mostafa Mir Mohammadi; Jalal Sadeghi
Abstract
Generations theory in human rights on the one hand, and solidarity rights on the hand have always had proponents and opponents. After three decades of the emergence of solidarity rights, it has been accepted much better on the regional level than on the global scale. Nevertheless, in recent years the ...
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Generations theory in human rights on the one hand, and solidarity rights on the hand have always had proponents and opponents. After three decades of the emergence of solidarity rights, it has been accepted much better on the regional level than on the global scale. Nevertheless, in recent years the United Nations has endeavored to introduce a new reading of solidarity rights through its two special reporters, who seek to reintroduce this right and its instances. But the question that arises is whether recent measures of the United Nations could be considered as a new evolution of solidarity rights? Will reporters be able to redefine and recognize solidarity rights as a collective and third generation right in the human rights system? This article tries to analyze and consider the relationship between solidarity rights and the right to international solidarity through with an overview of the latest instruments and reports. It seems that the reporters of the United Nations seek third generation rights through the “Right of peoples and individual to international solidarity” in order to present a new plan.
seyd ghasem Zamani; Ali Navari
Volume 16, Issue 46 , September 2015, , Pages 9-37
Abstract
The overwhelming view concerning the unilateral secession under contemporary international law is that, in international law, there is no rule in regard to secession. some international lawyers concentrate upon the principle of respect to territorial integrity of independence and sovereign states and ...
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The overwhelming view concerning the unilateral secession under contemporary international law is that, in international law, there is no rule in regard to secession. some international lawyers concentrate upon the principle of respect to territorial integrity of independence and sovereign states and maintain that unilateral secession is unlawful. Meanwhile a moderate and relatively new approach has been proposed by some international lawyers so called “Remedial Secession Doctrine” that according to it, although international law supports territorial integrity of independence and sovereign states in international community, in special circumstances, a state cannot rely on its territorial integrity. The principle of Self-Determination of peoples prevails over Territorial Integrity and so, secession of a part of territory of a state by a people comprising a part of the population of the territory would be possible. Basis and foundation of such argument is relies on inverted reading of the “safeguard clause” embodied in the United Nations General Assembly resolution 2625 that repeated in 1993 Vienna declaration and program of action. this characterize the existence of the Right to Remedial Secession in National and Regional Judicial Decisions.
Mohsen Abdollahi; Ali Hasankhani
Volume 16, Issue 45 , April 2015, , Pages 31-52
Abstract
International court of justice as main judicial organ of United Nations not only has duty to resolve disputes between states but also has duty for protecting values which are accepted by members of international community. However, it has duty to resolve disputes according existing rules not according ...
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International court of justice as main judicial organ of United Nations not only has duty to resolve disputes between states but also has duty for protecting values which are accepted by members of international community. However, it has duty to resolve disputes according existing rules not according lex ferenda, changes in the area of human rights affected function of ICJ. We can observe clearly these changes in function of ICJ in the case of Guinea against Congo. In this judgment, ICJ by refocusing on human rights rules as a part of corpus of rules of international rules, through helping solidarity of international law, prepared a field for respect and compliance of human rights. Another important outcome of this case is changing the material domain of diplomatic protection and verdict to payment of compensation for reparation of nonmaterial damages.
Hossein Sharifi Tarazkoohi; Javad Mobini
Volume 16, Issue 44 , February 2015, , Pages 73-103
Abstract
Jurists have expressed various propositions about the true nature of Margin of Appreciation Doctrine. Some believe that although application of the doctrine allows for exercise of human rights with having local cultural diversities in consideration, following up with cited doctrine in practice by European ...
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Jurists have expressed various propositions about the true nature of Margin of Appreciation Doctrine. Some believe that although application of the doctrine allows for exercise of human rights with having local cultural diversities in consideration, following up with cited doctrine in practice by European Court of Human Rights has not been amounted yet to relativism. This paper however, suggests that the doctrine sits on shaky relativism but rather strong universalism. It further argues that the study of rational behind the application of the doctrine in European Court of Human Rights practice, the Court’s decisions wherein similar reference has been made and the study of available academic literature on this topic show that Margin of Appreciation Doctrine emanates from cultural relativism. On the other hand, quantitative and qualitative study of the diversities are accepted by the doctrine – in terms of scope, field of reference and application standards – leads to the conclusion that the Margin of Appreciation may be regarded as ‘Weak Cultural Relativism.
yousef molaei; ebrahim shoarian
Volume 15, Issue 42 , January 2015, , Pages 173-190
Abstract
Despite of the fact that the principle of freedom of contract has made it possible forthe parties to reach the agreement with free will and full authority, the experience hasshown that the contractual balance between the parties has been impaired by thepassage of time and scientific and industrial advancementso ...
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Despite of the fact that the principle of freedom of contract has made it possible forthe parties to reach the agreement with free will and full authority, the experience hasshown that the contractual balance between the parties has been impaired by thepassage of time and scientific and industrial advancementso as to it has brought theissue of weak and strong party in many contracts andconsequentlyhas made it difficultfor law-makers and jurists to establish the balance between the parties.Since long before, due to the various reasons, the protection of the weaker party ofthe contracthascaused the distance of some parts of private relations from the ambitof private law; protecting the employee in the labor contract is a good example hereto be mentioned. Nevertheless, it seems that there is no end point for such amovement and the rules of human rights are attempting to take further stepincontrolling the rules of private law. Human rights that has already shown itseffectiveness in constitutional and criminal law, is striving to inter into the scope ofprivate law including contract law through the expansion of its basic rulesin orderto show that it is not merely a monitor of the parties’ contract. On the contrary, itwill protect the basic rules of human rights wherever it is required.Nowadays, human right is not considered as a mere protector of individuals againstgovernments. Conversely, the impacts of human rights on contract law have beenacknowledged both by case law and scholars, specifically in the European legalsystem. Our legal system is not familiar with this phenomenon but the presentessayattempts only to broach the issue and provide the basis for further developmentof the concept in our legal system.
Mohammad Ali Solhchi; Ramin Dargahi
Volume 15, Issue 41 , December 2014, , Pages 143-168
Abstract
Abstract The efforts made by human rights scholars has led to its classification according to the notion of “generational human rights”. Such generations include; the first generation (negative rights), the second generation (positive rights) and the third or solidarity ...
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Abstract The efforts made by human rights scholars has led to its classification according to the notion of “generational human rights”. Such generations include; the first generation (negative rights), the second generation (positive rights) and the third or solidarity rights which is also referred to as collective rights based on which some regard it as body of rights belonging to group of people or masses. On the contrary, some scholars believe that masses may not enjoy rights as such. Considering the criticism targeted against the third generation of human rights, some scholars do not recognize it as rights, but instead a set of moral virtues or universal values, while there are others that maintain that the third generation of human rights is essential as to compensate for deficiencies attributable to the first and the second generations. Notwithstanding the above, the question has yet remained as to the true nature of third generation of human rights. This paper shall attempt to study the third generation of human rights concept , besides reviewing the criticism targeting the same.
Soheila Golpour; Reza Eslami
Volume 15, Issue 40 , September 2013, , Pages 71-113
Abstract
This article briefly studies the historical background as well as theopinions of some scholars with respect to tolerance, as a human virtueand a moral and political value. It argues that tolerance originates fromhuman dignity and respect and that societies are advised not only totolerate the differences ...
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This article briefly studies the historical background as well as theopinions of some scholars with respect to tolerance, as a human virtueand a moral and political value. It argues that tolerance originates fromhuman dignity and respect and that societies are advised not only totolerate the differences among individuals and ethnic groups but alsovalue these differences. Further it reviews the available instruments inInternational human rights law touching on the requirement of peacefulcoexistence among social groups and minorities. It then examines inparticular, the UNESCO Declaration on Principles of Tolerance. Finallyit stresses the need for education in promoting tolerance in societieswhere social groups initiate dialogue primarily in order to eliminateprejudice, hatred and discrimination off societies, and eventually promotethe notion of peace among citizens.
