Who is a Refugee? Comparison of a Misconstrued Concept in International Human Rights, Shi'i Fiqh and the Iranian Legal System

Abstract

Many writers treat as interchangeable the terms ‘political refugee’ ‘asylum seeker’, ‘displaced person’ and even sometimes ‘political offenders’, ‘stateless person’ and ‘immigrants’, and in so doing, add considerably to the confusion. This article examines whether they are traceable in classical Shi'i fiqh, and how they relate to the legal situation of uprooted people in the Islamic Republic of Iran, including some criteria for distinguishing the concept of ‘refugee’ from the above neighbouring notions. It concludes that the modern concept of refugee and the Islamic notions muhajir, and musta'min are totally different concepts, belong to two different discourses, and that the Iranian legal system has given up such classical Islamic notions as muhajir and musta'min which are based on the religious division of people, instead of the territorial. Therefore, Iran hosts millions of uprooted Muslim people, yet under the contemporary titles of refugee, displaced person, migrants workers and the like.

Acknowledgements

I should herby sincerely express my gratitude to the late Professor Norman Calder and Professor Asif Qureshi for their tremendous intellectual support during my research at the University of Manchester (Faculty of Law) without whom this survey could not have been accomplished.

Notes

1. L. Oppenheim, in R. Jennings and A. Watts (eds.) International Law, 9th edn. (Harlow: Longman, 1992), pp.890–903; K.M. Addo, ‘The Legal Condition of “Refugee” in the UK’, pp.96–110, Journal of Refugee Studies, Vol.7, No.1 (1994), p.96.

2. For a short account of instruments (treaties and standards, both universal and regional) and official documents, resolutions and conclusions emanating from relevant UN bodies, particularly the Executive Committee of the UNHCR see: E. Mason, ‘Sources of International Refugee Law: A Bibliography’, International Journal of Refugee Law, Vol.8, No.4 (1996), pp.597–621.

3. V. Mikulka, ‘Legal Problems arising from the Dissolution of States in Relation to the Refugee Phenomenon’, in V. Gowlland-Debbas (ed.), The Problem of Refugees in the Light of Contemporary International Law Issues (Martinus Nijhoff, 1995), pp.35–49; P. Tuitt, False Images, Law's Construction of the Refugee (London: Pluto Press, 1996, p.9.

4. For the notion of ‘soft law’ see for example, J. Klabbers, The Concept of Treaty in International Law (London: Kluwer Law International, 1996), pp.157–64.

5. B. Fosheim and E. Berg, ‘Broadening the Definition of Refugees in the Light of Recent Development in the Europe’, Nordic Journal of International Law (1995), p.413.

6. I. Jackson, ‘The 1951 Convention Relating to the Status of Refugees: A Universal Basis for Protection’, International Journal of Refugee Law (1991), p.412.

7. D. Elles, International Provision Protecting the Human Rights of Non-citizens (New York: United Nations, 1980), p.29, also see: I.C. Jackson, The Refugee Concept in Group Situation (The Hague: Martinus Nijhoof, 1999).

8. H. Bin Talal, ‘Refugee Law Protection for the Minority’, Journal of Refugee Studies, Vol. 6 (1993), pp.1–7.

9. Jackson (note 6), p.412.

10. As at 31 June of 1996, the 1951 Convention ratified by 126 State and its Protocol See: United Nations, (1997), International Instruments, Chart of Ratification as at 31 December 1996. New York and Geneva.

11. R. Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press, 1984) p.63.

12. This Convention has been adopted by the Assembly of Heads of States and Governments at its sixth ordinary session on 10 September 1969 in Addis Ababa and entered into force on 20 June 1974, Text: United Nations Treaty Series No. 14691, see the Collection, p.193.

13. The reference made in the first paragraph of the 1951 Convention to the Universal Declaration clearly indicates the influence of the Declaration's line of thought on this branch of human rights.

14. P. Nobel, ‘Universality of Human Rights’, The Iranian Journal of International Affairs, Vol.3 (1991), p.743.

15. R. Plender, Basic Documents on International Migration Law (London: Nijhoff, 1988), p.1.

16. J. Hathaway, ‘Reconceiving Refugee law as Human Rights Protection’, Journal of Refugee Studies, Vol.4, No.2 (1991), p.114.

17. G. Goodwin-Gill, ‘Who to protect, How …, and the Future?’, International Journal of Refugee Law, Vol.9, No.1 (1997), p.1.

18. The Revolutionary theory basically rests on Kant's normative arguments. For philosophical debates about theories of international relations, see: H. Williams, M. Wright and T. Evans (eds.), International Relations and Political Theory (Buckingham, UK: Open University, 1993). In particular for the concept of Realist and Revolutionist theory and their distinctions see the ‘Introduction’ of the book, pp.1–9.

19. See for instance: R. Plender, ‘Recent Trends in International Immigration Control’, International Comparative Law Quarterly, Vol.35 (1988), pp.531–60; cf. K. Landgren, ‘The Future of Refugee Protection: Four Challenges’, Journal of Refugee Studies, Vol.11 (1998), pp.417–32; also see: Niklaus Steiner, Arguing about asylum: The complexity of refugee debates in Europe (New York: St. Martin's Press, 2000).

20. Generally speaking ‘the purpose of these Conclusions is to identify some common principles regarding practice in foreign states which can be applied universally to determine whether there is a likelihood that the state is persecuting people on its territory or not. It is designed on an exclusion basis – if the elements identified are present then that state probably does not persecute its people’. E. Guild (1997), p.181; for the text of Conclusions see: E. Guild [compilation and commentary], The Developing Immigration and Asylum Policies of the European Union, Adopted Conventions, Resolution, Recommendations, Decisions and Conclusions (London: Kluwer Law International, 1996) pp.177–80; also for a brief study of this issue see: H. Martenso and J. McCarthy, ‘In General, No Serious Risk of Persecution: Safe Country of Origin Practices in Nine European States’, Journal of Refugee Studies, Vol.11, No.3 (1998), pp.304–25.

21. E. Guild, 1997 (note 20), p.182.

22. See I. Miranda, ‘Toward a Broader Definition of Refugee: 20th Century Development Trends’, of the California Western International Law Journal, Vol.20 (1990), pp.315–27,

23. For a general and short discussion about the so-called idealist and realist approaches to the role of ethics in foreign policy see: S. Garrett, Conscience and Power, An Examination of Dirty Hands and Political Leadership (London: Macmillan, 1996), pp.1–8; Introduction in Williams, Wright and Evans (eds.) (note 18), pp.1–8; for a critique of the restrictive approach from a moral perspective see: J. Carens (1996), ‘Aliens and Citizens: The Case for Open Borders’, in W. Kimicka (ed.), The Rights of Minority Cultures (Oxford, 1995) pp.331–Carens believes that neither the liberal nor the egalitarian, nor even the utilitarian theories give a strong moral justification for the restrictive approach; Hathaway, however, believes that ‘many of the ethical challenges to the Convention refugee definition has been unduly anchored in criticality, and are insufficiently attentive to the importance of feasibility’. See: J. Hathaway, ‘Is Refugee Status Really Elitist? An Answer to the Ethical Challenge’, in J.-Y Carlier, D. Vanheule, K. Hullmann, C.P. Galiano (eds.), Who is a Refugee, A Comparative Case Study (London Kluwer Law International, 1997), p.80.

24. Jackson (note 6), p.412; in this concern also see: N. Nathwani, Rethinking Refugee Law (Martinus Nijhoff, 2003).

25. See Article 1(2) of the OAU 1969 Convention and the Cartegena Declaration.

26. The European Commission, in its Pre-feasibility study, classifies refuges in the following groups: (1) Convention refugees who clearly fall under the 1951 Geneva Convention; (2) mandate refugees whose refugee status is recognised by the UNHCR but not by the host government; (3) humanitarian refugees, who are granted the right to stay, but receive no full refugee status; (4) de facto refugees, who have not sought refugee status, because they have other forms of status or they fear contact with the authorities; and (5) refugees in orbit, who move between European countries in search of a more permanent abode. See: ‘Pre-feasibility Study on the Possible Establishment of a European Migration Observatory’, European Commission, 1994, working Document, p.Dr. Paul Weis's definition of de facto refugees includes almost all categories of uprooted people who are not recognised as Convention refugees, since it includes persons not recognised as the Convention refugee who are unable or, for some reasons recognised as valid, unwilling to return to their country of nationality or, if they have no nationality, to the country of their habitual residence', see: p.Weis (), ‘Convention Refugees and De facto Refugees’, pp.15–22 in eds. G. Melander and Nobel, African Refugees and the Law (Upsala, N.Y., 1978), p.18.

27. See: ‘Convention Refugees and De facto Refugees’, pp.15–22 in eds. G. Melander and Nobel, African Refugees and the Law (Upsala, N.Y., 1978), Weis, ‘Convention Refugees and De facto Refugees’, pp.15–22 in eds. G. Melander and Nobel, African Refugees and the Law (Upsala, N.Y., 1978), p.51.

28. The OAU 1969 Convention Governing the Specific Aspects of the Refugee Problems in Africa see: the Office of UNHCR (), Collection of International Instruments Concerning Refugees (Geneva, 1988), pp.193–200.

29. For the Text of the Declaration see: G. Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1996), pp.444–8.

30. The 1984 Cartagena Declaration on Refugees, III/3, The Refugee in International Law (Oxford: Clarendon Press, 1996), p.446.

31. The Institute de Droit International, at its 1951 Bath session defined the term ‘asylum’ as above. Cited in V. Wijngaert, The Political Offence Exception to Extradition, the Delicate Problem of Balancing the Rights of the Individual and International Public order (London: Kluwer, 1980), p.66.

32. Addo (note 1), p.96.

33. Addo (note 1), p.96.

34. For the Text see: The UNHCR (1988), the Collection, p.59.

35. R. Plender (1988), Basic Documents on International Migration Law (Martinus Nijhoff, 1988) p.140.

36. H. Lambert, Seeking Asylum, Comparative Law and Practice in Selected European Countries (Martinus Nijhoff, 1995), p.8.

37. In its judgement of 30 October 1991 in the case of Vilvarajah and others v. the United Kingdom, see: V. Berger, Case Law of the European Court of Human Rights, Vol.III: 1991–1993 (1995), p.81.

38. ‘Extradition may be defined as the formal surrender by one country to another of an individual accused or convicted of a serious offence committed within the territorial jurisdiction of the latter authority, which being competent by its own law to try and punish him demands the fugitive criminal's surrender.’ See: Momodu Kassim-Momodu, ‘Extradition of Fugitives from Nigeria’, International and Comparative Law Quarterly, Vol.35 (1986), p.512.

39. B. Frelick, ‘Barrier to Protection: Turkey's Asylum Regulations’, International Journal of Refugee Law, Vol.9, No.1 (1997), p.10.

40. See for this criteria Article 2 of the draft of 1975 Convention on Territorial Asylum Text: UNDoc. A/1077 and Article 2 of the draft of the 1977 Convention on Territorial Asylum, Text: a/Conf. 78/12.

41. The Office of the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1988) para. 28.

42. M. Forde, The Law of Extradition in the United Kingdom (The Round Hall Press, 1995) p.146.

43. Wijngaert (note 31), p.95.

44. Oppenheim's International law (note 1), p.964.

45. Wijngaert (note 31), p.27.

46. See: the UNHCR Handbook (note 41), para. 86.

47. Article 1(F[b]) of the 1951 Convention.

48. 1975 (1), W.L.R, p.893.

49. The UNHCR Handbook (note 41), para. 152.

50. See Forde (1995) p.145 and Oppenheim's International Law (note 1) p.970 and P. Weis (1995), The Refugee Convention, 1951, The Travaux Preparatoires Analysed, with Commentary (Cambridge University, 1995), p.338.

51. Weis, The Refugee Convention, 1951, The Travaux Preparatoires Analysed, with Commentary (Cambridge University, 1995),p.342.

52. Weis, The Refugee Convention, 1951, The Travaux Preparatoires Analysed, with Commentary (Cambridge University, 1995),p.338.

53. See the 1963 Yearbook of Human Rights, Decision of 26 March 1963 on the application of 1802/1962, Vol.6, p.462; the 1964 Yearbook of Human Rights, Decision No. 2143/64, Vol.7, p.341.

54. Article 1 of the 1954 Convention Relating to the Status of Stateless Person, defines ‘Stateless’ as ‘a person who is not considered as a national by any State under the operation of its law. For the text of the Convention see: UN Treaty Series No. 5158, p.117; also the UNHCR, (1988), Collection p.59; for a good study of the problem of statelessness in international law see: C. Batchelor (1998), ‘Statelessness and the Problem of Resolving Nationality Status’, pp.156–83 International Journal of Refugee Law, Vol.10, No.1/2.

55. See ‘a study of Stateless persons’ prepared in pursuance of the request addressed by the Economic and Social Council to the secretary-general in resolution 116 D (VI), dated 1 and 2 March 1948, in Alex Takenberg and Christopher Tahbabz, The Collected Travaux Preparatoires of the 1951 Convention to the Status of Refugees, Vol.I (Amsterdam Dutch Refugee Council, 1988), pp.16–79.

56. Stateless persons de jure: are persons who are not nationals of any state, either because, at birth or subsequently, they were not given any nationality, or because, during their lifetime, they lost their own nationality and did not acquire a new one. The Collected Travaux Preparatoires of the 1951 Convention to the Status of Refugees, Vol.I (Amsterdam Dutch Refugee Council, 1988), p.19.

57. Stateless persons de facto: are persons who, having left the country of which they were nationals, no longer enjoy the protection of their national authorities, either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals. The Collected Travaux Preparatoires of the 1951 Convention to the Status of Refugees, Vol.I (Amsterdam Dutch Refugee Council, 1988), p.19.

58. See: A. Grahl-Madsen, The Status of Refuges in International Law, Vol.I, (Netherlands: A.W. Sijthoff-Leyden, 1966).

59. See: ‘A Study of Stateless Persons’, in Takenberg and Tahbabz (note 55), p.19; S.P. Sinha, Asylum and International Law (Martinus Nijhoff, 1971), p.105.

60. Article 1 of the Hague Convention of 1930 on Certain Questions to the Conflict of Nationality Law; for ‘the Doctrine of State in Matters of Nationality’ see: Brownlie, I Principles of Public International Law, (Oxford Clarendon Press, 4th edn., repr.1996), p.381; M. Akhehurst, A Modern Introduction to International Law, (London Allen & Unwin, 1987), p.82.

61. Entry into force: 13 December 1975, Text: UN Document a/Conf. 9/15,1See also the UNHCR Collection p.82.

62. The considerable question in this regard is whether there is any obligation under international law on any State to grant its nationality to such individuals. Traditional opinion is that it cannot be asserted that international law imposes any duty on the successor State to grant nationality. See for instance: D.P. O' Connell, State Succession in Municipal and International law, Internal Relations, Vol. I, (Cambridge University Press, 1967), Ch. Some writers, however, argue that this opinion is no longer justifiable. Milkulka, for instance, supports the idea that it is the obligation of the new States to grant their nationality to such persons, see: V. Milkulka, (1996), p.46. Thus, in the case of stateless persons, the Russian Federation has a subsidiary responsibility for those who fall through the net of the nationality laws of the successor states. This idea is based on the theory of continuity of the former Soviet Union by the Russian Federation on the one hand, and the right to have a nationality, a fundamental right granted by the Universal Declaration on the other hand. See: M. Iogna-Prat, ‘Nationality and Statelessness Issues in the Newly Independent States’, in Gowlland-Debbas (ed.) (note 3), pp.28–30.

63. J. Henckaerts, Mass Expulsion in Modern International Law and Practice (Martinus Nijhoff, 1995), p.92.

64. Cited in Mass Expulsion in Modern International Law and Practice (Martinus Nijhoff, 1995), p.91.

65. See: Iogna-Prat (note 62), pp.25–31.

66. A distinction should be made between externally displaced and internally displaced persons. In addition to the issue of externally displaced persons, the problem of internally displaced persons is one of the most complicated questions before the international community today; See: UN Centre for Human Rights, Human Rights and Refugees, Human Rights Fact Sheet, No.20, Geneva, 1993; and R. Plender, ‘The Legal Basis of International Jurisdiction to Act with Regard to Internally Displaced Persons’, in Gowlland-Debbas (1996), 119–33, and its comment by Ved P. Nanda, p.135. The ‘internally displaced’ are persons who are forced to flee their homes but remain within the territory of their own country, see the UN (1993), Human Rights and Refugees, UN Human Rights Fact sheet No. 20, Geneva, p.2. Referring to Economic and Social Council Resolution 78/1990, the Secretary General applied the term ‘internally displaced person’ to: ‘persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters; and who are within the territory of their own country’ UN Doc E/CN. 4/1992/23, p.5. The 1984 Cartagena Declaration on Refugees defines displaced persons as: ‘those who have been forced to leave their homes because their lives, security or freedom is endangered by general violence, massive human rights violations, on-going conflict or other circumstances which seriously disrupt the public order but who have remained within their own country’.

67. See, for example, the case of uprooted people in Iran in the next section.

68. K. Salomon, Refugees in the Cold War: Toward a new international refugee regime in the early post-war era (Lund University Press, 1991), p.39.

69. J. Henkel, (1995), ‘Who is a Refugee: Refugees from Civil War and Other International Armed Conflicts’, in G. Care and H. Storey (eds.), Asylum Law, First International Judicial Conference (London, 1996), p.18.

70. D. Perluss and F. Hartman (1986), ‘Temporary Refuge: Emergence of a Customary Norm’, Virginia Journal of International Law, Vol.26 (3), p.254–5.

71. Henkel (note 69), p.18.

72. The UNHCR Handbook, (note 41), para. 62.

73. Lambert (note 36), p.5.

74. The UNHCR Handbook(note 41), par. 63.

75. G.E. Ferris (1993), Beyond Borders, Refugees, Migrants and Human Rights in the Post-Cold War Era (Geneva: WCC Publications), p.10.

76. There is, however, a rival trend, which believes that the mission of any religion, including Islam, is to guide people towards God and notify them of the importance of the Hereafter. In other words the function of Islam is mostly spiritual, rather than drawing up politico-social, economic and legal rules. For the argument and the response to it by some contemporary Shi‘ah faqihs see: H. Muntazeri, Dirasat fi Walyat al-Faqih wa Fiqh al-Dawlat al-Islamiyyah, Vol.1 (Qum Iran: International Centre for Islamic Studies Press, 1988) pp.91–5. Suroush believes that ‘the issue of human rights does not fit into the framework of religious thought’, A. Suroush, ‘An Epistemological Appraisal of Human Rights’, The Iranian Journal of International Affairs, Vol.3, No.4 (1992), p.673. Bazargan, the first prime minister of Iran after the Islamic revolution, converted from his old favourite opinion that Islamic law is capable of and responsible for ruling the worldly affairs of people. In a controversial lecture he put forward his new idea that guiding people toward God and the Hereafter is the sole aim of Prophets, See: M. Bazargan, ‘Akherat va Khuda, Hadaf-e Be’that-e ‘anbiya’, Kiyan, Vol.5, No.28 (Nov–Dec–Jan 1995–96), pp.46–61. Also Al-'Ashmawi a Sunni, modernist scholar, believes that: the legal rules in the Qur'an are very few and almost entirely related to family matters. It was faqihs who created the vast complex of the Islamic legal system in which everything is included and by which all kinds of human activity and behaviour are controlled. For a summary of his ideas see: W. Hallaq, A History of Islamic Legal Theories, An Introduction to Sunni Usul al-Fiqh (Cambridge University Press, 1997), pp.231–41.

77. A. Layish, Islamic Law in the Contemporary Middle East (London: SOAS, 1989), p.1; M. Khadduri, ‘The Islamic Theory of International Relations and Its Contemporary Relevance’, in J. Harris Proctor (ed.), Islam and International Relations (Pall Mall Press, 1965), p.24.

78. J. Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, repr. 1986), p.1.

79. J. Schacht,; cf., ‘Islamic Law’, in K. Zweigert and H. Kotz, An Introduction to Comparative Law [trans. by T. Weir] (Oxford: Clarendon Press, 1992), pp.329–38.

80. A. Ezzati, An Introduction to Shi'i Islamic Law and Jurisprudence with an Emphasis on the Authority of Human Reason as a Sources of Law according to Shi'i Law (Lahore: Ashraf Press, 1976), p.82.

81. Layish (note 77), p.1.

82. Cf., B.W. Hallaq, ‘Was the Gate Ijtihad Closed?’, International Journal of Middle East Studies, Vol.16 (1984), pp.3–41; for a general discussion about the concept of ijtihad see: B. Weiss, ‘Interpretation in Islamic Law: The Theory of Ijtihad’, The American Journal of Comparative Law, Vol.26 (1978), pp.199–212.

83. M. Tabatabi, An Introduction to Shi'i law (London: Ithaca Press, 1989).

84. Najafi, Shaykh Mohammad Hasan, Jawahiru al-kalam fi Sharhe Sharayi'u al-Islam (Tehran: Dar al-Kutub al-Islamyyah, repr. 1989).

85. Abulqasim Hilli, Sharaye‘-u al-Islam fi Masa'il-e al-Halal wa al-Haram, 4 vols, Dar al-Azhwa’, Beirut, Lebanon: repr. 1983).

86. H. Amin, Shorter Islamic Shiite Encyclopaedia (Beirut: Lebanon, 1969).

87. Tabataba'i (note 83), p.93.

88. For further information about sources of Shi'i fiqh see: M.R. Muzaffar, Usul al-Fiqh, Vol. 2 (repr. 1993), pp.7–157.

89. Cf., S. Sardar Ali, ‘The Conceptual Foundation of Human Rights: A Comparative Perspective’, European Public Law, Vol.3, No. 2 (1997), pp.261–82.

90. Shi'i faqihs mean by Sunnah prima facie the statement (qawl), behaviour (action) (fi'l) and silent approval(taqrir) of the Ma'sumin (the prophet and the 12 Imams). The four main references for Shii'i juristic hadith are: ‘al- Kafi’ collected by Muhammad ibn al-Ya'qub Kuleyni (d. 329/941), ‘Man la Yahdaruh al-Faqih’ collected by Ibn Babawayh al-Qummi known as Saduq (d. 381/991); ‘Tahdhib and ‘al-Istibsar’ collected by Muhammd ibn al-Hasan al-Tusi known as Sheikh al-Ta'fat (the communities' Sheikh) (d. 460/1067).

91. See: M. Bahr al-'Ulum, Ijtihad, (Beirut, 1979), p.172.

92. For the controversy between Usli and Akhbari over this matter see the introduction of Bahrani's al-Hadaiq: Y. Bahrani, Al-Hada'iq al-Nazirt, 2nd edn. (Beirut, repr. 1985). and M. Bahra al-Ulum, Ijtihad, (Beirut, 1979), p.172.; see also R. Gleave, ‘Akhbari Shi'i Usul al-Fiqh and the Juristic Theory of Yusuf B. Ahmad al-Bahrani’, in R. Gleave and E. Kermeli (eds.), Islamic Law Theory and Practice (London: I.B. Tauris, 1997), pp.24–45; cf., N. Calder, ‘Doubt and Prerogative: The Emergence of an Imami Shi'i Theory of Ijtihad’, Stvdia Islamica, Vol.70 (1089), pp.58–

93. Some Shi'i writers believe that ‘aql’is equivalent to the English term ‘understanding’. See Naqsh-e Zaman va Makan dar Ijtihad, Majmu'ah-e Musahebeha (Iran, 1995), p.50.

94. For further information see: al-Bahrani's Introduction to his al-Hada'iq (note 92).

95. For a comparative survey about the concept of ijma' among Muslim schools of thought see: M. Mahmud Farghali, Hojjiyat al-ijma‘wa Mawqif al-‘Ulama’ minh, (Dar al-Kitab, Egypt, 1971).

96. Muzaffar, p.105; see Shaykh Murteza Ansari, Fara'id al-Usul, (Beirut, Mu'asisat al-No'man, repr.1991), p.80.

97. Ezzati (note 80).

98. A. Ezzati, ‘Naqsh-e 'aql dar Nizam-e Huquqi-e Gharb va Islam’ [Persian: the role of ‘aql in the Western and Islamic legal system, Nameh-ye Mufid, Vol.2, No. 6 (1996), p.138.

99. See: Muzaffar, Vol.3, p.126; Shaykh Murteza Ansari, p.21; Nasir al-din Tusi (died 672 H.), Shakuri, Kashf al-Murad fi Sharh Tajrid al-I'tiqad, (Qum, Iran, repr. 1993), p.328; also see: Ezzati (1996), pp.130–44.

100. By justice in such context I mean legal justice. For a brief discussion of this concept and its relevance with social justice, distributive justice and equality, as well as its relevance to the question of fundamental human rights, see: Jan-Erik Jane, Constitutions and Political Theory (Manchester University Press, 1996), pp.217–42.

101. See his introduction to: M. Tabatba’i, (), Shiite Islam [trans. by H. Nasr] (London: George Allen & Unwin, 1975), p.9.

102. 57/25.

103. M. Khadduri, The Islamic Conception of Justice (Baltimore and London: The Johns Hopkins University Press, 1984), p.41.

104. M. Khadduri, The Islamic Conception of Justice (Baltimore and London: The Johns Hopkins University Press, 1984), p.41.

105. H. Nasr (1975), p.11.

106. J. Srerba, ‘Recent Work on Alternative Conception of Justice’, American Philosophical Quarterly, Vol.23, No.1 (1986), p.1.

107. For a good collection of articles representing the mainstream western theories of justice see: W. Kymlicka, Justice in Political Philosophy, Mainstream Theories of Justice, 2 vols (Edward Elgar, 1992); for a brief account of such a Christian response from Catholic, Protestant and Liberation theologians see: Karen Lebacqz, Six Theories of Justice (Minneapolis, USA: Augsburg Publishing House, 1986). For the traditional Muslim's scholars approach see: Khadduri (1984).

108. The Qur'an Chapter ‘Asra’, verse 70: And surely We have horned the children of Adam, and We carry them in the land and the sea, and We have given them of the good things, and We have made them excel by an appropriate excellence over most of those whom We have created.

109. This golden principle cannot be better stated than as done by both the Prophets Jesus and Mohammad: ‘All things, therefore, that you want men to do to you, you also must likewise do to them’ (Bible, Matthew 7:1). ‘Want ye for the people what ye want for yourself’ (al-Harrani, Hasan ibn Hosayn ibn Shu‘bah, Tuhaf-u al-'uqul, ‘an Al-e al-Rasul, Islamiyyah (Tehran, Iran, repr. 1975), p.40, hadith no.Further Imam Ali, in his order to his governor to Egypt, reminded him that: ‘People are either your religious brother or your fellow creature’, see Nahj-u al-Balaghat, Letter No.53.

110. Gh. Arnaout, ‘Asylum in Islam’, Refugees, No.20 (August 1985, UNHCR), p.17.

111. Article 14: (1) Everyone has the right to seek and to enjoy, in other countries, asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purpose and principles of the United Nations.

112. M. Zafrullah Khan, Islam and Human Rights (Islamabad: Islamic International Publications, 1988), pp.86–8; also for a similar line of thought, see: C.G. Weeramantry, Islamic Jurisprudence, an International Perspective, Hong Kong: Macmillan Press, 1988), p.121 and pp.142–3; S.R. Hasan (), ‘On Human Rights in Qur'anic Perspective’, in A. Swidler (ed.), Human Rights in Religious Traditions, (New York: Pilgrim Press, 1982). Also see: T.H. Nazari, Barrasiyah janbehayah mukhtalefeh huquqi panahandegi [the study of various aspects of the issue of refugeehood] (Tehran, 1990), pp.22–7; J. Saffai (), Tawse'ah va Tahavvul-e huquq-e panahandegan (Tehran, 1995), pp.6–7.

113. Weeramantry (note 112), pp.142–3.

114. Muhajir (muhajirun, pl.) [literally, a migrant].

115. For example 2/218; 3/195; 8/72 and… to distinguish mark of some Muslim; S4: 89, S8:72 to Muslim who failed to make the hijrat; 22/58; 24/22; 33/6 and… to emigration for religious reasons in general.

116. The Qur'an, Chapter 4, verses 97–8.

117. Ahamad al-Ardabili [Muhaqiq], M. Behbudi (ed.), Zubdat al-Bayan fi Ahkam al-Qur'an (Tehran, repr.1966), p.316.

118. M.H. Tabatabi, al-Mizan fi Tafsir al-Qur'an, Vol. (Qum Iran, 1970), pp.54–5.

119. It seems to me the influence of these Sunni jurists in Shi'i works through ‘Allameh Hilli’s treaties is undeniable.

120. ‘Ibn Qudamah, Muwaffaq al-Din, Al-Mughni, Vol.9 (Cairo repr. 1969), p.294. It should remembered that ‘ibn Qudamah interprets the above hadith to mean that there is no hijrat from those lands which have already been conquered by Muslims.

121. ‘Ibn Qudamah, Muwaffaq al-Din, Al-Mughni, Vol.9 (Cairo repr. 1969), p.294. It should remembered that ‘ibn Qudamah interprets the above hadith to mean that there is no hijrat from those lands which have already been conquered by Muslims., pp.294–5.

122. Najafi (note 84), Vol.21, p.35–6.

123. Najafi (note 84), Vol.21, p.36.

124. Najafi (note 84), Vol.21, p.36.

125. Najafi (note 84), Vol.21, p.37.

126. See: M.R. Qalaji, and H.S. Qunaibi, Dictionary of Islamic Legal Terminology, (Beirut: Dar al-Nafa’is, 1988), p.88.

127. Zayn al-Ddin al-’Ameli, Al-Rawdhat al-Bahiyyat fi Sharh al-Lum’at al-Dimishqiyyat, (Egypt?: Dar al-Kitab), Vol.1, p.220.

128. Najafi (note 84), Vol.21, p.92.

129. Najafi (note 84), Vol.21, p.93.

130. Zayn al-Din al-‘Ameli, Vol.1, p.220.

131. The Qur'an, Chapter 9, verse 6.

132. Najafi (note 84), Vol.21, p.100.

133. Najafi (note 84), Vol.21, pp.98–9.

134. Najafi (note 84), Vol.21, p.100.

135. Zayn al-Din al-‘Ameli, Vol.1, p.220.

136. Shakh Abi Ja‘far Tusi (), Al-Mabsut, 8vols (Qum, Iran: Murtazawiyyah, repr. 1978), Vol.2, p.37.

137. Najafi (note 84), Vol.21, p.96.

138. Najafi (note 84), Vol.21, pp.94–5.

139. Najafi (note 84), Vol.21, p.98.

140. Najafi (note 84), Vol.21, pp.96–7.

141. Najafi (note 84), Vol.21, p.97.

142. ’In other words, all acts should remain allowed unless and until specifically prohibited, assuming that things which have been naturally indifferent shall be left legally indifferent’. A. Ezzati (note, 80), p.84.

143. ’In other words, all acts should remain allowed unless and until specifically prohibited, assuming that things which have been naturally indifferent shall be left legally indifferent’. A. Ezzati (note, 80), p.150.

144. The Qur'an, Chapter 5, verse 1.

145. Ayyashi, Tafsir [Interpretation of Ayyashi] (Islamiyyah, Tehran, 1964), Vol.1, p.289. Also Ali abne Abrahim Tafsir [Interpretation of al- Ghommi], (Dar al-kitab Ghom, 1984), p.148.

146. Ravandi, Fiqh al-Qur'an, See: the Collection of ‘Al-Yanabi’ al- Fiqhiyyat (Beirut: Dar al-Islmiyya, 1990), Vol.9, p.131.

147. The Qur'an, Chapter 9, verse 4.

148. The Qur'an, Chapter 9, verse 7.

149. The Qur'an, Chapter 4, verse 90.

150. Najafi (note 84), Vol.23, p.199.

151. Najafi (note 84),Vol.21, p.301.

152. Najafi (note 84), Vol.21, p.98.

153. Najafi (note 84), Vol.21, pp.301–2.

154. Najafi (note 84), Vol.21, p.97.

155. For the further about ‘urf see: R.B. Serjeant, ‘Sunnah, Qur'an, ‘Urf’, in C. Toll and J. Skovgaard-Petersen (eds.), Law and the Islamic World Past and Present (1995), pp.33–48.

156. Article 9 of the Iranian Civil code.

157. According to the interpretation of the Guardian Council, however, some minor and insignificant agreements such as agreements of co-operation do not need the approval of the parliament and consequently the Guardian Council. See: B.M.R. Zia'i, Huqquq-e Beynulmelal-e Umumi (Tehran: Ganj-e Danesh, 1995), p.115.

158. Article 125 of the Constitution.

159. Article 96 of the Constitution.

160. While in the French model of the Conseil Constitutionnel, set forth by Article 64 of the 1974 French Constitution, the checking of a law by the Conseil can take place only if requested by six persons or bodies, in the Iranian model, as we saw, all legislation passed by the ICA must be checked by the Guardian Council.

161. Article 112 of the Constitution.

162. See Ayatollah Khumayni's 1988 decree in ‘The Collection of the Regulation of the Majma'-e Tashkhis-e Maslahat-e Nizam (Tehran, Iran, 1990), pp.1–3.

163. Article 17 concerns ‘wage-earning employment’; Article 23, ‘public relief’; Article 24, ‘labour legislation’ and ‘social security’; and Article 26, ‘freedom of movement’.

164. Article 15 reads as follows: As regards non-political and non-profit-making associations and trade unions, the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

165. Article 42 reads as follows: ‘(1) At the time of signature, ratification or accession, any States may make reservation to articles of the Convention other than to Articles 1, 3, 4, 16 (1) 33, 36–46 inclusive. (2) Any state making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations’. It should be noted that Article 1 is concerned with the definition of the term ‘refugee’, Article 3 deals with the principle of non-discrimination, Article 4 with the freedom of religion, Article 16 (1) with the right to free access to court, Article 33 with the principle of non-refoulement, Article 36 with obligation to communicate national legislation to the Secretary, and Article 46 with notification by the Secretary-General of the United Nations.

166. According to Article 3 of the 1951 Convention: ‘The Contracting States shall apply the provisions of the Convention to refugees without discrimination as to race, religion, or country of origin’.

167. Weis (note 50), p.41.

168. According to Article 5 of the 1951 Convention ‘Nothing in this Convention shall be deemed to impair any rights and benefit granted by a Contracting State to refugees apart from this Convention’.

169. S. Blay and M. Tsamenyi, ‘Reservations and Declarations Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’, in pp.527–59, International Journal of Refugee Law, Vol.2, No.4 (1990), p.557.

170. See The 1975 (1354H.) Collection of Laws, published by the Official Iranian Gazette, pp.76–94 and 446–56; also see: H. Mehrpour, Huquq-e Bashar dar Asnad-e Beynulmelali va Mawze‘-e Jumhuri-e Islami-e Iran [Persian: Human rights in International documents and the position of the Islamic Republic of Iran] (Itella'at Press, 1995), p.49.

171. This Declaration was adopted by the Foreign Ministers of the Islamic States in 1990 in Cairo. According to Article 28 of the 1989 primary draft, adopted by the 1989 Tehran Conference the States parties were supposed to be bound by the Documents. However, in the 1990 Cairo Conference there was some controversy about this Article. The Egyptian Delegation proposed that States Parties be bound by the Declaration in as far as it is in accordance with the Constitutions of the states. Malaysia and Indonesia supported the Egyptian proposal. Yet, the document was adopted as a declaration, and it is not binding upon the States Parties. See: M. Ja‘fari, Tahqiq dar Do Nizam-e Huquq-e Jahani-e Bashar as Didgah-e Islam va Gharb va Tatbiq-e An Do ba Yekdigar (Tehran, Iran: The International Bureau of Legal Services, 1991), p.199. For the Text of the Islamic Declaration see: Journal of the Faculty of Law of the Tehran University, No.29 (1991).

172. For further information about this organisation and also the text of the Charter see: A. al-Ahsan, OIC The Organisation of the Islamic Conference (U.S.: The International Institute of Islamic Thought, 1988).

173. Sh. Ebadi, Huquq-e Panahandegan, Negahi be Masa’el-e Panahandegan dar Iran (Teheran, Iran: Gang-e Danesh, 1994), p.338.

174. See for the further details: M. Ja‘fary, Huqueh BasharDar Islam wa Gharb (Tehran, Iran: Daftar Khdamat Huquqi, 1991), p.199.

175. H. Mehrpour, p.49–50; also the then Iran’s UN representative stated that international standards which are contrary to Islam have no validity in the Islamic Republic, cited in A.E. Mayer, Islam and Human Rights, Traditional and Politics, 2nd. edn. (London: Westview Press, 1995), p.8; also see A.E. Mayer, ‘Islamic Rights or Human Rights: An Iranian Dilemma’, Iranian Studies, Vol.29, No.3–4 (1996), pp.271–3.

176. J.O. Lissitzyn, ‘Treaties and Changed Circumstances (Rebus sic stantibus)’, American Journal of International Law, Vol.61 (1967), p.895.

177. I. Sinclar, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984), p.192.

178. Cf., I. Brownlie (repr.1996), p.620.

179. See Article 62 of the 1969 Vienna Convention on the Law of Treaties.

180. The United Kingdom v. Iceland, I.C.J. Reports (1973), pp.4–19.

181. The United Kingdom v. Iceland, I.C.J. Reports (1973), p.18.

182. A. Vamvoukos, Termination of Treaties in International Law, The Doctrine of Rebus Sic Stantibus and Desuetude (Oxford: Clarendon Press, 1985), p.189.

183. A. Vamvoukos, Termination of Treaties in International Law, The Doctrine of Rebus Sic Stantibus and Desuetude (Oxford: Clarendon Press, 1985), p.195.

184. Article V reads as follows: ‘The Tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account the relevant usage of the trade, contract provision and changed circumstances.’ See for the Algiers Declaration, W. Mapp, The Iran–United States Claims Tribunal (Manchester University Press, 1993), Appendix I.

185. The tribunal in Quetech case held that: ‘This concept of changed circumstances, also referred to as clausula rebus sic stantibus, has in its basic form been incorporated into so many legal systems that it may be regarded as a general principle of law. It has also found a widely recognised expression in Article 62 of the 1969 Vienna Convention’. Questech Inc. v. Ministry of National Defence of the Islamic Republic of Iran, N.E. Macglashan (ed.), Iran United States Claims Tribunal Report (Cambridge: Grotius, 1987), Vol.9, p.122.

186. The contract between Quetech and the Ministry of Defence for the modernisation and expansion of Iran’s electronic intelligence gathering system’, pp.108–14.

187. The contract between Quetech and the Ministry of Defence for the modernisation and expansion of Iran’s electronic intelligence gathering system’, pp.123.

188. Amoco International Finance Corporation v. Iran, National Oil Company and National Petrochemical Company, See: Macglashan (note 185), Vol.15, pp.198–310.

189. Treaty of Amity, Economic Relations and Consular Rights between the United States of America and Iran, signed at Tehran, 15 August 1955, published in the United Nations Treaty series Vol.284 (1955–58), p.93.

190. Macglashan (note 185), p.214.

191. United States v. Iran (Hostage case), I.C.J. Report (1980), pp.27–8.

192. Macglashan (note 185), p.217.

193. Macglashan (note 185), p.217.

194. UN, The Human Rights Committee’s General Comments (1994), No.24 (52), para. 4.

195. UN, The Human Rights Committee’s General Comments (1994), No.24 (52), para. 17.

196. In 1905, Oppenhiem denied that human rights do, or even can enjoy the protection of international law. He stated that ‘several writers maintain that the law of Nations guarantees to every individual at home and abroad the so-called rights of mankind without regarding whether an individual be stateless or not and whether he be a subject of a member state of the Family of Nations, or not. Such rights are said to comprise the right of existence, the right to protection of honour, life, health, liberty and property, the right of practising any religion one likes, the right of emigration, and the like. But such rights do not in fact enjoy any guarantee, whatever from the law of nations and they cannot enjoy such guarantee, since the law of nations is a law between states, and individuals cannot be subjects of this law. Oppenhiem, International Law, Vol. I (peace) (1905), p.346, cited by A.H. Robertson, Human Rights in Europe, 2nd edn. (Manchester University Press, 1977), p.149.

197. For a good article on this subject see: C. Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comments No. 24 (52)’, Part 2, International and Comparative Law Quarterly, Vol.46 (1997), pp.390–412.

198. UN (note 194), para. 8.

199. See Article 19 of the 1969 Vienna Convention on the Law of Treaties. For the text see: M. Evans, International Law Documents (London: Blackstone Press, 1994), pp.158–77. For good discussion about reservation to multilateral treaties see: C. Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’, The British Year Book of International Law (1993) pp.245–82; J. Kyomgun Koh (1982), ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, Harvard International Law Journal, Vol.23, pp.71–91.

200. For the text see: I. Brownlie (1992), Basic Documents on Human Rights (Oxford Clarendon Pres), p.169. Sates parties to the Convention undertake, in accordance with Article 2, to embody the principle of the equality of men and women in their legislation and prohibit all discrimination against women.

201. B. Clark, ‘The Vienna Convention Reservation Regime and the Convention on Discrimination Against Women’, The American Journal of International Law, Vol.85 (1991), p.310.

202. See Article 42 of the 1951 Refugee Convention.

203. See the Official Gazette of the Islamic Republic of Iran, 1988, pp.519–21.

204. The preamble/introduction to the Charter (there is no formal title of preamble or introduction).

205. Article 2 (B).

206. E/CN.4/1996/59, 21 March 1996; also see G.E. Ferris (note 75), p.234.

207. UNHCR, Refugees, November 1985, p.19.

208. UNHCR, Refugees, June 1991, p.30.

209. Ferris (note75), p.233.

210. For the text see: Sh. ‘Ebadi (note 173), pp.160–72.

211. UNHCR, Handbook (note 41), p.56.

212. UNHCR, Handbook (note 41), p.183.

213. See for example: W. Kalin, ‘The Legal Conditions of Refugee in Switzerland’, Journal of Refugee Studies, Vol.7 (1994), p.25.

214. Recent Decision of the French Conseil d’Etat, Mme Agyepong Case, 1994, Public Law, 1995, p.183.

215. For instance, see the recent European Court’s judgement in the case of Mr Gul, Application No. 23218/94, 19 February 1996, EHRR 1996, pp.93–122.

216. See Articles 23 and 24 of the ICCPR.

217. For the Text see: Brownlie (note 178), pp.203–40.

218. General Comment 16/32 of 23 March 1988 [privacy] para. 5 (cited in M. Nowak, UN Covenant on Civil and Political Rights: ICCPR Commentary (N.P. Engel, 1993), Appendix, p.864.

219. M. Nowak (note 218), pp.299–300.

220. Official commentary of the Ad Hoc Committee on Statelessness and Related Problems, UN Doc.E/1618, p.40; also the UNHCR Handbook (note 41), para. 185.

221. See: R. Plender, ‘International (Human Rights) Law on Asylum and Refugee’, pp.41–79, in G. Care and H. Storey (eds.), Asylum Law, First International Judicial Conference, the Steering Committee, London, 1995, p.59.

222. Article 1(2) of the OAU 1969 Convention.

223. Ferris (note 75), p.3.

224. See for example: A. Sachedina, The Just Ruler [al-sultan al-’adil] in Shiite Islam (Oxford University Press, 1988), p.106–17; L.T. Knutsen, A History of International Relations Theory (Manchester University Press, 1997), p.20; see also Najafi (note 84), Vol.21, p.96.

225. Sachedina (note 224).

226. For more discussion of this issue by the writer see: S. Mohammad Ghari S. Fatemi, ‘Nationality or Citizenship, a Normative Apprasial of International Law, Shai‘i Fiqh and the Iranaian Legal System’, Collection of the First International Conference on Human Rights (Iran: Mufid University, 2001).

227. Article 155 of the Constitution: The government of the Islamic Republic of Iran may grant political asylum to those who seek it unless they are considered to be traitors and criminals according to the law of Iran.