International Law
Mahmoud Hajjar; Seyed ghasem zamani
Abstract
The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, ...
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The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, can play an important role in the interpretation of treaties. A treaty is a creation of the international legal system, and its interpretation and implementation should be carried out within the context of the legal system that governs it. The main question to which this research intends to answer is: What is the position of general principles of law in the interpretation of treaties? It seems that the use of general principles of law in the interpretation of treaties can reduce the potential fragmentation of international law and promote its coherence. In this research, by using library sources, international documents and international judicial decisions and arbitration awards and using a descriptive-analytical method, the position of general principles of law in the interpretation of treaties will be examined.
International Law
Abbasali Kadkhodaei; Mohammadreza Mohammadi
Abstract
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process ...
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The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process occurs to take advantage of a process with different intentions in order to disrupt proceedings. Abuse of rights is an issue that is related to the substantive part of a case, while abuse of process is a non-substantive issue in most cases and is raised in the admissibility. This study's main objective is to examine the practice of the ICJ in relation to the abuse of rights and abuse of process. The research method of this research is descriptive-analytical by using library-documentary sources. Despite the refusal of the court to state the status of abuse of rights and process, today these concepts can be referred to as general principles of law in international law. This article proves that the court considers a high threshold to accept the realization of the abuse of rights and process, and so far it has not been able to confirm such abuse.
International Law
Elham Aminzadeh; mersedeh mazloumi; Amirsaed Vakil
Abstract
Recently, water have become important for the economy and population; therefore, managing of these resources and preserving the environment requires multilateral approaches from states and other international actors. This situation is more complicated when a water source is shared between several states; ...
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Recently, water have become important for the economy and population; therefore, managing of these resources and preserving the environment requires multilateral approaches from states and other international actors. This situation is more complicated when a water source is shared between several states; because the amount of water resources is limited and should be distributed fairly among neighboring states. Because of the optimal management and exploitation of water resources, environment preservation and hydropower development, Germany has been the focus of attention in domestic and cross-border dimensions. The main question is “what is the approach in the German legal documents and practical procedure to deal with the conflicts raised in the field of shared water allocation?” Its solutions can be used in other states to solve the problem of how to distribute shared water between opposite and neighboring states. The solutions are found in the legal documents and its practical procedure, which through analyzing them in an analytical method, the principles of reasonable and fair use, assessment of potential, actual and future needs of states and prevention of damage reserves along with cooperation between states are presented. The maximum amount of service to the whole human society has been inferred.
International Law
Milad Haji Esmaeili; Mehrab Darabpour
Abstract
The United Nations Global Compact, with more than 23000 voluntary participants, is the world’s largest corporate citizenship initiative, gathering multinational enterprises (MNEs) under an agreement. The purpose of the compact is to achieve the principles of human rights, labor, environmental, ...
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The United Nations Global Compact, with more than 23000 voluntary participants, is the world’s largest corporate citizenship initiative, gathering multinational enterprises (MNEs) under an agreement. The purpose of the compact is to achieve the principles of human rights, labor, environmental, and anti-corruption in the behavior of multinational enterprises. This compact, which was approved in 2000 by the United Nations Economic and Social Council, differs from other international agreements. In this compact, governments do not have a role in regulating MNEs. The United Nations directly supports MNEs to regulate non-compulsory rules with the tools of dialogue, learning and partnership projects. Such an initiative brought a flood of criticism. (1) Its 10 principles are vague. (2) The Compact supports the capture of the United Nations. (3) The Compact is not accountable. The current article is based on the premise that the requirement for this compact is crucial and (a) vague principles are designed to allow MNEs to provide new solutions, (b) the intervention of MNEs in policymaking leads to the systematization of unwritten and behind-the-scenes policies. (c) The criticism of the non-accountability is due to a lack of understanding of the true nature of the compact.
International Law
Masoumeh Parsoon; ali kadkhodaei; mohsen hataminia
Abstract
In 2020, the Eastern Mediterranean region passed one of its most challenging historical times. The discovery of significant hydrocarbon resources deepened the gap between regional countries’ opinions regarding the delimitation of maritime boundaries, which has been accompanied by the influence ...
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In 2020, the Eastern Mediterranean region passed one of its most challenging historical times. The discovery of significant hydrocarbon resources deepened the gap between regional countries’ opinions regarding the delimitation of maritime boundaries, which has been accompanied by the influence of regional and global powers. The existence of oil and gas fields in the Eastern Mediterranean increased the competition of coastal states to expand their claimed maritime area to such an extent that they demarcated maritime borders without being neighbors and pushed NATO members: Turkey, France and Greece to the point of military conflict. In the turbulent political situation of the region, the announcement of Türkiye's Blue Homeland doctrine following the signing of an MOU on the maritime boundary between Türkiye and Libya caused protests by some countries. This issue prompted Greece to continue negotiations with Egypt at a faster pace and reach a maritime border agreement. Although the shadow of the political affairs of the regional countries on the agreements is clear, we will try to examine the legal aspects of Türkiye's action in introducing the Blue Homeland from the perspective of international law of the seas and judicial procedure.
International Law
Mohammad saleh Anisi; Mahnaz Rashidi; mahdi piri
Abstract
Today, state's utilization of international watercourses is very important considering the essential role of water in human life and livelihood. Although this issue is subject to a unique legal regime in a special way, it also has very important aspects of human rights. Currently, the water crisis ...
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Today, state's utilization of international watercourses is very important considering the essential role of water in human life and livelihood. Although this issue is subject to a unique legal regime in a special way, it also has very important aspects of human rights. Currently, the water crisis in the Hirmand Basin has human rights aspects more than ever before. The right to access to water, the right to health, and finally the right to life are among the rights that need to be respected and protected in national and international dimensions. The present paper is also related to the explanation of various dimensions of human rights, as well as the examination of international legal and judicial rulings that can be applied to the subject and their application through analogy and induction with the current crisis of the Hirmand basin mentioned the requirements of human and transboundary rights in this particular case, and then by explaining the current legal gaps, explained the minimum approaches to respect, protect and implement the right to access to water as an appropriate international legal solution
International Law
Roya Zarenemati; S.Ghasem Zamani
Abstract
The right to life is the first human right that forms the central core of the human rights system.In order to protect this right, governments are obliged to respect and protect the right to life and provide provisions for the people under their jurisdiction.There is an inseparable link between health ...
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The right to life is the first human right that forms the central core of the human rights system.In order to protect this right, governments are obliged to respect and protect the right to life and provide provisions for the people under their jurisdiction.There is an inseparable link between health and human life. It exists and benefiting from physical and mental health is a necessary prelude to preserving life and human dignity. But today, humanity is facing phenomena and crises such as emerging infectious diseases El Nino, water shortage, global warming which have seriously threatened the health and peace of the body and jeopardized the international peace and security and the efficiency and effectiveness of the regulations. International law and the performance of governments in the face of such global crises have been questioned and have led to the revelation of the shortcomings of the international law system in the field of preventing and dealing with infectious diseases such as Covid19 Although various international documents have addressed the issue of international obligations of governments and the world community in this field the findings of the present study show that the anticipated obligations were not very efficient and effective and require
International Law
maysam haghseresht
Abstract
Today, the penetration of artificial intelligence in various fields has made its control and development one of the most challenging issues. The right to health is one of the fields that have always been affected by the progress of this technology and has caused extensive changes in this field. By examining ...
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Today, the penetration of artificial intelligence in various fields has made its control and development one of the most challenging issues. The right to health is one of the fields that have always been affected by the progress of this technology and has caused extensive changes in this field. By examining the effects of artificial intelligence on the right to health as one of the components of human rights; The basic question is what are the negative and positive effects of artificial intelligence on the right to health?In the fundamental components of the right to health, as well as the rights related to the right to health, such as the right to work, education, human dignity, non-discrimination, privacy, access to information, etc., despite the positive effects of this technology, we also see harm. So that the violation of human dignity, the right to privacy and the principle of non-discrimination and the possibility of access for everyone and the responsibility of users are among the worrying issues of the development of this technology in the field of the right to health, which should be considered in the field of protection.
International Law
Mehryar Dashab; Kosar Talebi Esfandarani
Abstract
The world of sports is not limited to a specific country and group, and this is the extra-territorial and cross-century feature of sports that distinguishes it from other human phenomena. The world of sports is an efficient tool in the hands of the international human rights system, which can provide ...
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The world of sports is not limited to a specific country and group, and this is the extra-territorial and cross-century feature of sports that distinguishes it from other human phenomena. The world of sports is an efficient tool in the hands of the international human rights system, which can provide a basis for the realization and promotion of human rights due to human desire for physical activity. In the meantime, children are in the center of attention as athletes. In this article, we have tried to answer the key question of how to protect the rights of children in the field of professional sports by explaining the dimensions of child-athlete rights violations. Children's rights are widely supported by the government and others due to everyone's obligation to respect and guarantee compliance, but the sports arena generally does not allow government interference in its affairs. For this purpose, relying on the responsibility of the legal system governing the field of sports, a comprehensive investigation should be conducted in line with the feasibility of the situation and how to apply the minimum age rule in the field of sports within the framework of the Convention on the Rights of the Child.
International Law
Siavash alizadeh; Seyed Qasem zamani
Abstract
Identifying the concept of the legal interest and ascertaining the “ interested party ” are amongst the most critical responsibilities for any judicial body. The term interested party is attributed to an individual or entity with a legal interest in initiating legal proceedings. The European ...
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Identifying the concept of the legal interest and ascertaining the “ interested party ” are amongst the most critical responsibilities for any judicial body. The term interested party is attributed to an individual or entity with a legal interest in initiating legal proceedings. The European Convention on Human Rights, as a legal instrument cited by the European Court of Human Rights (“ECtHR”) in Articles 33, 34, and 35, outlines the scope and specification of the right holders seeking to appear before the court. The present article aims to explore the extent to which the ECtHR’s initiative has influenced the conceptual and practical development of the notion of interested party. It also delves into the underlying principles and justifications that have served as the foundation for this procedural transformation. A comprehensive analysis of the judicial practice of the ECtHR reveals noteworthy innovations in the court's perspective on the concept of the interested party. These innovations are derived from the fundamental principles of human rights, legal techniques, and a comprehensive comprehension of the current social transformations. This article revisits the concept of interested party utilizing the library resources and decisions issued by the ECtHR, in addition to employing an analytical-descriptive methodology.
International Law
Anahita Seifi; farangiz mansori
Abstract
Many studies have been done on the vulnerability of women in conflict and collective violence. However, there is relatively less discussion of women's experiences as defendants and perpetrators of mass violence and conflicts in international criminal courts. By looking at the case of some female ...
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Many studies have been done on the vulnerability of women in conflict and collective violence. However, there is relatively less discussion of women's experiences as defendants and perpetrators of mass violence and conflicts in international criminal courts. By looking at the case of some female defendants in international criminal courts, this article investigates the formation of legal discourses in the form of stereotypes of femininity, conflict and mass violence.This raises questions; Why, in the procedure of the criminal courts, a large number of male perpetrators and few female perpetrators have been convicted. Are women less capable of committing mass violence and crimes than men? Why are female perpetrators punished less than male perpetrators for committing similar crimes? In this regard, this article examines gender narratives such as mother, wife, monster, etc, which are used in relation to female defendants in international criminal courts. And It shows that these narratives highlight the incompatibility of femininity with violence and reject the agency of women in political and military contexts and committing violence.
International Law
Saman Shafiee
Abstract
Body searches, especially strip and cavity searches or intimate searches, inherently violate human dignity and privacy. However, prisons have no other way to prevent the entry of prohibited objects and substances. That’s why international institutions and documents protecting human rights have ...
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Body searches, especially strip and cavity searches or intimate searches, inherently violate human dignity and privacy. However, prisons have no other way to prevent the entry of prohibited objects and substances. That’s why international institutions and documents protecting human rights have occasionally accepted their use. Although they have considerations regarding the method of application and implementation, especially for special groups such as children and patients. This research is trying to evaluate the conditions under which body search may lead to inhuman treatment and even torture by using library and documentary sources and to answer these questions: where is the threshold for entering the forbidden territory in the body search? And to what extent are Iran's laws and regulations in line with human rights standards? The findings of this research show that Iran's criminal system has taken into consideration the basic issues of human rights standards by specifying the prohibition of strip and cavity searches except in exceptional cases and subject to meeting conditions in the executive regulations of the prisons organization. However, it is necessary to provide considerations for some sensitive groups, such as children and teenagers, in laws and regulations for full compliance with human rights standards.
International Law
Seyed Qasem Zamani; Maryam Hosseinabadi
Abstract
IntroductionThe presence of Non-State Armed Groups (NSAGs) in conflicts with each other or against states has increasingly posed a threat to international peace and security in recent decades. In this respect, it is essential to examine the extent to which these groups adhere to the principles of international ...
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IntroductionThe presence of Non-State Armed Groups (NSAGs) in conflicts with each other or against states has increasingly posed a threat to international peace and security in recent decades. In this respect, it is essential to examine the extent to which these groups adhere to the principles of international humanitarian law (IHL)—a branch of international law that regulates both international and non-international armed conflicts. Equally important is understanding the theoretical foundations that underscore the necessity of NSAGs’ compliance with IHL, as their adherence or non-adherence to these primary rules impacts the application of secondary rules, which serve as guarantees for breaches of primary rules. For a long time after the United Nations was established on the ruins of the League of Nations, which had failed to prevent two world wars, international armed conflicts between states were viewed as primary threats to global peace and security. However, in recent decades, conflicts involving NSAGs—sometimes with substantial military capabilities—against each other or against states have emerged as significant threats to international peace and security. The increasing number of non-state armed conflicts, where NSAGs hold considerable power as parties to the conflict, presents new challenges in the field of international law. It is essential to address these issues, as legal frameworks must evolve to respond to contemporary societal developments and issues. A key question is whether IHL rules are binding on NSAGs, and if so, what theoretical foundations justify such adherence and what impact compliance (or lack thereof) has on these groups in armed conflicts. The present study aimed to address these questions by drawing on library and online sources, along with relevant international documents. The analysis focused on the NSAGs involved in non-international armed conflicts in Yemen. Literature ReviewThis research discussed the theoretical foundations of NSAGs’ obligations under IHL and the necessity and implications of recognizing NSAGs’ adherence to IHL, focusing on the non-international armed conflict in Yemen. Several studies have dealt with these issues. For example, Ahlborn (2011) explored the rules governing international organizations and the law of international responsibility. Similarly, Clapham (2010) delved into the rights and responsibilities of non-state armed actors, examining the legal complexities and issues. Fazaeli (2016) focused on the context of Yemen, analyzing military intervention there through the lens of international law. Karamzadeh and Moradian (2015) also approached the topic by investigating the principles guiding non-state groups’ compliance with humanitarian laws. Their research contrasts Islamic and international humanitarian perspectives, using Iraq and Syria as case studies. Finally, Qureshi (2019) examined the applicability of international humanitarian law to non-state actors. Materials and MethodsThe present study used a descriptive–analytical approach and international sources and doctrines to clarify theories regarding the adherence of NSAGs to IHL and its impact on secondary rules, with a particular focus on the non-international armed conflict in Yemen. Results and DiscussionThe analysis of normative rules reveal that NSAGs are not considered as unknown entities in the field of international law. Instead, legal issues addressing these groups are becoming more regularized due to their diversity, importance, and the wide-ranging roles they play across various dimensions within the international community. In this context, it can be argued that NSAGs involved in non-international armed conflicts possess, to some extent, international legal personality and are subject to specific obligations and responsibilities under international law. It seems that international law is not yet fully developed, but it possesses a dynamic and flexible nature. This adaptability allows for a focus on advancing progressive theories within international law. Therefore, clarifying perspectives on the necessity for NSAGs to observe humanitarian rules—and the impact of this adherence on secondary rules—plays a crucial role in enhancing the theoretical understanding of international law. ConclusionAmong the various theories in this field, the theory advocating for the adherence of NSAGs to international law appears the most realistic. This is largely due to its emphasis on the organizational structure of these groups and control over territory. Applying this theory may also pave the way for addressing the issue of international responsibility of NSAGs in non-international armed conflicts.
International Law
Vahid Salehi; Mohammad Hashemi; Seyed Ghasem Zamani
Abstract
IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental ...
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IntroductionThe present article deals with the study and review of the theoretical foundations and practical practice of the International Criminal Tribunal for former Yugoslavia and Rwanda courts in dealing with the concept of legal security. Since security, as a situation that brings forth mental and intellectual peace of a person, has legal effects on social relations, it has been attended to by the legal, legislative, and judicial systems of the countries since a long time ago, and the mechanisms for its establishment have been set out to guarantee the fundamental rights of people. The destruction of domestic governmental and non-governmental organizations, especially the judicial system in the two mentioned territories (the former Yugoslavia and Rwanda), highlights the domestic inability of these countries to establish transitional justice and national reconciliation between the militant groups and the survivors and victims of international crimes. These courts were created as a part of the global strategy to end violence and prevent its reoccurrence, establish justice in the mentioned territories, and establish international peace and security. therefore, by anticipating the most important aspects of the protection and guarantee of the fundamental rights and freedoms of individuals (including the accused, suspects, convicts, victims, and witnesses), the goal of legal security has been made possible to reach.The main question of the article is, what impact have the mentioned courts had on the establishment of the principle of legal security in the international arena and the relevant countries? Literature ReviewAlthough many books, treatises, dissertations, and articles have been authored on each of the topics of this research on both the domestic and international stage, the research method of this essay that considers the function of these two international criminal courts in the creation of this principle is unprecedented. Therefore, the following article is new research. finding a solid and meaningful link between the objective criteria of the principle of legal security and the decisions and opinions of the courts in their judicial proceedings is the main innovation of the present research. The purpose of this research is to show the practical approach of the mentioned international criminal courts towards legal security. Methodologythis research is both an "applied research" and a "fundamental" one in terms of its purpose, results, and use. The research method is "descriptive and analytical" in terms of the nature of the subject and the method of analysis. The data collection has been through library research, i.e., reference to academic and personal libraries, legal research centers, and accessing books, articles, theses, magazines, academic theses, and websites.Accordingly, We Will Discuss the Following The Concept of Security in the Domestic and International ArenaIn general, security is a situation where a kind of reasonable and proportionate link is between the demands and the possessions of the actors in a political and legal community which ultimately leads to the satisfaction of those actors. The concept of legal security has entered the international arena from the domestic laws of the countries, and various forms of human security have been met with the approval of the most important international documents (such as the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights). Sub-principles Resulting from the Legal SecurityAlthough in terms of the diversity of the legal, political, economic, social ,and cultural concepts and trends, it is not possible to present afixed ratio and connection between the protection of citizenship rights and legal security, in general, there are legal regulations and legal criteria in the legal system of countries which are not only secondary to the principle of legal security but are also its constituent elements, and in terms of importance in the legal literature, they are interpreted as "principles". What is meant by the sub-principles arising from the principle of legal security is these rules and criteria which can be categorized into the two forms of principles that guarantee the quality of laws (such as the principles of transparency and ease of access to laws) and the principles that guarantee the legal status of individuals (the principles of predictability of laws and the presumption of innocence). The first group is the principles that protect the rights of citizens, And the second group protects the legal security of the citizens against the government’s power and are actually the supporters of fundamental individual freedoms. The stronger the mechanisms of safeguarding individuals’ fundamental rights, the stronger and more stable their security against the government is. The practice of the International Criminal Courts of the Former Yugoslavia and Rwanda in facing the said principles is:1-3. The principles that guarantee the quality of the lawsThese are the principles that contain the components of the laws in expressing the rights and duties of persons. The significant feature of these principles is that not only must laws be clear and understandable to individuals, courts, and states, but they also must be easily accessible. Transparency of the laws and ease of access to them are among the most important principles that guarantee the quality of laws. Not only the compliance of the laws, regulations, statutes, and procedures of the two Criminal Courts to the international standards and human rights has added to the richness of their quality, but also the practical practice of the said courts in removing the ambiguity and clarifying the laws and also facilitating access of users and actors to the rules and regulations has established and increased legal security.2-3. The Principles that Support the Legal Status of PeopleThese principles are related to the stage of applying laws and regulations. The main function of the aforementioned principles is to maintain the status created for individuals by the legal norms. The principle of predictability of laws is one of the most important of these principles, which are set out in the statutes, rules of procedure, and evidence of specific criminal courts and have manifested in the practice of those courts.4. ConclusionIn hearing and deciding important cases such as; Tadić, Ekaiso, Hasanović, Blaskić, Simić, Selbići and Delalić, Erdemović, Kernojlač, Milosevic and Berdjanin, The mentioned International Criminal Tribunals have set the ground for the establishment and promotion of legal security at both the domestic level of these countries and in the international arena by clarifying and removing the ambiguity from the laws and regulations, promoting the principle of ease of access = to laws, employing the presumption of innocence principle, observing the international human rights and resorting to customary international norms regarding the extension of laws to former criminal behaviors, and by compliance with the principle of predictability of laws (despite the legal and judicial challenges in this field), while preventing the impunity of the perpetrators of international crimes under their jurisdiction.Keywords: Legal Security, International Criminal Tribunals, Former Yugoslavia, Rwanda, Innocence, Ease of Access to Laws.
International Law
Sattar Azizi; Keivan Eghbali
Abstract
IntroductionResearch Question(s) The right to development brings forth an approach to the development of human societies in which all human rights standards are considered and the economic development of the nation is fundamentally integrated into the human right to development. Although women make ...
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IntroductionResearch Question(s) The right to development brings forth an approach to the development of human societies in which all human rights standards are considered and the economic development of the nation is fundamentally integrated into the human right to development. Although women make up half of the population of every society, they have always been facing discrimination in achieving their rights. It seems that providing a platform for women for their equal presence in any decision-making process related to human-rights-based development in their respective societies is one of the most efficient ways to facilitate women's achievement of the said right. 2. Literature ReviewRegarding the issue of the right to development and the ways to achieve it, some research has been conducted in Persian, among which we can mention “The Influence of Good Governance on Implementing the Right to Development” by Habibzadeh, et al. (2013). However, not much research has been done to address the issue of women's right to development to be achieved through public participation.3. MethodologyThis research, using a descriptive-analytical method, tries to examine the place of public participation in ensuring women's access to the right to development.4. ConclusionCreating a platform for the presence of women in the decision-making processes provides the opportunity to bring up the needs and the rights requested by women when society makes decisions about planning programs to advance development. In addition, it would provide the possibility of following up on the level of practical attention to women’s needs and priorities in the implementation of these programs. Facilitating the participation of women in the development plans and decision-making processes is an important step in improving their status in other areas such as raising their level of education, health, employment, security, and so forth; because they’ve had the opportunity to express their wishes and opinions in the formulation of the development plans, as well as in monitoring the implementation of these plans. Such participation can lead the way for women to continue a free life, which is the ultimate goal of the right to development.Ensuring public participation of women in the governing of society requires attention to the right to free, fair, equal, open, and transparent participation of the people in the democratic process of managing the affairs of their governments. The said right is considered the right of the people to enjoy a democratic system that allows them to participate widely in the various political, economic, social, and cultural affairs of their country, meaning they can participate in the regularization of relations between the governors and the governed. The important point is that the realization of women's public participation is unimaginable without the existence of tools such as the system of selective representation, a dynamic civil society, and free access to information.One can talk about the real participation of women in a society in determining their own destiny when the said society, in the first stage, has a type of representative system that gives the individuals the right to participate in the selection of the decision-makers, as well as the right to be elected as the decision-makers of the society. As stipulated in Article 25 of the Covenant of Civil and Political Rights, the right of citizens to elect and be elected should be considered as one of the basic elements of public participation.Another essential pillar in the path of realizing the participation of women is the existence of a dynamic civil society. Civil society consists of a wide range of non-governmental organizations formed around the general issues of society, such as seeking justice, religious matters, educational affairs, etc. Civil society plays an important role in informing the elites and the ordinary citizens to get aware of the needs of the public in decision-making. The important impact of institutions in civil society is to strengthen public participation by encouraging citizens to participate politically in the decision-making process. Civil society is considered a very useful groundwork for ordinary citizens, including women, to raise their demands and bring them to the attention of the society's political leaders. The Citizens who lack the support of organized power groups in many cases have less opportunity to raise attention to their demands.In addition to having the right to elect and be elected and the existence of a dynamic civil society, women's public participation is largely dependent on transparency and access to information; Information that should be free, relevant, up-to-date, understandable, and available to individuals and groups of citizens in order to make an informed choice. In other words, the right of access to information is a prerequisite for informed public participation by citizens, including women. The lack of free access to information is a big obstacle in the way of effective participation of women because if the women do not have access to information, they do not have a correct understanding of the discussed issues and will not be able to make appropriate and informed decisions regarding those issues.The experience of countries such as Tunisia or Botswana are good examples of how public participation can be used to voice women’s problems and needs for public decision-making for adopting development programs. This participation has had very positive effects on improving women's access to their rights in the development process of the aforementioned societies, by making it possible to include women's demands in the formulation and implementation of community development programs, as well as in monitoring the progress of these programs.Keywords: Women’s Right to Development, Public Participation, Free Elections, Dynamic Civil Society, Freedom of Media
International Law
Seyed Hossein Malakooti Hashjin; Nasim Soleymani nejad; Seyed Ali Mousavi
Abstract
Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing ...
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Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing daily. Initially, constitutions were primarily considered as national documents confined within a country's borders. However, this perspective no longer holds in the era of globalization. constitutional rights, as a subset of public rights, are no exception. Nevertheless, the internationalization of constitutional laws continues to face numerous challenges and raises many controversies. For instance, if a domestic constitution is influenced by international law, it might undergo substantial changes. This process reflects that national constitutions are essentially part of a broader international legal framework. The inclusion of human rights in domestic constitutions, the increase in the convergence between national and international constitutions, and the alignment of the legal systems with the global market all contribute to the internationalization of constitutions. Furthermore, in entities like the European Union, internationalization occurs partially or regionally which forms the legal framework for the member states. Additionally, focusing on shared ideological principles among governments can lead to the transnationalization of certain constitutional principles. This not only serves to hold governments accountable but also allows for a comparative assessment of judicial practices concerning common issues. In general, the internationalization of constitutional laws can be viewed as a tool to curb the political powers of the government and officials within the framework of harmonized and effective legal principles. This article introduces and explores different facets of this process. Research Questions What are the opportunities and challenges before the internationalization of constitutional laws?What sets the ground for the creation and the status of cross-border principles, and what is their impact on national constitutions? Literature ReviewIn delving into the research background on the internationalization of constitutional laws, it is pertinent to consider factors such as governments' accession to documents related to or containing provisions on international human rights and the shifts in the global legal atmosphere. These steps signify changes in the global legal thinking that play a role in shaping the constitutions of nations. The influence of regional organizations like the European Union in instigating changes in the constitutional laws of member states is also noteworthy. These regional interactions can directly affect the constitutional laws of member states in economic, legal, and political aspects. In this context, many articles have examined the intricate interplay between the Constitution, international law, and global governance[1], as well as the potential for the internationalization of constitutions in different countries through adherence to international documents.[2] However, few sources have tackled the existing challenges and the future prospects. Methodology This research is fundamental research, employing a library-based method to collect and review data from documents, books, writings, articles, and foreign sources. In terms of research methodology, this study follows a non-comparative approach wherein it first delves into the factors and the driving forces behind the shift toward internationalization of fundamental laws, the second part focuses on delineating and explaining partial or regional internationalization and the associated challenges, and finally, the third part presents the outlook of this initiative. ConclusionThis research aims to provide an in-depth understanding of the role of international human rights in national constitutions and the extent to which governments adhere to these documents. It also seeks to elucidate the impact of changes in global legal thinking on the constitutional frameworks of countries and their alignment with international law. The study investigates the role of regional organizations such as the European Union in promoting and facilitating the internationalization of constitutional laws in specific regions and how they affect the methods for adapting and formulating constitutional laws. In conclusion, the study finds that firstly, despite the debates among legal scholars, transnational principles are not always universally applicable, sometimes they are specific to particular geographical regions or their religious beliefs. furthermore, these principles allow oversight of governments and dual control through the application of binding domestic and international mechanisms. additionally, they enable a comparative examination of the judicial practices across different countries on common issues. In conclusion, the essay provides that the internationalization of constitutional laws can serve as a tool to underpin the restraint of political powers within the framework of harmonious and effective legal principles. [1]. Vicki C. Jackson, Paradigms of Public Law: Transnational Constitutional Values and Democratic Challenges, International Journal of Constitutional Law, (2010) 8.[2]. Wen-Chen Chang, ‘An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, National Taiwan University Law Review, (2009) 4(3).
International Law
Ebrahim Rahbari
Abstract
IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big ...
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IntroductionThe development of digital markets and the increasing importance of big data has brought new challenges in the concept of abuse of dominant position. In platform markets, the entry barriers and the presence of big tech giants (gatekeepers) who have taken over the market by employing big data, make it difficult for newcomers to enter the market and there is a good opportunity for big data companies to abuse their dominant position and commit anti-competitive practices, all of which brings new issues to antitrust law.It is clear that we can apply general rules on the abuse of dominant positions and monopolizing in the big data field. This article clarifies how abusive behaviors such as unilateral refusal to share necessary big data or restricting access to it can disrupt competition in downstream or adjacent markets and also, how deceptive practices of platforms in collecting data have gradually surfaced in the realm of competition law. This research also analyzes price discrimination and predatory pricing by using big data and the challenging issue of entering other markets by leveraging big data. Literature ReviewThere are no studies in Iranian legal literature that discuss different aspects of the abuse of dominant position by use of big data. Viewing the challenges from the perspective of Iranian Competition Law, the current research analyzes the issues and provides some particular solutions for the first time. MethodologyThe method of this research is descriptive-analytical done by a comparative approach. ResultsGenerally, refusing to share or restricting access to big data may be considered an abuse of one’s dominant position under certain circumstances. Various factors should be considered such as whether the data is first-second- or third-party, alternative sources to access the big data, the effect of the refusal or the restriction on competition in the related markets, the process of providing new products and services, and the incentives for innovation and investment.Recent approaches to the deceptive collection of data indicate the significance of competitive and economic dimensions of personal data. Since solutions outside the realm of antitrust law are not sufficient to regulate and protect these data, employing decisive remedies of competition law seems justified.Regarding abuse of pricing powers, if price discrimination among users is done by collecting and analyzing big data and tracking and discovering their preferences, and leads to a reduction in the price of products or services and brings real and long-term efficiency, it would be desirable from the perspective of competition law. However, it should be noted that if this arrangement becomes an abusive behavior to restrict the competition for other companies or lay the groundwork for predatory pricing in the future, in such a way that other competitors lose their ability to compete, antitrust law should intervene to prevent this abuse of big data.In addition, platforms are not allowed to abuse the big data that they gather in their system to facilitating the way for themselves or their partners and their related companies to improperly penetrate adjacent or vertical markets at the expense of weakening competitors. Also, tying any kind of products or services to data that the applicants do not need between which no reasonable linkage can be imagined is an example of improper tying arrangements and abuse of a dominant position, which is condemned in antitrust law. In fact, self-preferencing by using data is in itself contrary to competition law norms if it results in a significant disruption of competition. ConclusionIn the Iranian competition law, although the existing general rules and regulations may be effective to a relatively small extent when facing abuse of a dominant position by way of big data, one cannot ignore the shortcomings and inefficiency of these legal frameworks and the necessity to adopt new competition strategies in the light of the diverse aspects of digital markets and as the rising importance of big data. Although some new approaches taken in the Strategic Plan Of the Islamic Republic of Iran in Cyber Space can be seen, those policies and solutions are not in line with competition law standards, the requirements of Iran's digital markets and the big data challenges, and the proposed views lack the necessary legal-technical justification.In fact, the aforementioned document has failed to codify the fundamental principles of competition law in platform markets by not setting the basic foundation and taking the initial steps in the right direction. It points to modern approaches to competition law, controversial in matters which legal systems are dealing with in academic and judicial circles. Despite these considerations, it seems that, especially in Iran, in the absence of an effective competition system and strong monitoring arrangements on the practices of companies, platforms with a dominant position have a real chance to abuse big data, and so, it is incumbent to take stronger measures and remedies to regulate and inspect the behaviors of companies while respecting the fundamental principles and standards of antitrust law.
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.
International Law
Abdollah Abedini
Abstract
Introduction
As outlined in the Statute of the International Court of Justice (ICJ), the principles of law are directly invoked as a main source of international law for addressing legal disputes. These principles also hold significant standing within the domestic legal systems of individual states. ...
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Introduction
As outlined in the Statute of the International Court of Justice (ICJ), the principles of law are directly invoked as a main source of international law for addressing legal disputes. These principles also hold significant standing within the domestic legal systems of individual states. However, in the international law, the principles of law typically serve to address potential gaps, ensuring that legal proceedings can continue uninterrupted before the courts. There is currently a broad consensus that the general principles of law, as delineated in Article (38) of the Statute of the ICJ, include the principles of both national and international legal systems. Yet, the general principles of national law are mainly recognized by the judicial authority in domestic contexts and applied as a distinct principle in the international law. For some legal scholars, the inclusion of Paragraph (3) of Article (38) of the Statute of the ICJ, which allows for the invocation of the general principles of law, is a significant milestone in the international law as it makes the states acknowledge a third source alongside treaties and custom. Some argue that the text-based interpretative approach, as employed by the arbitration and judicial courts, had gained recognition as a general principle of law prior to being formally acknowledged in the 1969 Vienna Convention on the Law of Treaties. Others contend that the general principles of law are characterized by a general, universal nature. In other words, these principles work more openly in dealing with value-based arguments and as such establish rights in a manner particularly evident in the regimes of international human rights and international humanitarian law.
The present study aimed to examine the approach adopted by the International Law Commission (hereafter referred to as the Commission) towards the topic of general principles of law, as well as Iran’s stance in response to the Commission’s approach. Specifically, the Commission has demonstrated a keen interest in studying the sources of international law over the past two decades. Meanwhile, the approach presented in the last three reports by the Special Rapporteur has sparked considerable debate and controversy among proponents and critics alike, primarily concerning the identification of general principles of law derived from the international legal system. The representative of the Islamic Republic of Iran in the United Nations General Assembly Sixth Committee has also voiced opinions regarding those reports.
Literature Review
The discussion on the general principles of law has been relatively rare in the Persian-language studies. The topic typically finds its place in the general books on international law, especially in the sections dedicated to sources of international law. Yet, there are a few Persian-language studies that specifically address the issue. For example, in the article titled “The Nature of the General Principles of Law and Their Functions in International Law,” Mahmoudi (2018) studied the scope and function of general principles of law as well as their roles during the implementation. However, Mahmoudi’s research predates the Commission’s study, so it could not deal with the reports of the Special Rapporteur of the Commission. Moreover, the present study explored the Iranian perspective on the general principles of law, as evidenced in the statements made by the representatives of the Islamic Republic of Iran in the United Nations General Assembly Sixth Committee.
Materials and Methods
First, the present study used a descriptive approach to examine the three reports issued by the Special Rapporteur of the Commission. It then analyzed Iran’s perspectives on the reports, concluding with an analysis of Iran’s stances.
Results and Discussion
The present study aimed to examine the Commission’s methodology in studying the general principles of law, followed by an investigation into Iran’s stance concerning the Commission’s conclusions. According to the findings, Iran’s approach to the Commission’s reports on the general principles of law appears to be acceptable in some aspects while warranting further consideration. The positive aspects of Iran’s approach include highlighting the premature presentation of draft materials by the Rapporteur in the initial report, considering a non-hierarchical approach among sources, and advocating for a comprehensive methodology in extracting general principles of law from all legal systems. Conversely, there are aspects that merit reflection, such as solely relying on Article (38) of the Statute of the ICJ for reviewing general principles of law, acknowledging the role of international judges in crafting rules when confronted with legal gaps or ambiguities, recognizing the framework of customary rules as a means to establish general principles of law, basing subordinate rules outlined in Article (38) of the Statute (including the judicial precedent and doctrine) on the general precedent and legal beliefs of states. Regarding the most challenging aspect in the work of the Special Rapporteur on the general principles of law, it must be acknowledged that a review of the third part of Paragraph (1) of Article (38) of the Statute of the ICJ indicates that extracting general principles of law from the international legal system cannot be inferred from Article (38) of the Statute. Therefore, the Special Rapporteur should seek justification beyond mere reference to Article (38) of the Statute.
Conclusion
The general principles of law hold significant importance within the international legal system. This significance is underscored by the former president of the ICJ, who emphasized that the relevance of general principles will continue to grow, particularly as courts encounter new challenges where existing legal regulations may not suffice, or where there is a need to consider fundamental values recognized by the international community as binding legal regulations or principles applicable to specific conditions occurring in inter-state relations. The present study could offer a sound analysis of Iran’s perspective in light of developments in international law pertaining to general principles. Critically examining and scrutinizing these viewpoints can direct the attention of the Iranian international law community towards the importance of acknowledging Iran’s approach to international law. This, in turn, could facilitate the indirect involvement of Iranian jurists, enhancing the legal stance of Iran’s representatives in the Sixth Committee and other avenues for demonstrating Iran’s approach to formulating international law. Iran’s participation in the Sixth Committee, particularly in reviewing and providing feedback on the Commission’s studies, is inherently a positive move, fostering Iran’s engagement in formulating international legal regulations.
International Law
Meisam Norouzi; Pouya Berelian; Mehdi Eskandari Khoshgu
Abstract
Introduction
Climate change is one of the greatest challenges of humanity. Human activities, notably fossil-fuel combustion, release greenhouse gases into the atmosphere, thus exacerbating climate change. The adverse effects of climate change are already affecting the world, and they may continue ...
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Introduction
Climate change is one of the greatest challenges of humanity. Human activities, notably fossil-fuel combustion, release greenhouse gases into the atmosphere, thus exacerbating climate change. The adverse effects of climate change are already affecting the world, and they may continue to have potentially harmful ramifications at the global level. Despite existing obligations, the efforts made by the world states to reduce greenhouse gas emissions have proven ineffective, leading to continued increases in emissions. In this light, the approach to legal obligations of states to mitigate environmental risks associated with the greenhouse gas emission must offer fresh perspectives on environmental harm while fostering the search for sustainable, ethical, and equitable alternatives. Following international treaties, international conventions addressing environmental concerns should enforce punitive measures against environmentally detrimental actions, often perpetrated under the government’s supervision or tacit approval, including those carried out by the private sector. Some governmental actions and the ensuing greenhouse gas emissions result in environmental pollution and global warming, ultimately leading to the total destruction of the Earth’s environment. It is thus necessary to devise an approach towards the obligations of states to control environmental risks associated with greenhouse gas emissions, which could hold the states accountable for any environmentally harmful measure. In this respect, the present study aimed to address the following research questions: What are the obligations of states to reduce greenhouse gas emissions in combating global climate change? And to what extent these obligations are legally binding? The study is based on the hypothesis that states, in combating climate change, are indeed burdened with specific obligations to decrease greenhouse gas emissions compared to past, and these obligations are typically of a soft nature.
Literature Review
The realm of international obligations concerning the reduction of greenhouse gas emissions has been the subject of valuable research. A number of Persian-language studies (e.g., Khadivi et al., 2019; Mashhadi & Rastegar, 2017; Pourhashemi et al. 2021) delved into the crisis of global climate change by focusing on the regulations and principles of international environmental law, as well as the future trajectory of international law in this regard, with an eye to the role of states. Moreover, several English-language articles (e.g., Ekardt et al., 2018; Hulme, 2009; Morine & Patino, 2010; Shahbazi & Pouya Berelian, 2020) examined the obligations of states to reduce greenhouse gas emissions in combatting global climate change, often analyzing international agreements and considering future developments in the field.
Materials and Methods
The present study used a descriptive–analytical method and a library research method to collect and analyze the data sourced from international documents, books, and related articles.
Results and Discussion
There is a significant likelihood that if actions against international environmental obligations of states are not addressed within a criminological framework, their activities and greenhouse gas emissions will result in environmental pollution and global warming, ultimately leading to the complete destruction of the Earth. The current study highlighted the significant role of the media in elucidating environmental crimes. If environmental destruction and greenhouse gas emissions are criminalized at the international level, states can be held accountable. Consequently, they may use the media to raise awareness of the issue in the national context, informing both the public and private sectors about crimes related to environmental pollution and greenhouse gas emissions by factories. Given that fulfilling the obligations of states necessitates criminalizing undue interference in climate change, it is necessary to consider criminal laws, in addition to states’ obligations, concerning potential non-compliance. Legal actions may encompass not only the issue of climate change itself but also the costs of combating climate change. Therefore, both financial and non-financial aspects must be included. States must take action in case of violations of the responsibility, aiming to compensate for harmful and destructive actions against the environment. Moreover, both public and private sectors should be subject to strict monitoring for environmentally detrimental behavior. In fact, if the governments are tasked with specific obligations to reduce greenhouse gas emissions in line with combatting global climate change, it will automatically lead to compliance on part of the private sector. Thus, there should be strict obligations for the world states, with current soft commitments changing into hard, enforceable ones.
Conclusion
Considering environmental meetings, conventions, and even the Paris Agreement, it seems that such agreements—notwithstanding their binding nature—may fail if member states face challenges such as economic problems. In such cases, the countries may continue to produce greenhouse gases in various ways. Even in the face of complaints by environmentalists, governments will justify their actions on the grounds of economic conditions, employment issues, or managerial considerations. Therefore, if anti-environmental actions—which often occur under the government supervision or with government support and knowledge—are not addressed within a criminological framework, they will likely result in environmental pollution and global warming, leading to the potential destruction of the Earth. This research highlighted the relation between the international environmental protection and the need for a new institutional order, which justifies creating an international court dedicated exclusively to environmental issues. Two significant international commitments in 2015 (i.e., the U.N. 2030 Agenda for Sustainable Development and the 2016 Paris Agreement on Climate Change) underscore the need for specialized environmental courts. The international agreements and obligations, as well as the resulting environmental disputes, have highlighted the importance of having specialized courts to handle such cases. Even before the 2016 Paris Agreement, climate change had already led to numerous lawsuits and judicial decisions. There are two ways to establish an international environmental court: through an international treaty, either within or outside the U.N, or through a U.N. resolution. Moreover, the present study emphasized the crucial role of the media in raising awareness of environmental crimes. As a conclusion, it is necessary to monitor and control both the private and public sectors for environmentally harmful behaviors; however, government obligations to cut greenhouse gas emissions to combat climate change will also positively impact the private sector.
International Law
Hojatollah Mansouri; Soheyla Koosha; Mohammadreza Hatami; Hossein Alkajbaf
Abstract
IntroductionProtecting women’s rights has been a perennial concern of human rights advocates over the past two centuries. Their dedicated efforts have resulted in the recognition of gender equality in key human rights documents such as the Charter of the United Nations, the Universal Declaration ...
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IntroductionProtecting women’s rights has been a perennial concern of human rights advocates over the past two centuries. Their dedicated efforts have resulted in the recognition of gender equality in key human rights documents such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. However, these documents alone have fallen short of achieving the anticipated goals in promoting gender equality. This gap prompted the drafting of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to address gender discrimination in the member states. However, reports from the Committee on the Elimination of Discrimination Against Women reveal that many member states have not fully complied with the provisions of CEDAW. This failure has raised doubts about the effectiveness of CEDAW in safeguarding women’s rights. On one hand, some states have entered reservations to specific provisions of the Convention; on the other hand, there appears to be a lack of binding mechanisms to hold them accountable for violating their obligations. It is thus crucial to re-evaluate the fundamental concepts of gender discrimination and the provisions of CEDAW in order to examine their feasibility in societies with different norms. CEDAW consists of 30 succinct articles aimed at eliminating all forms of discrimination against women in all societies, regardless of cultural, religious, or ethnic differences. However, it does not explicitly address specific religious or cultural norms, presenting only a universal solution that may not align with diverse contextual complexities. Consequently, several member states, including secular and Islamic ones (e.g., India, Pakistan, and Indonesia), encounter challenges in implementing the provisions. The challenges apparently stem from CEDAW’s emphasis on individualism, which overlooks communal concerns and requirements. Predictably, this approach, coupled with affirmative action favoring women, has sparked backlash against the status of women, even in the U.S. and Europe. In this respect, the present study tried to address the following research questions: What approach does CEDAW take towards the norms governing different societies? And what legal model does Islamic Sharia require to be applied in the domestic legal system, particularly within the framework of CEDAW? The research is based on the hypothesis that the effectiveness of CEDAW can be criticized in terms of normative frameworks and legal guarantees for enforcement. Materials and MethodsAs a qualitative inquiry, the present study used a descriptive–analytical method as well as library resources to examine the contemporary approaches of states toward gender equality. To achieve the objective, the study analyzed about 40 primary and secondary documents and sources, including books, journal articles, reports, etc. Results and DiscussionThe study focused on the needs and interests of involved entities, namely the member states, individual members of societies, and particularly women. The examination of the foundational concepts concerning gender equality and the provisions of CEDAW helped gain insight into the overall approach of the document towards cultural and religious norms governing different societies. CEDAW advocates for women’s rights by promoting equality between men and women in society, regardless of their distinctive roles and status within the family and broader community. Consequently, it does not explicitly address equality of rights in terms of equity or in a just or fair manner. Rather, its focus is on placing men and women in the same, equivalent positions. Furthermore, CEDAW does not explicitly refer to norms. Instead, it calls upon the member states to “modify the social and cultural patterns of conduct of men and women.” This approach can be characterized as somewhat abstract and vague, resembling radical individualism or even libertinism. However, many secular and Islamic states possess diverse social and cultural norms, customs, and taboos regarding the individual and social rights of women. Moreover, the teachings of religious leaders and traditional attitudes are heavily influenced by communitarianism. A notable example can be found in the teachings of Imam Ali, who approves or condemns personal behaviors based on their potential impact on society as a whole. Indeed, he strongly advocates for cultural reforms without any prejudice, recognizing the necessity for change when it serves the greater good.It is worth noting that some countries, such as the Islamic republic of Iran which is not even a member party of CEDAW, have reformed their national laws to eliminate discrimination against women, thus aligning more closely with CEDAW’s requirements. However, there are still concerns regarding the scope and the applicability of these social and legal reforms. Recent social backlash against affirmative action favoring women’s rights, freedom of homosexuality, and same-sex marriage in Western societies highlight the challenges in this regard. International legal documents should not underestimate the significance of social and cultural norms of societies, as radical individualism or libertinism can lead to serious issues such as civil disobedience and increased crime rates. There is thus a need for reforms in the provisions of CEDAW in order to meet the diverse needs and requirements of the global community. ConclusionHaving provided a brief overview of fundamental concepts related to gender equality, the present inquiry tested the hypothesis and examined the main shortcomings of CEDAW by delving into their nature and underlying causes. The analysis focused on the points of contention between the provisions of CEDAW and the positive laws in Iran, particularly in light of Islamic teachings. The analysis is crucial because the perspective of Shia leaders (esp. Imam Ali) on gender equality, which is significantly influenced by their communal concerns, has often been overlooked. Concerning the effectiveness of CEDAW, it is essential that interpreters or drafters of any alternative document consider different norms prevailing in the social context of member states, with particular attention to Sharia-based norms. Such an approach enhances the comprehensiveness of the document, enabling it to address different facets of gender discrimination in the member states
International Law
Mahdi Mohebirad; Mehryar Dashab
Abstract
IntroductionFollowing Qatar’s diplomatic crisis in 2017, the UAE implemented a series of measures against Qatar. In response, Qatar filed an application against the UAE at the International Court of Justice (ICJ), citing a violation of the International Convention on the Elimination of All Forms ...
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IntroductionFollowing Qatar’s diplomatic crisis in 2017, the UAE implemented a series of measures against Qatar. In response, Qatar filed an application against the UAE at the International Court of Justice (ICJ), citing a violation of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and claiming racial discrimination based on the national origin of Qataris. In its order dated July 23, 2018, the ICJ, in accordance with Article 22 of the ICERD, held primary jurisdiction to handle the case. The Court determined that the dispute between the parties was related to the interpretation or application of the Convention. Previous descriptive–analytical examinations show significant disagreements about the scope of racial discrimination during preliminary negotiations, with the term national origin being the focus of debates. It can be inferred that national origin, as included in paragraph 1 of Article 1 of the ICERD, entails discrimination based on current nationality. In this respect, the present research aimed to investigate the relationship between racial discrimination based on national origin and discrimination based on current nationality as elaborated in the ICERD. Literature ReviewWhile many studies have examined the ICERD and its committee, a conspicuous gap exists in the available literature concerning racial discrimination based on national origin. Moreover, given that ICJ judgment was issued in 2021, there is no serious monograph or article on this specific subject, except a few tangential studies in the legal scholarship. The two articles closely related to the topic are: “Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates): So Far, So Good?” (Owie, 2020) and “The Role of Committee on the Elimination of Racial Discrimination in the Development of Concepts and Provisions of International Convention on the Elimination of all forms of Racial Discrimination” (MirAbbassi & Hassani, 2020). Materials and MethodsThe current study relied on a descriptive–analytical method, using library research to collect the data from various sources.Results and DiscussionResearch indicates significant differences in the scope of racial discrimination between the premilitary negotiations and the eventual inclusion of the term national origin in Paragraph (1) of Article (1) of the Convention. It can be inferred that this term in the Convention includes discrimination based on current nationality, hence an instance of national origin. The ICERD, which is the main international human rights document combating racial discrimination, defines racial discrimination and outlines its scope and instances. The definition comprises two elements. First, it shall involve “any distinction, exclusion, restriction or preference . . . which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms” (UN General Assembly resolution 2106, p. 2). In other words, actions must lead to discriminatory behavior. Second, discrimination shall be based on prohibited grounds, including “race, colour, descent, or national or ethnic origin” (UN General Assembly resolution 2106, p. 2). However, ambiguities persist regarding the scope and interpretation of the term national origin, as one of the prohibited grounds in the Convention. Disagreements have actually existed among state representatives since drafting the Convention, leading to the ongoing challenges and ambiguities.The Court’s narrow interpretation of national origin and the necessity to address the impact of measures taken against Qatar have drawn criticism. The measures taken by the UAE against Qatari nationals can be considered unilateral coercive measures, violating their rights such as the right to freedom of movement and freedom of communication. Such adverse and negative effects are deemed illegal, as acknowledged by the international documents and reports by the UN Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights. Moreover, since the Convention aims to eliminate all forms of racial discrimination, confirming that the term national origin encompasses current nationality aligns with the Convention’s overall purpose. Conversely, dissenting interpretations that exclude current nationality from the scope of the Convention contradict and undermine the purpose of the ICERD. 6. ConclusionDespite Qatar’s failure in this case, another legal opportunity remains, that is, the decision of the Committee on the Elimination of Racial Discrimination (CERD). In parallel with similar facts, Qatar filed an application to the CERD. In contrast to the ICJ, the committee upheld its jurisdiction in Qatar’s case against the UAE, which is currently under consideration. The Court’s non-compliance with the CERD’s proposal and the ensuing divergent stances of the two judicial and quasi-judicial bodies introduce a new dimension to the issue. In conclusion, the ICJ shall be recognized as the UN’s primary judicial organ with the authority to settle disputes over the interpretation of the Convention. However, the conflicting views between the ICJ and the CERD, particularly following the Qatar–UAE dispute, necessitate judicial dialogue between the two bodies.
International Law
Alireza Jabbari; Mohammad-Reza Parvin; Shahrouz Shokraie
Abstract
IntroductionTrade dress, as an instance of nontraditional trademarks, encompasses the overall visual image of a product, including elements such as size, shape, color or combinations thereof, packaging, textures, graphics, and even specific sales techniques. However, to qualify for legal protection ...
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IntroductionTrade dress, as an instance of nontraditional trademarks, encompasses the overall visual image of a product, including elements such as size, shape, color or combinations thereof, packaging, textures, graphics, and even specific sales techniques. However, to qualify for legal protection in many countries, trade dress must be nonfunctional. A feature is deemed functional if it is essential to the product’s use or purpose, or if it impacts the product’s cost or value. Nowadays, size, shape, color, and color combinations have emerged as crucial branding tools within the pharmaceutical industry. Indeed, the distinctive shapes, colors, and other visual characteristics of medications can be significant, especially when utilized during the patent term. Nevertheless, in certain instances, a drug’s appearance may serve functional or practical purposes, such as uniquely identifying a specific medication, preventing dosing errors through color-coded drug doses, and enhancing patient compliance. In such cases, trade dress provides an additional mechanism to establish exclusive rights over drugs and health technologies beyond the scope and term of patent protection. This can result in gratuitous and complex litigations, hindering generic companies from entering the market, impeding access to healthcare for patients, and negatively impacting patients’ health. Therefore, fundamental questions arise: When does the shape and color of drugs become functional? Do the current laws and regulations in Iran exclude functional features from the scope of registrable trademarks? What are the effects of failing to establish a clear legal barrier to registering functional trademarks on patients’ health and competition in the pharmaceuticals?The present study aimed to review and compare the legislative approaches adopted by Iran and other selected countries regarding the registrability of trade dress in pharmaceuticals. It sought to examine the effectiveness of the functionality doctrine in preventing anti-competitive effects and risks associated with patients’ health.First, the research provided a brief explanation of the scope of trademark protection in pharmaceuticals, followed by a discussion on the functional doctrine, conceptual requirements, and various legal approaches in select countries. Then, the functional doctrine in pharmaceuticals was examined in detail, along with the adverse effects stemming from a lack of explicit legal prohibitions against registering functional trademarks, including its impact on patients’ health, competition, and generic substitution. Then, the study analyzed the effect of alternatives on the registration of functional features as well as the admissible evidence for proving the functionality of trade dress in both courts and trademark offices. Materials and MethodsBased on an analytical–comparative method, the present study used the library research and note-taking techniques to collect the data from various documents, books, and articles. Results and Discussion Concerning the functionality doctrine in the legal systems of Iran and other countries, the study found it challenging to establish clear principles for determining precisely when a feature is deemed functional. Nevertheless, a global trend and consensus exist in advocating for legal prohibitions to prevent the protection and monopolization of such features. The majority of WTO members have embraced this perspective by explicitly excluding functional features from trademark protection. They have instituted legal constraints on the registration of functional trademarks, irrespectiveof whether such trademarks meet another distinctiveness requirement (Handler, 2018). However, the functionality doctrine has not been effectively integrated into Iranian trademark law for a long period. Although there is no specific provision excluding functional features from the scope of trademark protection, Articles (32) of the Act on Patents, Industrial Designs, and Trademarks Registration of 2008 (IRI), as well as Article (105) of the new Industrial Property Protection Plan, allow for the registration of trade dress for pharmaceuticals. It seems necessary to review and amend existing regulations, considering the paramount importance of patients’ health and the necessity to prevent undue hindrances to competitors in accessing and utilizing functional features such as shape, color, and other pharmaceutical signs.According to the research findings, certain design features of pharmaceutical products (e.g., the shape, size, and color of medicines) may evolve into functional features over time. This functionality is not the traditional utilitarian type but a therapeutically-based functionality, as patients come to consider these visual cues an integral part of their treatment (Calboli, 2020). For instance, individuals taking multiple medications daily become deeply familiar with the appearance of their medicines. Particularly, elderly patients rely on the size, color, and shape of drugs to distinguish between various medications or different doses of the same medication. Moreover, patients who have grown accustomed to the appearance of their drugs over many years associate the effectiveness of the treatment with the visual characteristics of the medication. They may have doubts about the efficacy of drugs with a different appearance. In such cases, transitioning from a brand name to generic products with distinct physical features may impact patient adherence, compliance, and the acceptance of medication regimens, potentially leading to medication errors. Additionally, medical service providers may need to invest significant time reassuring patients when prescribing generic medicines with different appearances, as some patients feel doubts about the effectiveness of such medicines. On the other hand, generic producers are unable to replicate the designs of brand-name medicines after the patent expires—due to trade dress protection. They thus find themselves at a distinct competitive disadvantage compared to the original manufacturers, encountering formidable obstacles when attempting to enter the market. ConclusionIran’s Act on Patents, Industrial Designs, and Trademarks of 2008, as well as the new Industrial Property Protection Plan, have embraced a broad and inclusive definition of mark. This definition notably encompasses elements such as packaging, shape, or color. However, it does not explicitly address nontraditional functional trademarks. To address concerns related to potential anti-competitive consequences and risks to patients’ health, it is recommended that signs exclusively comprised of specific qualities be considered absolute grounds for refusal or invalidity in the existing laws and regulations. The qualities are: a) the shape or another characteristic inherently derived from the nature of the goods; b) the shape or another characteristic crucial for achieving a technical result; c) theshape or another characteristic that substantially contributes value to the goods.
International Law
Amirsaed Vakil; Ahmad Ebrahimi
Abstract
Introduction
The joy and excitement that sports bring to fans worldwide, together with the principles of fairness and sportsmanship, requires that the results of sporting events should remain unpredictable and be determined solely based on the skill and will of the athletes, free from any interference ...
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Introduction
The joy and excitement that sports bring to fans worldwide, together with the principles of fairness and sportsmanship, requires that the results of sporting events should remain unpredictable and be determined solely based on the skill and will of the athletes, free from any interference by corrupt entities. The pervasive issue of match-fixing stands out as a significant threat, undermining the very essence of unpredictability in sports results. Now considered as a modern symbol of corruption in the field of sports, match-fixing has evolved into a transnational and cross-border problem as it is associated with gambling, sports betting, and international organized crime. The commercialization of sports, together with the influx of substantial financial resources and wide media coverage, has increased the significance of sports results for both legal and illegal financial companies (Primorac & Pilić, 2020). Consequently, no sport or sports stakeholder remains immune to the consequences of manipulation of results. A report released by Sportradar shows a concerning trend in 2022, revealing the identification of 1212 suspected cases of match-fixing across 12 sports and 92 countries (Sportradar, 2023). In light of this alarming scenario, there is an urgent need to address match-fixing thoroughly by relying on the collective efforts and cooperation of all stakeholders in the field of sports.
Literature Review
A dominant theme in the mainstream literature on match-fixing is the relation between match-fixing and international organized crime, gambling, and legal and illegal betting platforms (e.g., Tweedie & Holden, 2022). There are also case studies focused on specific countries (e.g., Hessert & Goh, 2022). Therefore, the proposed conclusions often advocate for the adoption of criminal laws and regulations within national legal frameworks to address match-fixing (Smith, 2023). Concerning the related literature in Persian, there are a few studies within the sports law. These works predominantly dealt with match-fixing within the scope of domestic law rather than international law or specific sports fields (e.g., Sadati-Fallahabadi, 2021). The studies also offered non-legal solutions (e.g., Mallaei &
Afroozeh, 2021), or addressed the topic from the perspective of sports management and preventive strategies, proposing solutions such as education and the increased awareness to combat match-fixing (see Cheragh-Birjandi et al., 2020). The present study stands out by attempting to identify and analyze the legal nature of match-fixing as both a national and a transnational issue. By focusing on the structures of international sports law (e.g., the Court of Arbitration for Sport), this research aimed to provide a more accurate and nuanced assessment of regulations and the guarantees of their implementation, thus laying the groundwork for effectively confronting and addressing the issue of match-fixing.
Materials and Methods
The current study used a descriptive–analytical method to examine match-fixing, framing the topic within the international sports law and delving into both national and transnational dimensions.
Results and Discussion
According to the Macolin Convention (Council of Europe, 2014), match-fixing involves a multifaceted process with multiple actors that occurs due to sports-related motives—regardless of financial elements—or due to the motives of betting, gambling, or corruption. An analysis of match-fixing in international documents, such as the UN Conventions against Corruption and Transnational Organized Crime, reveals that while these conventions have established a significant international legal framework for corruption-relatedcrimes, they are applicable only when match-fixing is associated with offenses like bribery and organized crime. Moreover, even the Macolin Convention, specifically addressing match-fixing, has not yet achieved global recognition and serves only as the viable option to address the issue (Chappelet, 2015).
Prominent bodies in international sports law, such as the International Olympic Committee and the Court of Arbitration for Sport, have dedicated special attention to the issue of match-fixing. The International Olympic Committee has implemented numerous rules and regulations for preventing, educating, monitoring, and combating match-fixing, as outlined in the Olympic Charter. Following the measures of the International Olympic Committee, international sports organizations have taken significant measures in recent years to combat match-fixing. These efforts generally manifest as ethical and behavioral guidelines, information systems, early warning systems, integrity units, and educational programs (see Criminal Law Provisions for the Prosecution of Competition Manipulation: UNODC-IOC Study, 2016). The jurisprudence of the Court of Arbitration for Sport indicates the development of ratione materiae and personal jurisdiction in addressing match-fixing cases in recent years. To deal with match-fixing cases, the Court adopts a zero-tolerance approach, observing legal principles such as the legality of punishment, proportionality, non-interference, and the prohibition of double trial.
Conclusion
An examination of the performance of various international sports institutions reveals that, from the perspective of international sportslaw, match-fixing is inherently of a disciplinary nature and is treated as a violation of disciplinary standards. In essence, greater emphasis is placed on addressing match-fixing instances driven primarily by sports motives, be they financial or non-financial. This approach avoids associating stakeholders with other criminal activities.
Concerning Iran’s sports law, it is suggested that the shortcomings in the federation regulations be amended by providing a precise and consistent definition of match-fixing, making clear the instances of match-fixing, and developing ratione materiae and personal jurisdiction within the federations. To improve the prosecution process, a series of measures can also be taken, such as establishing a universal standard of proof for proving match-fixing violations, broadening the range of acceptable evidence, and adopting a coherent two-step procedure involving disciplinary and criminal proceedings (with due consideration of legal conditions)—akin to the model observed in UEFA.
Furthermore, the research highlighted notable gaps in international sports law, despite the efforts to establish a suitable international legal framework by the UN, the International Olympic Committee, and the Court of Arbitration for Sport. First, UN conventions, as globally accepted documents, do not specifically address the issue of match-fixing. Second, other declaration documents fall short of covering all forms of match-fixing. Even the Macolin Convention has yet to achieve universal acceptance. Third, the Court of Arbitration for Sport possesses limited executive power and holds a secondary responsibility in this regard. Therefore, it is suggested that the issue of match-fixing be explicitly introduced into international conventions in order to provide a rigorous legal framework for addressing it.
International Law
Mohammad Reza Mogadasifar; Farideh Shaygan
Abstract
IntroductionAsylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark ...
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IntroductionAsylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark on the arduous asylum process due to the fear of torture and persecution in their home country or place of residence, in pursuit of a life that aligns with the minimum standards of human rights. While some successfully obtain refugee status from the host country, some face deportation or repatriation after going through the legal process. In some cases, they may even be returned to a third country, where persecution awaits based on justified evidence. Returning them to their former country is certainly the worst-case scenario for asylum seekers or refugees. The international community has established a legal framework for refugee protection through the 1951 Convention and the 1967 Protocol. Certain rules and principles outlined in these documents are so fundamental that no reservations can be made to them. A notable example is the principle of non-refoulement which prevents the return of refugees to their home country or a third state where persecution is feared.The present study tried to answer the following question: What prevents the return or deportation of a refugee to their home country or a third state? While the treaties do not explicitly answer this question, the jurisprudence of the European Court of Human Rights provides valuable insights into the meaning and legal nature of this principle, as well as methods for assessing the status of a refugee when deciding on repatriation. Although the European Court of Human Rights lacks the authority to review and apply the 1951 Convention Relating to the Status of Refugees, member states of the Council of Europe are obligated to ensure the respect of rights outlined in the European Convention on Human Rights for all individuals within their jurisdiction, including refugees and asylum seekers. At the intersection of the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees, the European Court of Human Rights examines general conditions in the state concerned and the individual applicant’s situation to determine factors preventing repatriation or expulsion. To this end, the Court has set specific limits on the right of states to expel refugees and asylum seekers from their borders. The Court indirectly supports the principle of non-refoulement, aiming to ensure respect and prevent violations of relevant articles of the European Convention on Human Rights, particularly Article (3) which prohibits torture. This implies that the reservation cannot be applied to the principle of non-refoulement, which extends beyond the scope of the 1951 Convention.Literature ReviewWhile there are many articles addressing refugee protection and the non-refoulement principle under the European Convention on Human Rights, they have not explicitly delved into the prohibition of reservation to the non-refoulement principle. Therefore, the current study can be regarded as innovative in both its subject matter and content.Materials and MethodsAdopting a descriptive–analytical method, the present research examined national and international legal literature, the jurisprudence of the European Court of Human Rights, and pertinent international treaties.ConclusionThe European Court of Human Rights, functioning as a monitoring mechanism for the European Convention on Human Rights, has encountered numerous cases involving asylum seekers seeking refugee status. Its jurisprudence has significantly contributed to the development and evolution of laws pertaining to refugee protection. By establishing a connection between the European Convention on Human Rights and the Convention Relating to the Status of Refugees, the Court has effectively offered indirect support to refugees, safeguarding them against deportation, extradition, and repatriation. Its jurisprudence firmly prohibits the application of reservations to the non-refoulement principle.