جستجوی مقالات مرتبط با کلیدواژه « امانت عمومی » در نشریات گروه « فقه و حقوق »

Due to its predominantly arid and water-deficient climate, Iran faces the challenge of dehydration. The rate of exploitation and consumption of water resources plays some role. Iranian civil law, which is the first law governing the processes of water resources exploitation, inspired by Shi’i  law, has based its relevant rules on theories such as absolute ownership of land, priority, privacy, and acquisition. The theoretical bases of the legal system of water resources management is thus based on private property, which along with the development of new technologies of drilling and exploitation has led to uncontrolled consumption of water resources. Therefore, the revision of these theoretical foundations is necessary in order to limit and regulate the exploitation of water resources. The first theory listed above, absolute ownership of land,  crystallized in Article 96 of the Civil Code, holds that whoever owns a piece of land has the absolute ownership of the water resources under it and can use them however he wishes without any restrictions. Apart from giving rise to disputes among, A second theory, the right of precedence, regulates the use of  water resources based on the date of first discovery and exploitation, which is an implication of the precedence rule in Shi’i law according to which prearrangements for reclamation of resources is a basis for priority in possession. . A third theory, territory of land (harim), is another basis granting the owner of a piece of land  surrounding a surface water source such as a river or lake the right to own and exploit these water resources. Accordingly, the ownership of water is a function of the land ownership, and there is no right to transfer the ownership of water, independent of the adjacent lands. Some jurists in these cases have relied on the rule ‘Al-Aqrab fa al-Aqrab’ (‘Who is closer takes priority’), based on the fact that whoeveris closer to the water stream, is superior to others, and Article 156 of the Civil Code has been influenced by this theory. But the theory of attainment,which has more supporters in Shi’i law, is based on the possession of water., According to this everyone owns any amount of water that he or she obtained through the possession and branching of surface water or digging wells and aqueducts. Article 149 of the Civil Code regarding the possibility of acquiring surface water and Article 160 of the same Code governing the digging and acquisition of wells and aqueducts have been taken from this theory.  These theories, which have led to the private ownership and management of water resources, have led to the development of mechanized methods of exploitation and, in turn, to the destruction of water resources. Articles of civil law and other regulations that are influenced by the aforementioned theories, on the one hand, and a tendency towards a state-centered view of public ownership, on the other, as in the Law of Equitable Distribution of Water, which recognizes the government as the owner of water, by applying proprietary behaviors, makes it an instrument for its economic and social policies, has permitted the unwarranted exploitation and has exacerbated the water crisis. Therefore, based on the environmental needs and the international trends viewing water as a national asset belonging to future generations, this article seeks  a theory that can be based on environmental, jurisprudential and legal principles and provides grounds for  revising laws and regulations governing the ownership and management of water resources, in particular Articles 149 to 160 of the Civil Code, which make water a common property that is open to free acquisition and private ownership.  Accordingly, Article 1 of the Law of Equitable Distribution of Water, enacted in 1982, which is influenced by Article 45 of the Iranian Constitution, has a great potential to change the approach to the ownership of water, based on the concept of public trust, private ownership to one based on the concept of trust. The article relies on the explicit use of the word trust in the Law to lead to more effective policies and regulations in the protection of water resources and in the issuance of licenses for its exploitation, and to prevent unrelenting competition in the consumption of this common resource and uncontrolled harvesting and drastic reduction ofthe country's water reservoirs. This article uses an analytical and descriptive research. Relying on library resources it studies different perspectives in order to answer the question what is the basis of the right to use water resources in the jurisprudential andlegal system of Iran and which theoretical bases can be selected for it. to ensure protection and preservation of water resources. It first suggests and examines various theories, and then seeks to formulate, under the final theory which is based on the concept of public trust, a view in accordance with environmental conditions and water resources crisis based on Islamic legal principles. By amending existing laws and regulations, water can be used as a trust in the hands of the government in the public interest.

International developments and in particular new international economic order led to the creation of “the Common Heritage of Mankind” and consists of five elements: non-appropriation, use it for peaceful purposes and benefit of mankind, sharing its management and benefits. Developing and developed states took opposing positions and had different interpretation about its content. This concept is relatively new in international law and during the last decades has attracted considerable attention and generated polemical debate in international forums. This has been especially true of the CHM’s application to the legal status of resources in “common spaces areas”, and applied too in other issues. Nevertheless, due to substantial confusion over the nature of the concept and its appropriate place in international law; and different interpretations, it lacks legal force. It is a philosophical idea that questions the regimes of globally important resources regardless of their situation, and requires major changes in the world to apply its provisions. Its application and enforcement require a critical reexamination of many well-established principles and doctrines of classical international law.This article aims at exploring the legal theory and the implications of the concept of CHM. The author by a normative methodology seeks to provide tentative answers to the questions whether and how concept can be incorporated into the corpus of international law as a legal norm.The author concludes that can be postulated about the present status of the CHM concept is that it may indicate an emergence general principle of international law. It is supportable and applicable with human rights and in particular the third generation of human rights (collective or solidarity rights) and then is an universal duty and imperative rule.

International developments and in particular new international economic order ledto the creation of “the Common Heritage of Mankind” and consists of five elements:non-appropriation, use it for peaceful purposes and benefit of mankind, sharing itsmanagement and benefits. Developing and developed states took opposing positionsand had different interpretation about its content. This concept is relatively new ininternational law and during the last decades has attracted considerable attention andgenerated polemical debate in international forums. This has been especially true ofthe CHM’s application to the legal status of resources in “common spaces areas”,and applied too in other issues. Nevertheless, due to substantial confusion over thenature of the concept and its appropriate place in international law; and differentinterpretations, it lacks legal force. It is a philosophical idea that questions theregimes of globally important resources regardless of their situation, and requiresmajor changes in the world to apply its provisions. Its application and enforcementrequire a critical reexamination of many well-established principles and doctrines ofclassical international law.This article aims at exploring the legal theory and the implications of the concept ofCHM. The author by a normative methodology seeks to provide tentative answers tothe questions whether and how concept can be incorporated into the corpus ofinternational law as a legal norm.The author concludes that can be postulated about the present status of the CHMconcept is that it may indicate an emergence general principle of international law. Itis supportable and applicable with human rights and in particular the thirdgeneration of human rights (collective or solidarity rights) and then is an erga omnesand a jus cogens.