جستجوی مقالات مرتبط با کلیدواژه « international jurisprudence » در نشریات گروه « علوم انسانی »

The issuance of the 1963 resolution on space by the General Assembly and, accordingly, the discovery of the term "immediate custom" by Professor Bincheng drew the attention of international lawyers and judges to the elements that make up international custom. Classical international custom needs both material and spiritual elements to form, but Ani custom considers only the existence of a spiritual element to be sufficient for the formation of custom. After proposing the theory of Ani custom, supporters of Ani custom with the argument that the acceleration of international developments in various fields, especially technology, especially in the field of space, is happening rapidly, the formation of legal rules related to brought up the international developments. A group of jurists believe that there is no need for the procedure of the governments (material element) over a long period of time, but supporters of Ani custom such as Cheng believe that in general the absence of a material element does not create a problem in the formation of international custom and in this context They point to the developments in the field of space law, referring to the 1963 resolution of space law and the judgment of the International Criminal Court of Yugoslavia in the case of Kupershkij, along with theories such as preemptive legitimate defense and the lack of necessity for the existence of a material element.The material element is based solely on the spiritual element.This article tries to answer the question of whether the international custom is trying to eliminate the material element or the international custom is still trying to form both elements by looking at the judicial procedures and existing theories in the field of Ani custom.Material and spiritual elements are needed. The content of this article has been collected and then analyzed in a library method.

Article 31(3)(c) of the Vienna Convention on the Law of Treaties of 1969 stipulates that, in the process of treaty interpretation, “any relevant rules of international law applicable in the relations between the parties” shall be taken into account, in addition to the context. Therefore, when interpreting a treaty, the text, context, and other elements of the general rule of interpretation as outlined in Article 31 of the Vienna Convention should be considered alongside the relevant rules of international law. This research aims to address the question: What is the position of relevant rules of international law in the interpretation of treaties? It appears that treaties should be interpreted in harmony with other relevant rules of the international legal system of which they are a part. Thus, incorporating the relevant rules of international law in treaty interpretation ensures the unity and systemic integration of the international legal system. In this research, an examination of library sources, international documents, and international jurisprudence will be conducted utilizing a descriptive-analytical method to explore the position of relevant rules of international law in the interpretation of treaties.

The treaty and contractual records related to the determination of the legal regime of the Caspian Sea show that the delimitation of the Territorial Sea, sea-bed and subsoil of the Caspian Sea was not specified in the 1921 and 1940 agreements between Iran and the former Soviet Union or even in “The 2018 Aktau Convention”. The delimitation of Base-lines and delimitation of the Caspian Sea has postponed to the conclusion of future agreements between the Coastal states. In the present study, The researcher aimed to review the legal documents and survey the joint agreement between the Caspian Coastal states and by analyzing international judicial procedures, suggest the optimal method for determining the Base-lines and delimitation of the Caspian Sea in other to gain the highest national interests and sovereign rights for I.R.Iran. Therefore, the present study with a qualitative approach and using a descriptive-analytical method, tries to identify legal loopholes in “The Aktau Convention” and what is the consequences of applying the -28 meter Kronshtat level, and also provide solutions to determine the Caspian Sea. The results of this study show that the use of mathematical and engineering methods (convex polygon) to delimit the Caspian Sea and by refer to the use of the "principle of fairness" in the process of determining the boundaries of the seabed and subsoil by using of Straight Baseline and considering the circumstances geological factors and the shape of the coasts, In total can increase Iran's share of the Caspian Sea as much as possible.

Migration means traveling and moving a human being from one country to another country for living and residence. This
Migration involves the movement of individuals from one country to another for the purpose of living and settling. This economic phenomenon can be examined through social, cultural, political, and popular lenses. This research focuses on the right of Muslims to immigrate to non-Islamic countries and establish residence, exploring it in the context of jurisprudential standards and international law doctrines. The investigation delves into the permissibility of Muslim migration to non-Islamic countries and the acceptability of continued residence in such countries, drawing from jurisprudence and international law doctrines.
The research encompasses various aspects, including "international law and the migration and settlement of individuals," "background study and jurisprudential stance on Muslim migration and residence in non-Islamic countries," "foundations and evidence for arguments against living in non-Islamic countries under non-Islamic laws," "foundations and evidence for arguments supporting living in non-Islamic countries," and "critique of the foundations and evidence supporting permissibility and sanctity," followed by an analysis and conclusion.
The research adopts an analytical approach, considering the interdisciplinary and comparative nature of the subject matter. It juxtaposes teachings from the fields of jurisprudence and international law to address the discussed issue comprehensively. The findings of this research, particularly in the realm of international law and guided by the principles of the international human rights system, establish the right to immigration and residence as a fundamental first-generation right. This right finds its expression in documents such as the "Universal Declaration of Human Rights" and the "International Covenant on Civil and Political Rights," with the principle of freedom of movement serving as a tangible manifestation of this right.
Recognizing the earth as humanity's home, as reflected in various international documents, forms the basis for acknowledging the right of individuals to utilize it and migrate freely across its territories. This viewpoint aligns with the notion of "God's land is vast," which underpins the right to immigrate and reside within religious thought and the Holy Qur'an. Both perspectives emphasize the right of human beings to utilize the land, with migration and settlement serving as examples of this entitlement.
In international law and the teachings of the international human rights system, the focus is on the right to immigration and residence rather than the religious affiliation of the migrant. The destination country's religion holds limited relevance. Conversely, within the literature of accomplished scholars of jurisprudence, migration has primarily been discussed in the context of moving from "Dar al-Kafr" (land of disbelief) to "Dar al-Aman" or "Dar al-Islam" (lands of safety or Islam) for individuals unable to practice their religion and rituals freely. Thus, contrary to the teachings of international law and the international human rights system, the religious identity of the migrant and the Islamic nature of the destination country have become subjective factors. The focus for many jurists has been on reverse migration from non-Islamic lands to Islamic countries and the ensuing settlement.
Challenging the foundations of the jurisprudential division of the world into "Dar al-Islam" and "Dar al-Kufr" (lands of Islam and lands of disbelief) and the dual worldview based on an insider-outsider geographical dichotomy plays a crucial role in determining the outcome of the subject investigated in this research. This division, which serves as an epistemological starting point for several matters related to Islamic communication algorithms in the international arena, has profound implications. One might argue that the concept and issue of migration fundamentally represent concepts and issues of the post-modern state. Consequently, the right to immigration within the international human rights system emerges as a new issue intertwined with the challenges posed by the modern state, differing from the jurisprudential literature's division of the world into "Dar al-Islam" and "Dar al-Kufr" (lands of Islam and lands of disbelief).
In general, regarding the right to immigration and residence of a Muslim person in non-Islamic countries, two main ideas can be identified: the idea of prohibition and the idea of permission. Proponents of both ideas rely on Sharia documents, including Quranic statements, Sunnah, consensus, and interpretations, to support their arguments. However, it appears that a holistic and systematic study reveals that the verses and propositions cited by proponents of different ideas do not definitively disprove opposing claims. It is essential to avoid drawing conclusions solely based on atomistic analysis.
Moreover, paying attention to reason and rationality becomes imperative in this research. Considering the broader objectives of the law, it becomes clear that reason understands the importance and necessity of preserving Islamic religion, identity, and independence while also facilitating religious life in the modern world. Believing in comprehensive, universal, and eternal Islamic teachings, the understanding of reason leads to different interpretations of the requirements for immigration to Islamic countries, ranging from necessity to illegitimacy. Reason recognizes that human and Islamic life may not be compatible with life in Islamic countries in certain situations, times, and places.
In conclusion, this research investigates the right of Muslims to immigrate to non-Islamic countries and establish residence by examining jurisprudential standards and international law doctrines. It emphasizes that the right to immigration and residence is a fundamental first-generation right within the international human rights system. The research challenges the dichotomy between "Dar al-Islam" and "Dar al-Kufr" and explores the complexities and subjective factors associated with the religious identity of migrants and the nature of the destination country. Furthermore, it highlights the importance of reason and rationality in understanding the necessity or illegitimacy of immigration to Islamic countries. By considering these aspects, this research aims to contribute to a comprehensive understanding of migration within the context of Muslims' rights and international legal frameworks.

Freedom of expression means that human beings, due to their inherent dignity, have the right to present rational findings arising from this dignity in the form of speech, writing, artwork, commercial advertising, and so on. Freedom of expression violations by states have led individuals to turn to international institutions to enforce their rights after being failed by domestic judicial institutions. Among international bodies, the European Court of Human Rights and the Human Rights Committee, which have jurisdiction over individual complaints, are able to protect individuals against states. The main question of the present paper is how has freedom of expression been reflected in the jurisprudence of the European Court of Human Rights and the Human Rights Committee? This paper using a descriptive-analytical method and library findings including a review of existing instruments concludes that the jurisprudence of the European Court of Human Rights includes  both limited and expansive protection of freedom of expression. Also in the practice of the Human Rights Committee, sometimes due to insufficient evidence, unfair decisions have been made which do not guarantee freedom of expression in a desirable way.

The principle of the equality of sovereignty of states is one of the important internationally accepted rules that has a customary origin and the judicial immunity of states and their property is one of the consequences of accepting this principle both in international treaties such as the 2004 United Nation convention and in international jurisprudence, including in the 2012 ruling of the international Court of Justice. Some governments such as Japan, have enacted domestic law on the immunity of governments and their property due to the need to follow international rules and have committed themselves to complying with these rules and some, such as Italy, have waived or reduced their immunity and, while deviating from international custom and practice and violating some of the former domestic laws, have sought to create new custom and subsequently new exceptions to customary international law. The Italian Constitutional Court, relying on the right of access to justice, has rejected international jurisprudence in the filed on immunity and violated the law based on the said ruling but Japan, while paying attention to the provisions of the Convention, has adapted its domestic law to the provisions of the Convention and is implementing it, and has not accepted any new exception.

“Hajj and diplomacy” and “pilgrimage and diplomacy” are among the topics of discussion in the macro-subject of “Hajj studies”. Believing in the necessity of promoting diplomacy in Iran and focusing on a significant amount of failures due to misunderstanding of religion and religious teachings are among the justifiable reasons for discussing “Hajj teachings” in promoting diplomacy. Meanwhile, the religious, economic, cultural, and political dimensions of the Hajj teachings have significant potential for promoting Iranian diplomacy. This inferential-analytical research aims to review the Qur’anic texts and narrations on Hajj to discover and observe the potential of these teachings in promoting diplomacy. Thus, the Qur’anic texts and narrations on Hajj, under the themes of “annual conference on Hajj and the necessity of rethinking and promoting public diplomacy in a multinational and multicultural space”, “the joint plan of action of al-Ḥudaybiyyah peace and multilateral negotiation diplomacy focusing on the Hajj visa”, “teachings of Hajj and diplomacy for world peace”, “human rights diplomacy of Hajj”, “the Shrine and absolute security of man and animals: a foundation for the promotion of humanitarian diplomacy” and “teachings of Hajj and the need to pay attention to environmental diplomacy” were reviewed.

A contrario reasoning has been widely used in the Permanent Court of International Justice & its successor (International Court of Justice) on various occasions. The questions ariseing are, what is the criterion for the existence and non-existence of a contrario in the statutory law and legal propositions? To what extent and how has a contrario reasoning been used in the PCIJ and ICJ jurisprudence? What is the importance of this essential argument? And finally, have they contributed to the creation of a predictable legal framework and the coherent development of international law? Analysis of the judgments and advisory opinions regarding this concept help us to understand the nature of the concept and to assess its scope in a better way. Having Followed up the judicial procedure, it is concluded that a contrario reasoning is one of the basic and flexible methods of reasoning in international law. The ICJ and its predecessor have used this form of reasoning to justify their decisions, in the process of interpreting a treaty to discover the spirit of the law, and as a supplementary means for the determination of the content of rules to be applied in certain cases. This form of legal reasoning has also been cited many times and in various contexts in all major substantive fields of international law.

The reason which consular protection (CP) institution was established based on, supporting people to discover their violated rights. In traditional international law, prevailing view was that CP is the exclusive authority of states and individuals has no rights to resort to it. Now this question may raise that if a person’s rights and legal interests has violated illegally in a foreign state and above mentioned person couldn’t reach to its legal rights with exhausting to local remedies, does his governments is obliged to exercise CP to its nationals or could to refuse this request due to its authority? In other words, the question is that CP is part of exclusive authority of states or is part of individual international human rights which states have to exercise it due to national request? Conclusion of this paper shows that today, in the light of changes and developments in international human rights, CP is part of individual international human rights and states have to exercise it due to national request, at least in theory.

The aim of this paper is to consider the Tu quoque defence in the context of international criminal law by the analytical-descriptive approach. Simply put, Tu quoque is the Latin term (equal to: You too) and often is stated in this context:(You should not punish me because you did it too). This defence, for the first time was implicitly accepted during the Nuremberg tribunal (following World War II) in the Admiral Karl Doenitz case. The original base of this argument is the clean hands doctrine: (if one of the parties of armed conflict has committed certain crimes, his hands to prosecute or punish other parties of conflict for the same crimes are not clean). Recently, criminal tribunals such as International Criminal Tribunal for Yugoslavia have been faced with Tu quoque as a defence. Despite the existence of an ambiguous history for this defence, jurists have not paid enough attention to this defence. This paper, by examining the jurisprudence of IMT and other international criminal courts, concludes that Tu quoque defence in Genocide and Crimes against humanity cannot be accepted, but in some War Crimes and the Crime of Aggression, this defence is acceptable under certain circumstances.

The Consensualism is one of the major features of the judicial procedure within the international community. This principle, rooted in the Statute of the International Court of Justice, is explained as the result of an unperfected community, i.e. current international legal order. For many lawyers, this principle is an obstacle to the realization of the concept of justice in International Law. However, the International Court of Justice in all its contentious proceedings has made efforts for the protection of that principle. At the same time, one could note a modified application of the same principle in the advisory function of the World Court. In fact, by adopting a less rigorous approach in its advisory opinions, the International Court of Justice has been able to overcome obstacles concerning the consent of States in its functions as the principal judicial organ of the United Nations.

International Law, by referring to the vital national and security interests has been used as a shield against legal’s, as an instrument to escape from legal obligations and as a justification for breaking up the treaties, therefore it limits the appliance of International Law Rules especially International Humanitarian Law, yet claiming of the observance of International Law. This notion and other similar concepts, are considered as one of the main obstacles against development in universalizing International Law especially IHL, because It can cause intractable misuses by states as well as justifying anything by reffering to national interest. IHL norms bring a serious challenge to the governments holding the fundamental logic of sovereignty and national interests. According to primary precedence of human norms in international law, The vital national interests only in compliance with the international law rules and provide the ground for legitimate government functioning. Therefore, governments have always tried to explain and interpret the vital national interests in a way that results the least loss to the universal international values.