The Features of WTO Self-containedness in International Legal System Abbas-Ali Kadkhodaie & Abdollah Abedini Persian text pp. 8-34 The World Trade Organization (WTO) is one of the most important international organizations came into being after the establishment of the United Nations. It seems that one of the main articles in Dispute Settlement Understanding (DSU) of WTO is article 23, titled Strengthening of Multilateral System, under which the idea of self-containedness of WTO has originated. Article 23 of DSU states that when Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall has recourse to, and abide by, the rules and procedures of this Understanding. Hence, according to the explicit text of DSU, recourse to outside rules and procedures of WTO have not been permitted and as mentioned above, one may become uncertain of selfcontainedness of WTO legal regime. Keywords: self-contained regime, general international law, primary and secondary rules, World Trade Organization, Dispute Settlement Understanding. International Law Review, Vol. 46, Spring - Summer 2012 3
Application of the Principles of International Commercial Contracts (PICC) by Arbitral Tribunal as the Governing Law of the Dispute Hamid Reza Nikbakht & Farhad Piri Persian text pp. 35-58 The parties to the arbitration agreement may choose rules of law instead of law of a country as the law governing their dispute. The Choosing rules of law by the parties is possible only if the applicable conflict of laws rules authorize them. The principle of party autonomy to choose the rules of law has been recognized in some instruments and also by most countries in the world, but the freedom of the arbitral tribunal to choose the rules is limited. However, today in light of the denationalized theory of arbitration, the freedom of these tribunals is expanding. From international legal instruments, international commercial contracts and arbitrations, rules and principles have been emanated which are known as Principles of International Commercial Contracts. It is said that these principles as appropriate rules of law will have the potential of applicability to international commercial disputes by arbitral tribunals. This claim or assumption will be examined in this article. Keywords: arbitration, international arbitration, dispute, commercial disputes, conflict rules, principles of international commercial contracts. 4 International Law Review, Vol. 46, Spring - Summer 2012
The Armed Activities of Non-State Actors against States: Questioning the Rules of Use of Force Hassan Savari & Khebat Aslani Persian text pp. 59-82 Since 1990 the international security law has undergone deep changes. As an example, the use of force by states against non-state actors have most frequently involved the neighboring or third states. These situations pose several questions about the legitimacy of such reactions endangering the sovereignty of other states. Victim states using force justify their actions in the name of self-defense. In practice, we consider less opposition by the international community as well as the ICJ in order to treat these measures illegal. Considering the doctrine, we observe a real divergence among famous scholars. By noting several cases before the international tribunals, in particular in ICJ we try to analyze the legality and legitimacy of the use of force by aggressor states against the territorial integrity of others under the existing rules of international law. Keywords: self-defense, use of force, non-state actors, victim states, ICJ, UN Charter. International Law Review, Vol. 46, Spring - Summer 2012 5
The legal Challenges of Disappearing States from an International Law Perspective Amir Hossein Ranjbarian & Nafiseh Arghandehpour Persian text pp. 83-124 The adverse effects of climate change could pose a unique threat to the territorial integrity of states as well as a new and serious challenge to the very notion of statehood. This threat is the danger of submergence of the whole territory of the low-lying small island states due to sea-level rise as one of the direct and adverse effects of climate change. According to some predictions, even before the total disappearance of the low-lying small island states, climate change may render those territories completely uninhabitable and result in the forced migration of the populations from their lands. Consequently, some experts believe that by the end of this century, a number of low-lying small island states such as Tuvalu, Kiribati, the Marshall Islands and the Maldives may be rendered totally uninhabitable. Considering the fact that territory and population are among the principal criteria for statehood in international law, the most fundamental question is the continued statehood of these entities. This article is an attempt to examine the scientific basis of climate change and its consequences and explain the challenges caused by sea-level rise to the international law on statehood. It also seeks to consider the legal status of the disappearing states and puts forward some solutions for preserving their international legal personality. Keywords: Climate change, disappearing states, loss of territory, statehood, United Nations, international law. 6 International Law Review, Vol. 46, Spring - Summer 2012
The Issuance of Interim Measures before Establishing the Arbitral Tribunal by the Arbitrator and New Emergency Arbitration Rules of the ICC under the Rules of the Swiss Arbitration Center Javad Kashani & Mahdi Sheikhiani Persian text pp. 125-148 Urgent interim or conservatory measures are the most important decisions in international arbitration. Both national courts and international arbitral tribunals have parallel jurisdiction for taking urgent interim or conservatory measures. In the case that arbitral tribunal is not yet constituted and a party is faced with an emergency situation and on the one hand, cannot await the constitution of arbitral tribunal and on the other hand does not wish to recourse to national courts, recently new rules of international arbitration like the ICC rules of arbitration have provided Emergency Arbitrator Rules for taking urgent interim or conservatory measures. A party that needed urgent interim or conservatory measures may make an application for such measures. Emergency Arbitrator, appointed by a jurisdictional authority, has to hear the application and take necessary urgent interim or conservatory measures. Rejection of emergency Arbitrator is possible. The emergency arbitrator s decision shall take the form of an order which is binding on both parties. Keywords: ICC rules of arbitration, urgent interim or conservatory measures, emergency arbitrator, emergency arbitration. International Law Review, Vol. 46, Spring - Summer 2012 7
International Obligations of the Persian Gulf Coastal States against Red Tide Mansoreh Seddiqian Kashani & Ali Mashhadi & Samira Naderi Persian text pp. 149-168 In recent years the Persian Gulf water environment has been encountered with a remarkable phenomenon called Red Tide. This phenomenon, in the view of experts, has resulted in great damages to marine ecosystem and aquatics of the region. Yet, the legal aspect of the phenomenon has not been considered by the given experts. In this article, we analyze the international responsibility of the Persian Gulf coastal states in the light of international law provisions on the prevention, control and the reparation of environmental damages derived from the Red Tide. The presumption of the article is based on the customary and conventional international law system which governs the Persian Gulf environment and requiring the coastal states of the Persian Gulf to take required measures for prevention, control and the reparation of damages of these kinds. Keywords: Persian Gulf, international responsibility, marine ecosystem, environmental damages, Red Tide, Kuwait Convention. 8 International Law Review, Vol. 46, Spring - Summer 2012
Constitutionalism in International Community: Fact or Fiction? Aramesh Shahbazi Persian text pp. 169-191 The international legal system is in a period of transition from the traditional paradigm to a modern one. This is while the process of transition is slow. However, the complexity of the realities in the context of international community is compounded by two conflicting phenomena. On one front is the process of fragmentation and on the other is the recent paradigm of the constitutionalism. Much has been told about fragmentation and the selfcontained regimes, but International Constitutionalism is currently one of the leading approaches to international law that needs to be seriously scrutinized. The main question is, while the rapid development of international shared values such as culture, nationality and language is often taken to be central, exactly how or why this promotes constitutionalism at the international level; a point that still remains unclear. In this essay by focusing on the human rights revolution since 1945 and the rise of international criminal law that is administered by various international criminal tribunals, we will consider some ambiguities and challenges ahead of the realization of international constitutionalism and its related consequences. Keywords: fragmentation, constitutionalism, self contained regimes, UN Charter, European Union. International Law Review, Vol. 46, Spring - Summer 2012 9