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تنظیم‌گری صنایع بالادستی نفت و گاز ایران از منظر فقه و حقوق | ||
| پژوهشنامه حقوق اسلامی | ||
| مقاله 8، دوره 26، شماره 2 - شماره پیاپی 68، تیر 1404، صفحه 565-596 اصل مقاله (1.06 M) | ||
| نوع مقاله: مقاله پژوهشی | ||
| شناسه دیجیتال (DOI): 10.30497/law.2024.247167.3644 | ||
| نویسندگان | ||
| محمدحسین اسفندیارپور* 1؛ احمد شعبانی2 | ||
| 1دانشجوی دکتری مدیریت قراردادهای بین‌المللی نفت و گاز، دانشکده معارف اسلامی و اقتصاد، دانشگاه امام صادق علیه‌السلام، تهران، ایران. | ||
| 2دانشیار، گروه اقتصاد پولی و مالی، دانشکده معارف اسلامی و اقتصاد، دانشگاه امام صادق علیه‌السلام، تهران، ایران. | ||
| چکیده | ||
| بازار مربوط به صنایع بالادستی نفت و گاز ایران از منظر اقتصادی به دلایل مختلفی با شکست یا ناکارآمدی مواجه است که یکی از راهکارهای متداول برای حل این مسأله، ایفای نقش نهادهای تنظیم‌گر است. در نوشتار حاضر تلاش شده است که مبانی فقهی تنظیم‌گری در صنعت بالادستی نفت و گاز به‌عنوان یکی از مهم‌ترین صنایع کشور، مورد واکاوی قرار گیرد و جایگاه این نهاد در قوانین موضوعه نیز بررسی شود. آخرین تحولات تقنینی نشان می‌دهد که قانون‌گذار ایرانی تلاش داشته تا وظایف حاکمیتی مربوط به صنعت نفت و گاز را از امور تصدی‌گری این صنعت تفکیک نماید تا چه‌بسا از این رهگذر، شرایط برای ایفای هر چه بهتر نقش تنظیم‌گر در این صنعت مهیا شود؛ مع‌هذا به دلایلی چون دولتی‌بودن صنعت نفت و وابستگی دولت به بودجه نفتی، تنظیم‌گری صنعت مزبور کماکان با چالش‌هایی روبه‌رو است و بخش بالادستی این صنعت از وجود حکمرانی شایسته بی‌بهره مانده است. | ||
| کلیدواژه‌ها | ||
| انفال؛ صنایع بالادستی نفت و گاز؛ اعمال حاکمیتی؛ اعمال تصدی‌گری | ||
| عنوان مقاله [English] | ||
| Regulation of Iran's Upstream Oil and Gas Industries in Light of Islamic Jurisprudence and Law | ||
| نویسندگان [English] | ||
| Mohammad Hosein Esfandiarpour1؛ Ahmad Shabani2 | ||
| 1PhD Student in International Oil and Gas Contracts Management, Faculty of Islamic Studies and Economics, Imam Sadiq University, Tehran, Iran. | ||
| 2Associate Professor, Department of Monetary and Financial Economics, Faculty of Islamic Studies and Economics, Imam Sadiq University, Tehran, Iran. | ||
| چکیده [English] | ||
| ∴ Introduction ∴ The upstream oil and gas industry in Iran is a cornerstone of the nation's economy but is currently experiencing significant market failures and inefficiencies. These challenges stem from various factors, including economies of scale, informational deficiencies, asymmetric information, externalities, public goods, and the characteristics inherent in natural monopolies. Regulation plays a critical role in addressing these issues, particularly in industries like energy production and distribution, where societal costs are minimized when a single entity manages operations efficiently. In Iran, the upstream oil and gas sector functions as a natural monopoly due to its governing institutions and operational structures, making robust regulation indispensable. Historically, the sector has seen substantial government intervention that often blends sovereign responsibilities with operational activities. This amalgamation has led to structural governance problems, such as overlaps in governance and operational roles, heavy fiscal reliance on oil revenue, lack of transparency, absence of comprehensive policies, and inadequate involvement of policymakers and regulators. With the increasing involvement of the private sector and the government's reliance on private capital and expertise, the significance of effective regulatory frameworks has become even more pronounced. Regulation, defined as the government's guiding and supervisory role to ensure the security of goods and services for consumers, encompasses measures like optimizing resource extraction, improving the industry's business environment, increasing long-term investments, developing value chains, and fostering domestic companies. Despite these regulatory efforts, the industry faces persistent challenges, including economic and budgetary dependence on oil revenue, subsidized energy prices, low adherence to sustainable production policies, neglect of shared fields, gas flaring, and low recovery rates. For instance, although the 2011 Iran Oil Law defines "sustainable production" as optimizing and maximizing the economic value of oil resources throughout their lifespan, the targeted recovery rate of 35–40% remains at approximately 24.5%. Insufficient investment in enhanced recovery methods further exacerbates this issue. These challenges highlight a fundamental governance problem rooted in the industry's state-dominated nature and fiscal dependence on oil revenue. The primary goal of regulation—to achieve public benefit by balancing producer and consumer interests—is not being fully realized. In Iran's context, public benefit involves maximizing the economic exploitation of oil and gas resources as national and intergenerational wealth, reflected in policies promoting sustainable production, reducing gas flaring, and enhancing domestic capabilities. Good governance theories offer frameworks for addressing these challenges. Two prominent approaches are the developmental state theory, which emphasizes strong executive power, and the good governance theory, which relies on trust between the government and citizens. These theories propose governance models where either the government assumes full responsibility or governance is a collaborative effort among the government, civil institutions, and the private sector. In the oil sector, key functions of good governance include policymaking, strategy formulation, operational decision-making, and regulation and oversight. Regulation and oversight are crucial for ensuring the proper implementation of national policies and objectives, bridging the gap between policymakers' knowledge and implementers' experience. ∴ Research Question ∴ This study investigates the foundations of regulation in Iran's upstream oil and gas industry within the framework of Islamic jurisprudence and its position in Iranian law. Specifically, it explores whether the industry aligns with the Islamic jurisprudential concept of Anfal (public wealth) and examines the legal and governance implications of this alignment. The research addresses the question: How do Islamic jurisprudential principles regarding Anfal inform the regulation of Iran's upstream oil and gas industry, and what is their manifestation in Iranian law? ∴ Research Hypothesis ∴ The hypothesis posits that Iran's upstream oil and gas industry conforms to Islamic jurisprudential principles concerning Anfal, which categorizes certain resources as public wealth under state stewardship for the benefit of all. Furthermore, it suggests that Iranian lawmakers have attempted to distinguish sovereign duties from operational activities within the sector to enhance regulatory effectiveness. However, the industry's state-dominated nature and fiscal dependence on oil revenue present ongoing challenges that hinder effective governance and the successful implementation of regulatory measures aligned with Islamic jurisprudence. ∴ Methodology & Framework, if Applicable ∴ This doctrinal study employs a qualitative analysis of legal texts, Islamic jurisprudential writings, and policy documents to explore the regulatory framework of Iran's upstream oil and gas industry. The research is structured into three comprehensive sections: Overview of Iran's Regulatory Framework: This section examines the existing laws, regulations, and institutional arrangements governing the upstream oil and gas sector. It analyzes the regulatory mechanisms in place, assesses their effectiveness, and identifies areas where the blending of sovereign and operational roles creates governance challenges. Jurisprudential Analysis of Anfal: Here, the study delves into Islamic jurisprudence to understand the concept of Anfal, which refers to resources considered public wealth. It explores principles of ownership and utilization, analyzing classical and contemporary interpretations to ascertain how these principles can be applied to the management and regulation of oil and gas resources. Critical Review Based on Jurisprudential Theories: The final section critically evaluates Iran's legal framework for oil and gas governance through the lens of selected jurisprudential theories. It assesses whether current practices align with Islamic principles and good governance models, considering factors such as transparency, accountability, and public benefit. The review identifies discrepancies between theory and practice and offers recommendations for aligning the regulatory framework with both Islamic jurisprudence and effective governance standards. ∴ Results & Discussion ∴ The study's findings indicate that while Islamic jurisprudence does not provide explicit regulatory guidelines specific to the oil and gas sector, it offers general principles through concepts like Anfal (public wealth) that are applicable to this industry. The ownership of Anfal is vested in the Imam or ruler, not as personal property but as an institutional responsibility reflecting sovereignty and decision-making authority. This understanding shifts the perspective of ownership from personal to legal persona, emphasizing the role of the Imam or ruler as a trustee [Amin] for the Muslim community. The research discusses that the Islamic government holds ownership of Anfal, including oil and gas resources, but is not obligated to directly manage their exploitation. Instead, there is provision for delegating management to capable individuals or entities through mechanisms such as management contracts, partnerships, or similar arrangements. This delegation aligns with the principles of trusteeship, where the primary objective is to maximize societal benefits and prevent harm to the community. In the context of Iran's upstream oil and gas industry, this jurisprudential perspective supports the involvement of the private sector under specific conditions. The government's inability to efficiently manage all Anfal resources necessitates alternative governance models. By delegating exploitation to qualified entities, the government can leverage expertise, technology, and resources that may not be available within state institutions. This approach ensures that the exploitation of oil and gas resources is efficient, sustainable, and aligned with public welfare. The study also highlights the importance of regulatory frameworks rooted in Islamic jurisprudence to oversee this delegation of authority. Regulation serves as a tool for economic control and justice, ensuring that market failures are addressed, and public welfare is prioritized. The government's role as a regulator involves setting policies, establishing accountability mechanisms, and enforcing standards to balance market dynamics and prevent monopolistic practices. Furthermore, the research emphasizes that the principles governing the Imam's authority over Anfal are not limited to the era of the presence of an infallible Imam. During the period of Ghaybah (occultation), it remains imperative to govern these assets within the framework of Islamic jurisprudential limits. This continuity ensures that the management of Anfal resources remains consistent with Islamic principles regardless of temporal circumstances. The discussion also examines Iran's legal framework, particularly Article 44 of the Constitution, which aligns with jurisprudential rulings by placing major resources under government control while mandating their use for public benefit. However, challenges such as mismanagement and inefficiency under direct government control highlight the need for alternative models. The research suggests that private sector participation, under the condition of maintaining state ownership and proper regulatory oversight, can enhance efficiency and contribute to the public good. In addressing these points, the study bridges the gap between Islamic jurisprudential principles and practical governance needs. It demonstrates that private sector involvement is permissible and beneficial when aligned with Islamic and legal principles, provided that state ownership is preserved and regulatory mechanisms are in place to ensure compliance with public welfare objectives. ∴ Conclusion ∴ The research concludes that while specific regulatory guidelines for the oil and gas sector are absent in Islamic jurisprudence, general principles such as those related to Anfal provide a foundational framework applicable to the industry. The ownership of Anfal by the Imam or ruler is institutional, reflecting a duty of trusteeship rather than personal possession. This entrusts the government with the responsibility to maximize societal benefits from these resources. It is determined that the Islamic government is not obligated to directly manage the exploitation of oil and gas resources. Instead, it can delegate this responsibility to capable individuals or entities through appropriate contractual arrangements, ensuring that the benefits are utilized for public welfare. This delegation is particularly pertinent when the government lacks the necessary expertise, resources, or capacity to manage these resources efficiently. The study emphasizes that governance of Anfal must comply with Islamic principles, even during the absence of an infallible Imam. Iran's Constitution, inspired by Islamic jurisprudence, supports this approach by mandating that substantial resources under government control be used for the public benefit. However, mismanagement or inefficiency in direct government control necessitates considering alternative governance models. Regulatory frameworks rooted in Islamic jurisprudence are deemed essential for economic control and justice. Regulation plays a critical role in ensuring public welfare by addressing market failures and balancing market dynamics. The government, acting as a regulator, can oversee the industry's operations to prevent inefficiencies and ensure that exploitation serves the best interests of society. The findings affirm that private sector participation in the upstream oil and gas industry is permissible under the condition of maintaining state ownership, aligning with both Islamic and legal principles. This participation can enhance efficiency, bring in specialized expertise, and promote technological advancement, all of which contribute to maximizing the benefits derived from Anfal for the public. | ||
| کلیدواژه‌ها [English] | ||
| Anfal, Upstream Oil and Gas Industry, Sovereign Duties, Operational Activities | ||
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