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Volume III Issue 3 (July 2016)

Articles

1.  Who will Guard the Guardian of the International Peace and Security? Judicial Review of Chapter VII Resolutions by Nayantha Wijesundara, Attorney at Law, Sri Lanka, at 373–434;

This paper examines the issue of judicial review of resolutions/decisions of the Security Council of the United Nations (S.C.) adopted under chapter VII of the Charter of the United Nations (U.N. Charter/the Charter). Its main objectives are to examine the evolution of powers of the S.C. over the years, evaluate the possibility of and necessity for judicial review and to determine, what existent international judicial institution is best suited for the task of reviewing chapter VII decisions of the S.C. The main issue attempted to be addressed in this paper is that given the complex nature of the responsibilities of the S.C. in terms of international peace and security which has on a number of occasions given rise to issues of legality, is there no judicial body which is able to review chapter VII resolutions? In other words, who will guard the guardian of international peace and security? The paper argues that there is no judicial body that is "explicitly" entrusted with the task of reviewing chapter VII decisions of the S.C., although on occasion regional courts, ad hoc tribunals and the International Court of Justice (I.C.J.) have implicitly reviewed S.C. resolutions. However, the level of review seen thus far by these institutions in an ad hoc manner is insufficient and the lack of an adequate mechanism to review chapter VII resolutions of the S.C. poses a challenge to the international rule of law, whilst also affecting the legitimacy of the action of the S.C. The paper concludes that a possible solution to this situation is to recognize and provide the I.C.J. with a more pronounced role in terms of judicial review of chapter VII decisions.

Keywords: international institutional reform, global governance, international rule of law, international law on the use of force.  

2. The Legal Status of the State of Israel: A Libertarian Approach by Walter E. Block, Loyola University, United States, Alan G. Futerman, Independent Scholar, Argentina & Rafi Farber, Independent Scholar, Israel, at 207–38;

At bottom, for the libertarian, the issue of justice in the Middle East regarding the Jews and the Arabs, Israel and Palestinians, comes down to private property rights. Murray Rothbard's War Guilt in the Middle East takes the position that the Arabs were and are the proper owners of the terrain under dispute. We offer the very opposite point of view, but based on the very same libertarian principles employed by Rothbard. Our main criticism is that this author does not go far back enough in history in his analysis nor does he correctly analyze the historical record in the period before and after the creation of the State of Israel. Thus, we provide a case for the existence of Israel as a state from a libertarian legal perspective.

Keywords: Libertarianism, Private Property Rights, Israel, Palestinians, Legal Theory, Political Theory.

3. Why Does Legal Reasoning Have to be Unique? by Maciej Koszowski, Łazarski University, Warsaw—Poland at 555-75;

This article addresses the issue of the uniqueness of legal reasoning. Specifically, the author advances the thesis that what makes legal reasoning different from the reasoning employed in demonstrative and empirical sciences and matters of everyday life is not the very form (scheme) of this reasoning but the legal milieu. Thus, he tries to demonstrate that some features of lawsuch as its normative and prescriptive nature, difficulties with the verification of its content on empirical grounds, its limitations stemming from the physical world and its dependence on humans and their minds, as well as the "unspecialized" character of law agents and the extraordinary role of authority thereinstrongly influence legal reasoning. At the same time these features also allow this reasoning to be unique, despite its adoption of forms of inference that are present elsewhere. 

Keywords: jurisprudence, legal reasoning, legal theory, inference, legal methodology, analytical legal philosophy.

IJICL’s Note

6. Why Low-skilled Migration Matters by Pranoto Iskandar & Nicola Piper, at 577-81.