نشریه حقوق بشر
پیاپی 35 (بهار و تابستان 1402)

Undoubtedly, the right to life is the most important of all rights. Regarding this point, the fundamental question is, who has the authority to make laws and take action resulting in humans being killed? In response to this question, in this paper, I aim to defend the thesis that only God has the (moral/legal/religious) authority to make and issue the laws surrounding life and death. So, it is rational to believe that the right to life is restrictively a Divine right and not a human right. The paper is organized as follows: after introducing some elementary points and definitions, two arguments in favor of the above thesis will be formulated. In the first argument, by laying out some thought experiments, it is shown that human laws concerning civilians’ life are paradoxical and implausible. The second argument is based on exploring the origin of the right to life. In the last part of the paper, some implications and advantages of the favored thesis will be stated in brief.

At the first glance, discrimination concept is so clear that no other clearer definition could be presented but its own definition. But in practice, it turns into a complicated and unresolved issue. Some rules are not apparently discriminatory but they lead to some discriminatory effects. Sometimes, internal intentions turn neutral actions into discriminatory behavior and some other times, positive measures which have been adopted to be compatible with equality turn into discriminatory behaviors in the end. It is essential for human right organizations and institutions and a main goal for the current research to present an evaluation criterion to determine whether a legal regulation or an action is discriminatory or not. In this research, three evaluation models (the model based on deontological point of view, the teleological model-trace consequences- and finally the model based on religious teachings-Islamic view) have been presented which have been successful to recognize real discrimination. This research has analyzed the human right documents and popular points of view in international courts.

Is it possible for genocide to be committed only by states with totalitarian and authoritarian political regimes? Events and studies in Canada over the past few decades prove the opposite. A wealth of Canadian state documents, witnesses, officials’ confessions, and surveys show that the genocide of Indigenous peoples as the main owners of the land was carried out in a very slow, lethal, and mostly non-lethal manner against this population. The article, while reviewing the facts of the case in the light of case law and related international documents, considers the option of bringing an action against the state of Canada in the International Court of Justice to reiterate to the members of the international community the need for appropriate action. Reconsider their approach to the people under their jurisdiction so that they do not commit genocide as the most heinous international crime, and thus we witness a day without repeating the unbelievable stories of a generation of people trying to destroy other generations.

The right to peaceful assembly is recognized as the right to participate in gatherings and marches in the constitutions of countries, and the methods of guaranteeing it are specified in the laws. The purpose of this research is to examine the right to peaceful protest from the perspective of Islamic teachings and the method of guaranteeing it in Iranian law. The findings of the research indicate that various teachings in Islamic Sharia confirm the right of assembly and peaceful protest, especially in terms of calling for good, forbidding evil and Public litigation. Also, the constitution of Iran, influenced by religious teachings, recognized this right. However, the permit-based model in fulfilling this right, which is stated in the executive regulations and the procedure of the executive bodies, while making it impossible for natural persons to fulfill this right, also fails the organizations and parties in obtaining permission for peaceful gatherings and marches. According to the legislative plan in action, it is proposed to modify the approach of the political system and pay attention to religious teachings and the constitution in guaranteeing the right to participate in gatherings and protest in the public.

The main purpose of this research is a comparative study of legal system of Islamic Republic Iran and Federal Republic of Germany of fighting against torture to provide a solution for weaknesses in the legal system of Iran. The research method is comparative; In this way, based on the international human rights law, the approach of the two legal systems in the fight against torture is described part by part and the strengths and weaknesses of each are analyzed. Findings show that despite the defects in Iran law in the fight against torture, the German legal system does not have a significant advantage over Iran and in turn has serious defects. The results show that the commonness of torture is not necessarily due to the weakness of legislation; its due to the lack of culture making of the government about the absolute prohibition of torture and the violence of this principale by government at all, and the high status of confession as a criminal evidence. Using the guidelines of the international human rights law can be used as an anti-torture strategy.

The right to a trial as one of the types of human rights has been emphasized in various international instruments and most countries' domestic laws and possibility of challenging a decision issued by dispute resolution authority is one example of a right to a trial. Considering relationship of this right to human rights, the validity of such an agreement is questionable. Regarding the arbitration, some regulations recognize the exclusion agreement about setting aside the arbitral award. An important question arises about whether this situation is contrary to the parties' right to a trial as one of the examples of human rights or not. This question has been examined in the current study and finally the present article concludes that in order to respect the human rights of the parties, the validity of said agreement is conditional on "being explicit", "freely" and "concluding after the award and knowing the reasons for the objection" and in case of violation of the principle of fair trial and lack of independency and impartiality in the arbitrator, the said agreement has no effect. In Iranian law, due to the lack of legal explicity and human rights considerations, only in the presence of all the above criteria, exclusion agreement about setting aside the arbitral award is valid and effective.

Codification, interpretation, enforcement, interpretation and modification, all are mainly affected by governments will. Margin of appreciation doctrine isn’t an exception in this respect. This doctrine provides certain flexibilities for implementation of the obligations of states under some circumstances. One would pose a question that in case the matter in question is one dealing with human rights how much and to what extent Margin of appreciation doctrine play its role under international human rights norms. This descriptive-analytical study examines the dimensions of the marginal doctrine and its effectiveness in the context of the principles of sovereignty and human rights and freedoms. In this regard, the said doctrine is analyzed in light of both the natural positivism schools to see its manifestation in the practice and view of the European Court of Human Rights. The results of the research show that, by determination of certain Criteria and restrictions for margin of appreciation doctrine as a product of legal positivism (voluntarism), European court of Human Rights attempts that considerations of the natural law school is being considered by states.

When rights are recognized for people, but the simultaneous application of two rights causes damage to one or both rights, we face the problem of conflict of rights. There are three main approaches to solve such conflict: The first approach is to create meta-rules such as conflict resolution rules, which provide indicators to the public and finally to the judge to clearly understand the priority of one right over another. The three main forms of meta-rules are balancing, equilibrium and hierarchy. The second approach is to accept six criteria to resolve human rights conflicts, which have been used repeatedly by the European Court of Human Rights. From these six criteria, one or more criteria can be used depending on the situation governing the conflicting rights. The third approach is to apply the minimum restriction criterion. This means that any method that imposes the least amount of restrictions on two rights is the best method of conflict resolution. This article evaluates the possible solutions with a descriptive-analytical method by explaining the theories and relying on the jurisprudence of the European Court of Human Rights.

One of the main issues facing human rights is the possibility and how it is implemented. In the domestic arena, the existence of political power from the Leviathan helps to guarantee the implementation of human rights, but in the international arena we face relatively anarchic conditions. The question is what mechanisms the prominent paradigms of political science and international relations have proposed for the implementation of human rights. In the article with the framework of genealogy paradigms and epistemological systems, human rights in the paradigms of political science and international relations are examined. For this purpose, thinkers, intellectual foundations, and executive mechanisms of human rights have been analyzed. The above paradigms can be placed in a continuum that encompasses a variety of perspectives from the possibility to the denial of human rights. At one end of the spectrum are liberal and technology-oriented approaches that consider the implementation of human rights in the domestic and international arenas possible and offer a variety of mechanisms for it. On the other hand, there are critical and phenomenological paradigms that make human rights and its implementation impossible in the current situation. Between the two is the paradigm of realism, which finds the implementation of human rights within the framework of the state feasible but finds it difficult to achieve in the international arena.

Natural law is the main reason of natural human rights. According to its most famous conception, natural law is the commands of practical reason about free human behaviours to arrive at eternal happiness. Western natural law discussions started from the sixth century BC. During this long history, natural law was under different conceptions. In the 19th century, natural law discussions subsided altogether because of the domination of positivism on the philosophers' thoughts and they were revived in three stages in the postmodern period of the 20th century. This paper analyses natural law theories in the second stage of the revival. These theories are classified into two groups: Catholic and Protestant views. The Catholics thought that paying attention to natural law teachings is necessary to make positive laws ethical in societies. Protestants were prudent in relation to natural law as the real (not intrinsic) secular morality. In addition to the particular deficiencies of each theory, the common problem of both two groups of theories is that they are not natural law in the same name. That is why dividing them under one word (of natural law) is not a correct logical division. The research method in this paper is a synthetic one, which is traditional – intellectual – critical.

Biotechnology with its incredible advances has accelerated the dream of achieving a hyper human depicted in fictional stories and movies by combining human biological organs with various implants and prostheses. The human-machine hybridization known as the cyborg has posed wide-ranging challenges for the humanities. The emergence of rival discourses such as post-humanism, which promise to transcend the concept of human and enter post-humanity, is one of the consequences of such a reality. Meanwhile, the story of human rights, which is to a large extent the story of humanism and the appreciation of the status of the current dominant species in the world, the conscious human, has faced new actors and, consequently, new questions; Can cyborg, as a half-human-half-machine phenomenon, fall under the umbrella of human rights in its current meaning and scope? Does the complex and somewhat unknown nature of cyborgs lead to the abandonment of the human concept and the eventual collapse of human rights? This article tries to answer the previous questions using a descriptive-analytical method. The result of the present paper is the need to reconsider the concept of man and re-articulate the meaning and scope of human rights, as well as explain the phenomenon of the cyborg as a prominent step in the evolution of the human species and not a departure from humanism.

The theory of natural rights was a revolutionary doctrine that gradually gained attention. The main idea of this theory is to identify the rights that humans have due to human nature. This idea became a serious concern of Enlightenment thinkers such as Hugo Grotius, Thomas Hobbes, John Locke, Immanuel Kant and Thomas Paine, and it appeared in the provisions of the "American Declaration of Independence" and the "French Declaration of the Rights of Man and Citizen". In this article, we are trying to examine the Rise and Decline of the theory of natural rights in the perspective of Enlightenment thinkers. The claim of the article is that criticisms such as disregard to social order and traditions of political society, abstraction and individualism, which were raised in various forms in the thought system of some thinkers such as Edmund Burke, Jeremy Bentham, Friedrich Hegel and Karl Marx, It caused the theory of natural rights to be gradually marginalized from the beginning of the 19th century. However, this was not the end of natural law theory and its teachings have been extended with different expressions and understandings in contemporary political and legal thought and have been pursued by a number of thinkers including John Rawls, Robert Nozick and John Tasioulas.