The Issue of the State Responsibility under the Energy Charter Treaty
Masuod
Akhavan Fard
عضو هیأت علمی دانشگاه مالک اشتر
author
Mohammad Kazem
Taghdir
کارشناسی ارشد حقوق تجارت بینالملل، کارشناسی ارشد حقوق خصوصی، دانشگاه شهید بهشتی.
author
text
article
2010
per
The Energy Charter Treaty has been the subject of an increasing attention since its ratification ten years ago. It was the first multilateral treaty in the world in the energy sector and introduced numerous innovations. One of the most important of these relates to the issue of state responsibility. Needless to say that when considering the issue of state responsibility one cannot forget the importance of the rules of attribution (and again the difference between attribution and state responsibility should be taken into account). Therefore, one should answer the question of contribution of the ECT in this issue especially with its case law and precedent and particularly since the Nykomb award. On the second level the relationship between contract and treaty should be examined. Specially if there is an attribution is the state directly responsible for contracts concluded by a state enterprise? And last but not least, one cannot ignore the controversial issue of the Umbrella clause and its ability to convert a contractual obligation into an international obligation, a breach of which can lead to international responsibility of the state.
This article aims to examine all of the above-mentioned questions and discuss the issue of state responsibility in the ECT. In order to limit the scope of discussion, only the crucial issues which have been considered in one of the cases under the ECT (i.e. the Nykomb case) will be reviewed. This mainly includes the effect of the umbrella clause and the relation between the treaty and the contract. In order to have a better understanding of these issues, it is essential that general points about the rules of attribution and umbrella clause be made. Finally it may be possible to draw a general picture of the current and probably the future situation of state responsibility under the ECT.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
15
29
https://www.cilamag.ir/article_17273_25909d34ed5386f159df4318d69dd637.pdf
dx.doi.org/10.22066/cilamag.2010.17273
Analyzing the Principle of Non-discrimination in Relation to Minorities under International Law
Houssein
Sharifi Tarazkouhi
دانشیار دانشگاه امام حسین
author
Abdollah
Gharebaghi
کارشناس ارشد حقوق بینالملل
author
text
article
2010
per
In international law, minority, in spite of the fact that there is not a unanimous and all-acceptable definition of its legal status, has distinguishable and discernable referents. Seemingly, discrimination against minorities means to deny them some rights and facilities which are accessible to the majority. Minorities might be denied these through direct or indirect ways, mostly in the form of cultural distinctions and non-participation in public affairs. This view is based on negative discrimination and favors people of politics. This is because granting concessions equal to those of the majority may endanger national integrity. On the other hand, international mechanisms for the supervision of minority rights are mostly advisory and almost none of them have been formed to deal with minority issues specifically. Moreover, until the mid 90s, indirect discrimination against minorities was not even recognized. Since then, significant changes have been occurred in this regard. The negative interpretation has been transformed into a positive one and new laws are being formed in support of this novel approach; that is, no longer non-discrimination against minorities means only to grant minorities equal rights with majority; it also means to give minorities special concessions, treatment and facilities which could possibly surpass those of the majority provided that this not to be permanent. These must continue as long as minorities become, in effect, promoted to the same level of political, economic, social and cultural status as the majority solidly. In addition, the abovementioned synergy must take place on the basis of objective and rational purposes and principles. At present, in some parts of the world, especially in Europe, this approach is being consolidated. This subject, specifically in recent challenging issues like the Internet sites and satellite channels, referred to as new media, is observable.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
31
63
https://www.cilamag.ir/article_17274_d596cdac6a534c0826cd26fdfdd0d30f.pdf
dx.doi.org/10.22066/cilamag.2010.17274
The Legal Reasons and Position of Russia in Recognition of Abkhazia & South Ossetia and Non- recognition of Kosovo
Sattar
Azizi
استادیار دانشگاه بوعلی سینا
author
text
article
2010
per
The unilateral declaration of the independence of Kosovo, Abkhazia and South Ossetia is a turning point in solving a difficult legal issue in the present century. On 8 October 2008, General Assembly of the United Nations has adopted a resolution in which requested the International Court of Justice to render an advisory opinion. In the meantime, 35 states had filed written statements within the time-limit fixed by the court (17 April 2009) and in which opposed the independence of Kosovo. Russia argued that except to the decolonization context, ethnic groups lack a general right to secede. They have the right to secede in extreme circumstances if and only their members have suffered serious violations of fundamental human rights. Russia contended that Kosovo does not fall in this category. The survey of written statement of Russia showed that Kosovo has not been succeeded to prove the remedial secession theory in contemporary international law. It seems that Russia supports this theory only to justify the recognition of Abkhazia and South Ossetia.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
65
87
https://www.cilamag.ir/article_17275_42191c7d3f838824e801e3b96162fab8.pdf
dx.doi.org/10.22066/cilamag.2010.17275
Invocation of State Responsibility for Breach of Obligations
Erga Omnes
Mahdi
Haddadi
استادیار پردیس قم دانشگاه تهران
author
text
article
2010
per
This idea is generally accepted that in case of breaches of specific obligations protecting the collective interests of a group of states or the interests of the international community as a whole (obligations erga omnes), responsibility may be invoked by states which are not injured. A non-injured state which is entitled to invoke responsibility is acting as a member of a group of states to which the obligation is owed or indeed as a member of the international community as a whole. Whereas, under Draft Articles on States Responsibility 2001, the invocation of state responsibility by non-injured states is subject to the conditions that govern invocation by an injured state (articles 43،44،45). But categories of claim which non-injured states may make when invoking responsibility as compared to those of injured states are limited in range of rights. Finally non-injured states should be entitled to bring ICJ proceedings in response to breach of obligations erga omnes.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
89
124
https://www.cilamag.ir/article_17276_4f6af254622ea16e23073eda54234d20.pdf
dx.doi.org/10.22066/cilamag.2010.17276
"Sustainable Development" or the "Sustainability of Development" in International Law
Aramesh
Shahbazi
مدرس دانشگاه
author
text
article
2010
per
Sustainable development has been defined in many ways, but the most frequently quoted definition is from “Our Common Future”, also known as the 'Brundtland Report' which contains: "Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. The key concepts of this definition are in particular: the essential needs of the world's poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs". Strong attention in this essay is devoted, among other things, to the two foundational elements of the concept of sustainable development, namely "development" and "sustainability". Sustainability means that present and future peoples have the same right to find, on the average, equal opportunities for realizing their concepts of a good human life; and development contains a wide range of social, economical and cultural improvements. Combination of these two may create some challenges for the contemporary international law which this article tries to consider them.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
125
139
https://www.cilamag.ir/article_17277_e22ba5951c8eed549d8b54a766c6536c.pdf
dx.doi.org/10.22066/cilamag.2010.17277
The Effects of the Scourage of War on Srong Shield of Treaties
Ali
Izadi
دانشجوی دکتری حقوق بینالملل دانشگاه تهران
author
Farshad
Geravand
کارشناسی ارشد حقوق بشر از دانشگاه تهران
author
text
article
2010
per
Since six decades ago, the United Nations Charter has clearly prohibited the use of force. Nevertheless, armed conflicts, weather international or non-international, occur and pose their social, economic, political and legal threats and complexities. At the same time, the treaties will also be affected. The outbreak of hostilities among states was excluded from the Vienna Convention on Law of Treaties. The Effects of Armed Conflicts on Treaties was on the agenda of the International Law Commission during its fifty-second session in 2000 and Professor Ian Brownlie was appointed as special rapporteur. The doctrine formerly held that the outbreak of wars ipso facto cancels all treaties previously concluded except those concluded on the matter of war. But the majority of modern writers on international law have abandoned this standpoint and now holding that war by no means annuls every treaty. Two Criteria of intent and compatibility are used to determine the effects of armed conflicts on treaties. The extent of effects depends on the genre of treaties. With regard to the classification of treaties, this study tries to examine the effects of armed conflicts on treaties.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
141
166
https://www.cilamag.ir/article_17278_0e3380f876ef6ebb0013ac4eab697244.pdf
dx.doi.org/10.22066/cilamag.2010.17278
A Reflection on Insurgents Status in Resorting to Use of Force
Yaser
Ziaie
دانشجوی دکتری حقوق بینالملل عمومی دانشگاه علامه طباطبایی
author
text
article
2010
per
The right to resort to force investigates legitimacy of the use of force by subjects of international law. There is no doubt about jus ad bellum in international armed conflicts law that there are some questions about jus ad bellum in non-international armed conflicts law which makes it important to study in this matter. It is necessary to enlighten boundaries of the two concepts: insurgents and non-international armed conflicts, then we can assess rights of insurgents to use force in non-international armed conflicts. This paper tries to analyze rights of insurgents to use force in non-international conflicts both in doctrine and in positive international law.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
167
190
https://www.cilamag.ir/article_17279_0c5ecfc8dd7fa6e576c2ca4a4feed3d3.pdf
dx.doi.org/10.22066/cilamag.2010.17279
Legitimacy and Fairness in International Law from the Viewpoint of Thomas Franck
Azam
Amini
مدرس دانشگاه فردوسی مشهد
author
text
article
2010
per
The foundations of this writing are some explanations about the scientific personality of Thomas Franck as one of the most outstanding professors in contemporary international law in order to familiarize the readers, review and highligt his compiling specially "The Power Legitimacy Among Nations", "The Emerging Right to Democratic Governance", "Fairness in International Law and Institutions". The author believes that this great lawyer of international law passed a straight path, drawing a legal system that finally leads to fairness. In addition, the writer explains some of the differences between Franck's viewpoints and other outstanding universal thoughtfuls and the similarities to them, and finally tries to present some considerations on his opinions and also showing the necessity of paying more attention to the fundamental theoretical subjects in international law by Iranian lawyers. These all have been presented with the hope to develop thinking deeper in international law.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
191
206
https://www.cilamag.ir/article_17280_f0748acd15414b257923dc0dae788e60.pdf
dx.doi.org/10.22066/cilamag.2010.17280
Self-contained Regimes and their Relations with General
International Law
Hojjat
Salimi Torkamani
دانشجوی دکتری حقوق بینالملل دانشگاه علامه طباطبایی
author
text
article
2010
per
One of the results of fragmentation in international legal order is creation of so-called self-contained regimes. These regimes are based on the principle of “lex specialis” and are relatively well-established in international case law. Although there are different understandings of the concept of self - contained regimes in international case law and doctrine, nowadays in its common concept, it is related to international responsibility. These regimes can be materialized in any area of international law subject to some obstacles (jus cogens, Charter of UN and rights of the third states). In this regard, the most important issue is the way of interaction between general international law and self-contained regimes and their reciprocal effects on each other. Depending on taking one of two different approaches to this issue, i.e., particularistic and universalistic approach, different aspects will emerge.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
207
231
https://www.cilamag.ir/article_17281_ab30fd200011137334c2447ca6c013d0.pdf
dx.doi.org/10.22066/cilamag.2010.17281
Analyzing the Interaction of Law of Treaties with Law of International Responsibility to Justify Non-performance
Naghmeh
Naseri Larijani
مدرس دانشگاه غیرانتفاعی آمل
author
text
article
2010
per
International law of treaties and international law of responsibility are the two most important domains of international law as vast majority of international law subjects deal with the performance and breach of international obligations which should be analyzed based on the provisions derived from these two domains. In this regard, close consideration of those subjects which are, to some extent provided commonly by both of them, will lead to explain them better. The circumstances precluding wrongfulness in chapter 5 of the draft articles of International Law Commission on states responsibility together with the justifications not to perform treaty obligations which are provided in Vienna Convention of the Law of Treaties are the issues which are examined in this regard.
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
233
256
https://www.cilamag.ir/article_17282_2ce109fd47d2f3e6b2171a9610daa4d1.pdf
dx.doi.org/10.22066/cilamag.2010.17282
Translation
text
article
2010
per
International Law Review
Center for International Legal Affairs of the Presidency
2251-614X
27
v.
شماره 42 (بهار و تابستان)
no.
2010
257
275
https://www.cilamag.ir/article_17283_af5c8769ae03624604ef8634a9e8a115.pdf