جستجوی مقالات مرتبط با کلیدواژه "حقوق بشر" در نشریات گروه "فقه و حقوق"

The International Criminal Court can be seen as an efficient beginning in the fight against the most terrifying criminals and the impunity of the most professional criminals. However, some countries, including Iran, have not yet joined this court. Among the challenges facing the realization of this valuable event is the disharmony of countries, especially Islamic countries, with the world's popular understanding of fundamental concepts such as peace, justice, dignity, equality, etc. Therefore, according to the authors, at the present time, a universal understanding of the mentioned concepts should be accepted. In this regard, in order to strengthen this idea, one of the important foundations of which is the “Cosmopolitanism” theory, from arguments such as “the necessity of striving for the formation of a better world”, “globalized criminal law”, “the overlap of the goals of domestic law and the International Criminal Court”, “Sharia validity of aligning with the surrounding world” and finally “Applying the Maqasid Shariah (purposes of Sharia)” can be used.

The purpose of this article is to review and evaluate the legal jurisprudence of the economic sanctions of the Security Council based on Article 39 of the United Nations Charter.

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 text, honesty and trustworthiness are respected.

In Islamic jurisprudence and history, based on the verses of Surah Baqarah and Yusuf, economic embargo has been used and emphasized as a pressure lever, but it should be used with cruelty in the media. In Article 39 of the United Nations Charter, the Council is empowered to determine cases of threats against international peace and security, violations of international peace and security, and acts of aggression. As the case may be, the Security Council can make recommendations or decisions to implement its findings. Therefore, Article 41 of the United Nations Charter foresees that the Council can adopt measures that do not involve military force, including sanctions, against the guilty country. Therefore, it can be said that from the legal point of view, the Security Council, according to the articles mentioned above, has the authority and permission to accept resolutions that include sanctions.

The effects of the implementation of sanctions on third countries, the right to development, as well as its destructive results on basic human rights, including the right to health, and in general the negative humanitarian effects of international sanctions on the most vulnerable people of the target country, is always one of the major concerns of the international community, which requires an intelligent evaluation.

The analysis of legal institutions from various perspectives encompasses ideas that lead us beyond mere legal analyses and reveal points that may not be immediately apparent despite their obviousness. The International Criminal Court (ICC) has also been examined from various legal and political dimensions. However, what can emerge as a new theory about the Court is an analysis based on the concepts of lawfare, law laundering, and the paradigms of human rights and statism. The result is that, contrary to the desirable idealism that brought the Court into being, this institution has not only failed to achieve its objective of combating impunity effectively but has also contributed to an additional layer of impunity itself. This critique and contradictory situation are not solely inherent to the Court but stem from a paradigmatic confrontation in the international arena. This confrontation has persisted and has yet to culminate in the dominance of the human rights paradigm, upon which the foundation of the Court is also based.

Clothing has long been considered one of the necessities of human life in many cultures. However, only a few documents and declarations of rights in the international and regional scene mention it. For example, the United Nations International Covenant on Economic, Social and Cultural Rights mentions the right to clothing in its eleventh article. But the importance of this right over other basic needs has been overlooked by the Committee which monitors the implementation of the Covenant. As the same way, international law practitioners and human rights scholars have also disregarded the right to clothing. Much research has been done on freedom of dress in the context of civil and political rights. But the right to adequate clothing has been surprisingly neglected among other economic, social, and cultural rights. The dressing of a person is not only related to his economic status, but also to his position in society. Furthermore, one's clothing affects one's cultural, sexual, and religious identity, as well as one's dignity and even one's health. The insignificant recognition of such a right in the legal sphere justifies its being considered a forgotten right.

The criminalization of defamation (Libel) in order to protecting human dignity has raised the challenge of its conflict with the right to freedom of expression. Establishing a fair balance between the right to freedom of expression and the dignity of citizens requires the adoption of reasonable legal strategy. The purpose of this article is to evaluate the conflict or non-conflict of criminal defamation and freedom of expression with a descriptive-analytical approach in the Egypt's legal system. According to the results of the research, the Egypt's legal system, by criminalizing personal defamation on the one hand and decriminalizing public defamation on the other hand, and on the condition of correcting some of its shortcomings, lead to compatibility between criminal defamation and the right to freedom. In this way, while supporting human dignity, it avoid unnecessary limitation of the principle of freedom of speech, especially by those in power.

Investigating the death penalty as one of the examples of depriving the right to life has always been one of the most important concerns of human rights. On this basis, examining it in the constitutions and criminal laws of Islamic countries, both in itself and with regard to the type and degree of influence of these countries from the customary approaches of human rights or Islamic standards, is one of the requirements of human rights studies. This article seeks to answer the key question of what approach Islamic countries have taken into consideration regarding the "death penalty". This research is based on the descriptive-analytical method and is organized based on library and document studies. The findings of the article show that the level of concern for rights and freedoms and the type of encounter with them among Islamic countries has a direct relation with the relationship between religion and the government; However, the duality of custom and Sharia in the category of right to life in the constitution and the penal code of Islamic countries has had different reflections. Regarding the death penalty, extreme approaches (maximum permitting) on the one hand, and excessive approaches (maximum prohibiting) on the other hand, have lined up against each other; The dominant model accepted in Islamic countries, in this regard, is in line with the system of customary and secular human rights and is influenced by the approach of the divergence of religion and the government. However, with the strengthening of the convergence of religion and government in some Islamic countries, serious resistance regarding adherence to religious texts can be predicted.

As a vulnerable group of society, disabled people need special support from the government. Therefore, supporting disabled people requires identifying legal gaps and formulating efficient laws in this field. The way of facing and the quality of service provided by criminal and public institutions to these powerless groups plays an important role in guaranteeing their rights. The purpose of this research is to examine and diagnose the rights of disabled people in the criminal and public institutions of Iran and to identify the appropriate guarantees for the realization of these rights in these institutions. The main question of this research is that what rights do disabled people have in criminal and public institutions and what guarantees can be investigated to realize these rights as best as possible. The findings of this research show that the need to compensate for the damages, the possibility of easy access to the institutions of the criminal justice system, and the need to adopt protective-assistance measures as some of the rights that must be respected are faced with legal shortcomings and gaps, and the necessary guarantees have not been provided for them. Also, in the public institutions of the country, there is not enough easy access for the disabled to administrative places, the right to employment and recreation, as well as the right to enjoy care, health, medical, psychological and rehabilitation services.

Separation from the family, deprivation from education, lack of access to nutrition, health, treatment, and humanitarian aid are examples of the dangers to disabled children during an armed conflict. The legal status of children with disabilities - who are considered to be the most vulnerable minorities during armed conflict due to their special circumstances – is an important issue in international humanitarian law in recent years. The present study seeks to answer the question: what are the rights of these children in armed conflict and how to ensure them? Our assumption is that by relying on relevant human-rights and humanitarian instruments in this area and the practical actions taken by the international community, the rights of these children is moving in a direction that puts them on an equal footing with others in terms of general humanitarian protection and prioritizes them in benefiting from the humanitarian aids.

Considering that the right to development is one of the most important examples of human rights and the human being is recognized as the beneficiary of this right, Therefore, in order to advance and promote it, human rights institutions, whose pioneer is the Human Rights Council, are used. The purpose of this research is to investigate the role and impact of the Human Rights Council on promoting the right to development as a human right.

The present research, conducted with the analytical/explanatory method.

In order to promote the right to development, the Human Rights Council has entered in two ways, First, in the form of a general agenda and through its main organs, it has promoted and advanced the promotion of human rights, which is also included the right to development.Second, the Human Rights Council has addressed It, in the form of specific frameworks, including committees and mechanisms for the right to development. The present research aims to answer the question of what role the Human Rights Council played in the process of promoting the right to development, and in order to approve/reject this hypothesis that the Human Rights Council, by emphasizing the human rights origin of the right to development, has attempted to expand and deepen it, the impact of the two issues of “the right to development” and “the Human Rights Council” on each other has been investigated.

Although unilateral sanctions usually evoke the special role of the sanctioner countries as the main cause of human rights adverse effects caused by the imposition of sanctions, but this issue should not lead to ignoring the role and responsibility of the target countries in the extent of the effects and providing the human rights needs of their residents. In other words, unilateral sanctions (primary and secondary) inevitably always contain side effects, the amount of which can always depend on various factors. So far, most of the books and articles written in the field of sanctions have examined sanctions and human rights violations from the point of view of the sanctioning country, and limited research sources have also examined sanctions from the perspective of the target countries and third countries. One of the most important goals of internal sanctions is to review the internal structures and laws and subsequently modify the structures and laws that intensify the sanctions, and in this article, it is referred to as self-sanctions. Third countries can also support their nationals who are engaged in trade with the sanctioned country by imposing blocking regulations while preventing the violation of their sovereignty by the sanctioned countries. In this article, an attempt has been made to explain the role and responsibility of the concerned countries in sanctions (sanctioner, target and third party), and examine the structures, laws and regulations of the target country (especially Iran) and its role in the effects of sanctions. At the end, we will provide solutions to modify and change them.

The Security Council has interpreted the concept of international peace and security extensively and extended it to a wide range of issues, including the protection of human rights and the protection of human rights abuses. So that some of its decisions and actions have been beyond the limits of legal authority and competence and incompatible with the objectives of the Charter and human rights obligations and contrary to the standards of international law. The purpose article is to examine the Security Council as an extra-legal body and the shortcomings of its commitment to its obligations and responsibilities in the face of serious human rights violations resulting from Chapter VII and humanitarian interventions. Despite the council's claim of human rights protection, there has been a clear contradiction in its management behavior and performance, which not only has not reduced human rights violations in practice, but has in some cases exacerbated the council's inefficiency. The findings show that non-compliance with the limits and powers and veto power of the permanent members of the Council is one of the most important factors in the failure of the Security Council in resolving human rights issues and managing international crises. Therefore, by adopting a mechanism independent of the political interests of the permanent members and using the veto to strengthen and positive cooperation, we can pave the way for fundamental changes in the behavioral patterns and procedures of the council and proper internal monitoring of its actions and commitment to provided human rights obligations.

Due to the various characteristics of cultural heritage, any attack on it draws the attention of the international community. This can be seen in the reactions of the United Nations (UN) to the destruction, looting, and trafficking of the cultural heritage of countries such as Iraq, Syria and the other countries committed by terrorist groups. What is important here is the United Nations Security Council's reactions to this issue. It seems that, in terms of securitizing cultural heritage, the procedures taken by the Security Council for the protection of cultural heritage have included requiring internal measures (affecting the domestic law of countries) and referring to the humanitarian aspects of cultural heritage. Paying attention to the Security Council’s performance with regard to cultural heritage can be effective since the Security Council, as the main pillar of the UN, has the primary duty of maintaining international peace and security and its decisions are binding for the UN members as per the UN Charter. To this end, this paper, by adopting a descriptive and analytical approach, tries to examine and explain the procedures of the United Nations Security Council for the protection of cultural heritage. Based on the findings of this paper, we conclude that United Nations Security Council’s resolutions have been effective in protecting cultural heritage.

The definition of intellectual property rights is important and vital to express the conflict of public and private interests because the clarity of the subject, goals, principles, subject matter and proof of ownership of the intellectual product and creator's ownership are on the topics that value the public and private interests in intellectual property rights. It clarifies and expresses the importance of paying attention to both and creates a suitable context for expressing the conflict of public and private interests. An important question that arises before examining the records and the time of the formation of intellectual property rights is what are the rights. Is it intellectual property? Providing a definition of intellectual property rights is necessary to identify the issue in which the conflict between public and private interests is to be examined. Because without clarifying the meaning and definition of a discussion and not identifying its topic, it is impossible to investigate and provide a solution, and if it is done in vain.

The Universal Declaration of Human Rights is one of the most important and influential documents that casts a shadow on various areas of human life today. It is certain that this document was formed based on different foundations and schools. Examining the foundations of the declaration is important because it plays a role in determining the political and legal positions of every country and civilization. Among these foundations, we can mention the issue of the origin of rights and laws. The school of natural law, which seeks the origin of law in the essence of actions, is the oldest school in answering this issue. The main problem of the article is what is the relationship between the Universal Declaration and the school of natural law? Therefore, this research intends to examine the school of natural law, by referring to the in-text evidence of the declaration and with an inferential analytical approach and with an interpretive approach to some words of the declaration and also using its external references to measure the relationship of the universal declaration with it. The findings of the research show the special connection of the Universal Declaration with this school. The declaration's focus on the position of human dignity, the equality of rights and their inalienability in the introduction of the declaration, as well as the emphasis on its universality and inclusiveness towards religions, races, etc., indicate that the declaration cannot have a valid relationship with the schools of thematic law or the historical school. Rather, it is based on the school of natural law. Although in this field, sometimes non-independent and sometimes independent writings are found; However, the advantage of the present article can be seen in its analytical and interpretation method and its focus on the words of the declaration and its intra-textual and extra-textual centrality.

One of the most important foundational bases recognized for human rights is human dignity. It has been stipulated in Islamic texts as well as the introduction and primary matters of the international human rights documents. This recognition and emphasis mostly regard the importance and priority of this element and its role as the cornerstone of other rights. Despite this recognition, verification, and stipulation, there is no clear definition of human dignity and its theoretical foundations and indices have not been clarified. Therefore, the main question of this study is "What is the concept and theoretical principles of human dignity in the Islamic rules and international documents related to human rights?"Adopting a descriptive-analytical method, this study found that dignity is on the one hand one of the important goals of Islam and on the other hand one of the main foundations of human rights. Human dignity is a real issue, and the actualization of human dignity includes all humans. It is related to all layers of humanity. In addition to being one of the main principles of human rights, the dignity of humankind is a divine grace in the human being's creation. This common point is deemed an important starting point for creating interaction between human rights and Islamic rules. Nonetheless, due to the disagreement in ontology and theoretical principles, the attitude to it is different from the viewpoint of Islam and international documents. That is, human dignity is viewed differently by Islam and international documents in terms of ontology, theoretical principles, source of origination, types, kinds, effects, nature, and realms.

The Rohingya people are a Muslim minority who comprise less than 5 percent of the 55 million inhabitants of the Union of Myanmar. They have been subjected to organized crimes by the country's army and government, which amount to systematic human rights violations and the crime of genocide, according to international law and criminal standards and their application to the situation of the Rohingya Muslim minority. Genocide is a crime against human rights because it violates the most basic and obvious human right-the right to live. The violence perpetrated by Myanmar's military forces at different stages against the Rohingya ethnic and religious minority clearly shows the mens rea and actus reus of genocide in Myanmar. Despite the fact that genocide infringes on the most important human right, the right to live, international law has not been very successful in protecting this ethnic minority. One of the main barriers to the protection of the Rohingya ethnic minority is that international law does not have a clear definition of their status and especially the nature of their relationship to their homeland; it only refers to them as a minority that suffers from torture, harassment, and discrimination. The fundamental problem, however, is that the Myanmar government denies the identity and historical links of these people as an ethnic minority to the land of Myanmar. Therefore, the authors' hypothesis is that despite all the efforts of international law, the Rohingya ethnic minority has not derive a benefit. The aim of this article is to examine, using a descriptive-analytical method, the crime of genocide as a breach of minority human rights, with a focus on the Myanmar genocide.

Intelligent State is the State which is the artificial intelligence (AI) its agent and not human beings. The technological process is shown that such States will be established beyond electronic State and Cyber State on the basis of human reliance on optimized decision making by AI and transformation of the constitution to the constitutional algorithms. The present descriptive-analytical paper seeks to answer the question of that what would be the position of human rights at the possible future fulfillment of the intelligent State. This shows that wide information which is given by users and citizens to them, leads to more confidence in AI. So, it is expected that AI will revolve the concept of privacy and many jobs and make fundamental changes in social institutions such as the family. This process requires that democracy and political rights which is aroused to find new concepts to evolve supervision on the State, to develop citizenship to AI and causes losing human rights’ position in international relations. In fact intelligent State is a danger to human dignity itself and what it will dispose this danger is global consensus on constitutional algorithms ethics and values.

According to numerous international human rights documents, the right to have an adequate level has been recognized as one of the examples of fundamental human rights, and these rights are also today, with their theoretical and philosophical foundations, as well as their new executive mechanisms, supra-sovereign rights and under the constitution. is considered universal; On the other hand, since the post-World War II period, the application of economic sanctions in the field of international relations as one of the guarantees of dealing with violations of the standards and international obligations of governments and with the aim of putting pressure on them to align themselves. With the global order, it has been given serious attention and its importance and application are increasing day by day. The purpose of this research is to examine the violation of the fundamental human right to have an adequate standard of living and the right to food through the application of international economic sanctions against governments. Applying such an executive guarantee itself causes a violation of food security and the fundamental human right to have an adequate standard of living, especially the right to food. Human rights, with their philosophical and theoretical foundations, are protective rights, and it is the duty of governments and domestic, regional, and global political institutions to respect, support, and guarantee their implementation, and the violation, limitation, or deprivation of these rights cannot be justified under any pretext. The legal validity of economic sanctions faces a serious challenge.

The constitution, as the supreme law of a nation, ensures the rule of law and citizens’ rights, protects human rights, and reduces the likelihood of arbitrary government actions. The establishment of the constitution is commonly considered the most effective means of upholding constitutional values and protecting the individual’s fundamental rights. However, the absence of a written document of the constitution does not necessarily imply the absence of the rule of law or of the guarantee of human rights or even of control over government actions. Nor does it conclusively indicate the full implementation of constitutional principles and values in societies governed by a written constitution. Therefore, the concept of constitutional law and the associated principles extend beyond written documents. It is now recognized that the written constitution is not the sole authoritative source of constitutional norms. Yet going beyond legal formalism and embracing the institution of the unwritten constitution requires careful examination of its foundations and functions. Simply incorporating this concept without critical reflection on its origin and functions risks incomplete understanding. The contemporary conception of the constitution is imbued with its unwritten norms, so overlooking this aspect of any legal system results in a flawed understanding of the constitution. However, introducing ideas and concepts into the national legal system requires a thorough understanding of their origins and foundations, as well as the consideration of the feasibility of aligning domestic institutions with new concepts. Otherwise, newly introduced concepts may create a patchwork in political and legal structures, thus adversely affecting society andcausingsignificant harm. To attain a precise understanding and prevent potential abuses, emerging concepts in public law, such as the unwritten constitution, must be rigorously analyzed and explored with an eye to their origin.Upon closer analysis, it becomes clear that the concept of unwritten constitution is not boundless, but rather operates within a specific framework and scope. Failing to grasp the foundations of this concept and inadequately explaining it can lead to increased reliance on discretionary opinions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. Consequently, certain political practices or actions may erroneously be considered part of the constitution— albeit in an unwritten form—and subsequently legitimized by being foregrounded in the political arena. Concerning the unwritten constitution, there are some scholarly efforts to clarify and dispel ambiguity surrounding this concept, yet it remains relatively unexplored in the Iranian context. There is thus a need to examine the foundations of legitimacy of the unwritten constitution, and distinguish it from merely political and ephemeral principles, rules, and procedures. In this respect, the present study tried to gain a deeper understanding of the unwritten constitution as a legal institution, shedding light on its most significant foundations through description and analysis. It aimed to address the following research question: What is the origin and source of legitimacy of the principles, regulations, and norms that do not derive their authority from the text of the constitution but nonetheless underpin the rights and freedoms enshrined in the text?

As a descriptive–analytical inquiry, the present study used a library research method and note-taking to collect the data from different sources in order to examine the foundations of legitimacy of the unwritten constitution.

The research highlighted the necessity of a comprehensive understanding of the unwritten constitution, as a relatively nascent concept within Iran’s constitutional law system. Such an understanding would necessitate the examination of foundations of constitutional legitimacy and their analysis beyond the confines of the national constitutional framework. The approach or methodology employed in identifying the nature of the constitution plays a crucial role in narrowing down or broadening its scope and substance. For example, the formalist approach would focus on the structure and contents as delineated in the codified document, with the constitution being perceived as synonymous with its official, written provisions. The approach towards constitutional legitimacy can significantly influence both interpretation and implementation of the constitution. Therefore, adopting an extratextual approach and embracing the overarching concept of the constitution beyond its textual confines can open pathways to a broader scope of individual and public rights and freedoms.Consider, for instance, the reason-based legitimacy approach, which rests upon the justice or efficacy of constitutional provisions. This approach bridges the divide between constitutional theory and practice, bolstering the legitimacy of unwritten principles and values. From this perspective, the constitution derives its validity and legitimacy not from its form nor the procedure of ratification, but rather from its substantive content and valuable objectives. Consequently, the legitimacy of the unwritten constitution rests upon the same fundamental principles and substance codified in the written constitution.Across all legal systems, it is inevitable to acknowledge the presence of an additional layer of the unwritten law alongside the written one. Unwritten principles exert influence on the implementation of written regulations, thereby limiting or broadening their scope. In this context, it becomes crucial to delve into the foundational reasons underpinning the binding nature of the unwritten constitution. The binding nature is rooted in the substantive realization of the rule of law, reliance on the requirements of natural and human rights, as well as the roles of key judicial bodies and the public in acknowledging and endorsing true principles and values of the constitution. This can delineate the boundaries of the unwritten constitution.

It is thus necessary to take heed of the concept of the unwritten constitution and its status within any legal system. The failure to provide a proper explanation of this concept can lead to increased discretionary opinions and decisions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. There is a risk that certain practices or official statements, when foregrounded in the political arena, might erroneously be perceived as integral components of the unwritten constitution, thereby gaining undue prominence.

One of the important functions of the instrumental use of human rights in the foreign policy of the United States of America is to justify the policies that this country pursues in different parts of the world.In this article, an attempt will be made to answer the question of what is the position of human rights in the US foreign policy system and how has it become a tool to serve its national interests?The United States of America is one of the few countries that has an ideological foreign policy. With the difference that in many cases, such as the protection of human rights and the promotion of democracy, ideological foreign policy is used as a tool to secure America's national interests.Examining the actions of this country both at the level of foreign policy and in the field of domestic policy also shows that the view of the United States towards more rights is an instrumental view.This research is of a descriptive-analytical type and has been collected and used from greenhouse sources, internet searches and reliable sites.The findings of the research indicate that the defense of rights in words and their widespread violation in practice has caused human rights to become a tool to serve the national interests of America.