The Journal of Human Rights

Human Rights and Democracy: Marking the Boundaries of Community

Jarna Petman

Volume 14, Issue 1 , June 2019, , Pages 123-150

https://doi.org/10.22096/hr.2019.111087.1149

Abstract

Within the New World Order, there is one instance that is deemed responsible for the globalization in human rights, one court whose judgments are reportedly increasingly quoted by national ... Read More Within the New World Order, there is one instance that is deemed responsible for the globalization in human rights, one court whose judgments are reportedly increasingly quoted by national courts all over the world and accepted by them: the European Court of Human Rights has been hailed as a ‘sort of world court of human rights’. At the level of general expressions and abstract language, human rights may, perhaps, be universal. But as soon as they turn into actual claims of rights, made in particular contexts to defend or criticize particular distributive choices, they become an effect of politics. There is no authoritative catalogue of rights that would be politically innocent: in an agnostic world, rights cannot be but legislative constructions, constantly referring back to alternative notions of the political good. In every social conflict, the claims of opposing sides may be portrayed as rights claims: my right of freedom against your right to security. The boundaries of freedom and security are drawn in accordance with cultural and political presumptions about the values that a good society prefers. And the process whereby an aspect of reality comes to be characterized in terms of rights is not dictated by any essential nature of the matter, either. It is a matter of political preference: only certain visions of the good life merit being accorded the level of protection that the classification as a ‘right’ entails. Moreover, the rights-language is imprecise and indeterminate in ways that defer back to policy concerns. Even a core right like the right to life has no meaning independent of the way it is interpreted by the relevant authorities. And, like all legal rules, human rights cover cases we did not wish to cover and leave uncovered cases that we think should have been covered Accordingly, rights must always be supplemented with exceptions. The scope or the criteria for the application of the exception are never clearly defined, however. Within the European Convention on Human Rights, the relationship between rights and the power to derogate from them is conditioned by what is deemed ‘necessary in a democratic society’ — a contextual and politically loaded criterion, surely. Rights, then, are a product of a political society. Given the ethos of international law (‘law against politics’), to say that human rights are the effect of politics, is nothing short of a scandal. But, let me emphasize from the start that I do not consider the banal administration of rights language a perversion or a scandal — quite the contrary. What I wish to assert is that the idea of human rights may bring emancipation precisely because it is the stuff of politics. This is what I shall do in my paper: using the case law of the European Court of Human Rights as my example, I shall look at the various ways to come to terms with bureaucratization and the possibilities of reserving the idea of human rights as a source of powerful critique of existing social institutions and practices. I also want to reflect on the consequences that the bureaucratization of human rights has on the current project for the New World Order, on the liberalism of certainties.

A Glimpse of the Good Governance and Human Rights Ratio

Mohammad Emami; hamid shakeri

Volume 12, Issue 1 , February 2017, , Pages 23-48

https://doi.org/10.22096/hr.2017.30777

Abstract

Good governance like any other concept in the field of social sciences will be the product of time and place. This term was first introduced in the late 1980s. Over the last two decades, ... Read More

Promoting Peace, En‘forcing’ Democracy? The European Court of Human Rights’ Treatment of Islam

Edel Hughes

Volume 11, Issue 2 , January 2017, , Pages 129-154

https://doi.org/10.22096/hr.2016.29854

Abstract

Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere ... Read More Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere is, for many Europeans, associated with emergent or conservative societies, whereas secularism is equated with modernism and seen as an indispensable component of modern governance. Recently, both domestic and European Court of Human Rights (ECtHR) case-law has highlighted the obvious tensions that arise in the manifestation of religion in the European public sphere. While Article 9 of the European Convention on Human Rights affords everyone the right to freedom of thought, conscience and religion (while allowing for certain limitations as imposed by domestic authorities), in matters related to religion, ECtHR has adopted a deferential attitude towards domestic authorities in the determination of the parameters of this right. This is reflected in the fact that it was not until 1993, some thirty-five years after the Court commenced operating, that a violation of Article 9 of the Convention was found. The Court’s jurisprudence on the Article is therefore somewhat troubling and nowhere is this more aptly illustrated than in the jurisprudence relating to the wearing of the Islamic headscarf. Recent case-law in fact suggests that in that the wearing of the headscarf is viewed both as being incompatible with the principle of gender equality and in direct opposition to the principle of secularism. Through the lens of recent Article 9 jurisprudence, this paper will assess the trends emerging in the European Court’s consideration of Islam. Discussion of relevant cases will include Dahlab v. Switzerland, Karaduman v. Turkey, Leyla Şahin v. Turkey, Refah Partisi (The Welfare Party) and Others v. Turkey as well as analysis of cases occurring at the domestic level, most notably the Teacher Headscarf Case of the German Constitutional Court and the English decision of R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School. This paper also seeks to challenge the ECtHR reasoning in the area of expression of religion (and particularly where that religion is Islam) by analysing the question of religion in the public sphere in the broader European context. There is in fact increasing evidence to suggest that Europe is undergoing a period of de-secularisation, a reality routinely ignored by the European Court of Human Rights.

Peace, Justice and Democracy in the Light of Good Governance

Hesam Naghibi Mofrad

Volume 11, Issue 1 , April 2016, , Pages 91-108

https://doi.org/10.22096/hr.2016.25546

Abstract

The realization of good governance, while promoting justice through increased transparency, accountability and the rule of law and strengthening of democracy, can also be considered ... Read More

Religious Reformists’ Attitude toward Human’s Right to Sovereignty: Challenges and Theoretical Reactions

Fardin Ghoreishi

Volume 11, Issue 1 , April 2016, , Pages 109-131

https://doi.org/10.22096/hr.2016.25547

Abstract

The realization of good governance, while promoting justice through increased transparency, accountability and the rule of law and strengthening of democracy, can also be considered ... Read More

A Survey of the Doctrine of Protection Responsibility in the Islamic Legal System with Emphasis on the National Security

Hossein Sartipi; Yousef Farzaneh

Volume 10, Issue 1 , April 2015, , Pages 71-88

Abstract

In spite of that international community have seen very huge progress in different aspects of international law , especially in humanitarian law , but unfortunately it is in front of ... Read More

Equality: the Basis of Rule of Law and Peace

MohammadReza Vijeh

Volume 10, Issue 1 , April 2015, , Pages 89-104

Abstract

Legal concepts are linked together like a chain and so, obviously in macro analysis, each of them will not be independent of other concepts. Rule of Law, is one of the modern theories ... Read More Legal concepts are linked together like a chain and so, obviously in macro analysis, each of them will not be independent of other concepts. Rule of Law, is one of the modern theories of public law and one of its foundations. The existence of this theory has altered the concepts of public law and made its interactions with philosophical and international concepts easier. So in macro-analysis of fundamental rights or peace, as key concepts, we will be forced to explain their relationship to the rule of law. The realization of the rule of law as one of the characteristics of modern society requires the realization of the elements that make it up. One of these elements is the support of fundamental rights which justifies a lot of the principles of public law. At the same time, the protection of their fundamental rights requires some preliminaries including equality and legal security. The equality plays a more important role; because in the domestic field the lack of equality causes major damage to the protection of fundamental rights and in the international field equality also relates to the realization of peace and different methods to strengthen it. But why have we chosen equality from the elements of the rule of law, to analyze the connection to other concepts? Certainly the multilateral function of equality and its profound relation with other concepts is considered the main reason for this choice. We know that the principle of equality is used as a tool to apply social justice in public law. The dual function of equality in the rule of law and also social justice is such that it can be said that this institution counts as a bridge between the constituent elements of the rule of law and social justice. So firstly, the main question in this article would be that, what is the status of equality in the rule of law. Secondly, we will discuss the function of equality as the consequent of social justice and will investigate its relationship with the rule of justice. It is clear that of comparison of equality and social justice in the Western and Islamic law would not be useless in this regard. Finally explanation of the relationship between peace and the two said concepts and the role of equality as a connection between them, will form the final part of this analysis.

Diplomatic Protection, a Human Rights and Islamic Reading

Seyed Mostafa Mirmohammadi

Volume 09, Issue 2 , January 2015, , Pages 91-114

Abstract

For long Diplomatic Protection was considered the patrimonial rights of states, and some international cases such as “Mavrommatis” 1924, Barcena Ttraction 1970, Avena 2004 have ... Read More For long Diplomatic Protection was considered the patrimonial rights of states, and some international cases such as “Mavrommatis” 1924, Barcena Ttraction 1970, Avena 2004 have bolstered this view. Today, as a result of the development of human rights, it is assumed that the protection afforded to an injured individual by his government is based on the fact that whose human rights have been violated abroad by an internationally wrongful act of another State.The United Nations International Law Commission in its efforts since 1995, through the Draft Convention on diplomatic Protection, has been able to show that no longer may diplomatic protection be considered as the exclusive right of state. This indicates that human rights have developed to such extent that they have gone beyond the traditional boundaries of the three conditions for the exercise of this rights, i.e. nationality of Claims, exhaustion of local remedies, and clean hands. In Islamic Law, protection of injured person is a basic principle, without regard for the issue of whether protection of an individual is the exclusive right of his government. The alliance (Agreement) of “Helf al-Fodul” before and after Islam is an example of institutionalized protection of injured person in Islamic history.The present article, by focusing on the efforts of the ILC Draft Articles on Diplomatic protection with its human rights orientation as well as by reviewing the foundations and sources of Islamic jurisprudence, attempts to prove that the preconditions such as nationality and exhaustion of local remedies, to exercise diplomatic protection, are only effective to the extent that it is in accord with human dignity and as long as the individual is not made an instrument for the securing of the potential interests of states. In any event, the International Law Commission is the harbinger of a new legal work in the field of Diplomatic protection, (lex ferenda) and is not an indication of existing international commitment. (Hard law)

Peace, Justice and Democracy in the Multiethnic Societies: Consociational Democracy with Emphasis on Comparative study of Iraq and Bosnia

Sattar Azizi

Volume 09, Issue 1 , May 2014, , Pages 23-48

Abstract

Restoration and maintaining peace, justice and democracy in the human societies is a matter that it`s achievement is too difficult due to economic and social gaps. It is obvious that ... Read More

Diplomatic Protection, a Human Rights and Islamic Reading

Seyed Mostafa Mirmohammadi

Volume 09, Issue 1 , May 2014, , Pages 91-114

Abstract

For long Diplomatic Protection was considered the patrimonial rights of states, and some international cases such as “Mavrommatis” 1924, Barcena Ttraction 1970, Avena 2004 ... Read More For long Diplomatic Protection was considered the patrimonial rights of states, and some international cases such as “Mavrommatis” 1924, Barcena Ttraction 1970, Avena 2004 have bolstered this view. Today, as a result of the development of human rights, it is assumed that the protection afforded to an injured individual by his government is based on the fact that whose human rights have been violated abroad by an internationally wrongful act of another State. The United Nations International Law Commission in its efforts since 1995, through the Draft Convention on diplomatic Protection, has been able to show that no longer may diplomatic protection be considered as the exclusive right of state. This indicates that human rights have developed to such extent that they have gone beyond the traditional boundaries of the three conditions for the exercise of this rights, i.e. nationality of Claims, exhaustion of local remedies, and clean hands. In Islamic Law, protection of injured person is a basic principle, without regard for the issue of whether protection of an individual is the exclusive right of his government. The alliance (Agreement) of “Helf al-Fodul” before and after Islam is an example of institutionalized protection of injured person in Islamic history. The present article, by focusing on the efforts of the ILC Draft Articles on Diplomatic protection with its human rights orientation as well as by reviewing the foundations and sources of Islamic jurisprudence, attempts to prove that the preconditions such as nationality and exhaustion of local remedies, to exercise diplomatic protection, are only effective to the extent that it is in accord with human dignity and as long as the individual is not made an instrument for the securing of the potential interests of states. In any event, the International Law Commission is the harbinger of a new legal work in the field of Diplomatic protection, (lex ferenda) and is not an indication of existing international commitment. (Hard law)

Identities, Differences and Universality of Human Rights Based on Iranian Religious and Ethnic Identities

Babak Naderpour; Mojtaba Maghsoudi

Volume 08, Issue 1 , April 2013, , Pages 123-162

Abstract

The concept of “Human rights” is the main signifier of the discourse of international community. Despite its growing use, widespread resonance and hegemony, there are different ... Read More

Sovereignty of States and International Law Documents: Impressing or Impressed?

Heybatullah Najandi Manesh; Seyyed Ali Husseini Azad; Masoud Ahsan Nejad

Volume 07, Issue 2 , October 2012, , Pages 27-50

Abstract

Sovereign States which originally were the sole actors in international society, in the course of the humanization of international law have been submitted to some commitments ... Read More

The Sovereignty of God and Sovereignty of People in Iran's Constitution

Mahmood Shafiee

Volume 07, Issue 2 , October 2012, , Pages 67-80

Abstract

Sovereignty of God and sovereignty of people in the Constitution are not contradictory but it is a two-sided sovereignty, implemented by people through both establishing a political ... Read More

Corporal Punishment in Light of the Criminal Policies of the Religious State

Mohammad Mahdi AnjomShoae

Volume 06, Issue 2 , October 2011, , Pages 39-56

Abstract

In the Islamic Republic of Iran in which a Muslim jurist has absolute authority over all its pillars and affairs, the supreme leader’s views play an important role both directly ... Read More

The Role of Human Rights in Good Governance

Parviz Emamzadehfard Emamzadehfard

Volume 06, Issue 1 , April 2011, , Pages 31-44

Abstract

Two revolutions in our time i.e. the end of the Cold War and the communication revolution in the 1990s were among the major factors that undermined the principles of states’ sovereignty ... Read More

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Fabrizio Trifiro

Volume 05, Issue 1 , April 2010, , Pages 3-18

Abstract

The paper argues that an approach to democracy that combines an anti-foundationalist epistemology and a deliberative political and moral stance will enable us to solve the increasing ... Read More

The Relationship between Justice, Democracy and Peace in Plato’s Republic

Hassan Fathi

Volume 04, Issue 2 , October 2009, , Pages 3-20

Abstract

Without doubt, Plato’s Republic is one of the most influential works in the history of philosophy, specially, in philosophy of politics. Although we find all branches of philosophical ... Read More

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Fabrizio Trifiro

Volume 04, Issue 2 , October 2009, , Pages 1-12

Abstract

No Abstract No Abstract Read More

The Appeal of Diversity: Problems and Possibilities

Oliver Leaman

Volume 01, Issue 2 , October 2006, , Pages 7-18

Abstract

The desirability of diversity is often mentioned, especially in liberal political philosophy. Diversity across a range of areas such as ethnicity and religion is regarded as adding ... Read More

A Human Right to Identity Formation? Identity, Politics and the Universality of Human Rights

Richard T. Peterson

Volume 01, Issue 2 , October 2006, , Pages 19-32

Abstract

This paper will build on ideas I presented at the previous conference (in 2003) on human rights at Mofid University. In that paper, I argued that it is a mistake to view human ... Read More

Volume 17 (2022-2023)

Volume 16 (2021-2022)

Volume 15 (2020-2021)

Volume 14 (2019-2020)

Volume 13 (2018-2019)

Volume 12 (2017-2018)

Volume 11 (2016-2017)

Volume 10 (2015-2016)

Volume 09 (2014-2015)

Volume 08 (2013-2014)

Volume 07 (2012-2013)

Volume 06 (2011-2012)

Volume 05 (2010-2011)

Volume 04 (2009-2010)

Volume 03 (2008-2009)

Volume 02 (2007-2008)

Volume 01 (2006-2007)

Main Subjects = State

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract