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

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.

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.

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.

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.

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.

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.

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.

Democracy is one of the oldest social, political and legal theories of mankind which has always seen its opponents and proponents. From a type of political system to a human right despite all the oppositions, the theoretical disputes over democracy has always persisted in different schools of thought which in turn has exposed the realization of democracy with serious challenges. Of the theoretical opponents of democracy, one can refer to the elitism. The present study will address the theoretical aspects of such opposition by elitists, based on the hypothesis of the historical challenges of democracy and the realization of the right to democracy which has been argued by certain conventional and modern elitists. The conclusion of the study shows the challgnges faced by democracy on the path of its realization and the right to democracy versus the arguments raised by its opponents.

Technology in the field of genome editing or human germline engineering and is rapidly developing and will have a crucial role in disease diagnosis and treatments. Nevertheless, using germline-editing methods to modify the human genome raises serious medical, moral, and legal concerns. Modification of germline in humans and passing the edited genes to future generations might lead to unpredictable consequences. Moreover, human germline therapies raise challenges with regard to human rights obligations. The clinical uncertainties about the possible outcomes of the human germline modification on future generations and possible violation of their rights has led to calls for its absolute prohibition. Nevertheless, genome editing is permitted under the rules of international law insofar as it complies with human rights obligations.

Today, in the legal literature of the modern state, the rights and privileges of citizens have a high place. Some have divided citizenship rights into three categories: civil, political and social rights, which include the most important rights of citizens. Since the constitution is a kind of instrumental mechanism to guarantee social order, provide the wishes of the individual and the limits and scope of the government's authority, its purpose is to protect the public and individual rights and freedoms of human against the inherent aggression of the political power structure. In the discussion of the constitution and citizens' rights, it is both rational and appropriate to accept a definitive assumption that no constitution can inherently remain silent regarding the rights of citizens; Rather, the most fundamental part of any constitution is declaring the basic rights and freedoms, especially the political rights, of citizens. In the legal system of Iran, the rights and privileges of citizenship were considered and taken into account first in the amendment to the constitution, then with the occurrence of the glorious Islamic revolution and the foundation of the Islamic Republic system, the political rights of citizenship were broadly and explicitly included in the constitution of the Islamic Republic of Iran was considered. On the other hand, in international law, especially in international documents, it recognizes the rights of individuals and especially the political rights and obligates governments to comply with these international rules. Based on this, the researcher, with the descriptive-analytical and data collection method, following the nature of the research, the library method, seeks to answer the following questions: Has the constitution legislator predicted political examples of citizenship rights in the constitution? Are these examples used in international documents? And what affinity can there be between them? Anyway, after reviewing the materials, it can be seen that the legislator has considered examples of political rights for citizens both in the constitution and in international documents. These examples have a lot of similarities considering that human nature and human being are meant to be human.

Climate change and its destructive consequences are considered as one of the major global challenges today. Various measures are being taken to tackle this issue. A key issue in this process is the possibility of litigation against harmful actions or inactions by governments or other actors on the global stage. Activists from different areas are working to enhance the capacity of national and international judicial and quasi-judicial bodies to address climate change litigations by strengthening the legal relationship between climate change consequences and human rights. Therefore, this research examines how, from a theoretical perspective, the relation between climate change and human rights is justified, what mechanisms are being utilized for litigation, what characteristics judicial and quasi-judicial proceedings have in the context, how technical barriers to litigation are overcome, and ultimately, how the prospects in this area can be evaluated. These are the main topics of the present research, utilizing library tools and studying various documents, including relevant judicial and quasi-judicial practices, and inferring generalizable conclusions from diverse data. The research findings underscore the high capacity of a human rights-based approach concerning litigation against the perpetrators of climate change and the potential impact of these findings on future climate change litigation.

The concept of collective responsibility, like personal responsibility and joint responsibility, in most fields refers to both the causal responsibility of moral agents for global harms and the reaction shown against these harms. Therefore, it can be said that collective responsibility has moral propositions in a way. Because this notion of collective responsibility posits groups, as distinct from their individual members, as moral agents,. The view of methodological individualism challenges the possibility of associating moral agency with groups as separate from their individual members, and in the view of normative individualism collective responsibility violates the principles of individual responsibility and fairness. In response to these challenges, proponents of collective responsibility attempted to demonstrate that collective responsibility, as well as group intentions and collective action, is possible. One of the biggest issues that requires joint and collective action of governments is the issue of health and hygiene. The World Health Organization has crystallized as a symbol of governments' will to solve health challenges collectively. On this basis, the member countries of the World Health Organization are committed to cooperate with each other in solving international issues that have economic and humanitarian aspects so that all nations can benefit from human rights and basic freedoms without discrimination. Therefore, based on the collective responsibility of the member states of the World Health Organization, taking joint measures in the field of fighting diseases and improving the level of health is one of the duties of the member states.

Knowing the nature and characteristics of the fundamental principles of criminal proceedings, considering the variety of principles and their content and the various interpretations that have been proposed in the context of different theoretical approaches, requires knowing the different foundations of these principles. The important question in this regard is, what are the most important fundamental principles governing criminal proceedings and is it possible to find a single basis to justify these principles? The extremism of different views in justifying the foundations of the fundamental principles and their attention to only a part of the existing facts makes it impossible to be satisfied with one basis in the justification of the principles. Sometimes these foundations take on a moral and philosophical aspect and seek their justification in ethical-philosophical approaches, and sometimes they find a legal and social aspect and seek to legitimize themselves through the foundations of human rights or expedient views or It is security oriented. In this article, with an analytical-descriptive approach, with t

While confidentiality is often cited as an advantage of arbitration over litigation, state involvement in investment arbitrations calls for a higher degree of transparency. Thus, confidentiality practices in investment arbitration have come under harsh criticism. Such criticism has to do, at least in part, with developments in the field of human rights law culminating in the recognition of the right to access information as a human right along with a duty of states to divulge information by regional human rights courts. This criticism has already brought about a change in investment arbitration. ICSID amended its rules of procedure in 2006 and more recently in 2022. UNCITRAL also annexed a set of rules regarding transparency in treaty-based arbitration to its arbitration rules. Finally, in 2015, United Nations Convention on Transparency in Treaty-based Arbitration was concluded in an effort to maximize transparency. This study deals with how transparency and confidentiality interact where they appear to be most conflicting, that is to say in international investment arbitration.

In the global arena, water as a vital substance plays an effective role in human life and for this reason. Due to the water crisis and the lack of safe enough water for consumption of everyone in various countries, including Iranis necessary to examine the obligations of governments in relation to the provision of the right to water as one of the examples of human rights in particular. In this research, the researcher by using descriptive-analytical method reached the conclusion that in accordance with international instruments, governments are undertaken to increasing water services for all segments of society, by their available resources; providing necessary training on how to properly use of water and sanitary facilities and methods of saving and caring for water resources; adopting laws to ensure adequate and safe water for present and future generations. Accordingly, it is emphasized that governments should take necessary measures in order to fully realize the right to water. In this regard, Iran has faced challenges such as conflict and dispersion of laws on right to water that comprehensive and complete law needs to be enacted in order to eliminations of the challenges.

Religious minorities are those citizens of the Islamic State who adhere to Islam and are granted citizenship rights within a contractual framework. Using an analytical method, this study tries to explain the distinction of this minority in political rights. It bases its analysis on the theory of citizenship rights, necessitating a linkage between citizenship and the right to political participation. The study refutes the competing hypothesis based on the differentiation between types of human dignity, considerations related to the principle of "Nafye Sabil" (denial of dominance), and the contract of protection (Ahd Dhimma). It proves its hypothesis that differences in citizenship rights, except where democratic considerations necessitate adherence to the majority's general will in society management or where there are valid concerns about the minority’s loyalty, do not form distinctions in political citizenship rights. Minorities, as citizens, have the right to nationality and the right to vote. In elected positions subject to Shari'a, they can compete for election, and for both rights, they can have political organization. Therefore, it is suggested that some provisions of electoral laws and parties be amended.

Following the genocide in Rwanda that killed one million people, the Rwandan government turned to Gacaca courts, which are rooted in the culture of all the people of Rwanda, in order to expedite the prosecution of those involved in this humanitarian catastrophe and reduce the prison population. In order to adapt these courts to the conditions of the crimes committed, the Rwandan government made several changes in these courts, which according to many, changed its traditional and informal nature and brought it closer to the criminal courts. This intermediate mechanism, in addition to having gains and advantages as an alternative judicial response, has also caused concern and criticism from a human rights perspective. The present article examines this intermediate mechanism and its positive and negative aspects from a human rights perspective.

Today, new technologies are evolving rapidly, and in the meantime, artificial intelligence offers many potential benefits to mankind with its ever-increasing progress. Such technology requires the processing and analysis of significant amounts of data, as well as access to large volumes of big data. However, the ethical issues of artificial intelligence in the digital space must be identified and taken into account to prevent abuse. Therefore, ethical principles should be considered in the artificial intelligence-based system and guidelines should be provided for users who implement artificial intelligence technologies; which can be called digital ethics. Therefore, the main question of the paper is "What are the moral risks of artificial intelligence and is it possible to create liability insurance for artificial intelligence-based systems?". The research method of this paper is theoretical and based on a library data collection tool, and the data analysis method is descriptive-analytical. According to the findings of the research, the most important ethical challenges of artificial intelligence include ethical concerns related to the collection and unauthorized use of personal data, which will lead to the violation of privacy and human dignity. On the other hand, one of the concerns is non-compliance with the ethical principles of bias and data security. As a result, while trying to develop ethical standards with monitoring and accountability for artificial intelligence and digital space, digital liability insurance suggested in utilization of artificial intelligence in the digital space of liability and negligence in digital environments. Providers of digital technologies may require specialized malpractice insurance to address potential liability issues specific to these environments. Insurers must develop policies that reflect the unique risks associated with digital environments.

Artificial intelligence is the ability of a computer system to solve problems and perform tasks that would otherwise require human intelligence. Artificial intelligence technologies have evolved for decades. Today, many countries are going to develop artificial intelligence in their military programs. Using artificial intelligence for the military purpose will cause many human rights challenges, especially in the area of ​​privacy which is regarded as a fundamental right in a conflict. This privacy extends to cyberspace, to ensure informational privacy and protection of data. Therefore, this research descriptively analyzes the legal and political arrangements and gaps in international humanitarian law and international human rights to protect the privacy in military artificial intelligence between the parties in a conflict and concludes that despite the shortcomings of international humanitarian law and international human rights law, resisting  national security to protect informational privacy and delegate the definition of international human rights frameworks in the field of artificial intelligence as part of the authority of private companies besides formal and informal legislation can fill gaps in the rules governing the use of artificial intelligence in a conflict.It should be noted that in recent years, the human rights community has been busy with digital rights, and especially with the effects of artificial intelligence technology, and there has been increasing attention to the relationship between international human rights laws and standards governing military artificial intelligence.With regard to the use of artificial intelligence, one cannot ignore the danger of constant tension between the purpose and nature of artificial intelligence on the one hand and its use for ethical decision-making in military matters, even with the presence of human control. It should be noted that the advantages of using artificial intelligence in the military field have great potentialities, but it may also create several challenges. For example, Artificial Intelligent technologies can facilitate autonomous operations, lead to more informed military decision-making, and increase the speed and scale of military operations. However, it may be unpredictable or vulnerable in some ways. Therefore, in addition to the benefits of artificial intelligence in military industries and lowering the cost of the physical presence of the them, threats caused by the use of artificial intelligence, especially in fully autonomous weapons, and the violation of informational privacy and the establishment of a system of responsibility and accountability for filling legal loopholes caused by the use of artificial intelligence is very necessary.In this regard, the first possible danger from a military environment under the supervision of artificial intelligence in case of the silence of humanitarian and international human rights rules, data contamination and as a result the loss of digital, physical, political and community security and the distortion of the fundamental right to human dignity. The competition of countries in the use of artificial intelligence to upset the balance of power in the world community has created an increasing concern about the fall of rights and ethics. In this regard, suggestions can be made to amend the rules of international human rights in order to regulate the regulations of military artificial intelligence during the conflict. First, it is a violation of national security for information privacy. The mere fact that a national action is taken to protect national security cannot be a document of violation of fundamental human rights laws by a country. Second, international human rights standards in the field of artificial intelligence should be included in the statutes of private companies. Empowering employees as part of the authority of companies is one of the things that can limit the use of artificial intelligence outside the framework of human rights. And, the promotion of the rules of international humanitarian law whether formally or informally.Informal legislation includes common understandings based on non-binding resolutions and declarations, guidelines and regulations of uniform professional conduct, the practices of industries, domestic laws and policies, civil society reports and political policies, and international and transnational dialogues. Also, redefining and amending official human rights treaties by international institutions can cover digital rights under the rules of international human rights and humanitarian rights. Despite this, although data protection and information privacy regimes are not applicable due to the exclusion of national security of countries, but by establishing informal norms and legislation in international humanitarian law, it is possible to help include the ethics of artificial intelligence in the contemporary laws of war. It is a key factor in human control, which is necessary to comply with international humanitarian law and to satisfy ethical concerns, as a basis for internationally agreed limits on independence in weapons systems. This research has tried to provide a strategy upon which helping the international community to strengthen the rules of humanitarian law and international human rights against the threats caused by the use of artificial intelligence in the military context in the field of violation of the right to informational privacy and accountability of those who violates it.