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
Public Law
Morvarid Ahouri; Mohammad Hashemi; Maghsood Ranjbar
Abstract
The approach of liberal and Marxist thinkers, as the two dominant ideas in the twentieth century on freedom, shows their worldview on the issue of freedom and fundamental rights of individuals. The question is, which theories liberals and Marxists hold on the concept of freedom which was gained based ...
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The approach of liberal and Marxist thinkers, as the two dominant ideas in the twentieth century on freedom, shows their worldview on the issue of freedom and fundamental rights of individuals. The question is, which theories liberals and Marxists hold on the concept of freedom which was gained based on historical experience over the past century? Also, to what extent, are their views towards individual rights and freedoms of their citizens and recognition of these rights and freedoms in practice different from each other?! In Berlin's view, Liberals conception of freedom is negative as opposed to Marxists which is a positive conception. Having considered the historical experiences and Marxists and liberals’ views in the last century, it seems that what guarantees the free will and constitutional liberties of individuals is the negative conception of freedom while the positive conception of freedom could lead to denial of free will and ultimately tyranny. Therefore, the main purpose of this article is to study, compare and determine the status of freedom (especially the common interpretation such as negative freedom and positive freedom) in comparison with the principles and rules governing the two political ideas of liberalism and Marxism.
International Law
Morteza Ahmadifard; Mehdi Hatami
Abstract
On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation ...
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On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation was carried out to eliminate the terror of terrorism and self-defense, given that the use of force in international relations today is prohibited by international law and the UN Charter, this article examines the legitimacy of the use of force by Turkey and examines the behavior, goals and feedback resulting from its actions by citing the principles and rules of International law as well as some international jurisprudence, determines that Turkish government has violated the important principle of the prohibition of the use of force which is explicitly stated in paragraph 4 of Article 2 of the Charter, and the reasons given by the authorities of that government, including the fight against terrorism and legitimate defense, cannot justify a violation of this fundamental rule.
Public Law
Hosein Poshtdar; Zeinolabedin Taghavi Fardod; Maryam Taghavi Fardod; Mohammad Taghavi Fardod
Abstract
The phrase “rule of law” is made up of two legal words, rule and law. Regardless of the broad meaning of both words in the legal literature -with each of them having a long history in the science of law- perhaps agreeably, it can be considered as the subordination of all political institutions ...
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The phrase “rule of law” is made up of two legal words, rule and law. Regardless of the broad meaning of both words in the legal literature -with each of them having a long history in the science of law- perhaps agreeably, it can be considered as the subordination of all political institutions to the law in order to regulate the relations between citizens and the government. The root of the rule of law can be found in the theoretical foundations of Western thinkers, in concepts such as power is corrupt. This is why, to achieve a good governance system in Western political philosophy and prevent chaos and establish public order and security, and establish the balance between the conflicting interests of social life through the exercise of governance, the idea of the rule of law has been proposed. It functions as a means to regulate the power of the rulers, negate the tyranny and arbitrariness of the rulers, and also to provide the requirements for the administration of public affairs.This particular interpretation of the concept of power and leadership was proposed in Germany and then in France during the Renaissance. It is the product of legalism and fundamentalism thinking and has three concepts of order; negation of autocracy, libertarianism which are crystallized in the external activities of the government (legislation) and its internal activities (organizational structure of the government).The political school of Shia jurisprudence presents the idea of monotheistic government based on divine law, and does not accept the secularization of government like it is in the age of modernity, and not only it does not consider the nature of power as corrupt, but accepts it as an excellent and admirable basis. Therefore, the nature of power in monotheistic thought is not corrupt, and it is its application and way of usage that turns it into a divine rule or tyrannical rule. On this basis and to establish the divine sovereignty of the Holy Sharia in the Age of Absence, Infallible Imam appoints the jurist Jame al-Sharia as his successor in all affairs of the administration of the Islamic Society.The essence of the idea behind the rule of law, which is the controlling of rulers and regulating the means of exercising government power over citizens, has been formed and evolved mainly based on liberalism and humanism in a country's political system. The liberal view of the rule of law has been formed in two ways: the first concept of the rule of law, which has a right-oriented nature, especially focusing on the right of expression, was formed in contrast with authoritarian rulers and its purpose is to limit the power of the government and protect the rights of individuals.. Another concept of the rule of law is a form that, through the law, emphasizes that the actions and decisions of government officials be rational concerning the citizens.After understanding the rule of law, it is possible to differentiate the formal (organization-oriented) and substantive (right-oriented) rule of law from each other, and by combining the two mentioned dimensions of the rule of law, a more complete model has been achieved in the system of the Islamic Republic of Iran.However, According to the political jurisprudence of Shia and consequently, in its complete model, i.e., the system of the Islamic Republic of Iran, simply examining the idea of the rule of law in each of these forms will lead to incorrect results, In order to achieve this goal, according to the foundations and principles of each political system, the position of the rule of law should be determined as an unchangeable principle or a criterion for guaranteeing other principles.From this point of view, there are fundamental differences between the principles of the rule of law in liberalism and the political system of Shia jurisprudence:1-The concept of lawIn the political system of authentic Shia jurisprudence, the concept of law has also been explained under the concept of monotheism, in such a way that law is an intrinsic matter that is rooted in the origin of the Shia political Jurisprudence. However, the law in the Western political system, are empirical laws that are established under secularism and are based solely on the consensus and opinion of the majority.2- Rule of law modelThe political system of liberalism distinguishes between two concepts of the rule of law: formal rule of law (organization-oriented) and substantive rule of law (right-oriented).The implemented model of the rule of law in the system of the Islamic Republic of Iran is obtained from the combination and synergy of the two mentioned models and is a more complete model.The Islamic legal system is established by the original belief and the basic political system of Shia jurisprudence in obedience to all individuals, even the leadership of the Muslim community. On the other hand, the essence of power is not corrupt in monotheistic thought but how it is applied can turn into either a divine government or a tyranny. The Unique legal system of the Islamic Republic of Iran has a diagnostic and monitoring mechanism that fully complies with the rule of law. This paper discusses the theoretical approaches to the concept and the formal and substantive aspects of the Rule of law in the common law vs. the Islamic Republic of Iran.
Ali Mashhadi; Hormoz Yazdani Zunuz
Abstract
Introduction
The admission of evidence and the burden of proving a claim are crucial elements in asserting rights in any legal proceeding, including the administrative proceeding. Judicial supervision serves specific objectives that the administrative proceeding must align with. Given the disparity ...
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Introduction
The admission of evidence and the burden of proving a claim are crucial elements in asserting rights in any legal proceeding, including the administrative proceeding. Judicial supervision serves specific objectives that the administrative proceeding must align with. Given the disparity in power between citizens and administrative bodies, the admission of evidence in administrative proceedings should be facilitated in favor of citizens. Moreover, that the burden of proof rests with the claimant is a principle that should be adjusted in favor of citizens, and the court should accurately identify the true claimant party. Furthermore, the court’s decisions should be supported by evidence-based reasoning. During proceedings, both parties present their evidence, and the judge should actively seek additional evidence when required. Merely reflecting the conclusion of reasoning in the court’s decision falls short of characterizing the decision as evidence-based. In this respect, the present study aimed to examine a number of decisions by the Administrative Court of Justice concerning the distribution of the burden of proof, the judge’s active approach in seeking evidence, and the incorporation of reasoning process in the decisions. The study tried to address the following research questions: How is the burden of proof distributed between the parties during court proceedings? And to what extent are the issued decisions based on evidence?
Literature Review
A review of the related literature revealed a Persian-language article titled “Critical Analysis of Consideration of Evidence in the Administrative Court of Justice” (Mohsenzadeh, 2018), which investigated the issue of evidence in the Administrative Court of Justice.
Materials and Methods
Using a library research method, the present study analyzed the textual content of decisions issued by various branches of the Administrative Court of Justice.
Results and Discussion
Not every citizen who files a complaint in the Administrative Court of Justice is necessarily the claimant; they may have initially been accused of a violation by the administration. In such instances, the administration is the actual claimant, despite the citizen initiating the legal complaint. Moreover, when the administration fails to fulfill its legal obligations, the plaintiff citizen is burdened with proving the nullity in the lawsuit. Therefore, imposing the burden of proof on the citizen is not commensurate with the objectives of administrative proceedings.
In instances where the administration accuses a citizen of a violation and issues a decision or some kind of punishment based on that accusation, the administration should provide clear and compelling evidence—as imposing punishment necessitates incontrovertible proof. Put differently, by assessing evidence presented by both parties with a margin of 51% favoring the administration and 49% favoring the citizen, one cannot subject the citizen to penalties such as fines, building demolitions, or the revocation of business licenses. In cases where there is no punishment for the citizen, the administration must be held accountable, providing a rationale for its actions and decisions. Consequently, the burden of proof cannot be placed on the citizen making the claim as practiced in civil lawsuits, but rather it is necessary that the judge get actively involved in seeking evidence.
In administrative proceedings, most documents are under the control of the administration, leaving citizens without access to them. It is thus becomes incumbent upon the judge to request those documents from the administration and thoroughly examine them. In administrative proceedings, the judge must not adopt a passive stance, merely accepting the evidence presented by the involved parties. Instead, they should take an active role in seeking out evidence pertinent to different aspects of the case. Furthermore, if necessary, the judge should delegate the investigation to judicial officers or refer the matter to an expert.
Act on Organizations and Procedures of the Administrative Court of Justice addresses this need in Article (7) by considering the referral of matters to experts, as well as in Article (41), which predicts any investigation and the use of judicial officers for such purposes. Additionally, Article (44) grants judges the authority to demand documents from the administration. These articles underscore the imperative for judges to get actively involved in seeking evidence and to leverage these capabilities to uncover the truth and establish certainty in administrative proceedings. These legal provisions are designed to create balance and empower citizens, who often find themselves in a disadvantaged position against administrative bodies wielding public power. Therefore, it is of paramount importance to use such legal provisions in administrative proceedings to safeguard the rights of citizens.
Additionally, the court’s decision must be accompanied by evidence-based reasoning. A reasoned judgment includes the evidence presented by both parties. Moreover, the judge shall be tasked with determining what evidence is the most powerful and persuasive and why. The judge should clearly state both the premises of reasoning and the conclusion in the final verdict. Merely using phrases such as according to the contents of the case and the arguments expressed, followed by the conclusion, does not meet the criteria of evidence-based, valid judgment. Judges must not merely rely on the reasoning process as it goes on in their minds, nor is it sufficient to simply state the conclusion. Instead, they must incorporate the premises, the reasoning, and the conclusion in the final decision.
Conclusion
The findings indicate that the burden of proving the claim weighs heavily on the citizen. The judge, however, rarely exhibited the requisite level of diligence in seeking evidence and leveraging the provisions outlined in Articles (7), (41), and (44) of Act on Organizations and Procedures of the Administrative Court of Justice. It was also found that the reasoning process underlying the court’s decisions was not clearly articulated in the decisions.
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