International Law
Sayed Murtaza Àbid; Mohammad Hosein Ramezani Ghavam Abadi
Abstract
IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing ...
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IntroductionAfghanistan is a country that shares four waterways (Hirmand, Kabul, Harirud, Amu) with neighboring countries. These watercourses are an important source of water supply in Afghanistan and its neighboring countries. Except for the Hirmand River which has the 1973 treaty as its governing source of legal regulation, the other three water basins of Afghanistan do not have a treaty exploitation system and are considered subject to the customary rules. Therefore, any use of these waterways is only possible within the framework of the customary rules of international law of the sea. Due to various historical reasons, Afghanistan has not had the opportunity to avail itself of these watercourses. In the last few years, this country has designed and implemented programs to manage and use its water resources. Many of these actions were faced with protests from Afghanistan's neighboring countries. These countries have considered the actions taken by Afghanistan to be in conflict with international law, especially the customary law governing international waterways. According to the practice of states, and the opinions of international judicial and non-judicial institutions, currently, there are rules such as reasonable and equitable utilization, the prohibition of incurring serious harm to other countries, and the responsibility to cooperate, which underly the basic and customary rules of international law of the sea. The customary characteristic makes states legally obliged to comply with these rules regardless of their membership in international treaties. States’ violation of customary obligations will result in international liability. Without a doubt, Afghanistan, as a member of the international community, will not be exempt from this rule. Research Questions The present research examines the status of the customary obligations regarding the non-navigational use of international waterways in the legal system and the practical practice of the Afghan government. The research seeks to answer these questions: What is the approach of Afghanistan's legal system towards the international customary rules of the sea and do the domestic laws require the government to comply with these obligations or not? What is the practical practice of the government in this case and to what extent are Afghanistan's actions consistent with the international customary rules? Research Background As an important source of life and livelihood, the subject of waterways has been of interest to humans forever. The greatest human civilizations are built next to water sources. With the formation of nation-states, the discussion of international waterways and their exploitation by countries was raised. In this regard, many researches have been conducted and published by scholars on how to regulate the use of international watercourses around the world.Although such research was initially centered around the use of navigation, with the increase in population, the climate changes, and the pollution of water resources, non-navigational exploitation and their related topics also attracted the attention of scholars. Regarding the international watercourses of Afghanistan, many researches have been published by different authors both inside and outside of Afghanistan, in different languages.The common denominator of all of these efforts is the focus on contractual obligations, management, and the protection of water resources. Therefore, an important i.e., international customary obligations of Afghanistan and its practice and performance in this area has been neglected. However, some authors have mentioned some of these obligations in their research. For example, we can refer to works such as the research of Mr. Jamshid Momtaz titled “The legal system of the middle East watercourses”, “Ali Raghanabi: The legal principles governing the international rivers, with an emphasis on the Hirmand River”, “Nusratullah Afzali: The principles governing the international watercourses with an emphasis on the Harirud river”, and “Mrs. Sara Naqshband: International Practices in the Settlement of International River Disputes”. Within Afghanistan, in the last few years, research has been carried out in the field of Transboundary Rivers. The major parts of these research papers have been carried out by the Doran Institute, which is a private research institute. This research center has so far published two articles in this area (Amu and Kabul) and besides these, publishes a journal about the waters of Afghanistan, the first issue of which was published in 2015. This research focuses on the capacities of the mentioned areas, the capabilities and challenges of their use, and the climate risks that threaten these waters; it briefly refers to the legal aspects of using these waters. however, it has not been specifically and comprehensively addressed. DiscussionArticle 7 of Afghanistan’s Constitution recognizes the government’s responsibility to comply with the United Nations Charter, the Universal Declaration of Human Rights, and other treaties that Afghanistan has accepted, but it does not make any reference to international customary obligations. Of course, this does not mean that Afghanistan does not accept customary international obligations. the obligation to comply with the UN Charter (based on Articles 1 and 2 and other principles of the Charter) is not limited to treaties, and includes obeying all binding sources of international law. The constitution, especially its seventh article, has stated the obligations that need to be approved by the parliament (National Council) and approved by the president. Customary international obligations are usually entered into national systems through automatically and informally and do not require a special process for ratification andapproval. The study of Afghanistan's legal practice, including the study of the past constitutions (1980 and 1987), in which, in addition to treaties, Afghanistan's obligations to other accepted principles and rules of international law are set out, supports this claim.This is why the Afghanistan transboundary water policy, which was approved by the Council of Ministers in 2015, mentions Afghanistan's responsibility to comply with the international rules and regulations in the operation of transboundary waters in its sixth chapter. International rules and regulations include contractual and customary rules.The practice of the Afghan government in the exploitation of common waterways is in line with its responsibility to act by these rules. The signing of a treaty with Iran (in 1973) and an agreement with the Soviet Union in the field of utilization of the Amu River (in 1958 and 1964) indicates that this country considers itself bound to international obligations in this field. Conclusion The Afghan constitution is silent on its international customary obligations. nevertheless, the emphasis on compliance with the United Nations Charter in its seventh chapter also includes complying with the customary rules. The legal and practical practice of the Afghan government shows that this country considers itself obliged to comply with these obligations not only as a member of the international community; but also according to its domestic laws. However, examining the degree of compliance of this country's actions in the use of international waterways with its international obligations requires examining all the related factors. Without access to the relevant information, it would be very difficult to consider these actions in violation of these obligations. However, the principle of responsibility to cooperate obliges the Afghan government to take appropriate measures to deal with these protests within the framework of international law.
Public Law
Mohammad Javad Javid; Qudsia Frotan
Abstract
IntroductionPeace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of ...
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IntroductionPeace, as a human right, has been the aspiration of the Afghan people for over four decades, as Afghanistan has been enduring war. However, achieving sustainable peace is not possible without inclusivity, especially with the participation of women, as peace is based on the principles of equality and brotherhood, and its realization is only possible through collective engagement. Afghanistan, apart from the post-Taliban era, has always witnessed the dominion of oppressive and discriminatory ideologies and structures, which have led to numerous conflicts. Wherever there is oppression, there will consequently be.Research QuestionThis article seeks to identify how women can contribute to the realization of sustainable peace in Afghanistan. Therefore, it is based on the hypothesis that by recognizing the official and unofficial role of women in various public domains, sustainable peace is achievable. In peace, the structures and situations that lead to conflict are dismantled.Literature Review Regarding the role of women in achieving sustainable peace in the public legal system of Afghanistan, no work has been done in Afghanistan yet. However, considering the rapid developments that have taken place in the field of peace in Afghanistan, during my research, a significant number of studies have been conducted. Among these, there is the valuable research report titled "Women's Participation in the Peace Process in Afghanistan (A Case Study)". Another valuable work on this subject has been published by Dr. Omar Sadr under the title "Peace Processes in Afghanistan: People’s Perspectives", published by the Afghanistan Strategic Studies Institute. Another valuable article by Dr. Anahita Saifi, titled "Women, Peace, and Security in Afghanistan from the Perspective of the UN Security Council," was written in 2019. In this article, she examines the role of women in the peace-making process based on Resolution 1325 and the National Action Plan for Afghan Women, as well as the role of international institutions and women's participation in this process. Another valuable book, written by Mohammad Amin Ahmadi, who was also a member of the Afghan peace negotiating team, is titled "Peace in Afghanistan: The Struggle between the Republic and the Emirate."This book covers topics such as avoiding war, defending the republic and parliamentary democracy, a comparative study of the republican constitution and the emirate constitution, defending human rights within the framework of Islamic constitutional law, peace experiences and techniques, and finally, the legitimacy and sustainability of peace. This article has explored new horizons by, firstly directly addressing the issue of peace while considering the Afghan public legal system, and secondly, by being written concurrently with the latest news of peace negotiations and the confrontation between the Taliban and the Afghan government before the fall of Kabul, and referring to many recent meetings and events for the first time. Hence, it can claim to be new and original in its subject. Alongside that, our outlook on peace in this article is about sustainable peace that goes beyond ending war and conflicts and focuses on good governance and empowerment. This aspect has not been paid attention to in previous articles and sources.MethodologyThis article aims to contribute to increasing knowledge in the field of sustainable peace, with an emphasis on the role of women. In practical terms, it aims to assist in the current situation of Afghanistan which is on the brink of new developments in its political system, and provide a practical response to women's concerns arising from the Taliban's return to power in Afghanistan, as well as to strengthen the discourse on the role of women in achieving sustainable peace in Afghanistan and help guarantee women's rights as a vulnerable part of the country. This research has been conducted with a descriptive-analytical method.ResultNot until the social and cultural infrastructure is fundamentally reformed will top-down reforms to enforce the empowerment of women and project-based plans to increase their contribution in society achieve the desired result. DiscussionThe analyses in this article prove that the mechanism for achieving peace in post-war Afghanistan has been vertical (from top to bottom), and there have been significant international legal documents and domestic laws based on which many institutions and organizations have been created. However, what has prevented the realization of the goals set to achieve peace in Afghanistan are the structural and cultural problems in this area that have hindered women's participation in the desired positions.Therefore, to achieve peace, the structures and conditions that cause conflict must be eliminated. Moreover, to achieve sustainable peace, we need a structural reform that includes the participation of everyone, regardless of gender and ethnicity, as well as a cultural reform that supports political inclusivity. of the absence of peace in the current situation is evidence that, due to the lack of appropriate conditions for the participation of all Afghan citizens, especially women, the peace process has reached an impasse. ConclusionTo conclude, although the political system in Afghanistan after the war is defined as a modern and democratic system, its foundation is still the traditional and outdated national and tribal culture that has prevented the engagement of ethnic and social minorities and women in the body of the system as official actors. Therefore, women's struggles in recent years have primarily focused on reforming these structures and breaking down traditional anti-women structures, and because of the obstacles in front of their official actions to achieve sustainable peace, most of their efforts have been carried out through informal channels.
Public Law
Hasanali Moazenzadegan; Seyed Mohammad Hosseini; Abdulqodus Arseen
Abstract
1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's ...
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1. IntroductionA judge or a judicial system, that is not independent and is influenced by different factors is, unable of establishing justice; he/she is also unable to protect the rights and individual freedoms of people which calls into question the existential philosophy of that judicial system. People's lack of trust in the judicial system leads to a decrease in the legitimacy of the political system which causes political and social crises and at higher levels, the collapse of the political system. Based on the principle of separation of powers, which has been one of the most important intellectual achievements of mankind in social administration, the power of the government is separated and divided into the three branches of legislative, judiciary, and executive organs (although they maintain their interaction), in order to prevent the concentration of power in one person or institution. Judicial independence is, therefore, one of the logical results of accepting the principle of separation of powers, the origin of which can be found in the era of Aristotle. Today, this principle is considered one of the most important principles and, in fact, the cornerstone of democratic governments–a form of government that seems better able to provide justice than other forms of government. The Principle of Judicial Independence in International Documents and the Legal System of AfghanistanOne of the results of accepting the principle of separation of powers, as mentioned earlier, is the acceptance of the principle of judicial independence. This principle has been discussed and supported in international and regional documents. In Afghanistan, for the first time during the reign of Amanullah Khan, it was recognized in Article 53 of the Constitution of Afghanistan (1923) by stating that "all courts are free from any interference". In the Constitution of the Islamic Republic of Afghanistan (2004), there is no clarity about accepting the principle of separation of powers. But from its general structure and its division of chapters –the fourth chapter (government) the fifth chapter (the National Council) and the seventh chapter (Judiciary) it is inferred that this principle is accepted. Judicial independence is also explicitly accepted in Article 116: "The judiciary is the independent pillar of the government of the Islamic Republic of Afghanistan". Research ProblemIn Afghanistan, in recent years, several criminal cases have resulted in decisions that raised questions about the status and position of judicial independence in the judicial system of the Islamic Republic of Afghanistan: Do judges and the judicial system of Afghanistan act independently? History of Research and Its MethodAlthough much research has been done about judicial independence in the world, it has received less attention in Afghanistan which is perhaps the reason why Afghan legal writers have made fewer claims about the strength or weakness of judicial independence in Afghanistan based on evidence. Therefore, evidence-based research about judicial independence, in which the personal judgment of the authors is minimized, is one of the needs of Afghan society. The main question of this essay is regarding the status of judicial independence, as one of the most important pillars of good governance, in the legal system of the Islamic Republic of Afghanistan.Judicial independence can be studied at both organizational and individual levels. At the organizational level, it is indicated by a look at factors such as the recognition of the independence of the judiciary in the constitution and other laws, the exclusivity of judicial authority in the judiciary, the binding nature of the rulings of the judiciary on other organs, administrative independence, and finally, its financial independence. Also, to evaluate individual judicial independence, one should consider indicators such as the process of selecting and appointing judges, job security of judges, prohibition of engaging in political and other duties for the judges, prescribing objective conditions for their promotion and demotion, documentation of judicial decisions, establishing a judicial panel in court, judicial immunity, the salaries of judges and finally their safety and security. Conclusion The results of this study show that in Afghanistan during the republic period, at the organizational level, while the independence of the judiciary was recognized in the constitution and other laws of the country, the exclusion of jurisdiction in the judiciary was not desirable. The rulings of the judiciary were not so binding on other organs which had damaged its independence. Administrative independence was also weak, but financial independence was in a good condition. At the individual level, the selection and appointment of judges was not suitable, but the job security of judges had been relatively good as the mechanism of hiring judges was in a good situation that ensured their job security to a large extent. The guarantee of the prohibition of their employment in political duties was weak, but in other duties, the ban had been appropriately executed. Also, while the prescription of objective criteria for the promotion and demotion of judges was very bad, the judicial decisions were documented and the judicial boards were established in proceedings. Judicial immunity had been realized incompletely, judges' salaries were assessed as appropriate but their safety and security had been inadequate. In general, judicial independence in Afghanistan was weak which, according to the authors, had caused people's distrust in the judicial system and as a result, a decrease in the legitimacy of the republican system. This can be considered one of the factors for the fall of the Islamic Republic of Afghanistan.
