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

Legal realism and legal formalism as two methods of judicial decision-making in national and international courts have been hot theoretical and philosophical topics among writers, judges, and lawyers in recent decades. Both methods have supporters and each has presented arguments to strengthen their views. In this research, with a descriptive-analytical method and using the library method and using reliable internet sources to collect data, an attempt has been made to answer the question that contemporary international law is at the crossroads between realism and legal formalism Which way is it going and what method does the International Court of Justice, follow in issuing its opinions? The answer that we got in brief is that the debate between these two methods in contemporary international law and as a result in the opinions of the International Court of Justice, has not had a clearly defined winner. However, the tendency is more towards formalism.

During the Gaza-Israel conflict of 2023 (Al Aqsa storm Vs. Swords of Iron) several allegations and claims have been raised from both sides in order to defend their actions. Hamas, Palestinian Islamic Jihad, and Popular Front for the Liberation of Palestine as Palestinian armed groups insist on their right to self-determination and right to resist on the one hand and Israel on its right to self-defence on the other hand. From the very first day of this armed conflict, Israel as one party claimed that while it has not had any effective control over Gaza since 2006, there is no ground to avoid this regime from its natural right to self-defence. With the emergence of disputes over the concepts of effective control and the possibility of resorting to self-defence, several questions are raised as follows: does an occupying power have the right to self-defence? What are the main criteria for effective control in international law? And does Israel have effective control over the Gaza Strip? The author tries to answer these questions based on the Analytical-descriptive method by using library documents. The results show that there is a doctrine and also a soft law about the new criterion of effective control which focuses on consequences of control rather than its material element, namely Occupation.

Today, several factors threaten space assets, and the weaponisation of outer space is among the most important ones. Therefore, preventing the weaponisation of space is of high priority to States. In this regard, there have been many efforts in the two dimensions of Hard Law and Soft Law during the last decades, which have often faced failure. However, in recent years, the trend towards Soft Law to prevent or reduce space threats has increased among States. Resolution 75/36 (2020) entitled "Reducing Space Threats through Norms, Rules and Principles of Responsible Behavior" is one of the latest resolutions of the United Nations General Assembly concerning this issue, which has been highly accepted by States. This Resolution is of importance because, unlike previous resolutions, it emphasizes the "behaviour" of States. This article tries to answer the question of how the mentioned resolution as an example of Soft Law is effective in reducing the threat of space assets.

The reality of the world is that it is not free of natural and unnatural disasters. With the occurrence of disasters, many material and mental destructive effects on the entire earth, especially humans. In such situations, the need for support is increasingly felt. This support somehow requires cooperation, convergence and international solidarity. The main question is whether the obligation to cooperation can be considered a fundamental human right? What forms the hypothesis of this research is that; obligation to international cooperation in the event of disasters for a number of reasons, including; the demanding need for extreme protection is considered a fundamental human right. The most important findings of the research is that this obligation is an Erga omnes commitment that, although not limited to the time of disasters, but will be binding on everyone at the time of such risks. It can be argued that such an obligation can exist in other areas that are disaster-free, such as maximum protection of fundamental human rights. This type of obligation can also be raised in the face of terrorist acts, countering impunity.

The concept of soft rights is one of the relatively new topics that has found a special place in the literature of international human rights. The purpose of this research is to explain the position of soft rights in the normative hierarchy of human rights.
This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.
Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.
The mechanisms of soft rights in the international human rights space have different functions, which has led to the conclusion that a fixed place for the concept of soft rights in the normative hierarchy of the international human rights system cannot be considered.
Soft law documents and mechanisms sometimes appear as an independent source and sometimes as an auxiliary and subsidiary source to verify other legal rules.

In the formulation and development of the international climate change legal regime, a retreat from binding compliance mechanisms and a shift towards the use of softer legal framework and bottom-up designs can be seen. Regardless of the effectiveness of international climate agreements in managing climate change, in terms of the use of hard or soft law and the type of compliance mechanisms design, this article seeks to find and examine the reasons for the soft law prevalence in the process of international climate law development from the perspective of the school of legal positivism.According to the positivist approach, although the mixing of wills, arising from objective and scientific facts, has provided the necessary force to shape the international climate change regime, the duality in the system of obligations and interests multiplicity of internal influential groups in the process of accepting treaties has caused the collapse of the States collective will before Paris Agreement. Therefore, in the Paris Agreement, with the preference of voluntarism over climatic requirements and attention to the national sovereignty of countries with the waiver of strict obligations, the ground for concluding an agreement and making a change in the legal regime of climate change was achieved.

In the 17th century that with the invention of the microscope, the man realized that the surrounding world is beyond what is exposed to his senses, national and international legal systems in the third millennium are lost facing the invisible part of the Internet (Dark Web) which is an intangible, unknown, important and great phenomenon and hidden behind the veil of anonymity. They have not been able to have a specific, appropriate and comprehensive response. In this article, first of all, the need for international law to pay attention to the dark web has been examined. Then by studying international and regional instruments, interpretations, and legal scholars, the insufficient response of international law to the dark web has been criticized and the existing capacities in international law, like a non-binding instrument, soft law, and international cooperation, have been investigated. In the end, the application of these capacities in the path of achieving realistic legal frameworks of the dark web has been studied.

The discussion of the moving from strict regulations is one of the neglected aspects of international law, which in this article tries to explain and analyze with emphasis on the Paris Convention on Climate Change.

This is a descriptive-analytical article using the library method to investigate the question.

In this article, the originality of the texts, honesty and trustworthiness have been observed.

In international law, we are witnessing a transition from hard law to soft law. This is especially true in the field of environmental issues. Soft rights have received increasing attention due to their flexibility and adaptability to conditions, the creation of conditions for broad government participation, and the reduction of their resistance to the implementation of directives. The mentioned features of soft law have caused it to have a high potential in international agreements and collective decisions, especially in the field of environmental issues.

The Paris Convention on Climate Change has created a number of commitments for developed, developing and small countries, the main focus of which is the rapid reduction of greenhouse gas emissions, which is in line with the goals of reaching the desired temperature. The binding nature of the Convention's rules, the mixing of environment and security, the voluntary commitments of members based on the cooperation and coexistence of governments, the development of dispute resolution mechanisms are the most important examples of the moving from hard law to soft law in the Climate Change Convention.

Development could be realized as third-world’s demand on international law. historical evolution of concept and normative position of the development law happened in years. At first, the right to development was claimed in order to establish a new economic order. Eventually, some new aspects like social development have been considered. Acceptance of these aspects have led to establishment of new concepts like human development, millennium development and also sustainable development. The latter, in a pattern has combined the three pillar of economic development, social development and environment for sustainable construction and is an objective framework for the concept of development. Defining the nature of sustainable development is one of the most challenging subjects in the international law, at the current time. This was a challenge from the very first time of the establishment of right to development in international law and so far, international lawyers are not unanimous in this regard. Considering the evolutionary road and functions of sustainable development, by using descriptive – analytical method this article determines the normative position of sustainable development as an international commitment in international law.

The mainstream discourses in the current century have been human rights and environmental rights. The primary responsibility for the respect and ensuring of human and environmental rights belongs to governments. Meanwhile, the role of transnational corporations in violating human rights and environmental rights is often more than governments. For this reason, today, with passing the "respect to human rights" era, it is necessary for transnational corporations to ensure human rights. In fact, transnational corporations which enjoy of community, water, air, land and other resources of the host State should take some actions for social development of the host society. The responsibility of transnational corporations in the social development of the host government is known as "Transnational Corporation Society Responsibility - TCSR". This responsibility, which includes the commitment to ensure human rights, is rooted in principles such as right to development, obligation to technology transfer, fair treatment principle and development condition in foreign investments. The social responsibility of transnational corporations is also shaped by some national law regims and international law. Conversely, challenges also threaten the social responsibility of transnational corporations such as legal problems in host and parent State of TNCs, expences and benefit formula, taxs for social development and responsible-decision maker unity. By examining the performance of some transnational corporations in realizing their social responsibility, we can see the current status of this concept in the international arena.

The concept of "soft law" has faced difficulties from the beginning and different views have been expressed about it. Some do not consider "soft law" as a legal concept because it does not have the nature of a government obligation. On the other hand, others believe that this concept, despite not having a guarantee of criminal execution, is one of the legal concepts in which voluntary obligation is introduced instead of government obligation. Some have equated soft law with morality because of its binding nature. Using descriptive-analytical method, this research seeks to answer the question: what is the meaning of "soft law" and how does it flow in the family legal system from a religious point of view? To answer this question, while explaining the concept of soft law, we examined its conceptual relationship with hard law and morality, and after reaching the point that soft law has a legal meaning and is different from hard law and morality, we analyzed the application of soft law in the family from a religious perspective. Hence, we have shown that, from a religious point of view, not only "soft law" can be applied in the family law system, but also due to the unresponsiveness of hard law in the family law system and the lack of ethics in family relations, the basic principle in family law system is the softness of rights and laws.

SanRemo Manual, although not a binding document, seeks to provide a contemporary revision of applicable international law on armed conflict at sea. In order to prevent the previous rules from being forgotten and to create different interpretations of these rules, the mentioned directive has tried to revise the rules of naval war law in accordance with the developments of international law. However, the legal status of the SanRemo Manual in international law and its validity among jurists and governments is unclear and there are differences. Purpose of this brief is to assess the validity of the SanRemo Manual from the perspective of customary international law and soft law. Therefore, considering the content of the instruction and considering that instruction has been compiled by legal and naval experts, the author seeks to answer these questions: if SanRemo Manual is considered to be the source of the law of naval armed conflict, in which category does the resources fall, soft law or customary international law? Findings of the study indicate that the content of SanRemo instruction, Addition to having the validity of customary law in the traditional sectors, also has the validity of soft law in the fields that are innovative in the field of naval law. In recent years, SanRemo directive has also been widely cited by countries and international institutions.

Soft law is one of the new topics in international law and the scope of its influence is expanding. Perhaps today fewer institutions can be found that do not use this tool in order to reach their goals. One of these institutions is the International Court of Justice. This paper attempts to examine the status and function of soft law in the practice of the International Court of Justice in a legal dogmatic way. The International Court of Justice has dealt with the issue of soft law in numerous cases. The Court, on the one hand, expresses the criterion of separation of soft law from the hard law and on the other hand, shows the ability to cite soft law. For this purpose, the court has, in many cases, enjoyed soft law to reinforce its arguments and to assert the opinio juris of international custom.

Internet Multi-stakeholder governance is the latest achievement of the legal doctrine on how to regulate the rules governing the Internet (as a clear indication of the cyberspace). After the first World Summit on the Information Society (WSIS) which was held in 2003, and faced with the acceptance of governments and other stakeholders in the cyber space, it draw serious attention and became operational. In fact, the promoters of this form of global governance are striving using the common concepts and rules of international law to organize the field which unlike the classic international law its only active actors are not the governments, and to some extent, international organizations and this time, other stakeholders such as social groups (individuals) and companies have a major role and influence. This paper uses an analytical-descriptive method to study the role and effectiveness of each stakeholders in the future of internet governance and the context, implications of applicable international law in this area, such as soft law, related international organizations and, finally, its existing problems and disadvantages.

Providing a framework for the application of artificial intelligence is an urgent need, given the growing use of it, the sooner the boundaries are defined in this area, the necessary balance between freedom of research and innovation, on the one hand, and the protection of values. Establish a common democratic society, including human rights. There are currently two draft resolutions around the world that will be finalized in the very near future, one with an ethical dimension developed by UNESCO, while the other with a draft convention with specific features. Hard wages will have a strong enforcement guarantee after approval. Every time a new technology has emerged, these two international and regional institutions have provided the necessary framework earlier than their counterparts, and this time they have taken the lead in the emergence of new technology. Undoubtedly, the moral advice of UNESCO, on the one hand, and the Council of Europe Convention, on the other hand, will play an important role in humanizing the age of artificial intelligence. However, the role of the European Union and the UN Special Rapporteur on Freedom of Expression has not been less than that of the two institutions.

Considering the need to create a common consensus for the subjects of international law in order to achieve common goals under voluntary conditions, moral requirements were formed which led to the emergence of soft obligations in the international law literature. Had. The purpose of writing this article is to judicially examine the obligations of soft law within hard law, of which the 2015 Paris Climate Change Agreement and the Clean Air Act and Judicial Enforcement Guarantee are examined as examples. The question is; Given the soft legal obligations, to what extent can the guarantee of its implementation be effective in Iranian law according to the Paris Agreement? The research hypothesis is that it seems that soft law obligations can be effective and guarantee sufficient implementation in Iranian law according to the Paris Agreement. This study is a library method and requires the international community to address these barriers.

The concept of due diligence meaning the necessary vigilance and carefulness in fulfilling a legal obligation is one of international law principles which has significantly been confirmed and emphasized by international tribunals. Despite customary grounds of this principle's requirements, many treaties have incorporated and arranged it in contractual frameworks. The main domain of this principle is in the law of international responsibility, where implementation of states' obligations are examined, and it will be the basis for responsibility if a state fails to behave in accordance with due diligence requirements. As a matter of fact, that state does not observe the necessary carefulness in fulfilling its obligations. The importance of this principle is more tangible in state liability in  trans-boundary harms. The principle of due diligence has entered into international financial regulation, including FATF recommendations, and has created some commitments for states and financial institutions. The concept of due diligence has been used in two exclusive and general meanings in FATF regulations having some similarities and differences with its implications in international law. Despite clarifying the concept of due diligence in international law and FATF Regulations, this article deals with these functional approximations and separations and their effects.

AbstractMost often, normative hierarchy in legal systems is based on a certain source of which a norm originates. It is typical in each domestic system that the fundamental values of society are given a supreme position within Constitution; such norms will be prioritized in case of conflict with others. Within the decentralized international system, each state interprets its obligations in an equal manner with others; and it chooses the necessary tools to fulfill its obligations. Therefore, we witness the slow progress of consensus on path to generation of hard norms in the form of traditional sources has severely undermined the capacity to respond to contemporary challenges in practice. With the initiative of international law scholars and the contributions of the World Assembly, A move has been embarked from the origin of traditional international law, which stringently distinguishes between law and non-law, to the destination of modern international law, during which owing to the necessity of time requirements, soft law outstrips the exclusive position of classical resources to furnish the required grounds for global responsiveness to pervasive issues such as climate change. This paper securitizes the means and quality of penetration of the relativity stemming from soft law in the realm of hard law.Keywords: Relativity, Soft Law, Hard Law, Non-law

International commercial rules not ratified by governments are divided into two categories. Some of them are designed to be incorporated by the parites of a international contract, such as incoterms, others are conventions and model laws designed to ratified as hard law by government but not yet ratified. In this paper we tackled the question what is the legal status of International Commercial Soft Law. In this regard, we disregarded the discrepancies existing in public international law works. In sum, the legal status of such rules is mainly dependent on principle of freedom of contract and principle of autonomy and how and to what extend commercial customes are recognized by different jurisdictions. Internaiotnal Commercial Soft Law has found a special position in international trade for several reasons, such as involvement of commercial and industrial practitioners in drafting of such rules, development of democracy, liberalization of economy, globalization of trade and so on.