国际法律程序中法官和仲裁员因素 ——以中菲南海争端仲裁案为例

国际法律程序包含了司法程序和仲裁程序。在上述程序中,国际司法程序中的法官和国际仲裁程序中的仲裁员的个人因素都或多或少会在法律活动中产生一定影响。国际司法程序的法官具有独立性,需宣誓只效忠法院或法庭,但其独立性是相对的,选举阶段的政治因素以及当选后法官的国籍、思想、观念都会影响他/她对案件的处理;国际仲裁程序的仲裁员的独立性较之国际法院和国际海洋法法庭等国际司法机构的法官更显不足,争端当事方指定的仲裁员往往代表其利益,维护其立场。在国际法律程序中,法官和仲裁员会在程序规则的制定、传唤证人或专家及视察涉案地点、收受证据、查明事实和法律、对判决结果发表个别意见和反对意见等诸多法律环节拥有一定权利并发挥一定作用。了解和掌握上述法律程序以及法官和仲裁员的个人作用,对于中国已卷入的菲律宾发起的强制仲裁案件以及未来的潜在案件会有所帮助。在中国暂未参与仲裁程序,而且放弃指派仲裁员的情况下,对仲裁员因素的研究有利于监督和避免不利于中国的人为因素的影响,同时一旦中国在未来以某种形式参与到仲裁程序时,需在规则范围内去发挥和制造有利于中国的人为因素的影响。     

Cyber terrorism challenges: The need for a global response to a multi-jurisdictional crime

With the widespread concerns about cyber terrorism and the frequent use of the term “cyber terrorism” at the present time, many international organisations have made efforts to combat this threat. Since cyber terrorism is an international crime, local regulations alone are not able to defend against such attacks; they require a transnational response. Therefore, an attacked country will invoke international law to seek justice for any damage caused, through the exercise of universal jurisdiction. Without the aid of international organisations, it is difficult to prevent cyber terrorism. At the same time, international organisations determine which state court, or international court, has the authority to settle a dispute. The objective of this paper is to analyse and review the effectiveness and sufficiency of the current global responses to cyber terrorism through the exercise of international jurisdiction. This article also touches upon the notion of cyber terrorism as a transnational crime and an international threat; thus, national regulations alone cannot prevent it. The need for an international organisation to prevent and defend nations from cyber terrorism attacks is pressing. This paper finds that, as cyber terrorism is a transnational crime, it should be subjected to universal jurisdiction through multinational cooperation, and this would be the most suitable method to counter future transnational crimes such as cyber terrorism.     

中国贿赂犯罪立法与《联合国反腐败公约》之比较

中国贿赂犯罪刑事立法与《联合国反腐败公约》在行贿方式、行贿罪的目的要件等的规定上具有契合性,在行贿人的刑事责任、贿赂的内容、外国公职人员或者国际公共组织官员贿赂犯罪的规定等问题上具有差异性。     

Neither inside nor outside the corridors of power: prosaic petitioning and the royal burghs in early modern Scotland

ABSTRACT

This article explores early modern petitioning in the context of urban Scotland. It focuses on prosaic rather than political petitioning, on the basis that the former was more truly characteristic of what the purpose of petitioning was understood to be by most of those who engaged in it. The burghs of Scotland provide an added dimension to the history of petitioning because of the role of their national assembly (the Convention of Royal Burghs), which was simultaneously a recipient of petitions, a conduit for its members’ petitions to the crown, and a petitioner of the crown in its own right. This article also reveals how changing practices of petitioning shed light on the development of the early modern Scottish state, as the Convention of Royal Burghs found its members increasingly bypassing it and instead they resorted directly to central government institutions.     

The Infant Injury Database: A Tool for the Study of Injury Patterns in Medicolegal Investigations of Child Abuse

In 2012, the Harris County Institute of Forensic Sciences began prospectively collecting injury data from pediatric autopsies. These data and associated case information from 635 pediatric cases are archived in the Infant Injury Database (IID). This paper introduces the IID to the forensic community and demonstrates its potential utility for child abuse and infant fatality investigations. The database is intended to be a source of evidence‐based research for coroners/medical examiners and clinicians in the recognition and diagnosis of child abuse. RR estimates were employed to quantify the relationship between individual autopsy findings to trauma‐related and nontrauma‐related causes of death. For example, unsurprisingly, the RR of trauma cases with multiple injury types is significantly greater than other causes of death, but the RR results provide a quantitative representation of the relationship. ROC curve modeling of the presence/absence of various injury types performed well at discriminating trauma from other causes of death (AUC = 0.96).     

Shared Waters—shared Responsibility. Application of the Principles of Fairness for Burden Sharing in the Mediterranean

The paper addresses the issue of burden sharing within the context of the Barcelona Convention for the protection of the Mediterranean. The initial premise is that the perceived fairness of burden sharing rules is an important factor in the success of multilateral environmental agreements. We review briefly the basic ideas behind the fairness and equity debate in global environmental affairs before we apply a number of widely accepted equity rules in the case of Mediterranean marine protection. We derive arithmetic examples to illustrate the application of the rules and compare them in terms of their political attractiveness, cost-effectiveness and practical feasibility. It is shown that the simple rule of egalitarian justice scores high on all aspects.     

普遍民事管辖的发展与挑战

普遍民事管辖源于美国1789年《外国人侵权索赔法案》。自美国联邦法院1980年首次适用该法案以来，普遍民事管辖的理论与实践引起了国际社会的广泛关注，已发展成为与普遍刑事管辖并列的一个新领域。普遍民事管辖的发展给传统国际法规则特别是与豁免有关的规则带来了重大挑战，也给大陆法系国家带来了法律制度创新上的挑战。中国有必要在本国法律制度中确立普遍民事管辖的相关制度，并在普遍管辖议题的全球性磋商中持更具建设性的立场。     

《联合国反腐败公约》与我国反洗钱立法的完善

《联合国反腐败公约》对洗钱犯罪作了规定,我国现行《刑法》对洗钱罪的规定与《公约》存在较大差异,从而使我国对洗钱罪及其上游犯罪的预防和打击的效果受到影响。我们有必要对洗钱罪的犯罪构成要件作深入的研究并根据《公约》的规定完善我国关于洗钱犯罪的立法。     

《联合国国家及其财产管辖豁免公约》评析

第59届联合国大会通过的《联合国国家及其财产管辖豁免公约》肯定了国家豁免是一项国际法原则,对限制豁免进行了认定。当今的国际社会,限制豁免更易被接受。限制豁免是国际法规范的发展趋势。我国应制定《国家豁免法》,明确规定限制豁免的做法。     

The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making

The climate change problem, or global warming, has gained a prominent place on the international political agenda, since the mid-1980s, when it first attracted political attention. The problem was initially perceived mainly as an environmental problem that could be resolved by technological solutions, its current perception, this essay argues, is best characterized as that of an enviro-economic problem. A perception that is exemplified by the ongoing negotiations for the development of economic mechanisms to tackle the problem. The climate change arena is a complex one, involving dichotomies between developed and developing countries, between fossil fuel producing and importing countries and between small island developing states and other states. This essay outlines the interests that play a role in the climate change negotiations and discusses the international climate change regime as contained in the United Nations Framework Convention on Climate Change and its Kyoto Protocol. It concludes that the climate change negotiations are complicated by the fact that the negotiators, in addition to developing new substantive rules for a complex problem, are involved in developing new systemic rules for the international legal system. These new systemic rules have more in common with rules of national systems of public or administrative law than with traditional rules of international law, which have many similarities with national systems of contract law.