Iranian Journal of International and Comparative Law
Volume:1 Issue: 1, Jan 2023

In the current globalized scenario, in view of the existence of phenomena and dynamics that go beyond state territories, of the integration of States in supranational and globally considered political systems, it is possible to perceive the emergence of new forms of political-legal organization in the international community that raise constitutionals conceptions beyond the classical perspective of the State-centered Constitution Theory. Thus, in view of the manifestation of a quantitative and qualitative growth of international law based on the identification of constitutional elements, an issue that has been gaining importance in debates and in the internationalist agenda, the problem to be developed asks: how is the development of Global Constitutionalism composed? considering the common challenges of the globalized world that transcend state borders, the confusion between external and internal limits, as well as the transformations of law in the international order, it is necessary to analyze the present content due to the need to point out directions by where you can tread the reflection in relation to the development of Global Constitutionalism. In this sense, the present study intends to find theoretical trends that compose the identification of the development process of the Global Constitutionalism paradigm. To answer the exposed problem, some objectives need to be achieved. Initially, an overview of the perspective of classical constitutional theory will be carried out. Then, we move on to the observation of the manifestation of Constitutionalism beyond the State. Finally, trends and aspects of the development of Global Constitutionalism will be examined.

Postmodernism in the contemporary world asserts that there is neither a dominant nor an ideal marriage form as monogamy or even a classical family type. Unlike modernists who sought human issues as permanent entities, postmodernists believe in everything to be of a transient nature. In the same vein, they argue that love and law are ephemeral rather than eternal entities. Mariage blanc has increased in many aspects corollary to this ideology. In a world of no restrictions, postmodernists indulge in short and diverse satisfactions, whereas the classic world believed that long-lasting personal relationships are more important to personal fulfillment and happiness. Therefore, attitude toward marriage for a durable satisfaction is subdued to having a serious relationship. It seems, however, that quality in the relationships is superseded by quantity in the postmodern era.

Protection of the children is one of the most important concerns in international human rights law. Child marriage is recognized as one of the forms of child abuse. The first step for elimination of child marriage is legal definition of the child. Lots of treaties have tried to determine the minimum age of a person before which he or she cannot marry. This article examines the criteria for recognizing an individual as a child and consequently child marriage in the international human rights system and domestic laws of the Islamic Republic of Iran. Treaties relating rights of the child do not clarify a specified minimum age for marriage except the Convention on the Rights of the Child in which a child is defined as a person below the age of 18. This criterion is based on an age-oriented approach and is aimed at homogenization of girls and boys. In contrast, in the law of Iran it is based on an interest-oriented one and it is relied on a multiple-criteria approach comprised of legal (physical or sexual) maturity, mental growth, religious maturity and guardian consent which has resulted in a more rational and defensible approach.

International refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. In the context of the Syrian conflict, more than 3.6 million Syrian asylum seekers are under temporary protection in Türkiye. As this country is the number one host country for Syrian asylum seekers in the world. One of the current discussions about the fate of Syrian asylum seekers in Türkiye is their status after the end of temporary protection. In this context, the regulations on the end of temporary protection in Turkish legislation will be discussed in light of global standards on international protection. The aim of this study is to discuss Article 11 of the Turkish Temporary Protection Regulation in comparison with the UNHCR Guidelines on Temporary Protection or Residence Arrangements and International Humanitarian Law. In this context, the conditions for the termination of temporary protection, the legal and policy basis for a decision to return asylum seekers, the conditions for acquiring Turkish citizenship, and the compliance of Turkish legislation with global standards are discussed. This study will stand for a decision to terminate based on the voluntariness of asylum seekers in accordance with UNHCR guidelines.

The return of Palestinian refugees to their ancestral lands remains a pressing human, political and legal issue in the third millennium. The present study aims at exploring the legal status of Palestinian refugees as well as investigating their right of return to their lands in an international law framework. In so doing, the role of nationality and the principle of genuine link between claimants of the right of return and the country of origin are examined. It is concluded that considering the historical context of the Palestinian territories, part of which is now called Israel and the other part is under the control of the Palestinian state, Palestinian refugees can pursue and demand their right of return. Obviously, neither the passage of time nor the refusal of the Israeli side undermines the existence and validity of their claim for the right of return. Library data and field studies are used in delineating concepts, analyzing theories and confirming research hypothesis in the study.

The reason claimed by the Government of the United States (hereinafter the US) for the assassination of General Qasem Soleimani (General Soleimani) was to prevent imminent attacks. This allegation implicitly evokes the Doctrine of "Preemptive Self-Defense". This article evaluates the US claim in the attack of General Soleimani as a preemptive self-defense through a critical analysis. The US resort to the doctrine of preemptive self-defense for the assassination lacks legal validity and is especially contrary to the provisions of the UN Charter, particularly Article (51). This assassination can be considered the illegal use of force by the US. According to the principle of prohibition on the use of force in international law practice, any premeditated attack before the beginning of armed aggression is not considered self-defense. Moreover, the US evidence in proving an imminent strike from General Soleimani is inadequate and unjustifying.

The armed conflict in Yemen is one of the most devastating and catastrophic crises the international community is currently facing. It is entering its seventh year. This situation has raised numerous questions under International Humanitarian Law (IHL) as the set of rules the main aim of which is to limit the effects of armed conflicts for humanitarian reasons. This is also an occasion to test the pertinence and efficiency of IHL rules in the face of current armed conflicts. Accordingly, the present article seeks to study certain important issues in IHL raised by Yemen armed conflict. Doing so, firstly, the type of armed conflict in Yemen is addressed (1). Then, it goes through the principles of distinction, proportionality and precautions (2). Thereafter, the issues of blockade and siege are dealt with (3). After that, the situation of certain persons is examined (4). And finally, the very challenging and significant question of humanitarian assistance is studied (5). I will conclude that most of the humanitarian problems except the issue of humanitarian assistance and sieges are adequately regulated by IHL and that the problem is mainly that those rules are not respected. The controversy about the classification of the conflict, whether it is an international armed conflict (IAC) or a non-international armed conflict (NIAC), does not fundamentally affect those rules.

The present article seeks to investigate the theoretical foundations of human rights in Islamic thought.  It would briefly overview the foundations of human rights in international law as well. By reflecting on the epistemological, cosmological and anthropological foundations of human rights in Islamic thought we can reach a realistic view relating to human being and his/her identity thereby justify human rights. Divine rights include two collections of rights: statutory rights that are recognized for human beings in the Book and Sunnah and those rights that are originated from Fitrah and nature. From an Islamic point of view, there is no contrast between Divine rights and those originated from Fitrah. Using reason and the revelation, legal school of Islam is one of the most reliable and reasonable sources for clarifying Fitrah and natural rights. Basing human rights on dignity is logical when correlation between human being and dignity is referred to correlation between humanity and dignity. That being the case, potentiality of humanity leads to potentiality of dignity and the actuality of the former results in the actuality of the latter. All of the results of secular human rights are not necessarily in contradiction with Islamic views and there are cases in which, despite difference in foundations, similar results can be seen. Accordingly, most of the articles of UHRD can be confirmed by Muslims.

In the classical system of international law, states have largely used religion as an instrument in their reciprocal relations. This “instrumental” interpretation of religion was often a reason of conflict rather the ground of religious freedom. Since its origins, yet, the international legal system has changed and it is reasonable to ask what role religion plays at present day in international relations.  The present article aims at suggesting that religion – or more exactly “religiosity” – can be an element of diplomacy. Taking the transformation from International to “global law” into account, this article promotes a constructive, not-more instrumental, role of religion, useful to prevent the States from the use of force. In so doing, it offers some insights into the differences between “religion” and “religiosity” in the contemporary human rights’ discourse; analyzes the recent involvement of religious leaders in global law; presents the emergence of a new methodology, called “Religious Diplomacy”. This methodology is supported by the increased number of international provisions encouraging a major engagement of religious actors into diplomacy. As a result, international community could enhance human religiosity as a factor of diplomacy. International organizations such as United Nations, Organization for Security and Cooperation in Europe, and European Union should use their convening power to initiate new, multi-layered frameworks of engagement, inclusive of the representatives of global religions. This could make multilateralism more fit for purpose and have a major impact over time on the global peaceful relations among states and international actors.

Nowadays, the effects and consequences of armed conflicts are not limited to human beings and they adversely affect the environment and many species of animals as well. Animals are considered to be the unknown and forgotten victims of armed conflicts. In international humanitarian law (IHL) this issue is largely ignored and there are only few rules that indirectly and ambiguously deal with the protection of animals during armed conflict. However, in the sources of Islamic law there are explicit rules and regulations that directly protect the rights of animals during the war. These rules fall into two different categories. First, those concerned with those animals which are used during the conflict as tools and methods of warfare and are regarded as part of military property and equipment. Second, those relating to animals that are not used in the conflict but are affected by the effects and consequences of the war similar to civilians and individuals who do not have a direct participation in hostilities. This study attempts to comparatively examine the relevant rules and principles in IHL and Islam. Based on the findings of the paper, it could be concluded that due to inadequacy and insufficiency of IHL concerning the protection of animal rights during armed conflicts, it appears to be necessary to develop new rules in this regard and employing the existing sources such as religious ones, including Islamic teachings, that are closely linked with ethical treatment of animals.

Oil and Gas exploration and exploitations have been ongoing for more than half a century in the Gulf of Guinea (GoG). However, recent discoveries of oil and gas deposits deep offshore along the coast of the GoG has increased exploration activities. Removal of offshore installation is a rigorous and complicated process which needs stringent regulations to ensure environmental protection of marine life and ensure safety of navigation at sea among other issues. Therefore, as these oil and gas installations approach the end of their productive life, removal of these installations from the marine environment becomes inevitable. Consequently, the need for the existence of a regional legal framework or policy to govern the removal process within the GoG becomes imperative. Using the doctrinal approach, the paper examines treaty provisions which are binding on individual member States, as well as their obligations under the GoG Commission in relation to the 1958 Geneva Convention on the Continental Shelf (GCS), the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1972 London Dumping Convention, and the 1981 Abidjan Convention. The paper finds that the absence of a regional protocol or legal framework on removal of offshore installations creates chaos for the marine environment when removal issues arise in the future along the coast of the GoG. It concludes by making recommendations for a regional legal framework to ensure the smooth removal of installations in the future.

The European microstates offer a notable lesson for both constitutional law and, generally speaking, the theory of state. The article analyzes this typology of state with a comparative method about constitutionalism of them. Indeed, in the 19th century, the concept of state was related, according to these disciplines and Hegel’s thought, not only to power, i.e. state power itself but also to “outward power”, that is authority at the international level. It is well known that our understanding of state power has changed since then. But, if a key factor in guaranteeing independence at the international level occurred to be might rather than power, something microstates are not familiar with. The result of the contribution is that European microstates teach us a precious lesson: the state is not only a question of power but also of might, the last one understood as the power to perform at the international level.

The conception of nationality is about the place someone is born— in reality the place of his/her birth land. Hence Nationality is relating to the place of birth and can often be regarded as ethnic or racial matter. The right of nationality is the most important and cardinal title of human right. Therefore, International law assigns that States provisions to the persons nationalities is not arbitrary and they have to observe their human rights obligations relating the grant and loss of people nationality. Hence, lack of nationality for someone, make him/her have no chance for school, doctor appointment, job, bank account, or even marriage right_ all the most necessary rights_. Nevertheless, Millions of people all over the world are out of nationality and are regarded stateless ! The conception of stateless is about one who is considered as a nationless, without any legal and political support and protection by a Sovereignty. For more explication of nationality importance, there is a number of regional and international human rights concerning the right to a nationality. Article 15 of the Universal Declaration of Human Rights indicate “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality

The Encyclopedia of Public International Law in Asia copyrighted in 2021(3 regional volumes) is an invaluable work of numerous distinguished authors. This comprehensive collection drafted by eminent academic scholars, describes how Asian States deal and interact with public international law. The book organized in 16 State Volumes, reveals the examination of international law and its application in Northeast Asia, Southeast Asia, and Central and South Asia. This reference work has a distinctive feature, compared with others of the genre, in the way that it places a strong focus on the States as the main actors in law-making and law enforcement in international law. Numerous timely issues in international law are covered in each State Volume. Thus this encyclopedia offers a thorough consideration of the many dimensions of Asian States’ approaches to international matters. Iran Volume is also included in the book which will be briefly analyzed in this book review. In this brief text, I will try to give a short overview of the book’s main points and discuss some detailed opinions about it.