International Law
Seyed Qasem Zamani; Siavash Alizadeh
Abstract
IntroductionTribunals, in both domestic and international legal systems, hear the claims of parties only under specific circumstances. The rules that define these circumstances fall under the concepts of jurisdiction and admissibility. Rules relating to jurisdiction determine whether a particular judicial ...
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IntroductionTribunals, in both domestic and international legal systems, hear the claims of parties only under specific circumstances. The rules that define these circumstances fall under the concepts of jurisdiction and admissibility. Rules relating to jurisdiction determine whether a particular judicial body has the authority to consider the nature and form of the arguments presented before it. By contrast, rules of admissibility assess whether, in a given case, the necessary conditions for the exercise of that jurisdiction are satisfied with respect to the parties to the lawsuit.The European Court of Human Rights (ECtHR or the Court) is one of the main bodies for adjudicating human rights disputes in the world. After establishing that it has jurisdiction to examine the lawsuit, the ECtHR takes the first step to determine whether an applicant has a sufficient legal interest in bringing a claim. Under European Convention on Human Rights (ECHR or the Convention), Article 33 allows any member state to refer to the ECtHR any alleged violation of the Convention or its Protocols by another member state. Likewise, pursuant to Articles 34 and 35, the ECtHR examines individual applications to ensure that they comply fully with the substantive and procedural requirements set out in the ECHR and that the applicant has suffered a significant disadvantage. If these conditions are satisfied, the ECtHR may declare the application admissible. Accordingly, individuals, groups of individuals, or NGOs may refer to the ECtHR as victims of alleged violations of the ECHR or its Protocols. These provisions define both the conditions under which the ECtHR may hear a case and the categories of applicants entitled to bring claims before it.Despite ECHR’s defining the scope of the interested party and setting out the conditions for access to the dispute-resolution mechanism, the ECtHR provides only a limited procedure. In practice, the ECtHR’s procedure demonstrates both the inadequacy of this restrictive list and the Court’s willingness to broaden the concept of legal interest in order to accommodate a greater number of victims of human rights violations, in accordance with the ECHR and its Protocols. The ECtHR has adapted its approach to contemporary developments within the international community by relying on Article 35(3)(b) of the Convention and employing various interpretative techniques, such as dynamic interpretation and reference to human rights principles (including the principle of access to international justice). By moving away from excessive formalism and rigid reasoning, the ECtHR has recognized the need to develop a more flexible and functional understanding of the concept of interested party in its case law.In light of these developments, the present research aimed to answer the following research question: To what extent has the ECtHR taken the initiative in developing the scope of the concept of interested party? And what principles and justifications have formed the basis of this procedural evolution? Literature ReviewThere is a substantial body of English-language scholarship on the concept of the interested party, legal interest in bringing a claim, and the jurisdiction of the ECtHR. In contrast, Persian-language scholarship appears to be limited, with only a few studies addressing the concept of the interested party, primarily within the contexts of private and public law. However, there appears to be a significant gap in Persian-language scholarship concerning the status, definition, and examples of interested party as reflected in the ECtHR’s procedure. What distinguishes the present study from similar works is its emphasis on the Court’s innovations and initiatives in developing and expanding this concept. Materials and MethodsThe present article adopted an analytical–descriptive approach to examine the distinctive treatment of the concept of interested party in the ECtHR’s procedure. It offered a detailed analysis of the Court’s judgments by drawing on library sources, including books, scholarly articles, and credible legal websites—particularly those relating to the ECtHR. Results and Discussion The principle of effective protection of individuals and the defense of social interests has led to significant innovations in the concept of interested party and the identification of victims of human rights violations. The ECtHR, through legal techniques such as the evolutionary interpretation of procedural rules, caution against excessive formalism, and consideration of the best interests of individuals—particularly minors and the sick—has succeeded in broadening the scope of who may bring claims. Moreover, profound social changes, the evolving roles of individuals in each other’s lives, and the impact of human rights violations on those beyond the direct victim have prompted the ECtHR to recognize claims from indirect victims, thus expanding the scope of who may bring claims. According to the ECtHR, a victim is not only a person directly affected by a rights violation but also anyone who can present logical and convincing evidence indicating the likelihood of such a violation. This approach has effectively opened the door for a wider range of individuals to bring claims. Finally, the recognition of public interest litigation, such as collective litigations, represents one of the ECtHR’s most recent initiatives. This mechanism allows individuals or NGOs to represent a group collectively, protecting universal rights such as the right to health, the right to a clean environment, and the right of access to information. ConclusionIn international law, the right to bring a claim is generally determined by the nature of the case and the purpose of each judicial system. In the International Court of Justice, only states possess the legal standing to file a claim. Over time, however, while this principle has been maintained, the concept of standing before this court has evolved. Similarly, the ECtHR grants legal standing to certain individuals, groups, and NGOs, in line with the objectives for which it was established. Social developments, the growing importance of individual rights, the shift away from formalism, and, most importantly, the humanization of procedural rights have significantly expanded the concept of standing in this court.
Public Law
Ayat Mulaee; Soroush Alizade
Abstract
IntroductionThe present study aimed to examine the impact of modern technologies on the concept of the working class by adopting a systemic perspective and focusing on the relationship between technology and certain legal concepts. The central premise of this research is that technology, as a transformative ...
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IntroductionThe present study aimed to examine the impact of modern technologies on the concept of the working class by adopting a systemic perspective and focusing on the relationship between technology and certain legal concepts. The central premise of this research is that technology, as a transformative factor, can directly influence social structures and drive changes in fundamental concepts such as labor and the worker. The study tried to introduce key concepts and provide an overview of various types of modern technologies, including AI, machine learning, robotic process automation, virtual reality, and the Internet of Things. The analysis also traced the historical evolution of the working class from the Industrial Revolution to the information and digital age. The study went on to analyze philosophical concepts related to labor and the working class, highlighting how Marxist perspectives and other philosophical theories have shaped the understanding of legal notions of labor. The argument relied on a critical analysis of traditional notions of labor and the role of the worker in society, demonstrating their influence on labor conditions and legislation across different social contexts. Literature ReviewThere are a few works dedicated to the role of modern technology in human labor. Notable examples include “The Impact of Information Technology on Improving Human Performance” (Manouchehri & Mohammadi-Zeitouni, 2021) and “The Effect of Production Technology on Production Competitive Capabilities and the Improvement of Business Performance” (Pooya, 2015). However, there appears to be a significant gap in the literature regarding the relationship between modern technology and human labor. Materials and MethodsThe present study relied on a descriptive–analytical methodology grounded in systemic thinking, and the data was collected from library sources. Results and DiscussionThe analysis yielded a new interpretation of the concepts of the worker and labor (or work), highlighting that the impact of modern technologies does not necessarily lead to the exploitation of workers. Drawing on concrete examples from urban contexts in both West and East Germany, the research explored architectural and social differences arising from creativity and freedom, which serve as symbols of technology’s impact on workers’ lives and labor. The findings demonstrated that modern technologies, while often associated with industrial transformation and the emergence of new technological sectors, do not merely exploit nature. Rather, they influence all aspects of human society. By carefully examining architectural structures and their evolution after the reunification of Germany, the current inquiry argues that modern technologies have played a significant role in social assimilation as well as cultural and societal changes. These changes have affected not only workers’ conditions but also the biological and cultural patterns of society more broadly. Moreover, reducing technology to a mere tool risks limiting our understanding of its impact on human life. A comprehensive analysis must consider broader dimensions, including the ways in which governments define and redefine power in relation to technological development. Technology affects not only industry and production but also all dimensions of human life. Consequently, modern technologies cannot be regarded solely as a negative phenomenon ConclusionProfound changes brought about by modern technologies in human societies have exposed the shortcomings of traditional approaches to understanding the concepts of the worker and labor. According to the findings, these transformations will not eliminate the labor force but will instead reshape the nature of their labor. From a philosophical and ideological perspective, the analysis suggests that new technologies can contribute to the growth and development of both society and workers. To better understand these changes and develop effective strategies to address them, it is necessary to reconsider traditional concepts and adopt new perspectives, such as systems thinking and quantitative approaches.
Public Law
Alireza Dabirnia; Shaghayegh Jahanbin Hafshejani
Abstract
IntroductionPublic law serves as the foundational institutional mechanism governing the relationship between the state and its citizens, structuring political authority and ensuring the protection of fundamental rights and freedoms. In representative democracies, public law is a reflection of popular ...
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IntroductionPublic law serves as the foundational institutional mechanism governing the relationship between the state and its citizens, structuring political authority and ensuring the protection of fundamental rights and freedoms. In representative democracies, public law is a reflection of popular will—a contractual instrument through which the people delegate sovereignty to the state while retaining ultimate oversight. Nevertheless, a critical and often underexplored question arises as to whether public law operates to regulate political power, or it can be repurposed to consolidate it, thereby undermining the very freedoms it was designed to protect. In this respect, the current study aimed to examine the dual function of public law—as both a regulator and a consolidator of political power. The analysis focused on the institutional and social conditions that may lead to a functional shift in the role of public law from a regulator into a consolidator. While its normative role is to limit governmental overreach and safeguard individual rights, historical and theoretical evidence suggests that the instruments of public law—such as constitutional frameworks, judicial systems, and administrative bodies—may be co-opted by the state. When this occurs, public law risks becoming an instrument of domination, legitimizing authoritarian practices and eroding democratic foundations. The central problem, therefore, is whether public law can deviate from its regulatory mandate and instead serve to reinforce state power at the expense of popular sovereignty. Literature Review Existing scholarship has extensively analyzed public law as a guarantor of rights and a mechanism for limiting state power. Although research has examined its structural and normative dimensions, comparatively less attention has been paid to its potential transformation into an extra-legal or meta-legal phenomenon capable of reinforcing political authority. Building on the existing debates and literature, the current research explored the conditions under which public law may shift from a tool of regulation to one of consolidation. Materials and MethodsThe research adopted an analytical–descriptive approach, relying on library sources in both Persian and English. It engaged with theoretical frameworks from political philosophy, constitutional law, and sociology to construct a comprehensive understanding of public law’s evolving role in modern states. Results and DiscussionAccording to the results, in well-functioning democracies, public law operates through mechanisms such as the separation of powers, the rule of law, electoral systems, civil society, free media, and political parties—with the ultimate aim of regulating and dispersing political authority. However, when these mechanisms are weakened, corrupted, or absorbed by the state, public law may begin to serve the opposite purpose and merely legitimizing concentrated power, restricting freedoms, and entrenching authoritarian governance. This shift is often accompanied by the strategic use of legal rhetoric to mask the erosion of substantive rights. The findings also revealed an inherent vulnerability. Power possesses a natural propensity for expansion and corruption, as noted in philosophical and historical discourse. The efficacy of public law as a regulator is contingent upon the genuine independence and vitality of its constituent mechanisms. When these oversight institutions (e.g., the judiciary, electoral bodies, or media) are weakened, absorbed, or aligned with the interests of the ruling political power, a critical inversion occurs. In this scenario, public law’s instruments are repurposed. Laws may be used to sanction repression, judicial oversight may be neutralized, and media may become platforms for state propaganda. Consequently, public law sheds its regulatory character and transforms into a sophisticated apparatus for consolidating state power, paradoxically using legal and institutional forms to undermine the very rights it was meant to protect. Conclusion While public law is conceptually and ideally established to regulate political power and cement popular sovereignty, it is not immune to functional perversion. Its role is not static but dynamic and context-dependent. The perpetual and absolute independence of oversight institutions, coupled with an active and aware citizenry, constitutes the essential precondition for preserving public law’s true mission. Without these safeguards, the system designed to restrain power risks becoming its most potent instrument. Thus, the current inquiry underscores that the ultimate guarantor of public law’s proper function is not the law itself, but the sustained political vigilance and constituent power of the people it serves.
International Law
Mohammadreza Mohammadi; Ahmad Momeni Rad; Mostafa Yektafar
Abstract
Introduction In every legal system, the question of who is responsible for violations of established laws and regulations is inseparable from the system in that it serves as a guarantee for enforcing the law. Concerning the international responsibility, the debate centers on how and under what criteria ...
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Introduction In every legal system, the question of who is responsible for violations of established laws and regulations is inseparable from the system in that it serves as a guarantee for enforcing the law. Concerning the international responsibility, the debate centers on how and under what criteria the acts of private persons can be attributed to a state. The core issue is the international responsibility of states for the wrongful acts of private persons under their jurisdiction that affect the international arena. The main challenge lies in establishing the criteria for attributing the acts of private persons to states. In this respect, it is essential to examine the exercise of due diligence and the failure to observe it by states. The current study generally aimed to analyze the concept of due diligence within international law, focusing on its implications for state responsibility toward private persons’ acts. The analysis specifically examined due diligence in the context of the law of the sea, where private fleets constitute key actors. In such cases, attributing wrongful acts to the flag state becomes a critical concern. The research question is: What is the role of states’ failure to exercise due diligence regarding the conduct of private actors under the international law of the sea? Literature ReviewDuring the 19th and 20th centuries, the doctrine of due diligence attracted scholarly attention, especially regarding the protection of foreigners within a state’s territory. In English-language scholarship, this theme has been explored extensively. There are also a few Persian-language studies on the concept of due diligence. For instance, in the article “The Concept and Nature of ‘Due Diligence’ in International Law,” Hosseini and Rahaee (2024) examined the topic in the context of international human rights law. Moreover, the article “Understanding the Concept and Status of ‘Due Diligence’ in International Investment Law” (Hosseini & Habibi-Mojande, 2024) emphasized the role of due diligence in the investment law. The current study, however, deals with a different issue, namely, state responsibility for the actions of private vessels that fly its flag. Materials and MethodsThe research adopted a descriptive–analytical method. The data was collected from library sources and various documents. Results and DiscussionGiven the growing involvement of the private sector in areas traditionally dominated by the state, it is increasingly important to scrutinize the scope of states’ international responsibility for their actions. This issue is especially salient with respect to the law of the sea. Examining a range of doctrinal opinions, the analysis revealed that the concept of due diligence plays a crucial role in determining whether states bear international responsibility for the acts of private actors.The concept of due diligence lacks a single, universally accepted definition in international law; instead, the requirements for exercising due diligence vary according to the specific context. However, according to the established practices and doctrinal opinions, the concept has several essential elements in international law, including the degree of risk predictability, the potential risks associated with various actions, and the exertion of maximum effort to mitigate those risks.In addition, due diligence is a pivotal principle widely recognized by most doctrines on state responsibility under the law of the sea. This is particularly underscored by the 2015 advisory opinion of the International Tribunal for the Law of the Sea, which holds that a state’s international responsibility for the acts of private persons, especially fishing vessels, hinges on whether due diligence was exercised or not. ConclusionThe current inquiry focused on state responsibility for the acts of private vessels that fly its flag, examining the extent to which a state is obligated—under the principle of due diligence—to meet its obligations under the law of the sea. According to the results, states are responsible for the unlawful acts of fishing vessels if they fail to exercise due diligence.
Citizenship rights
Khadijeh Shojaeian
Abstract
IntroductionThe concept of human rights has been the focus of political debate and philosophical theorizing since its inclusion in the 1948 Universal Declaration of Human Rights. A central task of philosophical theories of human rights is the identification of the rights themselves. In this respect, ...
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IntroductionThe concept of human rights has been the focus of political debate and philosophical theorizing since its inclusion in the 1948 Universal Declaration of Human Rights. A central task of philosophical theories of human rights is the identification of the rights themselves. In this respect, there are two general approaches to conceptualizing human rights. A key point of contention is whether human rights should be understood primarily as moral rights or as political–legal concepts. Literature ReviewPersian-language scholarship has largely approached human rights from a moral perspective. It seems that the related literature lacks a full-brown treatment of the topic, although there are some brief discussions, for instance, on Rawls’ theory in the Persian-language monograph titled Human Rights in Contemporary World (Ghari Seyyed Fatemi, 2003). Materials and MethodsThis study relied on a descriptive–analytical method and library sources to explain moral and political approaches to human rights. The analysis focused on comparing the two approaches, as well as highlighting the criticisms leveled at them. Results and DiscussionThe dominant philosophical approach—often called the moral or orthodox view—tends to tie the origin of human rights to natural rights. It argues that these rights belong to humans simply because they are human beings, and that they exist to safeguard human dignity and agency. From this moral standpoint, the foundation of human rights theory is rooted in human nature. Moral theorists define human rights independently of positive law or contemporary discourses on human rights. According to them, human rights are fundamental natural moral rights whose existence and nature are not contingent upon any legal system or social moral code. Since huma rights derive from essential moral traits inherent in human beings, these rights are regarded as universal and timeless.In recent years, a distinct approach has emerged—often called the political or functional perspective—that frames human rights as a contemporary, institutionalized practice. This view does not hinge on a necessary link between morality and human rights; instead, it treats the observance of human rights as a precondition for the legitimacy of states within the international system. According to this perspective, any violation of human rights by a state could justify foreign intervention or even military action. Human rights are seen as essential safeguards that limit state sovereignty; moreover, the list of rights they encompass is typically narrower than the rights enshrined in the constitutions of democratic systems. In this political view, human rights originate within political institutions, regulate the relationship between citizens and the state, and limit sovereign power in the modern international system. ConclusionIn the realm of philosophical theorizing, two prominent approaches have emerged concerning the nature and meaning of human rights. The dominant view foregrounds the moral essence of human rights, emphasizing their continuity with natural rights and asserting that their significance does not depend on any political institution. In contrast, the political approach seeks to clarify ambiguities and address shortcomings inherent in the moral approach. It defines human rights by examining their role and function in international relations, particularly by illustrating how interventions are justified against states that violate human rights or fail to prevent human rights abuses within their borders. Therefore, this view treats human rights as both normative and factual. It holds that state compliance with human rights is essential to their legitimacy, while non‑compliance constitutes a legitimate basis for intervention—ranging from sanctions to military action—in the domestic affairs of violators. Although the political perspective has attracted criticism, the debate over the meaning of human rights is still ongoing within philosophical theorizing.
International Law
Seyede Parisa Mirabi; Masoud Raei; Alireza Ansari Mahyari
Abstract
IntroductionContemporary international law has adopted novel legal principles and norms that reject the use of immunity as a shield for violations of human rights standards. It treats prosecution as a necessary response to moral imperatives stemming from human conscience. Nevertheless, heads of states ...
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IntroductionContemporary international law has adopted novel legal principles and norms that reject the use of immunity as a shield for violations of human rights standards. It treats prosecution as a necessary response to moral imperatives stemming from human conscience. Nevertheless, heads of states continue to evade accountability by invoking the rules of immunity from criminal responsibility. In response, the International Court of Justice (ICJ) has ruled that states are obligated to criminalize offenses and exercise jurisdiction in a deterrent and preventive manner, compelling them to equip their legal systems for the prosecution and trial. These judicial rulings prompted the International Law Commission (ILC) to establish a legal framework that removes such immunity for those individuals. In this regard, the present research focused on the immunity of state officials vis‑à‑vis criminal jurisdiction. By scrutinizing the scope of immunity of state officials, it aimed to clarify the conditions under which national courts may exercise jurisdiction over officials who commit international crimes.Literature ReviewThe jurisdiction of countries in prosecuting state officials has received little attention in Persian‑language scholarship. It is typically addressed only in the sections on diplomatic immunity in the books on public international law. Even this latter perspective deals with the immunity of diplomats and consular officers, overlooking a wide range of state officials. However, some Persian studies do tackle this gap. For instance, Immunity of States and State Officials From the Viewpoint of International Law (Ziyaei-Bigdeli, 2009) examined the immunities afforded to states and officials. However, Bigdeli’s analysis predates the establishment of the ILC’s investigative mandate. Materials and MethodsThe current study adopted a descriptive–analytical approach and a library research method. The analysis began by examining the ICJ’s procedure for trying state officials. It then investigated how the ICJ’s procedure would align with the ILC’s approach to the immunity of state officials from criminal jurisdiction. Results and DiscussionImmunity in public international law is a special status that protects its holders and shields them from certain forms of aggression. In practice, this means that the holder is exempt from prosecution and legal proceedings in the host state. The ICJ has clarified that immunity does not eliminate responsibility. Instead, it limits prosecution to specific times and circumstances. For example, the Minister of Foreign Affairs or the head of a state does not enjoy immunity for non-official acts after the term of office ends. At the same time, by reaffirming the priority of jus cogens—that is, recognizing the hierarchy of legal rules—the ICJ’s reasoning offers a strong basis for challenging immunity where criminal responsibility is required. Taken together, these judicial opinions helped inform the ILC’s attempt to narrow or remove immunity ratione materiae in cases involving serious international crimes.According to international law, the immunity of state officials from foreign criminal jurisdiction—as outlined in the ILC’s draft—precludes immunity ratione materiae for certain serious crimes. Specifically, the following offenses are excluded from protection: Genocide, crimes against humanity, war crimes, crimes of apartheid, torture, and enforced disappearance. These crimes are prohibited under both international treaties and customary international law. States are therefore obligated to equip their legal systems with the tools necessary to investigate, prosecute, and punish perpetrators. This commitment is erga omnes, that is, a common obligation that applies to all states. Therefore, the state officials who commit any of the above crimes will be subject to prosecution and trial in the courts of the competent state after they leave office. ConclusionThis study concludes that immunity rules only temporarily hinder the exercise of jurisdiction—either for a specific period or in relation to certain crimes—but cannot completely absolve an individual from criminal responsibility. Moreover, states have a shared global interest in fulfilling their obligation to exercise jurisdiction in cases involving violations of jus cogens. In this respect, the ILC has removed immunity ratione materiae in cases involving serious crimes committed by foreign officials. This places an obligation on the competent state to prosecute such individuals in accordance with applicable international law and the laws and procedures of the forum state.
International Law
sepanta mojtahedzadeh
Abstract
IntroductionJus cogens, as a super-norm in the normative hierarchy of international law, has always been associated with a certain ambiguity in its definition and recognition, primarily due to its inextricable link with fundamental moral principles. In the conventional law and case law, it is not explicitly ...
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IntroductionJus cogens, as a super-norm in the normative hierarchy of international law, has always been associated with a certain ambiguity in its definition and recognition, primarily due to its inextricable link with fundamental moral principles. In the conventional law and case law, it is not explicitly defined; instead, there are only general criteria for identifying this norm and imposing restrictions on the will of states and other subjects of international law. The identification of a rule as a peremptory norm seems to hinge primarily on the selection of a theoretical justification—should it be natural law theory, public order theory, or customary international law? Moreover, the question of methodology persists: Is there a specific and novel methodological approach for identifying peremptory norms? Or does this concern fall within a realm where recognition is based on the relevant values in an intuitive and clear manner?These questions do not yield easy answers, given the importance and complexity of the topic. It is also challenging to derive a clear and coherent guide from existing state practices in this regard. However, it is evident that the interaction between the two subsidiary sources of international law (i.e., the doctrine and the case law) will be productive, as the ideas and guidelines generated by one can be assessed against the criteria of the other. In this respect, the present study aimed to examine the criteria for identifying peremptory norms of international law (jus cogens) by examining the draft approved in 2022 by the International Law Commission (ILC) regarding their identification and legal effects, alongside relevant international case law and doctrines. The central question is whether these criteria need to be substantiated or the inherent significance of a rule is sufficient for it to be deemed peremptory? Literature ReviewIn Persian-language legal literature, there are several studies about jus cogens or peremptory norms. The notable studies include: “The Foundations and Legal Nature of Jus Cogens From the Perspective of the International Law Commission” (Golchin & Mousazadeh, 2022) and “The Obligation Not to Render Aid or Assistance in Maintaining a Situation Created by the Breach of a Peremptory Norm of General International Law (Momtaz et al., 2018). Much of the relevant literature examines different aspects of jus cogens in international law. What distinguishes the present study from previous research, however, is its focus on the criteria for identifying jus cogens. It does so by drawing on the most recent developments in international law, particularly those reflected in the ILC’s 2022 draft conclusions. Materials and MethodsThe current research used a descriptive–analytical methodology. The data was collected through library research, including credible online sources. Results and DiscussionAccording to the research findings, the relevant criteria must be established in each individual case, and that the inherent significance of a rule, by itself, does not confer peremptory status upon it. In fact, any intuitive or impressionistic identification of jus cogens is rejected—both by the ILC and the international case law. This is why international courts rely on a broad range of tools and evidence to determine the existence of jus cogens, including official statements and legal views of states, diplomatic correspondence, national constitutions, administrative and judicial decisions at both national and international levels, treaty provisions, acts and documents issued by international organizations, and the writings of distinguished international jurists. All these sources are used allegorically rather than exhaustively. It should also be noted that, in the ILC’s view, even subsidiary means of identifying jus cogens—such as the doctrine of leading jurists—are not diminished in importance due to their subsidiary character. Rather, their value lies in their facilitative role in the identification, or more precisely the “proof,” of the existence of a peremptory rule. Conclusion The study focused on the ILC’s draft and the views expressed in its commentary, as well as the opinions of scholars and international jurists. Although the draft does not entirely dispel the ambiguity surrounding jus cogens and the methods for identifying such norms in international law, it has significantly reduced these uncertainties by providing both primary and secondary tools for identifying jus cogens. Therefore, the ILC’s draft constitutes a forward‑looking and constructive document on the criteria for recognizing jus cogens.
Public Law
Vahid Agah; Amir Mohammad Imani
Abstract
IntroductionThe right to freedom of movement, as a core civil and political right, interacts with other fundamental freedoms, giving rise to new rights in modern societies. Among these, the right of access to vehicles and the ability to drive has become essential due to urban expansion, increased distances ...
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IntroductionThe right to freedom of movement, as a core civil and political right, interacts with other fundamental freedoms, giving rise to new rights in modern societies. Among these, the right of access to vehicles and the ability to drive has become essential due to urban expansion, increased distances between home and workplace, and the growing necessity of mobility. Today, driving and using vehicles is indispensable to daily life, and restrictions on this right can undermine the enjoyment of other fundamental rights, such as the right to work and freedom of movement. Consequently, equal access for men and women must be guaranteed, and any restriction should remain exceptional, justified only under international human rights standards and constitutional principles.However, In Iran, women’s access to vehicles and driving has been ambiguously addressed in legislation, regulations, and judicial decisions. This has resulted in limitations—particularly regarding the use of motorcycles and bicycles—which continue to affect women’s ability to fully exercise this right. Although these restrictions have historical roots, they have become a pressing issue in contemporary public law discourse. In this respect, the current study aimed to examine the right to operate a vehicle. The research question is as follows: What legal restrictions exist regarding women’s enjoyment of the right to choose and operate a vehicle under Iranian law?Literature ReviewAlthough the existing literature lacks comprehensive legal analysis, there are a few relevant studies on the topic. For instance, the article “Women’s Cycling and Motorcycling From the Point of View of Islamic Jurisprudence and Law” (Rezvan-Talab et al., 2023) adopted an approach rooted in Islamic jurisprudence (or fiqh). They relied on Islamic jurisprudential and narrative sources to examine the permissibility of women’s horseback riding and the potential extension of such rulings to bicycles and motorcycles. Nevertheless, their study concludes with only a cursory reference to the legal status of women’s horseback riding, cycling, and motorcycling in Iran. In another study, titled “Women’s Citizenship Rights and Choice of Means of Transportation,” Zabetian (2017) briefly discussed the issue of women’s cycling considering the Charter on Citizens’ Rights and prevailing social customs. Her analysis focused on the advantages and disadvantages of bicycle use in urban spaces—regardless of gender—and on the necessity of recognizing women’s right to use bicycles. However, this discussion is largely non-legal in nature. It seems that there is no independent or detailed scholarly research on the legal challenges associated with women’s right to operate vehicles.Materials and MethodsThe present study employed a descriptive–analytical method to examine the research question. The data was collected through library research.Results and DiscussionThe right to freedom of movement, like other rights, interacts with other public freedoms and provides a foundational basis for the emergence and development of new rights. A particularly significant example is the right to operate vehicles. Because of its importance in daily life, this right is now a modern necessity and is closely linked to other human rights. Any denial or restriction of this freedom inevitably undermines the realization of related rights. Although this freedom is not explicitly articulated in international human rights instruments, such silence does not negate its existence. According to the rational relation between the right to freedom of movement and the freedom to choose and operate a vehicle, the right to drive falls within the protective scope of freedom of movement and the prohibition of discrimination enshrined in these instruments. An examination of the Iranian legal framework reveals that the Constitution—as in Articles 2(6), 3(7-9-14), 19, 20, and 22—implicitly recognizes the right to drive without explicitly naming it. Similarly, statutory laws and regulations address driving-related matters but do not impose any explicit prohibition on women’s use of vehicles.Nevertheless, legal ambiguities, legislative gaps, and imprecise drafting have allowed for arbitrary interpretations and discretionary enforcement by authorities, resulting in unwritten and discriminatory restrictions. As a result, women have faced unwritten and discriminatory restrictions preventing them from riding certain vehicles, particularly bicycles and motorcycles, in public spaces— despite the absence of any legal prohibition. Such practices contradict constitutional principles, as Articles 22 and 167 establish that any restriction on public rights and freedoms must be grounded in explicit legal provisions. In the absence of a clear legislative ban, no authority is permitted to impose limitations based on gender or legislative gaps. When the law does not prohibit women from riding bicycles or motorcycles in public spaces, and when the right to drive and obtain a license is recognized equally for all individuals regardless of gender, no official or institution may unilaterally introduce new restrictions by invoking legislative silence or ambiguity. Therefore, women should be able to exercise their right to ride bicycles and motorcycles in public spaces as part of their recognized citizenship rights, provided they comply with general traffic regulations.It is thus incumbent upon the government, in line with its constitutional obligation to safeguard citizens’ rights and eliminate unjust discrimination, to address unlawful practices and repeal unauthorized decrees. Furthermore, legislative reforms should be undertaken, particularly revising the ambiguous Note to Article 20 of the Traffic Violations Law. Such reforms must adhere to the principles of legislative clarity, avoid vague or overly broad language, and include explicit provisions guaranteeing women’s right to cycle. These measures would strengthen gender equality, ensure legal certainty, and reinforce the rule of law in Iran.ConclusionIn Iran, the existing restrictions on women’s riding bicycles and motorcycles in public spaces arise from ambiguities and deficiencies within transportation laws and regulations, as well as from inconsistent interpretations of these provisions, rather than from any explicit legal foundation. It is thus essential for the government to review and amend transportation regulations, repeal unlawful directives, and enact clear legal provisions to guarantee women’s right to cycle. These measures are necessary to ensure that women can exercise this right on an equal basis with men.
