Zanco Journal of Law and Politics گۆڤاری زانكۆ بۆ یاساورامیاری

Legal provisions of the right to social security

Prof. Dr. Abdul Malik Younis Muhammad — 2024-06-02

One of the most important duties of modern states is to provide guarantees of a decent life for their people, because every human being, according to charters, agreements and inferior instruments, has the right to live in a decent standard of living that is guaranteed to him by meeting his basic needs and providing him with the necessary services.

According to the laws in force minimum in Iraq and the Kurdistan Region, it is assumed that all groups of society are covered by this guarantee, but in reality there is a small percentage of these groups benefiting from it and not all, and this is what requires the concerned authorities in the state to reconsider the texts of these laws and expand the groups covered by this guarantee on the one hand, and on other hand, addressing the obstacles and gaps revealed by the applications of social security legislation in the texts of laws, regulations, and even instructions in light of the difficult circumstances that the state faces.

It includes the legal framework for social security, which is the focus of our research, by explaining the emergence of social security, especially in Iraq, and its stages of development, and then defining the administrative and financial organization for it in the region in addition to Iraq, highlighting its characteristics, advantages and disadvantages, and its legal adaptation, in addition to evaluating the efficiency of this system in the light of minimum International agreements and treaties to which Iraq is a party.

Accordingly, we divided our research into two demand, and each demand into two sub, according to the plan included in the body of the research, which ends with a conclusion that includes the most important conclusions and suggestions that we reached through this study.

The Role of ICRC in Establishing Protected Areas

Asst. Prof. Dr. Ayad Yasin Husein Kokha — 2024-06-02

Abstract

The protection of civilians and hors de combat in armed conflicts has been a paramount concern for the International Committee of the Red Cross (ICRC). In this vein, protected area as a protective mechanism has emerged as a significant measure to safeguard civilians and provide safe haven during armed conflicts within the framework of international humanitarian law (IHL). This paper explores the ICRC's endeavours in negotiating, establishing and overseeing protected areas during various armed conflicts. The paper is an analytical study analysis the legal basis and practical aspects of ICRC's involvement in shaping the notion of protected areas for civilians amidst conflict zones. It examines empirical instances of protected areas aiming to analyse the extent to which the creation of such areas by ICRC contributes to saving civilians' lives, mitigating their suffering and ensuring access to humanitarian assistance. The paper further discusses the feasibility of establishing protected areas in contemporary armed conflict situations. The evolving modern conflicts, marked by complexity, multi dimensions and involving multifarious parties pose substantial obstacles for ICRC to attain agreement for establishing such areas. The study's main finding is that although the ICRC's experience in establishing protected areas is deemed valuable in protecting civilians and facilitating access to humanitarian assistance, the ICRC confronted significant challenges within contemporary conflict situations to establish protected areas. Thus, alternative mechanisms such as imposed protected areas and humanitarian corridors emerged. In addition, this paper contributes to enhancing legal understanding of the critical role of the ICRC in humanitarian crises and provides invaluable insights into the evolution of protection measures for civilian populations amidst active conflict zones.

Protecting the ownership of the foreign investment project from the creeping danger of expropriation in the Kurdistan Region of Iraq

Assist. Prof. Dr. Talib Braim Sulaiman — 2024-06-02

Abstract

What the foreign investor fears most in the country hosting the investment, which may lead to his reluctance to make the investment decision, is the procedure for taking over the legitimate investment. Although this procedure is legitimate in itself if it fulfills certain conditions for achieving the requirements of the public benefit, and it is taken in a non-discriminatory manner and in accordance with legal principles. However, it carries with it one of the most important factors repelling foreign investment, and it is one of the most important risks that the investor seeks to ensure that they will not materialize. Therefore, the legal system that encourages foreign investment is not represented by the need to increase the benefits and rights of foreign investors to the extent that it stipulates minimizing the potential for this risk, it should be noted that the host countries have recently not resorted to this risk in order to preserve their economic investment reputation within the global economic system. Rather, to the creeping expropriation created by international custom and entrenched in the international regulations for investment, and this is represented in the host country for investment taking measures that cannot be described as expropriation systems directly, but it will gradually and indirectly in the end lead to the same result of expropriation direct, and since the Investment Law in the Kurdistan Region of Iraq No. (4) of 2006 did not include guaranteeing the ownership of the investment project from this risk, despite its importance to the foreign investor, especially since the latter was not covered by legal protection from this risk through the guarantees agreement represented in the agreements to encourage and protect investment between the investor’s country foreign exporting investment and territory, accordingly, this research will devote effort to shed light on this type of expropriation and clarify its features and ways of protection from it, in the hope that the Kurdistan legislator will adopt it in the new draft law for investment in the region.

The Challenges of Federalism as Ethno-Sectarian Conflict Regulation Model in Iraq

Dr. Yaseen Salih Hama — 2024-06-02

Abstract

The regulation of ethnic and sectarian conflicts has been one of the primary challenges faced by the Iraqi state since its creation in 1921. The 2005 constitution adopted federalism as a model to tackle the question of identity as well as ethnic and sectarian conflicts; nevertheless, federalism has not yet been able to resolve these skirmishes. This article looks at the reasons behind the ineffectiveness of Iraqi federalism. It also attempts to investigate the people’s perceptions toward this model. Scholars have discussed proposals for federal configuration in its various forms. However, the views and perceptions of various Iraqi communities involved in the conflicts have hardly been taken into consideration. This article aims to fill this gap in the literature by presenting, discussing and analyzing the Iraqi perspectives. It finds out that based on the cultural background, Iraqis have different perspectives toward suitable models for Iraq but federalism can be still considered as a compromise model between them.

Lawsuit for damaging practices against national products (Comparative study)

Assist. Prof .Dr. Sherwan Hadi Ismaeil — 2024-06-02

The liberalization of international trade has been accompanied by the emergence of some illegal and damaging practices in international trade, such as dumping, subsidies, and unjustified increases in imports, which are pursued by producing or industrial countries and result in damage to the local producers of the importing country that produces products similar to or competitive with the products subject to that practice. Although the agreements to protect national products and the laws being compared came with a set of procedures and measures to combat these practices and thus protect national products and local producers in the importing country. However, the texts of these agreements and laws are devoid of any reference to compensation for local producers damaged by practices damaging to national products. The measures it came up with are preventive and protective measures whose impact is limited to the future by stopping the damage if it occurs, or preventing it from occurring for the future. This is on the one hand, and on the other hand we must point out that we did not find a text in those agreements or laws that prevents local producers affected from claiming compensation, which means leaving this matter to the general rules of civil liability through a tort claim. Through this study, it is clear to us that this lawsuit does not help the local producer affected by the unjustified increase in imports, demanding compensation. This is from the party, On the other hand, the local producer damaged by dumping and subsidies can resort to an unfair competition lawsuit to claim compensation, in addition to a tort liability lawsuit. These two lawsuits have negative aspects that lead to the lack of benefit Local producers affected by practices damaging to national products will receive full benefits to compensate them for those damages. Accordingly, we submitted a recommendation to the Kurdistan legislator to file a lawsuit regarding damaging practices that would benefit all affected local producers, whether merchants or non-traders, and whether they were damaged by the practice of dumping, subsidies, or an unjustified increase in imports. We also recommended to the competent authorities to form or establish a court competent to consider claims of practices damaging to national products in the Kurdistan Region, such that this court shall be called the Court of Practices damaging to National Products.

The Iraqi High Criminal Court: Judicial Lessons and Necessary Steps

Dr. Rebaz Rasul Khdir — 2024-06-02

The Coalition Provisional Authority authorized the Iraqi Governing Council in 2003 to establish a specific criminal tribunal to prosecute the grave crimes of the Ba‘athist Regime from 1968 to 2003. The Iraqi Governing Council established the body based on the structural and statutory model of the international and hybrid courts and named it the Iraqi Special Tribunal; however, after the elections of 2005, the statute of the tribunal was revised and the name of the tribunal was changed to the Iraqi High Criminal Court. The Court was initially intended to be internationalized but its practice remained within the domestic characteristics and never acted hybrid. The Court was a distinctive judicial experience for Iraq in terms of nature, legitimacy, composition, applicable law, eligibility of its judicial and administrative staff, fair trial and due process rights and capital punishment. Therefore, it is a necessity for Iraq to reconsider the theoretical and practical framework of the Court as judicial lessons in its criminal justice reform and make them bases to strengthen its future judicial power. The author argues that Iraq should, on such an experience, initiate criminal justice reform through accession to the international instruments and international criminal institutions or the issuance of its own criminal legislation for a much effective punitive authority of its national courts to prevent or limit the threat of the perpetration of grave crimes.

Parliamentary diplomacy and its importance to the Kurdistan Region

Assist. Prof. Dr. Omer Hamadamin Nuradeni — 2024-06-02

A number of factors and objectives have contributed to the development of the idea and concept of parliamentary diplomacy in the field of contemporary international relations and foreign policy, the most important factor is the progress and spread of media globalization and the impacts and necessities of openness and interaction among all countries with each other. One dimension of recent dynamic diplomacy aims to strengthen negotiation and cooperation, relationships between people and representatives, and exchange ideas, experience and expertise, as well as, disseminate culture and democracy dimensions around the world. Furthermore, enhancing international and regional cooperation for development and the establishment of international peace and security, and eliminating the threats to humanity, such as, natural disasters, and climate change, poverty and unemployment, violation.

In this research, the concept of parliamentary diplomacy is studied and its characteristics are determined. Additionally, discuss about defining instruments this type of the diplomacy, which occasionally appear as parallel and public diplomacy involving multiple parties. On the other hand, concentrate on the internal and external goals of parliamentary diplomacy. At the end of the research, a brief summary of the conclusions and recommendations are presented, in particular, the recommendations on how to use and engagement parliamentary diplomacy in the Kurdistan Region of Iraq as a non- state actor. On peak of the objects, protect itself as a political and constitutional entity within the Iraqi federal state framework.

Unpacking Challenges in the Path of Bureaucratic System and Institutionalization in the Kurdistan Region

Assist. Prof .Dr. Hiwa Majid Khalil — 2024-06-02

This study delves into the intricate landscape of institutionalization and bureaucratic systems in the Kurdistan Region of Iraq (KRI). The KRI grapples with centralization tendencies, impacting both political-economic structures and reform initiatives. Balancing these dynamics is crucial to ensure effective governance and responsive institutions. The study explores the interplay between political elites and the trajectory of institutionalization, unveiling a divergence between revolutionary and post-revolutionary phases. This schism fosters conflict, resulting in the division of the KRI into two spheres. The study employs qualitative research, drawing insights from nine in-depth interviews with experts across sectors. Through this approach, it sheds light on the complex challenges within the KRI's institutional landscape, emphasizing the need for cohesive governance amidst intricate power dynamics.

The Syrian crisis A study of the role and impact of regional actors “Turkish intervention as an example”

Assist. Prof. Dr. Azad Osman Salih — 2024-06-02

The Syrian crisis, originating from protests within the Arab Spring revolutions in 2011, evolved into a protracted civil war under Bashar al-Assad's regime, resulting in widespread destruction, suffering, and a severe humanitarian crisis. Various regional and international actors played decisive roles in shaping the trajectory of the conflict, contributing to its complexity and hindering sustainable resolutions.

Among these actors, Turkey emerged as a significant regional player, initially supporting armed opposition groups against the Syrian regime. However, Ankara's motives and priorities shifted over time due to concerns about the growing influence of Kurdish groups along its southern border. Consequently, Turkey redirected its focus to contain these groups, launching military operations such as "Operation Euphrates Shield" in 2016 and " Operation Olive Branch" in 2018. The objective was to repel Kurdish forces, particularly the Kurdish Protection Units (YPG), from its borders and establish buffer zones in these areas.

Researching a significant and sensitive topic such as the Syrian crisis, specifically analysing the role and influence of regional factors, requires a comprehensive exploration of various dimensions. Initially, employing a historical approach becomes imperative to demonstrate the historical background of the Syrian crisis in a detailed manner. Subsequently, adopting an analytical approach facilitates the exploration and analysis of the primary factors that precipitated the onset of the crisis. Lastly, the utilization of a case study approach proves instrumental in understanding the key reasons behind Turkish intervention. This involves aiding select Syrian opposition parties and forces loyal to them during the crisis's early stages, culminating in subsequent military intervention aimed at realizing Turkey's overarching ambitions and objectives.

Turkey's direct intervention in the Syrian crisis aimed at securing its borders, mitigating perceived threats to national interests, and preventing the consolidation of Kurdish-controlled areas along its borders. While showcasing a proactive stance, Turkey's interventions also underscored the complexities and risks associated with such actions in the intricate context of the Syrian crisis. These interventions, while seeking to address immediate security concerns, have raised apprehensions about long-term repercussions, contributing to heightened tensions in the region.

Plebiscite as a Means to Enjoy Statehood Iraq’s Kurds Plebiscite in the Shade of the Iraqi Constitution and International Practice

Dr. Halmat Saadoon Ghareeb — 2024-06-02

The idea that consists of the right of a people or a group could be incumbent of legitimate entitlement to enjoy a statehood, is already existed since the early years of the 20th century.

However, certain people have been conferred a positive entitlement to enjoy their own statehood. Those people are not only having the possibility to do that without breaching any rules of international law, but they literally have a right upon the international law to do so.

A referendum or plebiscite is considered as one of the peaceful means of exercising the right to self-determination, and a referendum or plebiscite is consistent with developments by the international community and the enjoy statehood, and it is considered one of the favorite tools of the United Nations Organization.

This research aims to highlight the concept of referendum and plebiscite then the importance of it as a peaceful means to enjoy statehood. Moreover, is to exemplify and evaluate the most important features and legal impediments to the Iraqi Kurds plebiscite in 2017 from the legitimacy point of view in relation to the international law and the Iraqi constitution.

The Role of the UN Security Council in relation to the International Criminal Court: A Critical Review

Dr.Sanh Shareef Qader — 2024-06-02

The UN Security Council which represents the UN's political body, and the International Criminal Court (ICC), which represents the system's judiciary, are two significant international bodies. According to the ICC's Rome Statute, they are linked by a legal basis. The Security Council's function in relation to the work of the ICC is defined within Chapter VII of the UN Charter under Articles 13 and 16 of the ICC Statute, which deal with the powers to refer a case to the court and to suspend its proceedings. These powers can be considered to be a positive act of referral for the aim of preserving international peace and security; however, it can also be viewed as a negative act that suspends the operations of the court and interferes with the independence of the court. Therefore, the aim of this study was to provide a critical review of the role of the Security Council as an obstacle to the independent work of the ICC. The study found that the lack of assurance in the Rome Statute shielding it from interference increases the Security Council 's authority over the ICC's functioning. The ICC might be viewed as being directly influenced by the Security Council’s authority in this instance, losing its impartiality and succumbing to political pressure.