Journal of Misan Comparative Legal Studies

Environmental disputes are not a recent phenomenon, especially when environmental damage is uncontrollable or uncontrollable. We exclude here changes that occur in the environment due to natural disasters. Environmental pollution caused by states, regardless of their justification for committing it, is subject to the responsibility of the resulting damages according to the rules of international law. By environmental pollution, we mean the state undertaking activities and actions without considering the optimal exploitation of the environment (land, sea, and air) without harming others, based on the principle of sovereignty over natural resources. However, when these activities are transboundary and cause pollution to any other state, then environmental conflict arises. The research also highlighted the most important agreements and general principles of international environmental law and their role in addressing transboundary pollution and stating the obligations of states towards transboundary environmental damage. International courts play an undeniable role in strengthening the rules of international law in general and the rules of international environmental law in particular through their resolution of environmental disputes, whether through a judicial ruling or by providing advisory opinions. As illustrated in the practical examples, despite the significant role played by international courts, they have not escaped criticism regarding their jurisdiction or their failure to impose penalties, often limiting themselves to awarding compensation and halting the activity or project, based on the evidence presented

The crime of illicit enrichment is a relatively new offense in Iraqi criminal law. The legislature regulated it within the Integrity and Illicit Enrichment Commission Law No. (30) of 2011, as amended in 2019, as part of efforts to combat administrative and financial corruption and protect public funds. This crime represents a departure from the traditional concept of official crimes, as it is based on a legal presumption of disproportion between the income of a public employee or official and their actual wealth. The Iraqi legislature defined illicit enrichment as any increase exceeding (20%) annually in the assets of the accused, or their spouse or children, that is disproportionate to their usual income and for which they cannot prove a legitimate source. It is noteworthy that this definition rests on two fundamental elements: the unjustified increase in wealth and the accused's inability to prove its legitimacy. This crime is characterized by a unique burden of proof, as the burden of proof partially shifts to the accused, who is obligated to provide evidence of the legitimacy of the sources of their wealth. This constitutes an exception to the general rules of criminal evidence. The crime is also closely linked to the financial disclosure system, which requires specific categories of employees and officials to submit periodic declarations of their assets. As for the penalty, the Iraqi legislature has increased the punishment for this crime, stipulating a minimum prison sentence of seven years and a fine equivalent to the value of the illicit gains. The law also mandates the return of the acquired funds and prohibits the release of the convicted person until repayment is made. Furthermore, the law penalizes cases of concealing information or providing false data in financial disclosure forms. This indicates that the Iraqi legislature has adopted a strict criminal policy to combat corruption by expanding the scope of criminalization to include not only employees but also individuals associated with them, as well as non-governmental entities that receive public funds. The Integrity Commission has also been granted broad powers of investigation and the use of modern methods to uncover these crimes. Thus, the crime of illicit enrichment represents an effective legal tool for combating unlawful enrichment and promoting the principles of transparency and accountability. However, its application raises legal issues related to the presumption of innocence and the limits of shifting the burden of proof, necessitating a delicate balance between protecting individual rights and the requirements of combating corruption. As for Egyptian law, according to Law No. 62 of 1975, as amended, illicit enrichment refers to anything obtained by a public official or someone considered as such as a result of exploiting their position, engaging in unlawful conduct, or experiencing an increase in their wealth that is disproportionate to their legitimate resources, without proving its source

Legitimacy is a global space that depends on the rules of public international law. The validity or effectiveness of public international law depends on the implementation and application of the rules and principles on which this law is based in a uniform and fair manner. The changing application of international law by international bodies, specifically the Security Council, reflects the inequalities in the institutional structureof the United Nations, which affects the prestige of international law and international bodies affiliated with the United NationsOur study deals with the extent of the legitimacy of public international law in light of the crisis of application and includes an analysis of the crisis of legal and moral legitimacy, based on the international texts contained in the Charter of the United Nations, and the ruling of the International Court of Justice in the South African case, which requires defining legitimacy in public international law, and adopts a crisisLegitimacy depends on the mechanisms for implementing and applying the rules of public international lawIn addition to analyzing the term legal legitimacy and moral legitimacy of international bodies in light of public international law

This research addresses the principle of proportionality within the framework of the Integrity Commission’s competences, considering it a constitutional principle aimed at regulating the exercise of authority in the field of anti-corruption. It focuses on examining the extent to which precautionary measures, disciplinary sanctions, and criminal penalties related to integrity cases align with the presumption of innocence and the constitutional guarantees afforded to public officials, particularly in cases of extended suspension, asset freezing, and travel bans. The study discusses the limits of the discretionary powers granted to the Commission and the adequacy of substantive safeguards and judicial oversight in achieving proportionality in practice, especially when certain measures are extended in a way that effectively transforms them into disguised penalties prior to judicial rulings. It concludes that the mere existence of legal provisions and oversight is insufficient to ensure proportionality unless powers are clearly regulated and a precise balance is maintained between the effectiveness of anti-corruption efforts and the protection of rights and freedoms

This research addresses judicial intervention in the suspension of the execution of punishment as one of the applications of individualized sentencing at the post-judgment stage, as it constitutes a legal mechanism that achieves a balance between considerations of deterrence and the requirements of rehabilitation The study aims to clarify the conceptual framework and legal nature of the suspension of execution of punishment to define the limits of the judge s discretionary authority in granting it and to analyze its legislative regulation under Iraqi law in comparison with selected comparative legislations in order to identify points of similarity and difference and assess their consistency with modern criminal policy trends The research problem lies in examining the adequacy of the legal framework governing suspension of execution in achieving the reformative purpose of punishment without compromising societal protection as well as determining the scope of judicial oversight over the application of its conditions and effects The study adopts the analytical comparative method by examining, analyzing and comparing relevant legal texts while also addressing the legal consequences affecting the convicted person during the probation period and in cases of revocation of suspension The research concludes that judicial intervention in the suspension of the execution of punishment represents an effective means of rationalizing the use of short-term custodial penalties, provided that it is surrounded by clear legal safeguards ensuring consistency in application and the realization of criminal justice

This research highlights the obligation of disclosure as one of the most significant manifestations of the principle of contractual loyalty within the corporate environment. It aims to demonstrate the role of transparency in protecting shareholders' rights and fostering trust between partners and management. The study examines the scope of this obligation across comparative legislations (Iraq, Egypt, and France), addressing the existing conflict between the shareholder's right to access information and the necessity of maintaining corporate secrets. The study concludes that disclosure is not merely a formal procedure but a fiduciary duty that mandates management to reveal essential information affecting the legal and financial positions of partners, ensuring effective oversight and preventing conflicts of interest

The host states seek greatly to attract foreign investment in different ways among them amicable mechanism of disputes settlement. One of these important methods is mediation, which has become an important and desirable means for both the state and the foreign investor. The international settlement agreement is considered the heart of mediation process and the key target the parties seek to achieve. Given to the significance of this agreement it has been regulated by Singapore Convention of 2018.
The purpose of this article is to explore the effectiveness of Iraqi legal regime of international settlement agreement and to what extend in context with the convention furthermore if it is met the requirements of Iraqi legal environment of investment through offering legal certainty for foreign investor. In addition to that is to address the impact of such convention on the Iraqi legal regime.
Iraq, as one of the state that forward to attract foreign inverters to invest in Iraq has not yet established a legal system for resolving disputes outside of the judiciary, including legislation specific to mediation. To this day, Iraq has not enacted a law governing mediation and regulates the mediation process in general and the international settlement agreement in particular. It relies on domestic laws that were not designed for this purpose, despite its signing of the Singapore Convention on International Settlement Agreements arising from mediation.
This article recommends the necessity of modernising a comprehensive legal regime for mediation as an important means of dispute resolution. This would enhance the concept of legal certainty through the enactment of a law specific to international commercial mediation and the need to expedite accession to the Singapore Agreement of 2018. Relying on domestic laws such as civil law and the provisions of the settlement agreement in developing a legal framework for the international settlement agreement would create a confusing investment environment for foreign investors

This research aims to examine the international protection of the Arabic language in light of public international law, by analyzing the legal framework governing the status of Arabic in international organizations and treaties, and assessing the extent of its recognition as an official language within the United Nations system and regional bodies. The study also identifies the main challenges facing the language and explores future prospects for strengthening its legal and institutional presence internationally.
The importance of this research lies in the fact that the Arabic language is not merely a means of communication but represents one of the most significant elements of the cultural and civilizational identity of the Arab nation. It also serves as a vessel for knowledge and human values that have contributed to shaping global civilization. Nevertheless, the Arabic language faces increasing challenges in the context of globalization and linguistic, cultural, and technological dominance.
The study relies on a comparative analytical approach by examining international legal texts and relevant treaties, such as the United Nations Charter and UNESCO’s 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions. It also reviews the positions of international and regional organizations regarding Arabic as a working or official language. The research further investigates the reasons behind the weaknesses of national policies in supporting Arabic and proposes a set of legal and institutional mechanisms to enhance its status at both international and national levels.
The research concludes that the international protection of the Arabic language remains limited and fragmented, and that its enhancement requires the activation of cultural and linguistic international law instruments, as well as the adoption of supportive educational and technological policies that ensure the integration of Arabic into the global digital sphere, thereby consolidating its presence as a global language with established legal and cultural status

This research examines the interpretive methodology of the Ahl al-Bayt (peace be upon them) as a unique deductive vision based on cognitive extraction (Intiza'a) from the essence of the Qur'anic text The study begins by defining the conceptual foundations of interpretation and extraction, distinguishing between their linguistic and technical dimensions, and then moves to establish the cognitive uniqueness of the Ahl al-Bayt as the inseparable peers of the Book Furthermore, the research explores the connotations of the term extraction (Naz'a) within Qur'anic usage to demonstrate the legitimacy of this method. It highlights the mechanisms of deduction in the school of the Infallibles and how they intersect with analytical, thematic, and comparative methodologies The study concludes that their approach represents the highest level of interpreting the Qur'an by the Qur'an, where verses are cross-examined to derive theological and jurisprudential theories. The research emphasizes that this methodology is the sole guarantee for safeguarding the text from speculative interpretations and deviant methods such as analogy (Qiyas), thereby achieving a comprehensive deductive vision

The research topic revolves around the problematic issues associated with implementing the constitutional provisions for declaring war and the state of emergency in the 2005 Constitution of the Republic of Iraq. Most notably, these issues include the occurrence of a state of war or emergency and the mechanisms for their declaration in the presence of the Council of Representatives versus its absence due to dissolution. It also examines the jurisdiction of a caretaker government in this regard during the period of dissolution. Furthermore, it addresses the challenges related to the constitutional frameworks for declaring war and emergency states during the suspension of parliamentary sessions—specifically in the interim period following the end of an electoral cycle before a new council is elected, or due to formal recesses (legislative holidays) and the de facto suspension of sessions

There is no doubt that sustainable development has become one of the most important priorities in our time, as countries have begun to give it great importance, whether at the national level or at the international level, and in both the public and private sectors. The international interest in sustainable development is reflected through references to it in international agreements and conferences. The United Nations has also emphasized sustainable development by setting comprehensive goals for it. As for the level of agreements regulating international waterways, we find explicit and implicit references to sustainable development

Groundwater is of great importance because it replaces surface water in many uses, and it represents a strategic reserve that nations resort to during times of crisis and drought. This makes it subject to criminal protection. However, this protection is not limited to regulatory aspects related to drilling wells without a license or other regulatory matters. Rather, it must extend to the water basin itself by protecting the geological aspects from actions that occur on the groundwater-bearing layers, as well as protecting the physicochemical properties, the disruption of which results in groundwater pollution and exposure to salinization. Extending protection to all these elements achieves hydrogeological security for groundwater

This research examines the issue of protecting public order under exceptional circumstances by analyzing the scope of administrative police powers and the extent to which their exercise complies with principles of administrative governance, particularly legality, transparency, and accountability. The study is based on the premise that emergencies such as security, health, or political crises may justify the expansion of administrative powers; however, such expansion must not lead to unjustified violations of fundamental rights and freedoms or undermine the rule of law. The research adopts a comparative analytical approach, examining constitutional and legal frameworks as well as judicial practices in Iraq, Egypt, and France. The study concludes that legality is not suspended during exceptional circumstances but rather takes a special form governed by necessity, proportionality, and temporariness, while judicial oversight remains essential. It also highlights the crucial role of administrative governance principles in preventing abuse of power and strengthening public trust, and recommends enhancing the Iraqi legal framework and oversight mechanisms to achieve a balanced approach between safeguarding public order and protecting fundamental rights

This section examines the legal protection of official documents against unlawful publication through social media platforms in light of technological developments that have facilitated the circulation of information outside traditional legal frameworks, creating risks that affect national security and both public and private interests. The study addresses the legal basis for protecting official documents in comparative legislations, particularly in Iraq, Jordan, and Saudi Arabia, through constitutional provisions, penal laws, and special regulations. It also discusses the international basis for protection through international conventions and principles related to state sovereignty over official documents. Furthermore, the study analyzes the relationship between the right of access to information and the protection of official documents, clarifying that this right is not absolute, but may be restricted when it conflicts with national security, public order, or privacy, emphasizing the need to balance transparency with the protection of legitimate interests

In essence, referral in military and security criminal legislation does not differ from general rules as a procedural step between investigation and trial, with the difference being the competent authority due to the nature of the tasks of the armed forces and internal security forces. Security procedural criminal legislation assigns this authority to the Minister of the Interior or his designee, while military procedural criminal legislation takes a more flexible approach by granting this authority to the Commander-in-Chief of the Armed Forces, the Minister of Defense, the Chief of Staff, and the commanders of formations, For its part, the legislator of the Counter-Terrorism Service Law No. 31 of 2016, as amended, specified the head of the service or whoever he authorizes to refer military personnel, while the legislator of the Border Ports Authority Law No. 30 of 2016 did not specify this, which constituted a legislative deficiency and led to a breach of the principles of legal and judicial security

equity-linked bonds to hybrid securities shares of a mixed nature. On the one hand, the investor is considered a debtor to the issuing company. The bond linked to shares is a debt instrument, subject to the provisions of traditional loan bonds in terms of recovery, interest and general guarantee. On the other hand, these securities include contractual features that link their total return to the performance of the basic share price. They combine the possibility of achieving higher returns linked to the performance of the share, and the stability of fixed income investment. Although these bonds provide protection for the entire capital and the possibility of achieving unlimited gains, these bonds also provide flexibility in choosing their preferred shares. However, the return of this type of hybrid bond may fluctuate depending on the performance of the market and the consequent loss of investors and the consequent loss of part of their investments. Investors may lose their investments in the event of the issuer's bankruptcy or default in repayment. The composite nature

This research examines the legal implications of an unlawful administrative decision on the criminal liability of a public employee through a comparative analytical study between Iraqi law and French law. It proceeds from the premise that although the administrative decision is primarily regulatory and administrative in nature, its legal effects may extend beyond the traditional administrative sphere whenever unlawfulness takes a form that affects the criminal protection of public interest. The study analyzes the legal foundation of unlawful administrative decisions and identifies the forms of illegality capable of influencing the criminal status of the public employee. It further explores whether administrative unlawfulness alone is sufficient to establish criminal liability or whether such liability necessarily requires the independent fulfillment of the constituent elements of a criminal offense under criminal law. The research also addresses the legal relationship between administrative courts and criminal courts in assessing the legality of administrative decisions, including the evidentiary value of administrative judgments before criminal courts, while highlighting the impact of comparative judicial development on defining the boundary between administrative fault and criminal fault. The study concludes that the unlawfulness of an administrative decision does not automatically establish criminal liability; rather, such liability depends on the existence of an autonomous criminal structure in which both material and moral elements of the offense are established, with notable differences between Iraqi and French legal systems regarding the scope of such effect

Providing legal security is one of the most important reasons for the success of commercial companies in insuring against cyber risks. This security is provided by the existence of the law specific to cyber insurance, which clarifies the nature of cyber risk, its types, and the procedures that must be followed to avoid this risk or avoid its consequences. It also specifies the law applicable to this type of contract, as well as stating the role of the will of the contracting parties in determining the applicable law. Therefore, Iraq lacks such legal security, as there is currently no specific law for cyber insurance. Only general or traditional insurance laws exist.
European countries, however, have made significant progress in this area, issuing specific regulations such as the European General Data Protection Regulation (GDPR), as has the United States with the California law. Our study is divided into two sections: the first examines the concept of cyber risks, and the second explores the role of domestic and international legislation in determining the applicable law for cyber insurance contracts

Modern penal legislation has paid close attention to juveniles, recognizing that the childhood and youth sector reflects the progress and civilization of societies. Furthermore, procedural legal rules in criminal law constitute the fundamental tool for maintaining a balance between protecting public rights and individual freedoms, whether for children or juveniles, whether they are considered juvenile delinquents or adult offenders, against the arbitrary actions of public authorities and their agencies. Given the importance and unique nature of juvenile procedural status, and the need for special treatment that aligns with the nature of this category (juveniles), the procedures adopted concerning them are of a special and distinctive character, differing in many aspects from those adopted concerning adults. The legislator, in establishing procedural rules for juveniles, aims to avoid general procedural rules the general public of adults, which does not agree with the philosophy of rehabilitating and reforming juveniles and reintegrating them into society, especially since the treatment of juveniles is predominantly educational and disciplinary in nature

This study examines the controls governing harm as a ground for judicial separation between spouses in Islamic jurisprudence, the Islamic Family Law of Selangor State 2003, and Iraqi law through a comparative approach aimed at clarifying the concept of harm, its legal and jurisprudential standards, and the methods of proving it. The importance of the study stems from the increasing prevalence of contemporary forms of domestic harm, particularly psychological and moral harm, and the legal challenges related to assessing and proving such harm before the courts. The study adopts the comparative method by examining and analyzing juristic and legal texts, together with relevant judicial applications, in order to identify the similarities and differences between the Malaysian and Iraqi legal systems in regulating judicial separation due to harm. The study concludes that Islamic jurisprudence established precise standards for harm, most notably seriousness, continuity, malicious intent, and customary considerations, while also expanding evidentiary methods to include presumptions, hearsay testimony, and arbitral reports. The findings further reveal that the Selangor law provides a more detailed and comprehensive codification of harm through specific temporal standards and clear procedural mechanisms, whereas Iraqi law is characterized by flexible legal provisions and broad judicial discretion in assessing and proving harm. The study ultimately concludes that both systems share the objective of protecting the family and removing harm, although Malaysian legislation is distinguished by institutional organization and detailed regulation, while Iraqi law is marked by greater judicial flexibility

A lease agreement grants the owner the right to use something belonging to another without charge for a specified period. The beneficiary must return the property to the lessor upon the expiration of the lease. General rules regarding the agreement of both parties and the absence of any defects in consent apply to lease agreements. Both parties must agree on the intention to enter into the lease agreement, and consent must be given to all its elements, including the subject matter and the reason for the lease. If one party grants something to another under the guise of a lease, and the second party believes it to be a gift, the lease is invalid due to the lack of agreement. The purpose of a lease varies from person to person. While it is generally granted by the owner, in certain cases it may be granted by someone other than the owner

La question de l'impact des professeurs d'université sur la participation jurisprudentielle du juge administratif dans la construction des règles juridiques, notamment en droit administratif, fait l'objet de débats depuis longtemps. Bien que leurs activités académiques contribuent activement à la diffusion de la jurisprudence, il est rare que les magistrats abordent explicitement cette question.
D'un point de vue juridique, l'article 25 de la loi n° 65 de 1979 relative au Conseil d'État irakien autorise, avec l'approbation du ministre de l'Enseignement supérieur et de la Recherche scientifique, la participation de professeurs d'université à certaines activités du Conseil liées à leur spécialisation. Il prévoit également le détachement d'un professeur de la faculté de droit, répondant à certains critères, en qualité de conseiller auprès du Conseil pour un mandat de deux ans, renouvelable une seule fois.
Sur le plan pratique, outre l'organisation de conférences permettant aux universitaires et aux membres du Conseil d'État de se rencontrer et d'échanger sur de nombreux sujets, on constate l'influence des travaux des professeurs d'université sur les contenus des rapports et études publiés par le Conseil d'État. Ces rapports contribuent à enrichir les débats et les réflexions doctrinales sur de nombreuses questions juridiques.
À partir d'une approche comparative, nous nous interrogerons sur l’influence de l’université, par l’intermédiaire de ses professeurs, sur le travail du juge administratif, depuis sa formation initiale jusqu’à son rôle dans le règlement des contentieux administratifs

The advancement of research and technology has led to a qualitative leap in the field of medicine. The medical profession has progressed to performing surgeries unimaginable in previous decades, enabling doctors to perform sex reassignment surgery. This involves altering a person's sex through hormonal treatments and surgical procedures, with the aim of developing or eliminating a specific sex. This study raises several questions, including the legal and religious perspective on sex reassignment, and whether a doctor's surgical intervention on someone wishing to change their sex for any reason is considered medically necessary, thus protecting the doctor from liability. Furthermore, what liability might a doctor bear if they commit an error during treatment? To address these questions, we will examine all aspects of the concept of sex reassignment, outlining the jurisprudential approaches to this phenomenon, and exploring the implications of a doctor's civil liability for errors committed during sex reassignment surgery

Complaining against judges is one of the most important legal means established by procedural laws to protect litigants, given the serious errors a judge may commit while performing their judicial duties, errors that could affect the proper administration of justice. However, a crucial question arises in this regard how to achieve a balance when using this legal tool between two principles-the principle of judicial independence on the one hand, and the possibility of guaranteeing individuals' right to hold judges accountable for breaches of their professional duties on the other. This research will examine the organization of this process. Regarding judges' dereliction of their professional duties, this research will examine the legal framework for complaints against judges, comparing the Iraqi Civil Procedure Code, the Egyptian Civil and Commercial Procedure Code, and French law. This will involve defining the concept of a complaint against a judge, clarifying its legal nature, grounds, conditions, and procedures, and exploring its legal implications. Furthermore, it will highlight the similarities and differences between the legislations under comparison and examine the Iraqi legislator's stance on this matter. Our research is based on The comparative analytical approach was employed through the analysis of legal texts relevant to our research topic, judicial rulings, and related scholarly opinions. The research concluded with a set of findings and recommendations, the most important of which is the necessity of reconsidering certain procedural provisions in Iraqi legislation governing complaints against judges. This reconsideration should align with developments in modern legislation and provide greater protection for litigants while preserving the independence that the judiciary must enjoy

Fault in civil liability within the framework of electronic intellectual property is a modern topic that has attracted the attention of researchers, as fault in civil liability is the cornerstone upon which it is based. Jurists and legal scholars have differed in defining the nature and concept of fault in its traditional form. We have also examined the jurisprudential opinions that appeared in the traditional discourse, as well as the topic of civil liability and the opinions that were said about it. In addition, we focused on the topic of forms of electronic fault and found that it includes two forms of electronic contractual fault, which arises from a violation of the rules of civil liability in its contractual form, and electronic tortious fault, which originates from an unlawful act

An ad hoc judge is a judge appointed through a special procedure for a specific case or project and for a limited period of time, unlike a regular judge who is appointed through a standard procedure for a fixed term and according to established legal procedures. As an additional defining characteristic, an ad hoc judge is typically appointed, in the context of the International Court of Justice, by one of the parties to a case if that party does not have a judge of its nationality on the Court. The Statute of the Court grants any state party to a case the right to choose a person to serve as an ad hoc judge in that case, subject to certain conditions. The establishment of the ad hoc judge system may seem to have been intended as a way to avoid bias or to address concerns about the Court's impartiality. However, recent developments in the appointment of ad hoc judges suggest that, rather than undermining public confidence in the Court's impartiality, these ad hoc judges may actually contribute to strengthening the Court's rulings and their enforceability

This research explores the concept of individual development projects and highlights that Islam encourages work to earn a living, thereby achieving human independence and dignity, and preserving human freedom. Work has always been a social necessity imposed by the basic needs of individuals. It is a fundamental pillar in building a just society and a key element of production in the formation of the economy. The research also clarifies that the legal basis for the human right to work is enshrined in international conventions and declarations, recognizing it as one of the most important human rights. Consequently, most national legislations, including those of France, Egypt, and Iraq, have acknowledged this right. Furthermore, the research reveals that the Iraqi legislature encourages the state to continue providing employment by allocating monetary and in-kind incentives for workers

The frame work of applying constitutional dispositions related to free trade and industry, many classified establishments that assure good development rhylum was built, however these facilities had negative infects on environment such as different kinds of pollution and their harmful consequences in this regard the administrative authority has general prerogatives to protect environment including the power to make administrative, regulations against activities of polluting establishment. Administrative and authority plays through its regulation activity important roles in protecting environment against polluting facilities on the basis of legal rules and administrative means. The aim of such framework is to assure general interested prevent harmful damage reduce their impacts