present paper, through a descriptive-analytic method, attempts to express the current sovereignty attitudes and explain the possibility of applying the principle of common heritage of mankind to the areas of interest in cyberspace.
Keywords: Cyberspace, Common Heritage of Mankind, Doctrine of Absolute Sovereignty, International Spaces, Legislation.

 

Criminal Protection of Children against Online Abuses in Iran and UK Regulations and International Documents

Dr. Haleh Hosseini Akbarnezhad
Assistant Professor, Department of Law, Faculty of Social Sciences, Imam Khomeini International University, Qazvin, Iran
&
Mohsen Javaheri Arasteh
M.A. Student in Criminal Rights of Children and Adolescents, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Abstract: Empirical data show that increasingly children are engaging in online activities. Children and youths use electronic technology such as the Internet more than any other medium through which to communicate and socialize. Many children lack experience and knowledge of the implications and practices related to information and communication technologies, then the phenomenon of cyber abuses from children’s and youths’ perspectives has become a common concern in the international community as a whole. Findings revealed the regularity and importance of the Internet and communication technology for socialization; the forms, extent, and impact of cyber abuse; and children’ fear of disclosing cyber abuse to adults, particularly parents. So the role of the states and international organizations in this relation is vital to protect the children from the online abuses and the criminalization of online abuses of children is one of the protective and important measures. Iranian lawmaker criminalizes dissemination of pornographic contents and private pictures, also training and facilitating these crimes in cyberspace. English Law and international documents criminalize possessing, distributing, sharing or making pornographic images of a child is an offense. Therefore, the lack of specific protection for children and precise distinction between these types of acts committed in the Iranian legal system are felt. It will lead to many lawsuits concerning child labor, child crimes and privacy violation in the future.
Keywords: Children, Criminalization, Online Abuse, Online Protection.

 

Revising the Penal Code for Drugs and Psychotropic Drugs in Iranian Legal System

Dr. Atefeh Abbasi Kalimani
Faculty Member of Imam Sadiq University, Tehran, Iran
&
Melika Mahboubi
Bachelor of Law, Imam Sadiq University, Tehran, Iran

Abstract: Drug addiction is one of the social abnormalities and fundamental problems of human life today, and it can be considered as a global concern. Solving this social problem requires a continuous and comprehensive struggle. Obviously, each country pursues its own policies to deal with these crimes. Legitimate memory expresses a sharp reaction to this type of crime with a differentiated approach. In a normal committee of criminal policy, the punishment is not used solely for the purpose of persecution and retaliation; it also considered the preventive effect. Hence, in Iran’s criminal policy, criminal penalties, including penalties and educational provision, have been taken into account for the next generations to flourish in a healthy environment, and the growth of ethical virtues under faith and piety will be fully realized. This article seeks to refine the punishment of drug-related and psychotropic drugs offenses in Iran’s legal system. Therefore, according to theoretical aspect of the research, descriptive-analytic research method has been used in inductive-deductive method the current research explained the opinion of the legislator and compares the views of different jurists by using library resources and the other research in this field.
Keywords: Warranty, Drug and Psychotropic Drugs Addiction, The Law on Combating Substances, Criminal Policy, Punishment.

 

The Legal Status of Stem Cell Technology; Economic Threats and Challenges

Dr. Ahmad Pourebrahim
Professor of Criminal Law and Criminology, Islamic Azad University, Qeshm, Iran

Abstract: Stem cell is developed as a new therapeutic approach and it is expected in the near future, cell therapy will form one of the largest markets in the world. For rightful place in the global market, it is necessary to speed up the commercialization of our research achievements and enter the growing market of cell therapy. This study aimed to study the situation legal stem cell technology; threats and economic challenges, the legal status of economic challenges related to intellectual property, patent, funding research projects, medical tourism by unapproved cell interventions, cost of treatment and commercial and financial relations among the people.
The attributive and library method is used for collecting information through reading books, articles and other research.
Commercialization challenges include lack of support, lack of commercialization centers and the lack of real and virtual market supply and demand of biotechnology. Based on the placement of stem cells in priorities (a) of basic and applied sciences, in paragraph two and three of the third chapter of the comprehensive scientific map document, necessary laws and regulations to regulate this area is an inevitable affair. Therefore, the development of appropriate institutional and legal infrastructure is a top priority to lead to a place in the region and the world in 1404 horizon.
Keywords: Legal Mechanisms, Stem Cells, Economic Challenges, Commercialization.

 

The Legal-Jurisprudential Basis and Limits of the Obligations of Security for Injuries Damages Fund

Dr. Sam Savadkoohi Far
Assistant Professor and Faculty Member, Faculty of Law and Political Science, Islamic Azad University, Tehran South Branch, Tehran, Iran
&
Hassan Hajjafari
Ph.D. Student in Private Law, Faculty of Law and Political Science, Islamic Azad University, Tehran South Branch, Tehran, Iran

Abstract: Understanding the extent of the insurer’s obligations alone is not enough to explain the overall issue of third-party insurance. In many cases, the legislator has been liable for compensation in the general fund. In some cases, the insurer may, after compensation, return to the Loss Insurance Fund for reimbursement. The same two regulations are sufficient to determine the importance and necessity of studying and recognizing the limits of the obligations of the fund for the provision of financial damages. In this paper, with the understanding of this necessity, the scope of the Fund’s obligations under the Third-Party Compensation Insurance Act of 1395, as well as the grounds for the formation of the fund in terms of its jurisprudence and law and its security for injuries damages founds, and why the legislator increased the liability of the fund, it has been studied and analyzed.
Keywords: New Compulsory Insurance Law, Physical Damage Fund, Commitments of the Provisional Fund, Fundamentals of Security Fund, Liability, Insurance.

 

Management and Efficient Distribution of Risk in Oil and Gas Contracts through Contractual Clauses

Dr. Mohammadmahdi Hajian
Assistant Professor of Private and Economic Law Department, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
&
Seyyedeh Sheida Salimi
M.A. in Oil and Gas Law, Faculty of Law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran

Abstract: Given the wide range of risks the contracting parties face in oil and gas projects, risk management strategies play an essential role in reducing risk costs, reducing disputes between contracting parties, and ultimately, achieving the business objectives of the contract. Contractual allocating of project risks through the inclusion of key distribution risk clauses in the contract, as one of the most important risk management mechanisms, has been considerably taken into account in recent years in oil and gas contracts. So that the successful implementation of each project is based on the efficient design of the contract, leading to an optimal and equitable distribution of project risks by transferring the responsibility for accepting and managing risks to the one that is in the best position to manage them.
This paper examines the use of a variety of contractual risk allocation mechanisms in oil and gas contracts, such as exclusion clause, liability limitation clause, indemnity clause, liquidated damage clause and the clause of requirement to obtain certain insurance coverage and at the end, discusses invalidity of contractual terms when they lead to unfair risk allocation.
Keywords: Contractual Terms, Risk Distribution, Oil and Gas Projects

 

Competitiveness of Government Procurements in Iranian Legal System, UNCITRAL Model Law and Agreement on Government Procurement

Dr. Hamid Bagherzadeh
Ph.d. in Private Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran MsC in Construction Law and Dispute Resolution, King’s College London, London, England

Abstract: By joining to “UN Convention against Corruption”, Iran has obliged to improve the competition in the government procurement regulations. Nonetheless, the Iranian regulations on government procurement have not yet been challenged.
In the current essay, first, researcher through the competitive study of “UNCITRAL Model Law on Public Procurement (2011)” and “WTO Agreement on Government Procurement (2012)” which are significant samples of international practices in public procurement, presents the factual global standards for government procurements. Then, after comparing them with “Iranian Tendering Act” and relevant directives, the researcher has gotten the point that Iranian regulations require improvements although there are some positive aspects. These modifications consist of some literal changes on the titles, subjective attitude to government procurements, inclusion of service purchases, considering the intellectual property rights and excluding continues and previous purchases from the procedures aiming to increase the competition grounds and harmonise with international standards while giving a solution to the current necessities of the country.
Keywords: Competition, Public Procurement, Tendering Act, Construction, Anti-Corruption.

 

 

Investigating Private Property Relationship on Petroleum Resources in Imamieh Jurisprudence and United State’s Law

Dr. Ghassem Khadem Razavi
Assistant Professor, Faculty of Judicial Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
&
Pooria Rastgoo Khiavi
M.A. Student in Trade Law, Faculty of Judicial Law, University of Judicial Sciences and Administrative Services, Tehran, Iran

Abstract: The discussion of the regime of ownership on oil and gas and the acceptance of existing theories in this regard is of great significance in terms of the works that it entails, with the explanation that the discussion in this regard is in fact the gateway to the subject of oil contracts and the acceptance each existing theory will have a direct impact on the type of oil and gas contracts. In the legal system of any country, in accordance with the attitude of these sources, a different ownership system has been accepted. The private property system on petroleum resources is one of the accepted systems of these resources, which is in conjunction with two other system of ownership, the state and public ownership system. The United States of America is an objective example of the adoption of the private property system. In Islamic jurisprudence, the private property system has been mentioned by some of the Imams’ jurisprudents, although the principles that led to the acceptance of this theory in Imam’s jurisprudence are different from the principles of this theory in United States law.
Keywords: Petroleum Resources, Imamieh Jurisprudence, United States of America, Private Property System.

 

A Comparative Study of the Electoral Justice Mechanism in England and the International Principles Governing Electoral Justice

Dr. Hosein Alaee
Associate Professor in Public Law, Faculty Member of Law Department, Islamic Azad University, Shiraz Branch, Shiraz, Iran

Abstract: In international law and practice, some standards and criteria have been stipulated that their observance will lead an election to a free and fair election in which people will have a genuine share in their active participation, including the most important of these criteria, the monitoring of election results and resolution of electoral disputes. Claims, whether in the early stages of the election, that is, the stage of registration and review of qualifications, whether at the stage of holding it, namely, advertising and voting, or in the post-election stage, namely the announcement of the results, must be in the context of fairness and rationality and in accordance with the rules and International standards to be resolved.
In England, electoral proceedings are conducted by a special tribunal consisting of two judges of the Supreme Court without a jury. This court can disqualify the candidate, review the ballot, announce the results of the election or demand a new election. Unfortunately, the process of electoral litigation is sometimes too difficult and, in general, evidence suggests that the process of litigation in the UK is obsolete, complicated, inaccessible and inefficient. In this study, we are going to examine the formalities of the UK electoral system and its degree of compliance with the relevant international standards.
Keywords: Electoral Dispute, England, Trial Process, International Principles, Electoral Court.

 

The Effect of Forensic Discourse on the Usage of Words in Civil Court Based on the Categorization of Conceptual Relations

Farangis Abbaszadeh
Ph.D. Candidate of General Linguistics, Abadan Branch, Islamic Azad University, Khuzestan, Iran
&
Dr. Bahman Gorjian
Associate Professor, Department of Linguistics, Abadan Branch, Islamic Azad University,
Khuzestan, Iran
&
Dr. Elkhas Veysi
Associate Professor, Department of Linguistics, Abadan Branch, Islamic Azad University, Khuzestan, Iran
Associate Professor, Department of Linguistics, Payam e Noor University, Iran
&
Dr. Mehran Memari
Assistant Professor, Department of Linguistics, Abadan Branch, Islamic Azad University, Khuzestan, Iran
Assistant Professor, Department of ELT, Farhandian University, Khuzestan, Iran

Abstract: The effect of court speech can be affected by using verbal and non-verbal cues. Verbal acts transfer their linguistic contents of necessary language use and nonlinguistic components such as body movements. This study aims at investigating the effect of on lexical and phrasal use in people’s forensic discourses in civil courts following Safavi’s (2011) categorization model of lexical conceptual relations. Every word, phrase, clause, a sentence has a meaning which can be transferred by linguistic and nonlinguistic elements. Linguistic components of meaning are concerned with lexicons and syntax. The research data gathered from two video clips of getting divorces by agreement in order to study lexical collocation, combination, deviation, inflection, and semantic relations at the word and sentence level. The results indicated that identifying the linguistic and correct use of lexical structures and grammatical patterns cause interactional communications positively and efficiently. People are not often aware of linguistic elements in their defenses of the courts. The results showed that linguistic norm deviations are affected by the selection of lexemes. In the courts, the judge and attorney should pay much attention to maintaining and deviating the speech values from forensic perspectives.
Keywords: Forensic Linguistics, Lexical Selection, Conceptual Relations, Civil Court.

 

An Investigation of the Nature, Stance, and Performance of Tehran Regional Arbitration Center

Mohsen Hatamipoor
Ph.D. Student in Private Law, Faculty of Law, Theology and Political Science, Islamic Azad University, Education and Research of Justice of Tehran, Tehran, Iran
&
Dr. Nasrollah Ebrahimi
Associate Professor of Private Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran

Abstract: Arbitration is a substitute and among the most important solutions for dispute settlement, in which the parties to a disagreement, by mutual accord, refer a controversy, to reach a binding, impartial, and effective agreement. As for the procedure, arbitration can be categorized into ad hoc versus institutional arbitration; in the latter, arbitration institutions organize and manage the arbitration proceedings, as a mediator and arbiter, in an attempt to accelerate as well as to facilitate and improve the proceedings. Such institutions, as per the regulations, have immunity for performing their duties, yet, according to general rules of liability, are liable against the parties to a dispute and third parties, and can be litigated. A major arbitration institution in Iran, the operation of which is based on and authorized by the statute of the Islamic Consultative Assembly, is Tehran Regional Arbitration Center (TRAC), incorporated through an agreement between the Islamic Republic of Iran and Asian-African Legal Consultative Organization, with rules based on The UNCITRAL Rules of Arbitration of 1976; the newly enacted rules of said center, subsequent to the required amendments to some of its facets, became enforceable from early March 2018.
Keywords: Arbitration, Institutional Arbitration, Arbitration Court, Tehran Regional Arbitration Center.

Young Terrorists or Child Soldiers? ISIS Children, International Law and Victimhood

Author
Conrad Nyamutata
Department of Law, De Montfort University, Leicester, UK
Translators
Seyyed Sadegh Mousavi Nezhad
Ph.D. Student in International Law, Razavi Islamic Sciences University, Razavi Khorasan, Iran

Abstract: Since the Syrian conflict broke out, a significant number of Western citizens travelled to the warzone to join the Islamic State of Iraq and Syria (ISIS). By common definitions, some of the persons travelled as ‘children’. However, since the defeat of ISIS, Western countries are facing a conundrum on how to treat these young former fighters. The status of these children has been contentious. Among the Western countries, there does not seem to be a clear position or consistent approach on how such children should be treated. It would appear that the approaches towards the dilemma on these young persons have, predominantly, been dictated by the political whims of individual states. Generally, the children have been regarded as young “terrorists” likely to pose danger to Western societies if repatriated back. However, the perceptions and actions towards these minors seem to depart from the normative approaches to children associated with armed conflict. The widely reported case of British teenager Shamima Begum shone the spotlight on the predicaments of children formerly associated with ISIS. This article makes a case for the treatment of ISIS-associated children to be considered as child soldiers. When analyzed closely, these children deserve protections accorded to all children recruited for purposes of warfare. Recent case law seems to imply that such protection does not cease even after the age of 18 years. All considered, the denial of repatriation appears inimical to normative standards on children associated with armed conflict. Furthermore, the approaches of some of the Western countries could be vulnerable to criticism for violation of the rule of law. The arbitrary revocation of citizenship and barring of returns appear starkly in conflict with norms of natural justice. With this in mind, this article asserts that a consistent approach would require the Western approaches to treat ISIS-associated children as victims first and accord them protections recognized in international law.
Keywords: International Humanitarian Law, International Law, Child Soldiers, ISIS Child.

 

 

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