Journal of
LEGAL RESEARCH
Number 54
Vol. 22 ● No. 54
Summer 2023
Managing Editor: Vahid Eshtiagh
Editor-in-Chief: Seyyed Ghasem Zamani
CONTENTS
Principles of International Humanitarian Law in the Face of New Military Weapons: Challenges and Solutions
Hossein Sharifi Tarazkoohi; Seyyed Ghasem Zamani; Moslem Yaghoubi
A Reflection on the Theoretical and Practical Aspects of the Cooperation of Third States with the International Criminal Court
Farveh Farhadi babadi; Sadeq Salimi; Soudeh Shamlou
Strengthening International Peace and Security by Understanding The Link Between Sustainable Development and Water Security
Somaye Aslaniaslemarz; Samaneh Rahmatifar; Shahram Zarneshan
Feasibility Study of Development of International Liability of Ultra-Hazardous Activities to Epidemics
Siamak Karimi
The Children Rights in the Arrangement of Suicide Operations Case Study: ISIS
Pedram Golchin; Aramesh Shahbazi; Najafi Phirouz
Good Governance and Providing the Necessary Internal Context for the Realization of the Right to Development
Keivan Eghbali; Mahnaz Rashidi
Review The approach of Customary Rules of International Environmental Law in Climate Change
Masoud Raei deheghi; Farhad Farhad Hemmati Golsefidi; Alireza Arashpour
A Comparative Study of Special Police for Children and Adolescents in Criminal Law of Iran and the United Kingdom
Mahmood Valizadeh; Asghar Abbasi; Esmaeli Mehdi
Critical Analysis of The rules of Referral of Proceedings in Iran’s Criminal System; from Expressing The Challenges to a New Reading to Solve The problem
Seyed Reza Faghihi; Esmail Hadi Tabar
Feasibility Study of Criminalizing The Seller’s Action in Mortgaging The Official Document of The Property Sold With an Ordinary Document
Somaye Noori; Mohammad Reza Kaykha; Ramin Faghani
The Role of Emojis in Crime and Interpretive Challenges
Zeinab Laki; Razieh Saberi; Abbas Moradi
Challenges of Iran’s Legislative Criminal Policy at the Beginning of the Crime
Pouya Shirani; Sina Gholfi
The Position of Decisive Oath in Proof of Causation in The Alternative Cause
Vahed Khazaei; Bizhan Haji Azizi; Feizollah Jafari
Investigating The Ability to Compensate for Non-Profit Registration of National Monuments With Emphasis on Immovable Monuments in The Iranian Legal System
Soroush Oryan; Hedieh Sadat Mirtorabi
The Effectiveness of Seed Intellectual Property on The Rights of Small-Scale Farmers
Hanieh Moghani; Alireza Zaheri
Articles
Principles of International Humanitarian Law in the Face of New Military Weapons: Challenges and Solutions
Hossein Sharifi Tarazkoohi
Retired Professor, Department of Law, Faculty of Humanities, Imam Hossein University, Tehran, Iran.
Seyyed Ghasem Zamani
Professor, Department of Public and International Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
Moslem Yaghoubi
Ph.D. Student in Public International Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran.
Abstract
With the advent of new weapons of different nature and type of use on the battlefields in recent regional and international conflicts and the increasing development of weapons of the autonomous, intelligent, UAV and non-lethal weapons, most activists and thinkers in the field of armed conflict To study the feasibility of observing the principles and regulations governing international humanitarian law, as well as the responsibility of the states that own and use these types of weapons, and to study and analyze theoretical and practical issues in this field. to describe precisely doubts have been risen for some that the rules and principles of the philanthropy international law is completely obsolete and inefficient in adapting the new ways of conflicts. But the fact is Yet with the notable advancements in the field of technology, these rules and principles are still in use. In fact, the origins of these rules, which are the public conscience, as well as the flexibility of humanitarian law rules make it possible to adapt to new conflicts. Although new software wars, like any other emerging phenomenon, have created legal challenges for manufacturers and tensions between countries, these tensions can be reduced by regulating specific regulations. Although the general principles governing armed conflict may suffice, in this area we need to update the rules governing them so that a precautionary approach can be taken to prevent tensions between the owners of these weapons and the limits of their use in accordance with international regulations and in the light of international responsibility. Specified the type of aggravated responsibility.
Keywords
New Weapons International Humanitarian Law International responsibility International responsibility intensifies The principles of humanitarian law
A Reflection on the Theoretical and Practical Aspects of the Cooperation of Third States with the International Criminal Court
Farveh Farhadi babadi
Ph.D. Student in International Law, Faculty of Law, Tehran Central Branch, Islamic Azad University, Tehran, Iran
Sadeq Salimi
Associate Professor, Department of Public International Law, Faculty of Law, Tehran Central Branch, Islamic Azad University, Tehran, Iran
Soudeh Shamlou
Asistant Professor, Department of Public International Law, Faculty of Law, Tehran Central Branch, Islamic Azad University, Tehran, Iran
Abstract
The idea of establishing an International Criminal Court can be considered as a transformational and developmental idea in the field of international law. Following the Nuremberg trials, the drafting and adoption of the Rome Statute is considered an important document in the realm of international criminal law. This document, unlike the founding documents of the Ad Hoc tribunals, is an international treaty. Therefore, it is subject to the provisions of customary international law governing international treaties. This statute is a development and codifying treaty. In addition, not all state are parties to this treaty and therefore some states are considered third parties to it. In the present article, the concept of a third state in the framework of the Rome Statute has been studied descriptively-analytically. The question then arises as to whether the principle of relativity of treaties applicable to the Rome Statute also is subject to exceptions. According to the findings of this study, the Rome Statute is subject to some exceptions, such as: the existence of a customary rule, the existence of a jus cogense rule, the decision of the Security Council and the consent of the concerned state to the application of the treaty. It is important to note, however, that the extension of the Court’s jurisdiction to a state not party to the Statute, outside of what is provided for in the Statute, cannot be consistent with the spirit of criminal law as set forth in the Statute.
Keywords
Statute of the International Criminal Court Third State Non-party to the Statute Cooperation Security Council
Strengthening International Peace and Security by Understanding The Link Between Sustainable Development and Water Security
Somaye Aslaniaslemarz
Ph.D. Student in Public and International Law, Faculty of Law, Hamedan Branch, Islamic Azad university, Hamedan. Iran
Samaneh Rahmatifar
Associate Professor, Department of Public International Law, Faculty of Humanities, Hamedan Branch, Islamic Azad university, Hamedan. Iran
Shahram Zarneshan
Associate Professor, Department of Public International Law, Faculty of Law and Political Sciences, Allameh Tabataba’i university, Tehran, Iran
Abstract
The shortage water resource which accelerated by climate change, initially jeopardize the right of access to drinking water and then threatens international peace and security. The role of water as an effective factor in starting water makes it necessary to pay attention to water protection in armed conflicts. Preventing war not only helps maintain an essential natural resources for life, but also serve as a tool for warring parties to start negotiation, build trust and peace. Therefore, this article examine the discussion of consolidation international peace and security in the light of sustainable development goals by highlighting the water crisis through the analytical_ descriptive method and in form a library. Researches show that water tension will become a major issue between countries in the near future and countries need to work together to reduce violence and war and strengthening international peace and security under 2015_2030 sustainable development goals document.
Keywords
The Right of Access to Drinking Water The Right to Sustainable Development Climate Change Armed Conflicts Crisis
Feasibility Study of Development of International Liability of Ultra-Hazardous Activities to Epidemics
Siamak Karimi
Visiting Professor, International law department, Farabi Campus, Tehran Univrsity, Tehran, Iran
Abstract
The occurrence of global epidemics such as SARS, Covid-19, Zika, etc. showed that the conventional rules of international law can hardly prevent the occurrence of catastrophes that apparently can not be attributed to the violation of the obligation by one of the subjects of international law. The reliance of the mechanism of reparations of the system of responsibility for wrongful acts on the occurrence of a prior wrongdoing provides an opportunity for states of origin of epidemics to be free from the obligation to compensate. In these circumstances, it can be beneficial to pay attention to the relatively emerging concept of “Liability for ultra-hazardous activity”, which implies the establishment of liability beyond the wrongful act. This article, while explaining this type of liability and examining its legal origin, tries to examine whether it is possible to extend the rules of this kind of liability to the activities that cause epidemics. This article concludes that there are similarities between ultra-hazardous activities and those that lead to epidemics, but in order to use the concept of liability for not-prohibited activities, some components need to be met.
Keywords
Epidemics The Liability of Not-Prohibited Activities Ultra-Hazardous Activities Casualty Attribution
Feasibility Study of Development of International Liability of Ultra-Hazardous Activities to Epidemics
Siamak Karimi
Visiting Professor, International law department, Farabi Campus, Tehran Univrsity, Tehran, Iran.
Abstract
The occurrence of global epidemics such as SARS, Covid-19, Zika, etc. showed that the conventional rules of international law can hardly prevent the occurrence of catastrophes that apparently can not be attributed to the violation of the obligation by one of the subjects of international law. The reliance of the mechanism of reparations of the system of responsibility for wrongful acts on the occurrence of a prior wrongdoing provides an opportunity for states of origin of epidemics to be free from the obligation to compensate. In these circumstances, it can be beneficial to pay attention to the relatively emerging concept of “Liability for ultra-hazardous activity”, which implies the establishment of liability beyond the wrongful act. This article, while explaining this type of liability and examining its legal origin, tries to examine whether it is possible to extend the rules of this kind of liability to the activities that cause epidemics. This article concludes that there are similarities between ultra-hazardous activities and those that lead to epidemics, but in order to use the concept of liability for not-prohibited activities, some components need to be met.
Keywords
Epidemics The Liability of Not-Prohibited Activities Ultra-Hazardous Activities Casualty Attribution
The Children Rights in the Arrangement of Suicide Operations Case Study: ISIS
Pedram Golchin
Ph.D. Student in International Law, Faculty of Law, Najafabad Branch, Islamic Azad University, Najaf Abad, Iran
Aramesh Shahbazi
Associate Professor, Department of Public and International Law, Faculty of law and Political Sciences, Allameh Tabataba’i University, Tehran, Iran
Associate Professor, Department of Law, Faculty of Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran
Najafi Phirouz
Assistant Professor, Department of Law, Faculty of Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran
Abstract
Children are one of the greatest victims of terrorist attacks and are subject to severe mental and physical harm. Using minors in terrorist actions and suicide operations, ISIS generates extensive moral and physical consequences for the children in addition to psychological ramifications. ISIS differs from other terrorist groups in how it influences children. It regards children as the primary source of its survival. It trains them to carry out suicide operations and terrorist attacks voluntarily. Thus, measures must be adopted to deter ISIS from incorporating and training children. The existing international documents are essential and influential in protecting minors.
However, these documents lack effective sanctions. Eliminating the gaps and ambiguities in protecting children involved in suicide operations requires the effort of all members of the international community, collaboration, and solidarity among the international organizations and NGOs to promote the rights of vulnerable groups, such as children. Undoubtedly, the development of international law that has acquired a more humane face can accelerate this trend. International judicial bodies can also contribute to the cooperation and solidarity among the members of the international community.
Keywords
Child Rights Suicide Operations Child Soldier International Humanitarian Law ISIL
Good Governance and Providing the Necessary Internal Context for the Realization of the Right to Development
Keivan Eghbali
Ph.D. in Public International Law, Faculty of Law and Political Science, Allameh Tabatabaii University, Tehran, Iran./ Member of the Human Rights and International Law Department of the Judiciary Research Institute, Tehran, Iran
Mahnaz Rashidi
Assistant Professor, Department of International Law, Faculty of Law, Islamic Azad University, Central Tehran Branch, Tehran, Iran
Abstract
The right to development means enabling the participation of every human in the process of economic, social, cultural and political development of society and enjoying its benefits and as a result guaranteeing of his human rights in development process. The guaranteeing of this right require laying the groundwork for its implementation at the internal level of every states and removing obstacles at this level. Therefore, the effort to find the right solution in this field has been a major part in efforts to adopting national and international programs related to the establishment of human rights based approach in development, which considered as the main goal in the right to development. This research is a descriptive-analytical method based on library resources and analysis of international documents, seeks to answer the question of what internal approach is needed to achieve the right to development?
The result confirms that the removal of obstacles to the human rights based approach in development depends on the adoption of a good governance strategy and efforts to implement its pillars in any society. The hallmarks of this governance, namely, the rule of law, transparency, the fight against corruption and public participation, are tools that can be used to overcome a large number of internal obstacles to the human rights based approach in development, the obstacles such as discrimination, corruption, lack of a platform for public participation in the development process, the lack of capacity for effective participation of groups such as women and minorities in the development process.
Keywords
The right to development the human rights based approach in the development good governance international law
Review The approach of Customary Rules of International Environmental Law in Climate Change
Masoud Raei deheghi
Professor, Department of Law, Faculty of Law and Islamic Education, Najafabad Branch, Islamic Azad University, Najafabad, Iran
Farhad Farhad Hemmati Golsefidi
Ph.D. Student in Public International Law, Faculty of Law and Islamic Education, Najafabad Branch, Islamic Azad University, Najafabad, Iran
Alireza Arashpour
Assistant Professor, Department of Law, Faculty of Law and Islmaic Education, Najafabad Brach, Islamic Azad University, Najafabad, Iran
Abstract
Today, custom is of great importance in the world community and means a general procedure that has been accepted as a legal rule, and such a custom creates a mandatory legal rule that is implemented in relations between governments and has two material and spiritual elements. Unfortunately, despite the fact that many treaties, declarations and international documents have been issued in relation to the environment, we still see that the environmental situation of the planet is becoming more and more unfavorable, so the international community has principles abo0ut International environmental law has been drafted. With global warming and climate change, governments have come together to find a solution. Now we want to examine what the relationship is between customary international law and international environmental law, and to what extent the rules of customary international law can be effective in preventing environmental degradation and favoring climate change. International custom, if accompanied by the necessary publicity and acceptance, can have an aspect of law for the international community. Thus, the normalization of climate commitments is useful where governments’ practices are not accountable and do not provide appropriate rules, and can be cited as a stimulus for governments to legislate.
Keywords
Customary International Law International Environmental Law Climate Changes Climate Commitment Customary Rules
A Comparative Study of Special Police for Children and Adolescents in Criminal Law of Iran and the United Kingdom
Mahmood Valizadeh
Ph.D. Student in Criminal law, Faculty of Law, Amol Branch, Islamic Azad University, Amol, Iran.
Asghar Abbasi
Assistant Professor, Department of Law, Faculty of Law and Political Sciences, Islamic Azad University Chalus Branch, Chalus, Iran
Esmaeli Mehdi
Assistant Professor, Department of Law, Faculty of Law, Islamic Azad University Qaemshahr Branch, Qaemshahr, Iran
Abstract
Background and Aim: This study, in order to maintain self-esteem and high rights of children and adolescents, while comparing the responsibility of police in dealing with juvenile delinquency in Iran and England, explains that the need for efficiency and productivity, changing organizational structure, creating a systematic education system, predicting mechanisms Behavior is an effective police communication and predicts the guarantee of effective performance by the police, and the UK is a good guide in this regard.
Method: This article, using analytical-descriptive method and in terms of data collection, is a document that the collected material from books, laws and Internet resources have been collected and analyzed.
Findings: The specialization and training of special police and legal requirements and determination of structured resources is an essential element in dealing with juvenile delinquency that does not have the necessary coherence in Iran.
Conclusion: The prevailing pattern of juvenile police in the legal system of Iran and the United Kingdom has been identified and the Iranian police can implement social programs for perpetrators and parents of children and adolescents in addition to prevention, according to domestic laws such as the British police. Due to the early intervention, the special police on the one hand realizes the importance of the age of action of the child and adolescent, and on the other hand understands to the child or adolescent that at this age the responsibility for the illegal act has consequences.
Keywords
Police Juvenile proceeding Comparative study Criminal Law UK
Critical Analysis of The rules of Referral of Proceedings in Iran’s Criminal System; from Expressing The Challenges to a New Reading to Solve The problem
Seyed Reza Faghihi
Ph.D. in Criminal Law and Criminology, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran.
Esmail Hadi Tabar
Associate Professor, Department of Law, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran.
Abstract
The transfer of the criminal proceedings process out of the area of the crime scene, as an exception to the rule of local jurisdiction and under the special institution of “referral”, is provided in Articles 418 to 420 of the Criminal Procedure Code of 1392. Although contrary to the principle of this institution; Legislation requires careful enumeration, limited interpretation, and minimal use, but current regulations are inconsistent with the implications. Despite the fact that the legislature has tried to eliminate possible ambiguities and ambiguities in this period by making repeated amendments and adding special regulations to this collection in different periods, It has been widely challenged but has also brought these regulations into conflict with fundamental principles of criminal procedure such as the principle of impartiality of proceedings. The present article, while criticizing the legal criteria of referral, tries to provide solutions to overcome the existing legal ambiguities and challenges by expressing these criteria in a new way.
Keywords
Local Jurisdiction Referral Contrary to the Principle Narrow Interpretation The Principle of Neutrality
Feasibility Study of Criminalizing The Seller’s Action in Mortgaging The Official Document of The Property Sold With an Ordinary Document
Somaye Noori
Ph.D. in Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Sciences, Sistan and Baluchestan University, Sistan and Baluchestan, Iran
Mohammad Reza Kaykha
Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Sciences, Sistan and Baluchestan University, Sistan and Baluchestan, Iran.
Ramin Faghani
Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Sciences, Payame Noor University, Tehran, Iran
Abstract
An ordinary document or charter is a document whose purpose is to write a commitment and create a guarantee for the fulfillment of the obligation. One of the conceivable challenges related to the sale of real estate is the fact that after concluding a transaction with the preparation of an ordinary document, the seller, for various reasons, puts the official document of the same property as collateral, the main ambiguity of such an action is The feasibility aspect is the criminality of the seller’s act; Because in this case there is no unity of procedure and the multiplicity of votes issued is evident. This article, which has been done in a descriptive-analytical method, while explaining the different aspects of the prying transaction from the crime of transferring other people’s property and proving the ability of the ordinary document to oppose the official document, shows that He denies his possession in a prying manner, and according to the law of compulsory registration of documents, the time of compiling an ordinary document is a matter of concern, if the property did not have an official document at the time of sale and the seller Preparation of a formal official document, the subject can be subject to the provisions of Article 117 of the Registration Law based on the opposing transaction; However, the existence of an official document of the property during the transaction and its transfer by means of an ordinary document, causes the subject exclusion of the seller’s act from the scope of Article 117 and consequently is considered as a crime of transferable property.
Keywords
Mortgage official document ordinary document conflicting transaction transfer of other property
The Role of Emojis in Crime and Interpretive Challenges
Zeinab Laki
Ph.D. in Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
Razieh Saberi
Assistant Professor, Department of Criminal Law and Criminology, Faculty of Law, Theology and Political Sciences, Islamic Azad University Science & Research Branch, Tehran. Iran.
Abbas Moradi
Ph.D. Student in Private Law, Faculty of Law, University of Science and Culture, Tehran, Iran.
Abstract
In online communication, emojis are widely used and are often considered as beautiful and exciting additions to the original text. Emojis are now referred to as the “language of the online age” and “the fastest growing language in the world.” In digital text messaging, it is possible to convey humor, emotion and sociality through emojis. However, the question is that in addition to the role of text beautification and transmission of emotions, is it possible to commit a crime by sending emojis? What are the challenges faced by jurisprudence in dealing with emojis as evidence? Therefore, the present article first examines the role of emojis in crimes such as intimidation and insults by recognizing different judicial examples of criminal cases and emoji-related proceedings, and then the challenges facing acceptance. Emoji evidence is evaluated in criminal proceedings.
Findings show that criminal activities can be committed under the guise of emotional emoji function and their role in facilitating trust for a criminal purpose, and in particular crimes such as threatening, insulting or sexually abusing children, can be sent through Emojis occur. However, Criminal Courts In interpreting emojis and evaluating them as evidence,They face challenges such as poor expression and implication of emojis in criminal proceedings, change of platform, cultural differences in the interpretation of emojis, and instability of the psychological element in emoji-based crimes After getting acquainted with the challenges in emoji-based criminal proceedings, it has been tried to introduce solutions to these challenges in order to resolve the problems and create a unified judicial procedure.
Keywords
Emoji judgmental procedure Threat insult Sexual abuse Challenge
Challenges of Iran’s Legislative Criminal Policy at the Beginning of the Crime
Pouya Shirani
Ph.D. Student in Criminal Law and Criminology, Faculty of Theology, Law and Political Sciences, Science and Research Branch, Islamic Azad University, Tehran.
Sina Gholfi
M.A. in Criminal Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.
Abstract
Each country has a determined response system for committing a crime. And in the Islamic Penal Code, the punishment for committing a crime is explicitly stated in Article 122. Indeed, this action helps to the coherence of the rulings. However, despite this positive approach, this system has faced gaps in crimes with multiple punishments and has presented problems to judges; For example, in a crime such as combat, which has diverse and facultative penalties, It is not clear based on which paragraph of Article 122 of the Islamic Penal Code the judge should determine the punishment at the beginning of this crime. Penalties prescribed for combat do not fit into any of the mentioned articles, such as negation. There are different perspectives to address this issue. These notions can be divided into three main approaches, encompassing the judge’s discretion that is the criterion for imposing the most severe or mild legal punishment. Examination of the existing opinions shows that the application of each will have advantages and disadvantages. In this article, we have studied and analyzed these approaches through the interpretative analytical method. Thus, in crimes that the trial took the legislature of any crimes, this discretion is also true at the beginning. However, in order for judges to be less likely to issue dissenting verdicts, they should pay attention to the type of crime committed and the policy that is enacted from the set of criminal rules governing those crimes.
Keywords
Start of Crime The Retribution of Legislative Penalty Punishment Legislative Criminal Policy Attempt
The Position of Decisive Oath in Proof of Causation in The Alternative Cause
Vahed Khazaei
Ph.D. Student in Private law, Faculty of Human Sciences, Bu-Ali Sina University, Hamadan, Iran
Bizhan Haji Azizi
Associate Professor, Department of Private Law, Faculty of Human Sciences, Bu-Ali Sina University, Hamadan, Iran
Feizollah Jafari
Assistant Professor, Department of Private Law, Faculty of Human Sciences, Bu-Ali Sina University, Hamadan, Iran
Abstract
One of the indisputable principles of jurisprudence and law is the need to compensate the damages caused to others. If the damage is caused by nonperformance of contractual obligations, the basis of the lawsuit are the rules of contractual liability and if there is no agreement between the parties, the rules of tort will prevail over the relations between the parties. According to the general rules, proving the elements of tort is necessary and incumbent on the injured party. One of the evidences for proving a claim is an oath, and one of the types of oath is a decisive oath, which, if the conditions are met and the relevant rules are observed, can be invoked in a civil liability lawsuit to prove the elements of the claim. In cases where the infliction of bodily or financial damage is caused by alternative causes, sometimes the injured party does not have the ability and requirement evidences to prove the causation and the probability of taking an oath and playing a role is much higher than other cases. The method of this research is descriptive-analytical. Regarding the role of decisive oath in proof of causation, there are many different opinions that it seems appropriate that taking an oath by the defendant or the accused as the cause of the termination of the causation and his innocence and, in the end, if a person cannot be held liable for damages, it must be ordered to pay damages from the public budget.
Keywords
Tort Causation Alternative Cause Decisive Oath Evidences of Proof
Investigating The Ability to Compensate for Non-Profit Registration of National Monuments With Emphasis on Immovable Monuments in The Iranian Legal System
Soroush Oryan
M.A. in Public and International Law, Faculty of Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Hedieh Sadat Mirtorabi
Assistant Professor, Department of Law, Tehran East Branch, Islamic Azad University, Tehran, Iran.
Abstract
The protection of cultural heritage is a common mission between governments and nations, so governments, on behalf of the people, try to protect the rights of the public by enacting laws and regulations, and the people must comply with the relevant laws and regulations, While guarding their rights, will help the government and relevant organizations to protect the rights of other citizens. Undoubtedly, the preservation of the cultural-historical heritage of the country, whether movable or immovable, as a crucial part of the historical identity of nations, regardless of whether they are privately or publicly owned, is one of the aspects of public law, the Benefit of which is an undeniable right of individuals in the society. Therefore, the unilateral action of the government to register valuable historical-cultural monuments in the list of national monuments can cause damage due to the non-profit of the owners of these monuments. Therefore, in this article, we try to examine the laws related to the protection of cultural-historical heritage on the one hand and the laws relevant to private property of valuable historical buildings on the other hand, and jurisprudential rules, especially the harmless rule and the principle of dominance in Shiite jurisprudence, and the opinion of the jurists regarding the right of ownership of individuals over their property, exploring the importance of preserving immovable national monuments to protect the public interest and examining the consequences of non-compensation for damages resulting from the non-benefit of private owners of the country’s historic and cultural buildings by the government and examining the ability to compensate for damages caused by the non-benefit of private beneficiaries of monuments registered in the list of national monuments of the country,and finally, to provide an appropriate legal solution and mechanism to increase the participation of private owners of valuable historic buildings and beneficiaries with the government to maintain the national monuments of the country.
Keywords
Cultural Heritage Preservation of Immovable National Monuments Non-Profit Compensation for Non-Profit Public Interest No Harm Rule Principle of Dominance
The Effectiveness of Seed Intellectual Property on The Rights of Small-Scale Farmers
Hanieh Moghani
Ph.D. Student in International Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Alireza Zaheri
Assistant Professor, Department of International law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Abstract
From the dawn of agriculture, small-scale farmers have been selecting, storing, using, and exchanging common seeds as a result of their successive harvests, and at the same time adopting new methods using the knowledge gained along the way to produce better quality crops. Since Seeds are a staple of food systems around the world, today the vast majority of people, especially those living in developing countries, continue to rely on the same food system and seeds from farmers to ensure food security and biodiversity. From this point of view, recognition of the right to seed is essential for small-scale farmers; This is included in some international documents. On the other hand, after the Industrial Revolution and the establishment of the World Trade Organization, attention to the global seed market, a growing trend towards breeding and new technologies in this field was created and business models of improving the conditions related to intellectual property rights seem to be an incentive to grow. Since the seed is a common point for the basic needs of farmers and breeders on the one hand and a very important case for biodiversity and food security, on the other hand, This article addresses the fundamental question of how intellectual property right on seeds affects the rights of small-scale farmers.
Keywords
Farmers’ Rights Small-Scale Farmers Seed Rights Intellectual Property Right on Seed UPOV TRIPS
