Public and International Law
Hasan Mohammadi
Abstract
Research Problem and BackgroundThe constitution, as the foundational covenant of political order, has always been the site of a major confrontation between two predominant approaches in defining the limits and duties of the state: The neutrality-based (or rights-based) approach, which, grounded in the ...
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Research Problem and BackgroundThe constitution, as the foundational covenant of political order, has always been the site of a major confrontation between two predominant approaches in defining the limits and duties of the state: The neutrality-based (or rights-based) approach, which, grounded in the protection of individual rights, freedoms, and autonomy, confines the state's duty to securing the "right" (justice, security, public interests); and the perfectionist approach, which prioritizes the "good" (a specific conception of the desirable life and human flourishing), assigning the state a mission beyond providing material interests, making it responsible for the ethical guidance and cultivation of citizens toward perfection. The emergence of the modern constitution through liberal-democratic revolutions was based on the separation of the "right" (justice) from the "good" (virtue), the distinction between the public and private spheres, and reliance on constituent power (popular sovereignty) and individual rights. However, some contemporary systems, by incorporating specific conceptions of the good life (with religious or philosophical character) into their constitutions, have adopted a perfectionist approach. This raises the central question: Is such an approach compatible with the foundations of the public sphere (as the legitimacy-bestowing realm in democratic theories) and the requirements of the modern constitution? Relying on the ideas of Jürgen Habermas, the prominent social philosopher, this article analyzes this conflict.Research ObjectiveThe primary objective of this article is to analyze the relationship between perfectionist constitutions and the possibility of realizing the public sphere in its Habermasian sense. The author seeks to demonstrate that incorporating perfectionist foundations and ends into a constitution not only conflicts with the rights-based and autonomous foundations of the modern constitution but also, due to the merging of the public and private spheres and the negation of pluralism, theoretically and practically precludes the realization of the public sphere. Therefore, the article's ultimate conclusion is to prove the impossibility of the public sphere within political systems based on perfectionist constitutions. Research MethodThis research employs a descriptive-analytical method, relying on library resources (Persian and English books and articles). The methodology is based on conceptual and comparative analysis. First, the key concepts of the "public sphere," "discourse ethics," and "perfectionism" are explained and examined by referring to the ideas of Habermas and other thinkers. Subsequently, the foundations of the modern constitution and the requirements of constitutional perfectionism are investigated. Finally, by comparing and evaluating the principles of these two domains, their relationship and the consequences of this conflict are analyzed.Findings of the ResearchThe research findings are presented in several main areas:Foundations and Function of the Habermasian Public Sphere: The public sphere is an intersubjective realm, independent of the state and the private sphere (market and family), in which free and equal citizens, in a space free from coercion and based on rational discourse and argumentation, discuss and deliberate on public matters. The output of this discursive process (norms and public opinion) influences the political system through institutions like parliament, bestowing rational legitimacy upon it. In Habermas's thought, the legitimacy of law and the political system is not intrinsic but discursive, dependent on its continuous confirmation by this sphere. Discourse ethics, with conditions such as freedom, equality, universal participation, and the exclusion of exclusion, specifies the procedural framework of this realm.Foundations of the Modern Constitution: The modern constitution is founded upon individual rights, autonomy (private and public), the constituent power of the people, and the separation of right from good. Justice (the right) belongs to the public sphere (regulating social relations), and the good life (the good) belongs to the realm of private individual choice. The modern state, in its ideal form, is neutral towards diverse conceptions of the good, providing only a legal framework for the peaceful coexistence of these plural conceptions.Nature and Consequences of Perfectionism in the Constitution: The perfectionist approach, with the primacy of the good over the right, seeks to obligate the state to guide society towards a specific "good life" (often derived from a religious or philosophical ideology) by defining it. In constitutions, this leads to the reduction of rights within the framework of that conception of the good and the transformation of the state into a societal tutor. The perfectionist state considers itself to possess "absolute truth" in recognizing human flourishing and deems itself responsible for its practical realization.Fundamental Conflict: The article's analysis reveals a structural and irreconcilable conflict between the foundations of constitutional perfectionism and the requirements of the public sphere:Negation of Pluralism and Freedom: Perfectionism, by insisting on a single narrative of the good, disregards or rejects ethical pluralism (a necessary condition for the public sphere).Merging of Spheres: By introducing the "good" into the realm of public legislation, this approach dissolves the fundamental distinction between the public sphere (right/justice) and the private sphere (good/virtue).Negation of Autonomy and Equality: By defining citizens based on adherence to the ruling ideology, the intrinsic equality of participants in discourse and their individual autonomy are called into question. Having a right is reduced to being right (in accordance with the model of virtue).Elimination of the Public Sphere: Under these conditions, the public sphere either does not form at all, or if it does, it is immediately absorbed and dissolved into the state sphere (which considers itself the embodiment of truth and the good). Instead of being supervised and influenced by the public sphere, the state legislates comprehensively across all spheres of life.Crisis of Legitimacy: By eliminating the public sphere as the continuous source of legitimacy-bestowal, the political system based on a perfectionist constitution faces a legitimacy crisis, as it cannot genuinely reflect the free will and discursive participation of the people.ConclusionThis article concludes that the possibility of realizing the public sphere in its Habermasian sense within the framework of perfectionist constitutions does not exist. Incorporating perfectionist concepts into the modern constitution creates an internal contradiction, as it places the rights-based and autonomous structures of the modern constitution in the service of an end inherently opposed to its foundations (separation of right from good, state neutrality, pluralism). This not only leads to the reduction of individual rights and the negation of autonomy but also, by merging the public sphere into the state and erasing the private/public boundaries, disables the sole rational and discursive source of legitimacy in complex modern societies. Therefore, the public sphere, which guarantees the dynamism, accountability, and legitimacy of constituted political systems, is doomed to impossibility within the perfectionist approach to constitutionalism. This research demonstrates that attempts to synthesize these two paradigms will come at the cost of losing one of them (primarily the public sphere and discursive democracy).
Public and International Law
Ayat Mulaee; Maedeh Soleymani Dinani
Abstract
Introduction
The constitution, by establishing the fundamental structural and procedural principles of government, defines the supreme law of a given polity (Boudreaux & Pritchard, 1993:11). Every theory of constitutionalism presupposes that a constitution must be capable of functioning over a relatively ...
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Introduction
The constitution, by establishing the fundamental structural and procedural principles of government, defines the supreme law of a given polity (Boudreaux & Pritchard, 1993:11). Every theory of constitutionalism presupposes that a constitution must be capable of functioning over a relatively long period of time. The notion of constitutional endurance is closely intertwined with key normative issues such as constitutional amendment. The very idea of constitutional amendment arises from the premise that no generation possesses the exclusive wisdom to bind future generations irreversibly or to design a constitution immune from failure. Consequently, there exists an inherent right to amend the constitution to remedy its deficiencies and to strengthen its principles when necessary (Hatchard, 2004:44–45).
Amendment provisions, as one of the essential pillars of constitutionalism, enable the constitutional text to evolve gradually, addressing the shortcomings of its initial design and responding to emerging challenges within the constitutional order (Albert, 2015: 656). The primary means of revising a constitution is the formal procedure explicitly set forth within the document itself. The more fundamental the proposed changes, the more essential recourse to formal procedures becomes (Assefa, 2012:103).
However, formal amendment rules often render constitutional change exceedingly difficult, and experience demonstrates that the politics of constitutional revision are highly contentious. Accordingly, most scholars acknowledge that constitutional change is not achieved exclusively through formal amendment procedures; in some instances, it occurs informally (Anderson, 2008: 59). Where the formal path to amendment proves arduous or obstructed, alternative routes become available to political actors to achieve its practical equivalent (Albert, 2014: 1062).
It may thus be argued that informal amendment practices play a significant role in reconstructing the constitution and reshaping its meaning in response to subsequent developments. The most accurate account of a constitution’s evolution must therefore consider not only formal amendments but also informal transformations. Only through this dual lens can one attain a deeper understanding of a state’s constitutionalism (Besso, 2005:84).
Recognizing the importance of informal constitutional change within the field of constitutional law, this paper explores the concept of constitutional amendment to clarify the nature, foundations, and legitimacy of informal constitutional transformation. Particular attention is devoted to the process of constitutional interpretation as a mechanism capable of functioning as a form of informal amendment. The central question addressed in this study is: despite the explicit provisions governing formal amendment in written constitutions, what are the functions and implications of informal amendment and constitutional interpretation? To answer this question, the paper adopts a descriptive–analytical approach—first examining the concept and dimensions of constitutional amendment, and then analyzing the interpretive role of the official constitutional interpreter and the processes through which informal constitutional change occurs.
Literature Review
Although several distinguished Iranian scholars—such as Habibzadeh and Mansourian, in their article “An Analysis of Constitutional Change Beyond the Formal Amendment Procedures Prescribed Therein,” and Morad Khani, in “Informal Constitutional Change: Foundations, Instances, and Approaches”—have addressed the possibility of constitutional change through means other than the formal amendment process enshrined in the constitutional text, the crucial role of constitutional interpretation in facilitating such informal change has not yet been seriously examined within domestic scholarship.
Research Objective
The present research seeks to understand the importance of discussions on informal constitutional change in constitutional law. It aims to examine real, yet unwritten, changes to the constitution—particularly those arising from the interpretation process, which bypasses the formal amendment procedure and cannot be justified through it—and to clarify the basis for the legitimacy of such changes.
Methodology
This research, by studying various domestic and international books and articles, has collected materials through library research and note-taking. It examines the subject using a descriptive-analytical method.
Findings and Conclusion
Although the formal amendment mechanism is a vital necessity for constitutional reform, the role of informal procedures in changing the constitution's content is so significant that they may even render formal amendment procedures irrelevant in determining the constitution's actual content. Dynamic interpretation, as a common method of adapting the constitution to contemporary developments, without formal stages or changes to the text, reveals hidden sub-textual and pre-textual layers not visible in the written document itself. This leads to informal change and amendment of the constitution. Consequently, the interpreting authority plays a crucial role in constitutionalizing procedures and institutions outside the constitution that have been created by the political branches. Interpretation is one of the informal methods of constitutional amendment, through which the interpreter links the written constitutional text to its unwritten layers. In this process, it is inevitably influenced by political practices and attempts to harmonize the text with the political realities of society. Political practices, by being reflected in the opinions and interpretations of the interpreting authority, take on a legal color and appear more justified.
In the Iranian constitutional system, the Guardian Council, with the aim of ascertaining the legislator's intent and discovering the essence of the constitution, introduces unwritten aspects of the constitutional principles that are not encompassed by the explicit text. Thus, through its official interpretations and without changing the written document, this authority, by unveiling the unwritten layers of the constitution, has paved the way for its change outside the formal process stipulated in Article 177 of the constitution—that is, informally. Since, in our constitutional system, interpretation is tantamount to the constitution and holds an effect and status similar to that of the written constitutional text, the interpreting authority, by granting constitutional status to an unwritten principle or practice without engaging in the difficulties of the formal amendment process, brings about informal constitutional change through the gateway of interpretation. Given the constitutional binding nature of interpretation in the Iranian constitution, these changes become part of the constitutional system and are treated as valid and binding.
Although changes that are the unconscious product of the constitution's dynamic system and subsequently gain the approval of political actors and the people can be considered valid, changes that are carried out by circumventing the difficult legal procedures call into question the wisdom of the original constitution-maker in dedicating a specific article to revision—aimed at preventing its arbitrary application and preserving the constitution's stability. Therefore, it is essential to distinguish organic interpretations, which arise from the complex interaction of forces among the different political branches of the government, from unreasonable interpretations that, by granting extra-legal and unlimited authority to certain institutions, disrupt the system of checks and balances and seriously conflict with the purpose of the text. Any change to the constitution must be labeled as legitimate and legal only after cautious and meticulous scrutiny, so that while allowing for the logical evolution of the constitution and its adaptation to conditions and the times, the endurance and integrity of the law are not undermined, and the path for any misuse is blocked.
Thus, although the amendment process serves an important practical purpose—namely, changing the constitutional text whose errors have been revealed over time and through experience—the prevalence of informal amendments may, in the future, nullify their usefulness. Furthermore, it is essential that the aspects of change in the constitutional system are considered sufficiently important and fundamental to determine the true scope of the constitution. Therefore, such a phenomenon must be approached with caution.
Public and International Law
Abdollah Abedini; Zahra Sadat Sharegh
Abstract
IntroductionOn 5 February 2021, the Pre-Trial Chamber of the International Criminal Court issued a decision on the Prosecution's request pursuant to Article 19 (3) for a ruling on the Court’s territorial jurisdiction in Palestine. Accordingly, the Chamber declared by a two-on-one majority that ...
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IntroductionOn 5 February 2021, the Pre-Trial Chamber of the International Criminal Court issued a decision on the Prosecution's request pursuant to Article 19 (3) for a ruling on the Court’s territorial jurisdiction in Palestine. Accordingly, the Chamber declared by a two-on-one majority that Palestine, in the sense of a State party to the Statute of the Court, has the status of a Member State and hence the territorial jurisdiction to exercise through the court is available. This decision is very significant previously, in 2009, the Palestinian Minister of Justice had submitted a declaration of acceptance of the jurisdiction of the Court based on Article 12, paragraph 3, of the Statute of the International Criminal Court. But unfortunately According to the Argentine prosecutor, Mr. José Moreno-Ocampo, being a state as a prerequisite for joining the Rome Statute is a matter that is primarily the responsibility of the Secretary-General of the United Nations as the depositary of the Rome Statute. But since he considered examining this issue outside his jurisdiction, the matter remained virtually silent. In light of this precedent, the Palestinian government did not shy away from examining the issue of crimes committed in the occupied Palestinian territory and in January 2015 referred the matter to the Court once again in the same form as in January 2009. The new prosecutor of the International Criminal Court, Ms. Bensouda, had a different view on the matter. Based on the research she has conducted on the situation in Palestine, the Prosecutor of the Court believes that Palestine is a state, but to be sure of this, she has asked the Pre-Trial Chamber this question so that she can act with complete certainty regarding the subject matter she is investigating. first requested the Pre-Trial Chamber was requested to announce a decision on the territorial jurisdiction that the Court will have over the situation of Palestine, to pave the way for the situation of Palestine. Despite Palestine's concerns about the Court examining the issue of its statehood and the opinions of opponents, including several States, including Germany, Austria, Australia, and Brazil, submitted their opinions on this issue, it ended with the recognition of Palestine. The importance of the decision lies in the fact that since 2015, when Palestine first issued a declaration to exercise the jurisdiction of the Court in the occupied territories, based on Article 12 (3) of the Statute. One of the most important effects of this decision was the significant role of the President of the International Criminal Court in recognizing Palestine as a state. While Mr. Ocampo, while receiving the opinions of lawyers and various academic circles on the issue of whether or not Palestine is a state, ultimately considered this issue outside her jurisdiction, Ms. Bensouda, while conducting initial research to ascertain the possible future of the Palestinian situation, requested the Pre-Trial Chamber to issue a ruling in this regard.Materials and Methods It is a type of basic research that is descriptive-analytical and using library resources as well as using electronic resources including books, articles, dissertations, official conferences related to the subject in Persian and English languages and after raising the issue and clarifying the hypotheses, the data by the research questions in national and international judicial documents and procedures have been searched, collected, summarized and analyzed.Results and Discussion This article seeks to examine this important decision and address its important aspects, including what impact the decision has on the further recognition of Palestine as a state in the international community. The questions that we will address in the following are whether the Court, as a court with criminal expertise, is allowed to enter the field of statehood as a subject of general international law, and what criteria have been taken into account in the Court's approach to this issue. There has been much debate in academia and among jurists. The present article seeks to examine this important decision and addresses its significant aspects, among them, what is the effect of the aforementioned decision on the recognition of Palestine as a state in the international community. In this article, we will first describe the Pre-Trial Chamber’s decision and then analyze the various aspects of this ruling to explain the foundations of the Court’s position based on factors such as examining the comparative approach of the Court’s two prosecutors, the Court’s jurisdiction to deal with issues of general international law, and the practical effect of this ruling on establishing the statehood of Palestine. It seems that the Court’s finding in this case is another proof of the statehood of Palestine and paves the way for prosecuting crimes committed in occupied Palestine.Conclusion The Court's decision to admit Palestine to the Statute is very significant and precise. The admission of Palestine to the Court is important in two ways: on the one hand, Palestine's membership in the Court is an important step for this country to prove its standing among other states. On the other hand, the Court's action to admit Palestine has enhanced the institution's standing as an independent judicial institution in the international community. It remains to be seen what approach the Court will take in the remaining stages of the proceedings.
Public and International Law
Mohammadreza Vizhe
Abstract
IntroductionIn every society, there are norms that its members are obliged to follow. These norms include a wide range of religious, moral, social, and legal. All these norms have their special enforcement guarantee: religious norms, afterlife guarantees, moral norms, conscientious enforcement guarantees, ...
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IntroductionIn every society, there are norms that its members are obliged to follow. These norms include a wide range of religious, moral, social, and legal. All these norms have their special enforcement guarantee: religious norms, afterlife guarantees, moral norms, conscientious enforcement guarantees, social norms, and social isolation guarantees. in the meantime, the legal norm is a norm that the government must establish and apply to citizens. The legal norm should not be identified with the content, but with the form, so that from this point of view, it provides a formal criterion that regulates the mentioned matter. Among these, there are norms related to the public sphere and they are opposite to the norms of the private sphere. The field of study of this article is the "norm of the public domain" created by the government and applied in the mentioned domain. The guarantee of its implementation also belongs to that domain.Materials and MethodsThe important question that this article tries to answer by using the descriptive-analytical method is whether the norm of the public sphere is different from other legal norms. And what are the characteristics of this norm that distinguish it from other legal norms? What is the government's role in this? The legal norm is defined in the legal order and at the macro level in the legal system, and it is the legal system that gives validity to it, it is this "validity" that gives meaning to the legal norm. Validity of the legal norm is necessary but not sufficient, which means that it must be effective and efficient, and a difference must be made between this effect (micro level) and efficiency (macro level of the legal system). Legal order, as a set of norms, forms the center of the legal system, and along with it, processes and structures are also foreseen in this system. These processes and structures are distinguished by the validity of the functions: the processes and structures are facilitators for the functions of the private sphere and are only regulatory in the cases related to the public order, while these processes and structures are completely regulatory in the case of the functions of the public sphere, and facilitation, in this case, Subordinates do not make sense.Results and DiscussionThe norms of the public sphere are two groups: the first group, which is more important, are the standards that guarantee the rights and freedoms of citizens against the political power or the government, and the second group is the affairs related to the government in a general sense. A group of public sphere norms regulate the public sphere related to the government, and another group guarantees the legal situation of citizens in public and private spheres. In the public sphere, ensuring the legal situation of citizens becomes important when it is defined in front of the public power, which means that the public power can tamper with this legal situation with the pretext of public interests.At the same time, the norms of the public sphere are different from those of the private sphere in various ways, such as nature, form, practices, and guarantees of implementation. From the point of view of nature, the difference in the legal situation resulting from these norms, and the point of view of their application, the distinction between mandatory and interpretive or supplementary norms is important. In addition, the person, as the subject, affects the content of the norms of the private sphere and their direction, while the content of the norms of the public sphere is completely objective and the public interest directs it. On the other hand, the obligation and, as a result, the guarantee of the implementation of the norms of the public sphere are different from the norms of the private sphere in various aspects, and the government has an exclusive role in determining this obligation and guaranteeing its implementation. In this category, the government must pay full attention to the distinct logic of these two areas, and if this difference is ignored, the norms will be ineffective and inefficient.ConclusionThe government has an exclusive position in the two aspects of creating legal norms and applying the guarantees related to them. Judicial authorities are very important in verifying the violation of norms and confirming performance guarantees and their determination and amount, both in the private sphere and in the public sphere. Monitoring the application of norms is also generally related to the public sphere and has no meaning in the private sphere except in cases of violation of norms related to public interests.
Public and International Law
Rohola Alidadzadeh; Mehdi Rezaie
Abstract
IntroductionThe degree of independence of the Guardian Council is one of the most critical issues in Iran’s legal and political system. The more independent the Guardian Council, the higher the quality and effectiveness of its decisions concerning other institutions. Therefore, the governance of ...
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IntroductionThe degree of independence of the Guardian Council is one of the most critical issues in Iran’s legal and political system. The more independent the Guardian Council, the higher the quality and effectiveness of its decisions concerning other institutions. Therefore, the governance of the Guardian Council is a vital aspect of its decision-making process. A key issue for institutions tasked with protecting the constitution is their independence and immunity from the pressures of political bodies and government forces. Furthermore, the independence of the court directly impacts its legitimacy. Effectively safeguarding the nation’s constitutional rights requires that citizens trust the capability of the constitutional court to carry out its duties impartially and independently. This trust fosters the legitimacy and acceptability of court rulings. Moreover, the principles of independence and impartiality of judicial authorities (constitutional courts) are fundamental to achieving fair trials and ensuring the rights of citizens during proceedings. Only through such independence can we hope for the judiciary and judges who exercise justice and professionalism in their rulings. In this respect, the current research aimed to assess the level and degree of independence of the Guardian Council, as the constitutional judicial body in Iran, especially about the institutions that appoint or select its members. According to the existing studies, the Guardian Council demonstrates a weak level of independence compared to what is expected of a judicial institution. Against this backdrop, the present study conducted a comparative analysis of the institutional, administrative, and financial independence of the Guardian Council, examining its structure alongside similar institutions in Germany, Egypt, and Algeria.Materials and MethodsThis study employed a descriptive–analytical approach and relied on library and internet sources to examine the independence of the Guardian Council in Iran. The analysis took a comparative perspective, assessing the Council’s independence by comparing it with similar institutions in Germany, Egypt, and Algeria.Results and Discussion Considering the institutional independence, the Guardian Council is by no means in an ideal legal position, compared to the three countries under study. According to the principles in Iran’s constitution, the Council is considered part of the legislature. Notably, the constitution does not explicitly specify the Council’s independence, with only Article 57 emphasizing the separation of powers and their respective independence. This suggests that the Council, as a pillar of the legislative branch, could be considered independent. However, in practice, the Guardian Council holds a higher position than the Islamic Consultative Assembly (or the Iranian Parliament). While the parliament drafts laws, the Guardian Council exercises a higher degree of independence in reviewing and approving them. In addition, the fact that the Council is placed under the legislature reflects the founder’s original vision regarding the nature of this institution. In other words, the Council’s political and Sharia dimensions are superior to its legal and judicial dimensions. This has influenced the approach of its members to overseeing the legality of laws and supervising elections. As such, the Council lacks the institutional and individual independence typically associated with a constitutional judicial body. The constitution, as the authority for the establishment of the Guardian Council, can play a crucial role in securing its administrative and financial independence. However, the principles of Iran’s constitution, particularly in the case of institutional independence, do not explicitly mention the independence of the Council. This has created a legal vacuum, leading to challenges for the Guardian Council in achieving administrative and financial independence. To address this gap, the parliament passed 1983 Law on Financial Regulations of the Guardian Council, granting the Council control over the preparation of its own budget. The law uses the term exactly to indicate that the Council’s regulatory budget should be submitted directly to the government, without needing to be included in the annual budget bill. This approach aligns better with the realities of the government budget regulation. The Guardian Council has followed a similar process concerning other institutions, such as the parliament and the Expediency Council, and requiring the inclusion of its budget in the government budget bill could be seen as violating Article 52 of the constitution. Regarding administrative matters, the Council has asserted its independence by exercising its interpretive authority, preventing the parliament from interfering in it.ConclusionThe present study assessed the degree of independence of the Guardian Council by comparing it with similar judicial institutions in Germany, Egypt, and Algeria. The Guardian Council, as the constitutional and Sharia-based judicial institution within Iran’s political-legal system, plays a crucial role in ensuring the proper implementation of the constitution. This is particularly true in safeguarding the rights and freedoms of citizens and upholding the rule of a lawful government. The weight of this responsibility highlights the important position of the Guardian Council. The Council’s independence is considered one of the most essential tools for fulfilling its responsibility. Independence enables the Guardian Council to exercise its powers, duties, and authority effectively, free from political pressures exerted by appointing or electing bodies, as well as from political and security groups or authorities. Fundamental reforms are necessary to improve the Council’s performance, strengthen its position, and ensure its independence. Such reforms would require constitutional amendments.
Public and International Law
Mohammadmehdi Barghi
Abstract
In recent decades, the provision of basic human rights has become one of the most important concerns of human societies. Therefore, the governments try to protect these rights by approving international and regional documents, and they set tasks for the governments in this regard. In the meantime, European ...
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In recent decades, the provision of basic human rights has become one of the most important concerns of human societies. Therefore, the governments try to protect these rights by approving international and regional documents, and they set tasks for the governments in this regard. In the meantime, European countries took the lead in compiling regional human rights documents and in the first years after the Second World War, on November 4, 1950, they approved a document entitled "European Convention for the Protection of Human Rights and Fundamental Freedoms".One of the articles of the "European Convention on Human Rights" that specifically deals with basic human rights is Article 8 of this convention. This article contains two clauses. In the first paragraph, four basic human rights are mentioned and it is emphasized that governments should respect these rights. This is stated in this paragraph: " Everyone has the right to respect for his private and family life, his home and his correspondence ". In the second paragraph of Article 8, the convention prohibits the interference of member states in these four rights of their citizens and only in exceptional circumstances and if the conditions mentioned in this paragraph are met, it has allowed governments to interfere with these rights. It is stated in paragraph two in this regard: " There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "The present study, which has been written in a descriptive manner using library and Internet resources, aims to answer the main question whether the obligation provided for in Article 8 of the European Convention on Human Rights for the member states of this convention is merely a negative obligation in the sense of refraining from any unauthorized interference or, under this article, do governments have positive obligations to ensure that their citizens have access to these rights? In case of acceptance of positive obligations for governments, what are the conditions for applying these obligations? What are the most important challenges that the European Court of Human Rights faces when dealing with complaints related to violations of the positive obligations of governments?In order to answer these questions, we first examined the concept of the four rights that are protected in Article 8 of the European Convention on Human Rights. Then we explained the concept of negative obligations and positive obligations of governments under Article 8. Then we have examined the conditions of applying positive obligations by countries and examined the most important areas that have led to challenges for the European Court of Human Rights in this regard.The research findings show that Article 8 of the European Convention on Human Rights is an article that has two aspects. This article, in addition to providing for a negative commitment to refrain from unauthorized interference with the four rights set forth in this article, also includes a positive commitment by States to take the necessary measures to protect these four rights against unauthorized interference. The identification of positive obligations for states in Article 8 of the European Convention on Human Rights was discussed for the first time in 1979 and in the case of "Marckx v. Belgium" by the European Court of Human Rights. In this case, referring to the word "respect" which was used in the first paragraph of Article 8 of the Convention, the court recognized the existence of positive obligations on the governments. The court decided that considering that the first paragraph of Article 8 obliges governments to "respect" the "private", "family life", "home" and "correspondence" of the citizens, therefore the government Both in approving laws and in the process of dealing with lawsuits, they must take the necessary measures to protect these four rights of citizens. Accordingly, the European Court of Human Rights has convicted member states of violating the Convention in cases where they refuse to fulfill their positive obligations. However, the European Court of Human Rights has faced the challenge of how to strike a balance between the public interest of society and the individual interest of individuals in dealing with cases involving the recognition of positive obligations to governments.
