Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers

This contribution addresses the structure and composition ofthe Cambodian Extraordinary Chambers (CEC), in particular thesuper-majority voting arrangements for national and internationaljudges. These rules, which reflect difficult negotiations betweenthe United Nations and the Cambodian Government, are likelyto impede trials by allowing not only determinations of guilt,but also key evidentiary decisions, to go unresolved. This maymake the effective operation of the CEC impossible.     

Due Process and Criminal Procedure in the Cambodian Extraordinary Chambers

This contribution concentrates on aspects of due process andthe organization of criminal procedure in the Cambodian ExtraordinaryChambers (CEC). It will be demonstrated that in respect of humanrights the governing legal framework offers a solid basis forprotection, but strict enforcement may be problematic. Concerningthe procedural law of CEC, the vital issue is how to reconcilea predominantly civil law based national criminal procedurewith standards of international criminal justice. This contributionoffers a first tentative suggestion in this respect.     

The Rights of Victims: Participation, Representation, Protection, Reparation

Victims have the right under Cambodian law to participate inthe Cambodian Extraordinary Chambers’ trials. The mannerin which they will exercise this right remains unsettled, butwill affect whether these trials are eventually fair, theirimpact on national reconciliation, and the establishment ofprecedents for future Cambodian litigation. The exercise ofvictims’ rights should be adapted to the context of trialsfor mass crimes, affecting victim participation, representation,protection and reparation.     

Towards Institutional Symbiosis: Business and the United Nations in Environmental Governance

This article analyses the potentially symbiotic role of business and the United Nations (UN) in global environmental governance. Contending that a stronger and more coherent UN in the realm of the environment is in the interest of the business community, we focus on three main issues: what the UN needs to become stronger in environmental affairs; what business could provide on this behalf; and how business could benefit from a strengthened UN. We consider the current structural dilemmas of the UN environmental system, including concerns about institutional multiplicity and how these may affect business engagement. After reflecting on perceived and actual challenges and opportunities for business participation, we conclude with three substantive solutions towards more efficient collaboration. These solutions centre on the continuation of an interactive database begun by the Global Environmental Governance Project, a joint initiative of the Yale Center for Environmental Law and Policy and the College of William and Mary.     

论联合国豁免的放弃

联合国组织在一定条件下放弃豁免,是《联合国特权与豁免公约》及有关国际法律文件明确规定的一项国际法律制度,这项制度美系到相美国际组织能否享有豁免以便履行职能和实现目的。同时也关系到与国际组织有关的其他各方,尤其是与国际组织交往的私人在国际组织一旦侵犯其权利的情况下能否得到救济。因此,国际组织放弃豁免是一项非常重要的国际法律制度。联合国豁免的放弃必须由其有权机关作出相应的意思表示。不论是民事行为,还是刑事行为,其豁免都是可以放弃的。联合国等国际组织放弃豁免的权利。同时也构成其必须履行的一项义务。     

Domestic Violence against Women in Cambodia: Husband’s Control,Frequency of Spousal Discussion,and Domestic Violence Reported by Cambodian Women

This study sought to examine the effects of husband’s control and frequency of spousal discussion on domestic violence against Cambodian married women, using the 2005 Cambodia Demographic and Health Survey data. The sample included 1,707 married women, aged 16–49 (M = 35.14). Structural Equation Modeling showed that husband’s control positively predicted both emotional and physical violence. Frequency of spousal discussion positively predicted emotional violence, an association consistent with the idea that a husband holding patriarchal beliefs would interpret women’s more frequent discussion as a violation of Cambodian norms for quiet, submissive wives. Frequency of spousal discussion and husband’s control were positively correlated. The role of gender issues in husband’s control and frequency of spousal discussion are discussed with respect to violence in the lives of Cambodian women.     

冷战后联合国维和行动发展评析

联合国维和行动是联合国维护世界和平与安全的重要手段.在美苏对峙的冷战时期,联合国维和行动的发展受到极大的抑制.冷战结束后,新的国际政治与安全形势为联合国维和行动的开展提供了前提条件和机遇,国际社会对维和行动提出了新的要求,因此联合国维和行动得到了迅速发展并表现出许多新的特点和发展趋势.但是,由于国际环境的变化和日趋复杂,冷战后的联合国维和行动也面临着一些问题与挑战,这些问题和挑战对联合国维和行动的未来发展将产生重要影响.     

论非政府组织与联合国关系的现状及改革前景

作为一种有别于国家和政府间组织的第三类国际行为体,非政府组织与联合国之间已经建立起紧密的联系机制。非政府组织通过提供咨询、参与联合国会议、执行和监督联合国决策等方式,在联合国体系内发挥着日益重要的作用。但是,非政府组织这一新生的民间组织力量的合法性如何、其影响力应当如何发挥等问题,则引起国际社会的诸多争议。以何种方式将非政府组织纳入联合国改革的框架内,是近些年学术界密切关注的焦点。     

The UN Inadequacies

The author describes the results of the UN Independent Inquiryon the Genocide in Rwanda, which he headed. The internationalcommunity's reluctance to commit itself and its resources tothe UN Assistance Mission for Rwanda (UNAMIR or UN Mission),coupled with the inadequacy of UNAMIR's initial mandate, areidentified as the crucial reasons for the Mission's failings.These weaknesses led to the failure of the UN forces on theground to respond effectively to the genocide and inhibitedtheir ability to protect civilians and UN staffers. The authordetails the failures both of the UN Mission in Rwanda and ofthe leadership in New York, with unflinching exactitude, drawingimportant lessons to help ensure that another such breakdownof the UN system during a time of crisis does not happen again.     

论联合国经济制裁之功能

一般认为联合国经济制裁具有“强制改变”的功能,但对于联合国经济制裁是否具有惩罚功能和预防功能的问题,国际社会却存在严重的分歧,这种分歧直接影响到联合国经济制裁的决策和执行。刑法学关于惩罚功能的精髓是在刑事不法行为与刑事制裁之间建立必然联系,从这个角度来看,联合国经济制裁不具有惩罚功能;民法学在“惩罚性赔偿”的定义中,将惩罚界定为“对不法行为者施加的‘害’大于不法行为本身导致的‘害’,而不是等于或大致等于不法行为本身导致的‘害’”,从这个角度来看,联合国经济制裁不一定具有惩罚功能;法理学认为“惩罚”就是“施加不利”,从这个角度来看,联合国经济制裁应该具有惩罚功能因素。另外,从主观上看,联合国经济制裁不具有预防功能;但从客观上看,联合国经济制裁却具有预防功能因素。     

A Turning Point in International Efforts to Apprehend War Criminals: The UN Mandates Taylor's Arrest in Liberia

With Resolution 1638 (2005), the UN Security Council requestedthe peacekeeping mission in Liberia (UNMIL) to apprehend anddetain former President Charles Taylor in the event of his returnto Liberia, and to transfer him to the Special Court for SierraLeone (SCSL). This new task assigned to a UN peacekeeping missionis a significant departure from previous practice. Althoughthere are a few precedents of military troops acting withinthe framework of UN missions which have been authorized to arrestwar criminals, the conferral of an explicit and clear mandateconstitutes a welcome novelty. This resolution is indicativeof the trend emerging in the UN Security Council's practiceto combat impunity by enhancing the rule of law and promotinginternational criminal justice; in particular, it is notablebecause it evinces the Security Council's willingness to strengthencooperation with international criminal tribunals. The examinationof the precedents (UNOSOM II: Second United Nations Operationin Somalia and IFOR/SFOR, the NATO-led multinational force deployedin Bosnia-Herzegovina) is useful for the discussion of legalissues raised by Resolution 1638. The task of arresting a warcriminal can easily be reconciled with the non-coercive natureof UN peacekeeping operations, provided that the consent ofall parties involved is secured. Interestingly, UNMIL troopsare not only authorized but also obliged to implement Resolution1638. After completion of this article, on 29 March 2006, Taylor wasarrested while trying to flee Nigeria. He was put on a jet boundfor Liberia, where at the airport he was taken into custodyby UNMIL peacekeepers and flown by UN helicopter to the SCSLdetention facilities at Freetown, Sierra Leone.     

欧盟公共采购法采购主体制度述评

欧盟公共采购法的采购主体制度是欧盟内部市场制度深入发展的结果,主体的市场化程度是判定其是否应纳入公共采购法规范的主要标准。同时,尽管欧盟公共采购法体现出高度的开放性特点,但这种开放仅是针对欧盟成员国的相对的开放,欧盟的对外政策仍具有突出的贸易保护特色,这是欧盟公共采购法与真正的政府采购国际法规范的一个本质区别.     

International Policy Formation: The Development Of Restorative Justice Policy Within The United Nations

Restorative justice and its related terms moved from the background of ancillary sessions to the floor of the United Nations Congress. This article documents and discusses the transfer of local policy to the international arena using the UN forum and restorative justice as a case study. First, a historical timeline traces the three influential forces, (1) the United Nations forum, (2) the non-governmental organization (NGO) activities, and (3) the individual Member States’ activities, behind the restorative justice movement onto the UN agenda. An integrated modification of Blumer’s process of collective problem definition is used as a framework to analyze the policy formation. Finally, the context of how future researchers may make use of the process is analyzed by comparing the traditional research development framework to Blumer’s policy framework. A need for wide spread implementation and outcome evaluations are needed as the policy is implemented is among the key findings.     

国际反恐与先发制人军事行动

先发制人军事行动原則上应被禁止。但在极端情况下采取预先性自卫,已在国际上得到越来越多的响应,其可能的法律依据是联合国会员国或联合国机构对联合国宪章的解释实践。预防性军事行动由于明显缺乏国际法律依据,且这种对自卫权的扩大解释没有被国际社会绝大多数成员所接受,故仍应予以严禁。求助于联合国安理会应对国际恐怖威胁仍是一种最为可取的做法,为此各会员国有必要在武力使用的具体标准和程序问题上尽可能达成共识。     

The United Nations data privacy system and its limits

ABSTRACT

While the United Nations (UN) pioneered in recognizing the impact of modern technological developments on (data) privacy as far back as 1968, little has so far been achieved in terms of introducing a truly global data privacy framework. The present UN data privacy framework is by and large a mere patchwork of rules that exhibit a number of weaknesses. This weak structure of the present framework is a result of political and ideological controversies of the Cold War era. This article considers the extent to which the current UN data privacy system provides protection to data privacy and highlights its major limitations. It concludes that the discourse at the UN set in motion, particularly in the aftermath of the Snowden revelations, wields a potential to result in a major reform in the UN data privacy system.     

When Worlds Collide: Enforcing United Nations Security Council Asset Freezes in the EU Legal Order

Asset freezes are since 2000 being applied by the United Nations (UN) Security Council (SC) to non-state actors. This came about as a 'mutation' of the sanctions program initiated by Resolutions 1267 (1999), 1333 (2000) and 1390 (2002): currently the targets are only supected terrorists or terrorism financiers.
This 'mutation' has created perplexities and problems, namely for the EU, which enforces UN SC Resolutions by a combination of first and second pillar methods. The main problem concerns issues of fundamental rights, currently being litigated.
The debate on the compatibility of the current practice of UN SC asset freezing within EU law takes place amidst a fundamental lack of clarity as to the exact purposes and operational objectives of such freezes. It is argued that this practice amounts to an ad hoc (para-)criminal procedure measure, enacted by political bodies rather than courts, and without judicial oversight.
The current UN SC practice of asset freezing against non-state actors breaches the right to judicial review, as well as the presumption of innocence. If this practice it is to continue at all, methods that make it fully compatible with the rule of law must be adopted. Especially, their renewal ad aeternum should not be possible.     

E-confidence: Offer and acceptance in online contracting

Online contracting, as a focal point of electronic commercial transactions, has been developing since the 1990s. Recent international legislation, namely the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts (the UN Convention) is a significant legal achievement. However, the validity and effectiveness of electronic offer and acceptance is still an issue for debate. This paper aims to seek answers to how law makers may meet the challenge of regulating electronic contracting, and what future improvements that the UN Convention may need to make to boost confidence of contracting online. The paper will introduce the concept and formation of electronic contracts; analyse the current legislative environment of electronic contacting in the international organisations, EU, US and China; discuss the obstacles that electronic contracting has faced; and propose a solution to remove its legal uncertainty.     

Would a United Nations Environment Organization Help to Achieve the Millennium Development Goals?

As a follow-up to the 2005 United Nations World Summit, Jan Eliasson, President of the sixtieth session of the United Nations General Assembly, plans that the General Assembly will take up the issue of international environmental governance (IEG) in spring 2006. This may provide an opportunity to start negotiations on creating a United Nations Environment Organization (UNEO) in the larger context of reforming the UN. Against this background, this article discusses the need for IEG reform, the advantages and disadvantages of creating a UNEO and its potential in helping to achieve the Millennium Development Goals. The article concludes that a UNEO – as a UN specialized agency – may have greater political clout than the United Nations Environment Programme (UNEP) currently commands, which is only a programme based on a resolution of the General Assembly. Given its increased political weight, a UNEO could be a better tool to address environmental needs in developing countries, and help to achieve poverty and development goals.     

Reliability and validity of cross-national homicide data: a comparison of UN and WHO data

Data reliability and validity are methodological concerns in cross-national analyses of crime, but there is little agreement on which source of data provides the most reliable estimates. Moreover, few studies have examined the potential threat to validity posed by unclassified deaths. The current study aims to (1) assess the reliability of cross-national homicide data from the United Nations (UN) and the World Health Organization (WHO); and (2) investigate the impact of unclassified deaths on the validity of WHO data. Findings indicate that UN and WHO homicide rates (n=56) differ in magnitude, but produce similar outcomes. The UN data produce more robust results and statistical models with less error. The WHO data are more stable and reliable over time, and better suited for longitudinal analyses. Analyses drawing on WHO data should not disregard unclassified deaths because their inclusion provides a more accurate estimate of the true number of homicides.     

Barcelona 2002: law, ethics, and human rights. HIV testing for peacekeeping forces: legal and human rights issues

In 2001, the United Nations Security Council established an Expert Panel to study the issue of whether the UN should institute HIV testing of peacekeeping personnel. This article, based on a 9 July 2002 presentation to the XIV International AIDS Conference (abstract TuOrG1173), reports on the findings of a paper prepared for the Expert Panel by the Canadian HIV/AIDS Legal Network. The paper examined whether it is permissible for the UN to implement mandatory HIV testing of its peacekeeping personnel, and whether HIV-positive UN peacekeeping personnel should be excluded or restricted from service on the basis of their HIV status or HIV disease progression. The article describes some of the court cases in which these issues have been considered; discusses the importance of analyzing such issues in the context of a human rights-based approach to the pandemic; and formulates a series of key principles for guiding UN decision-making. The article concludes that a policy of mandatory HIV testing for all UN peacekeeping personnel cannot be justified on the basis that it is required in order to assess their physical and mental capacity for service; that HIV-positive peacekeeping personnel cannot be excluded from service based on their HIV status alone, but only on their ability to perform their duties; and that the UN cannot resort to mandatory HIV testing for all UN peacekeeping personnel to protect the health and safety of HIV-negative personnel unless it can demonstrate that alternatives to such a policy would not reduce the risk sufficiently. In the end, the Expert Panel unanimously rejected mandatory testing and instead endorsed voluntary HIV counselling and testing for UN peacekeeping personnel.