فصلنامه مطالعات حقوقی
سال دوازدهم شماره 3 (پاییز 1399)

In the nineteenth century, some German thinkers such as Jellinek and Ihering, under the influence of the philosophy of thinkers such as Aristotle and Hegel, and with Savini's romantic view, established the theory of the self-limitation of power. According to this theory, the state limits itself at will. According to this view, the state, and consequently those rights, arise from the heart of society as historical products. In addition to social and cultural conditions, using psychological concepts, self-limitation was also described as a kind of "self-commitment." Therefore, the concept of government and its role in the establishment of rights, as well as its will to limit its power, is very different from what is stated in the theory of social contract and the school of law.

Study of the phenomenal process of law is one of the important issues in the field of the foundations of law. The purpose of the emergence of law is the emergence of the first types of social behavior, and legal rules and duties in the primitive societies of mankind. On the other hand, interference of conscience in the formation and development of law has always been the subject of serious agreement and opposition by the owners. Using the latest findings from sociobiology and other sciences, this research seeks to provide a paradigm that describes the role of conscience in the Emergence of law more precisely and scientifically. According to the findings of this study, "conscience" is the logic of social or rational membership, which utilizes shared knowledge and feelings in the community, and crystallizes the moral-social characteristics of humankind, such as empathy and altruism. The "conscience" makes the habits and rules of co-operation both ethical and human; it creates the inner sense of "right" for each individual and applies "justice" as an indicator of its own assessment. Collective conscience is the shared value of individual consciences and the collective rationality of membership that relied on conscience in a determined space for law. In summary, we can say Conscience has a multi-faceted role in the phenomenon of law.

“The position of bearing witness”, “the position of giving testimony” and “challenging the witness” are among the cases that violate the spiritual dignity of individuals seriously, specifically in the case where the contents of the testimony of witnesses and all that is stated to challenge the witness, according to circumstance, relate to the spiritual dignity of the “defendant”, “witness”, or the “plaintiff”. On the one hand, the spiritual dignity of individuals is respected and preserved, and attempts have been made and it is emphasized and expected to protect and to preserve it from any violation and that in the case of violation, the legal and criminal prosecution is made possible. On the other hand, it is seen, at least in some cases, that the execution of some rules is concurrent with the violation of spiritual dignity of other individuals and that impossibility to enter the privacy of individuals practically leads to the abandonment or the complete lack of execution of important rules. Therefore, the question arises here as to how can one put these apparently controversial rules together?

By enacting Civil Liability Act in Iranian law, the situation of non-contractual indebtedness in Civil Act that depends on Islamic Jurisprudence became ambiguous. New act created different questions that the most fundamental one is what relationship exists between Civil Liability Act, Civil Act and Islamic Jurisprudence? Are the topics in Civil Liability Act, the same as rules in Civil Act and Islamic Jurisprudence? Law writers, in order to justify the scope of these rules, declaimed different ideas such as allocation or abrogation subjects of non-contractual indebtedness in Civil Act by Civil Liability Act. In this article we emphasize on natural differences between non-contractual indebtedness and consider the cause of enacting Civil Liability Act and the scope of applying that. It will be determined that the logic of these rules and the scope of applying them and its effects have fundamental differences. This study shows we can build the basics of making tort law in Iranian law, depending on expanding the implication of Discretionary punishment awarded by the judge in private law and also the rule of rational prohibition of loss, on the basis of Shia jurisprudence.

One of the issues addressed by the UNCLOS is the protection of the underwater cultural heritage in the Area. Article 149 not only has many shortcomings and ambiguities but also lacks any solution or framework for the implementation of the measures provided for therein. The "International Seabed Authority" has not been introduced as a competent organ for the implementation of these measures. The UNESCO's 2001 Convention provides two mechanisms for "Reporting and Notification" and "Protection" for ancient and historical objects and the Authority is merely informed and consulted without being able to exercise competence in this regard. Given this international organization's extensive powers to explore and extract resources of Area and close connection between "Activities in the Area" and archaeological activities, the question is what is the role of the Authority in protecting underwater cultural heritage in the Area? In this research, an attempt is made to answer this question with a descriptive-analytical approach and by examining and analyzing the measures and mechanisms prescribed in documents. The findings show that under the UNCLOS and the UNESCO's 2001 Convention, in the absence of effective role of Authority, the issue of protection of underwater cultural heritage has been left to the Flag-States. In contrast, the recent decisions of this organization indicate the practical necessity of having and exercising such powers by it.

The expectation interest damage refers to a kind of damage injured to the non-breaching party by obligor’s failure to comply with the contract obligation. The contract performance as a right belongs to the obligee and breaching this right constitutes the expectation interest damage.in the Iranian Law this concept may in substance be considered as loss of profit then uncoverable but it should be noted that they are distinguished because the expectation interest unlike the loss of profit is as definite and actual damage. In the most jurisdiction like Common Law and civil law this damage is recoverable and in the Iranian law there are some rules may imply the coverability of the damage like article 536 of the Civil Act. The purpose of this article is to justify the legal basics of compensation of the expectation damage in the Iranian law, jurisdiction as well as legal doctrines’ in the light of comparative law.

Today, many countries around the world have different minorities as their citizens. The Islamic Republic of Iran also has various types of minorities. Different racial, linguistic, cultural and religious minorities have formed a diverse population in Iran. Muslims in Iran are about 99.4% of the population, so the Constitution of the Islamic Republic of Iran mandates that the official religion of Iran is Islam. Then, non-Muslim Iranian citizens as “religious minorities” are divided into two general categories in the Iranian Constitution: Religious minorities subject to Article 13 of the Constitution as “recognized religious minorities” and Religious minorities subject to Article 14 of the Constitution as “unrecognized religious minorities”. The Constitution enables recognized religious minorities -Christians, Jews and Zoroastrians- to apply their own cannel law in the interpersonal affairs. According to Article 14, unrecognized religious minorities will be treated well and fairly in Iran. As mentioned in the Constitution, Iran’s legal system based on Islamic jurisprudence. So, by using citizenship -as a legal entity- and considering the teachings of Islamic jurisprudence, this research seeks to make clear the status of unrecognized Iranian religious minorities, using an analytical-descriptive method.

International court of Justice has faced with different allegations from states that have raised various arguments about the Obligation to Negotiation”as a legal frame for Negotiation as a mean for settlement of disputes peacefully. Although briefly, the ICJ had discussed some legal aspects of this obligation in its previous cases. The most recent ICJ case concerning the obligation is 2018 case of “OBLIGATION TO NEGOTIATE ACCESS TO THE PACIFIC OCEAN (BOLIVIA v. CHILE)”. In this article we are to find out the way ICJ has referred to this obligation in international law. Therefore, the main question is that how is the status and position of the obligation to negotiate in international law and under the practice of the ICJ ? This article with the use of library documents and jurisprudence try to answer the question through deduction method of arguments. We believe that according to the international court of justice, there is no such a general obligation under international law. But it could be proved that the customary international law has evolved in this regard in some specific areas of international relations. The general principals of law determine how to perform the obligation. And finally as the court has noted we will discuss that the general rule on the nature of the obligation is not of results but of means.

The discovery and focusing on different advantages of application of nuclear energy do not mean to neglect the power of this type of energy to develop and expand activities that violate the safety and security of the community and its followers. Among these behaviors is nuclear blackmail that along with the threat of using the destructive power of nuclear energy, the illegal demands of individuals are asked to enforce. In this respect, England and Wales' penal system is one of the few systems around the world that have independently reacted to the commission of nuclear blackmail. Thus, both terrorist and non-terrorist dimensions of nuclear blackmail are separately criminalized. Contrary to England and Wales' penal system, the legislator of Iran has not yet paid attention to criminalize nuclear blackmail. In this regard, the purpose of this research is to study and analyze the penal laws of Iran and England and Wales against nuclear blackmail and to suggest a proper criminal strategy in related the beforementioned behavior.

The Present descriptive-analytic paper relying on the International Court of Justice's previous case-law on Erga Omnes obligations, following the investigation and anticipation of the outcome of the Gambia lawsuit against Myanmar in the case of application of the Convention on the Prevention and Punishment of the crime of genocide (1948) before The International Court of Justice. The foregoing research shows that, first, the Gambia request for provisional measures is sufficiently sufficient to achieve its intended purpose. Secondly, the obligations contained in the Convention considered as Jus Cogens and Erga Omnes Obligations which, although not affecting the jurisdiction of the Court, provide sufficient grounds for Gambia's right to file a lawsuit. The Rohingya group is also considered as the "protected group" under the Convention, but proving whether the Myanmar government is responsible for the commission of the crimes is based on evidence related to the control, direct or order of the perpetrators by the Myanmar government and the Court's assessment of the events. It will depend. The present case because it is based on Erga Omnes and Erga Omnes Partes Obligations, in line with the protection of human rights, can be a turning point in international law.