درخت حوزه‌های تخصصی

The government of Iran has signed the UN Convention on the Law of the Sea1982, but in the past 40 years since Iran signed this convention and 28 years after the implementation of this convention in 1994, the government has always refused to approve this convention, which is the most important convention in the field of maritime and no plan or bill has been presented in the government or parliament for its approval. In this article, using the analytical descriptive method, the strengths, weaknesses, opportunities and threats and legal doubts of Iran regarding this convention, which is actually the most important regulation in the field of the law of the sea, are examined and finally, a fundamental analysis is provided to resolve Iran's concerns in the direction of ratifying this convention. The results of this research show that Iran can enjoy its benefits such as maritime technology transfer and other benefits by joining this convention. In terms of the threats and weaknesses of this convention regarding the innocent passage of naval vessels in the territorial waters of Iran, it is possible to remove this threat as a precondition of prior notification and obtaining prior permission or both for the innocent passage from the territorial sea based on the practice of countries such as China, India, Pakistan, Sweden, Bulgaria, Poland and other countries. In the discussion of the Strait of Hormuz and the transit passage based on the provisions of the law of the sea Convention, by creating the non-suspendable innocent passage in peacetime, the weaknesses of this Convention regarding the internationalization of the Strait of Hormuz can be modified by creating a special regime for  the strait, considering that in The narrowest part of the Strait is the territorial waters of Iran and Oman, it is excluded from transit passage.                     

The crime of piracy as the oldest international crime has emerged in a modern way in recent years. In addition, piracy is one of the first and main crimes that have been subject to universal jurisdiction. Today, this crime has moved away from its classic way and has progressed to the point of a transformation. This has caused the United Nations Security Council, as the main pillar of maintaining international peace and security, to deal with it many times by issuing resolutions. Despite continuous efforts to prosecute the perpetrators of piracy in domestic courts, the international community has not been able to effectively deal with this phenomenon, because states are facing problems to suppress piracy, including the increasing human rights norms. For this purpose to fight against piracy, new and potential solutions have been proposed, including the establishment of a special international court, referring piracy to the International Criminal Court, as well as dealing with the crime of piracy as a terrorist crime through anti-terrorist conventions. In this regard, according to outcomes of this research, combat to modern piracy in the International Criminal Court can be considered the most effective and efficient way. Compiled with a descriptive and analytical method, by setting this outcome as a hypothesis and examining the characteristics and the limitations of combat to this crime, new and potential solutions of combat to impunity of modern piracy, especially in International Criminal Court, has been discussed.

In traditional international law,"Effective Authority" has been the applicable criterion in recognizing the legitimacy of governments and their recognition by other states. The United Nations also took note of this criterion in accepting representatives identified by governments. However, after the Cold War, a new criterion, the "Democratic Legitimacy," was introduced to recognize the legitimacy of new governments. Increasing attention to human rights and adherence to democratic norms in governance has strengthened this theory among jurists. The main question of this article is what is the applicable criterion in examining the "legality of governments" in international law? In this article, which is written by descriptive-analytical method and by studying books and articles, we examine the application of the theory of democratic legitimacy in the recognition of governments. By studying the change of governments after the adoption of the UN Charter until 2020, we conclude that the theory of democratic legitimacy was applied only in response to military coup d'état against democratically elected governments after the end of the Cold War. In other causes of regime change including revolutions and civil war; The New Government is recognized by the international community and credentials of its representatives accredited to the United Nations on the basis of the traditional criterion of effective authority. However, there are few exemptions such as Islamic Emirate of Afghanistan.

The southern part of the China Sea has been the site of one of the most important maritime disputes in five decades. Tensions are so high that some predict World War III will break out in the region. The Philippines's referral for arbitration in respect of some of its disputes with China resulted in the issuing of a 2016 arbitration award. The legal and political significance of this Award has caused debates among scholars. The legality of the Award and the validity of the court's arguments in various positions are among the topics of these discussions.  In this study, our main question is how much this award has contributed to resolving and clarifying the legal aspects of the maritime disputes between the parties. Our secondary question is the impact of this Award on regional and international peace. The findings of this study indicate that the arbitral tribunal's approach has a significant impact on understanding the concept of "historical rights" as well as the explanation and interpretation of marine environmental protection provisions in the 1982 Convention on the Law of the Sea. In the tribunal's view, by joining the Convention on the Law of the Sea, the rules concerning maritime zones, except in rare cases, override the historical rights of States. It also played an important role in defining and explaining various maritime features; including islands, rocks, and low-tide elevations. However, the effect of the award on reducing tensions in the southern part of the China Sea, Chinese government policies, and Regional peace is in doubt.

On 15 February 2012, two Indian nationals aboard the St. Antony, an Indian fishing ship, were killed allegedly as a result of gunshot wounds following a confrontation with the Enrica Lexie, an Italian merchant ship, in international waters, off the Indian coast. The nature of the confrontation has been in contention. Enrica Lexie was traveling from Singapore to Egypt accompanied by six Italian navy marines. Enrica Lexie began firing at India's Exclusive Economic Zone because they thought pirate boats attacked them. Indian Navy detained the Enrica Lexie and two Italian navy Marines were arrested on charges of murder of two Indian fishermen. This incident caused the dispute between India and Italy over criminal jurisdiction, functional immunity of Italian navy marines, and the practice of arming merchant ships. They refer this dispute to arbitration and finally, Tribunal issued its award. This paper via the descriptive-analytical method, exploring existing documents, conventions, and customary international law shows that criminal jurisdiction over Italian merchant ships at EEZ belongs to the flag state. Most countries permit and even force to arm their flag merchant ships to fight against pirates, so this practice becomes a rule of customary international law. As a result, actions of these Italian marines are attributed to Italy as a governmental act, and state officials are entitled, in principle, to functional immunity from foreign jurisdiction regarding their ‘official’ acts, i.e., when acting in their official capacity.

During its historical life, the Caspian Sea has always been a safe place for many races, people, and governments. Unfortunately, humanity does not appreciate this valuable water zone and steps away consciously or unknowingly on the path to its destruction and demolition. Taking the path in this way is equal to obliterating the roots of the present generation and future generations. With the aim of evaluating the environmental security structure of the Caspian Sea, this research examines a new legal framework for this water zone. Moreover, the research also argued that the Caspian requires effective political and legal decision-making to achieve its ideal state both environmentally and economically or socially. Until the collapse of the Soviet Union in 1991, the Caspian Sea was dominated by the two governments of Iran and the Soviet Union. The intense asymmetry between power and resources between the two countries led to the unofficial and actual control of the region in the hands of the Soviet Union.