جستجوی مقالات مرتبط با کلیدواژه « حق شرط » در نشریات گروه « فقه و حقوق »

Assume that a member state of the international community has not recognized another state and at the same time, both states are members of a treaty in which the possibility of referring a dispute to the International Court of Justice is provided. Now, if one of these two states, based on its legal and political expediency, decides to file a lawsuit in the court due to the violation of the obligation(s) arising from the treaty in question, can the respondent state raise the preliminary objection of non-recognition before the court? This assumption can also be raised in the case of two states that have not recognized each other. To answer this question, the procedures of international courts, including the International Court of Justice and the International Criminal Court, have been examined in this article. The answer that can be given to the central question of the present article is that recognition is a political action with legal consequences. However, the legal consequences of recognition cannot normally lead to the declaration of incompetence or inadmissibility of the court, unless the handling of the dispute between two states depends on the examination of the issue of recognition and its consequences on the continuation of the litigation due to restrictions such as the reservation to the treaty or the lack of consent to establish treaty relations between the two contracting states.

Asylum-seeking has emerged as a critical social issue at the international level in recent decades. Every year, millions of refugees leave their home countries or places of residence, seeking refuge in other countries to escape economic, military, political, and social crises. Refugees embark on the arduous asylum process due to the fear of torture and persecution in their home country or place of residence, in pursuit of a life that aligns with the minimum standards of human rights. While some successfully obtain refugee status from the host country, some face deportation or repatriation after going through the legal process. In some cases, they may even be returned to a third country, where persecution awaits based on justified evidence. Returning them to their former country is certainly the worst-case scenario for asylum seekers or refugees. The international community has established a legal framework for refugee protection through the 1951 Convention and the 1967 Protocol. Certain rules and principles outlined in these documents are so fundamental that no reservations can be made to them. A notable example is the principle of non-refoulement which prevents the return of refugees to their home country or a third state where persecution is feared.The present study tried to answer the following question: What prevents the return or deportation of a refugee to their home country or a third state? While the treaties do not explicitly answer this question, the jurisprudence of the European Court of Human Rights provides valuable insights into the meaning and legal nature of this principle, as well as methods for assessing the status of a refugee when deciding on repatriation. Although the European Court of Human Rights lacks the authority to review and apply the 1951 Convention Relating to the Status of Refugees, member states of the Council of Europe are obligated to ensure the respect of rights outlined in the European Convention on Human Rights for all individuals within their jurisdiction, including refugees and asylum seekers. At the intersection of the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees, the European Court of Human Rights examines general conditions in the state concerned and the individual applicant’s situation to determine factors preventing repatriation or expulsion.  To this end, the Court has set specific limits on the right of states to expel refugees and asylum seekers from their borders. The Court indirectly supports the principle of non-refoulement, aiming to ensure respect and prevent violations of relevant articles of the European Convention on Human Rights, particularly Article (3) which prohibits torture. This implies that the reservation cannot be applied to the principle of non-refoulement, which extends beyond the scope of the 1951 Convention.

Literature Review:

While there are many articles addressing refugee protection and the non-refoulement principle under the European Convention on Human Rights, they have not explicitly delved into the prohibition of reservation to the non-refoulement principle. Therefore, the current study can be regarded as innovative in both its subject matter and content.

Adopting a descriptive–analytical method, the present research examined national and international legal literature, the jurisprudence of the European Court of Human Rights, and pertinent international treaties.

The European Court of Human Rights, functioning as a monitoring mechanism for the European Convention on Human Rights, has encountered numerous cases involving asylum seekers seeking refugee status. Its jurisprudence has significantly contributed to the development and evolution of laws pertaining to refugee protection. By establishing a connection between the European Convention on Human Rights and the Convention Relating to the Status of Refugees, the Court has effectively offered indirect support to refugees, safeguarding them against deportation, extradition, and repatriation. Its jurisprudence firmly prohibits the application of reservations to the non-refoulement principle.

Under the influence of globalization, two trends of universalism and at the same time relativism of human rights are proposed. The purpose of this article is to analyze the condition of the Islamic Republic of Iran in joining the human rights documents with regard to the native culture.
This article is descriptive and analytical. Materials and data are also qualitative and data collection was used in collecting materials and data.
Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are respected.
Acceptance and respect for indigenous culture and cultural diversity in general means respect for human rights, and in particular, paying attention to some examples of human rights, including minority rights and cultural rights. It is even possible to consider having the right to native culture and cultural diversity as one of the basic human rights. Iran's conditional right on human rights treaties can be explained on this basis, of course, Iran's conditional right is due to its vagueness and indeterminacy, as well as its contradiction with the subject and purpose of the treaties and the violation of the general principles of treaty rights, including the principle of the impossibility of invoking domestic laws and regulations for The non-implementation of the provisions of the treaties as well as the inconsistency with the unconditional ratification of the human rights treaties are objected.
The correct approach is that the right of bet is detailed and specific. This means that it should be announced which part of the provisions of the human rights treaties are in conflict with which laws of Iran.

the concerns and challenges for Iran to accede to the Convention for the Suppression of the Financing of Terrorism (CFT),eventually led to accession using the reservation. But among the reservations of Iran, there is a very general reservation that its legal status needs to be discussed. Therefore, the main question of the present article is whether the general reservation entered into the CFT by Iran is invalid according to international law or not, and if the answer is positive, what effect will this invalidity have on the situation of Iran's accession? This article with the descriptive-analytical method and library tools, especially by examining the available documents, concludes that the general reservation of Iran as one of the examples of reservations contrary to the purpose and subject of the treaty is invalid. On the other hand, In general and given the CFT's silence on this issue, the invalidity of the reservations does not invalidate the accession. In other words, based on the current provisions of international law and the existing practice, invalid reservations, including the general reservation , do not invalidate the accession and on the other hand, against the will and consent of Iran and without considering its reservations which are considered invalid for any reason, It is not possible to consider this country committed to the entire convention. Especially, since the authority and mechanism for achieving certain invalid reservations have not been set, and the issue is reduced to the agreement or opposition of other parties in establishing a treaty between them and Iran. Despite this gap in the provisions of international law and the discussed convention, although Iran can join the CFT by maintaining its invalid general reservation, such a reservation will face the implementation of the convention with challenge, which necessitates the revision of the said reservation.

The clear manifestation of the country's treaty system is reflected in the opinions and decisions of the Islamic Consultative Assembly or the Guardian Council in accepting or rejecting international agreements. In this perspective, several ambiguities in the issue of constitutional law can be seen as a threat to the national security of the Iran. On one hand, international treaties can forcefully impose their effects on Iran's transnational obligations without being considered by the parliament and the Guardian Council, while on the other hand, due to the lack of a monitoring mechanism, it is possible to change the approved internal and external documents. What was discussed in this study is the need to formulate a system of claim and counterclaim in the international practice of Iran and also to prepare a special mechanism to inform the competent institutions about the post-ratification process of treaties

Following the disasters of World War II and ratification of the United Nations Charter in order to maintain international peace and security, "human rights" became an international legal issue, thus new approach create in international law. The current descriptive-analytic study sought to understand the effects of this approach on the evolution of the nature, structure and norms of the international law over the past seven decades. From the point of nature, acceptance of human as the subject and consequently humanization of international law and placing human beings as the beneficiaries have been the most fundamental important influences. From the point of Structure, the government's relationship with individuals (especially its citizens) is out of the monopoly of national sovereignty and the international community is also held accountable for protecting fundamental rights. In addition, the scope of international legal norms has also evolved, including developments in the areas of treaties, diplomatic protection, consular access, and humanitarian law.

Education of human rights standards, including the UNESCO 2030 document as a human rights education document, is one of the most important issues related to human rights, which especially in Iran has been the subject of discussion. This article the challenges of not teaching human rights standards such as the 2030 document in Iran examines.

Thise article is Analytical descriptive and uses the library method.

In this article, Originality of texts, honesty and trusteeship Has been complied with.

the conflict between some human rights rules and jurisprudential standards is The most important challenge of human rights education in the Iranian legal. in matters such as equality and equality in inheritance, retribution, The teaching of human rights rules, including the 2030 UNESCO document, the right to divorce and testimony, is in conflict with jurisprudential standards and legal rules. Equality in jurisprudence and law refers to the natural differences in the creation of men and women, but the 2030 document equality between men and women emphasizes.

The right to bet as a mechanism to resolve the conflict of legal jurisprudential rules with human rights documents such as the 2030 document, but in many cases human rights documents do not want the right to bet and therefore teaching human rights as a universal rule practically means ignoring jurisprudential standards and rules of law It is internal.

Regarding the laws of the Islamic Republic of Iran, it should be said that they are also derived from Islamic jurisprudence. Article 4 of the constitution stipulates that all civil, partial, financial, and economic laws and regulations must be in accordance with Islamic principles. Therefore, in order to accept any new law (even in the form of accepting international treaties), those new laws must be presented in accordance with Islamic standards and set aside in case of conflict with the rules of Islamic jurisprudence. (Convention on the Elimination of All Forms of Discrimination against Women) is an international treaty to which the United Nations has strongly insisted on the accession of states. If states accede to the convention, their domestic laws will be overshadowed and governments will commit to change their laws. Since women do not enjoy a status commensurate with their dignity in the world, as well as in Islamic countries, as well as in the Islamic Republic of Iran, correcting the status of women requires a written charter in which the desired status is outlined. In this study, considering the generalities presented, we examine the effects and dimensions of Iran's accession to the Convention on the Elimination of All Forms of Discrimination against Women and describe the issue in a descriptive-analytical manner using library studies.

My study is about the Islamic reservations to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and their compatibility under the regime of the Vienna Convention on the Law of the Treaties (VCLT). It is focused in the substantive reservations invoking Shari’a Laws entered by some Muslim countries to the central articles of the Convention which are, therefore, impermissible as incompatible whit the object and purpose of the Convention. I highlight the paradox of maximizing the Convention’s universal application at the cost of compromising its integrity and how substantive reservations to the CEDAW provisions, tolerating discrepancy between states’ laws and practice and the obligations of the Convention, pose a risk to the achievement of the Convention’s goals. I also question if the compatibility criterion of the VCLT is effective in view of acceptance of some substantive reservations of a derogatory nature I consider that the “object and purpose” test is subjective, the practice by the objecting states is not uniform and that looking at those which are (or are not) the objecting states in respect of a particular reservation, it is evident how political or extralegal considerations intervene when states evaluate the compatibility of reservations. I especially focus on the paradox of the objections to a reservation which have the same effect as an acceptance when the objecting and reserving states are still maintaining treaty relation. Therefore, there is no difference in the legal effects of a reservation accepted and one objected without opposing the entry into force of the treaty between itself and the reserving state. I further analyze how reservations invoking Shari’a Law entail conflicting norms (freedom of religion and equality rules). Recalling the view of the “balancing of interest” I argue that it could be a reasonable approach, but in practice it is difficult to find some sort of equilibrium not prejudiced against women. I then analyze if these reservations are suggestive of a wider ideological conflict between women’s rights enunciated in Islam and the ones formulated under the human rights treaties, and how they are representative of the women’s situation in the reserving states. I question what are the motivating factors behind the decision to reserve and if the reservations should be seen in the broader political and socio-economic perspective of domestic and international context? I then ask if the States ratify the Convention affording its objectives as a real commitment or if they only do so at political opportune moments? I consider that is not Islamic religious beliefs, but evolving political situations which are the determinant factors in making these kinds of reservations. I finally analyze the work of the CEDAW Committee considering its efforts disappointing as many of the new Muslim states parties did not pay attention to the criteria set out by the Committee, continuing  to enter either very general reservations or reservations to specific substantive articles. The new states parties with a predominantly Muslim population referred to the Islamic Shari’a Law as prevailing over the Convention without mentioning any specific articles, clearly not following the Committee’s recommendations in the formulation of impermissible reservations.

Evidential value of bill of lading concerning the cargo specification is confirmed by all international conventions. This function works unless the carrier insert reservation in the bill of lading. The validity of reserve is an issue which is less addressed by Iranian doctrines, as one may infer from reservation non-liability clause which itself is declared to be null and void by the international conventions. So, does the validity of reserve depends on agreement by the consignor? Or shall it be reasoned in a way that the grounds for the reserve shall also be inserted in the bill of lading in order to be effective? On the other hand, the carrier might refuse to insert reserve in the bill of lading either personally or per request of the consignor and receiving a letter of indemnity from the latter. Is carrier liable vis-à-vis the consignee for ignoring the reserve and concealing the truth and shall the letter of indemnity be considered as valid and effective? The legitimacy and validity of conditions of reserve on one hand, and the effects of reservation on the other hand are among the issues which are analyzed in this article in view of comparative study of English and French legal systems and international transport conventions. It is concluded that the carrier’s reserve in the bill of lading is a unilateral act which does not require the consent of the consignor except under CMR Convention under which the effectiveness of reserve is dependent on the consignor only vis-à-vis the latter and not towards the third parties, i.e. the BL holders. However, the reserve shall be justified in order to be valid and the cause of reservation shall be specified together with the reserve as well, under the later international regulations (Hamburg Rules). In terms of consequences of reservation, it is worth noting that by reservation the burden of proof shall lie upon the BL holder while without it the carrier himself should have proved that the damage had been incurred before his taking delivery of the cargo. Also, the agreement not to insert reserve in the BL is effective between the carrier and the consignor unless they have an intent to defraud the third parties. However, the above agreement or the Letter of Indemnity in substitution of reservation could not be adduced by its parties against the third parties.

The Berne Convention is the fundamental international document in the field of copyright. It’s been a long time that attachment of Iran to this document is the subject of a dispute between legal and political authorities. The document contains an appendix including six articles for benefit of developing countries. Investigation of different positions in the field of attachment of Iran to this document and the appendix and the analysis of bonuses presented in the appendix for the developing countries form the subject of the text. The text has been submitted to people interested in the intellectual property field in two sections under the titles of positions of opponents and proponents.

After World War II, fundamental developments occurred in international law. At that time, many treaties were adopted by League of Nations, some of which were human rights treaties. These treaties are very valuable as one of the sources of international law. The supportive nature of these treaties creates the possibility of analysis issues such as the right of reservation in a different way. The CEDAW (1979) is the most important treaty on women`s status and has the highest number of reservations among human rights treaties. Many of these reservations relate to the substantive provisions of the treaty, which has two main characteristics: generality, and being contrary to the purpose and object of the treaty. The purpose of CEDAW is indicated in its preamble. It calls for equality of women and men and also stipulates many specific areas where discrimination against women should be eliminated. Therefore, it is important to analyze these reservations. At first, the study examined how the treaty is ratified, it then defined the right to make reservation and finally it analyzed some reservations made by the Islamic and European states.

The option contract is one of famous contracts in money exchange market. In spite of importance of this contract in world money exchange markets, it has been used a few in the Iranian markets. There are several matters about this contract including concept, nature, effects, elements and kinds of option contract. In this article, we consider concept, history, elements and kinds of option contracts and dealers of these contracts.

In the system of human rights, State's commitment to observe main norms is an absolute, unconditioned commitment covering all States and individuals. The universal nature of State's commitments concerning human rights means that their commitments do not depend on interactions and counteractions. State's commitments to observe human rights are to support normative public order which does not depend on observance of some other parallel or similar commitment by some other State. The particular nature of commitments concerning human rights has a direct impact on conditions which may be posed for them. About the extent of the impact of universal nature of State's commitments to observe human rights on the issue of condition, the following questions may arise: "Does this nature influence agreement or disagreement of States about the condition?", "May the legal system of conditions be applied to commitments concerning human of human rights, whatever the nature of such commitments may be?", "Or, is it necessary for such commitments to obey some particular system of conditions?", "Which role could and should the supervising institutions such as the Human Rights Committee play within the scope of condition?", "May some particular right inferred for such institutions from the particular nature of commitments concerning human rights?"In the present article, the author explains the universal nature of State's commitments concerning human rights, and studies their impacts on the issue of condition.