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UN Week – 9/10/12

September 14, 2012

This blog entry is written by members of our blogging community and expresses those experts’ views alone. John and Douglas Carey, Editors

In this issue: R2P put to the test; electronic transferable records; identity management.

R2P put to the test.

US Ambassador Susan E. Rice, in remarks at the Security Council stakeout on September 6th, spoke about the plight of “tens of thousands of people [who] have become newly displaced due to renewed fighting in the Two Areas” of Sudan, Southern Kardofan and Blue Nile.

“Sudan has a responsibility to care for its own people in the Two Areas, as elsewhere, and it should do so with the urgency that the emergency situation requires. * * *

“With respect to the Council’s readiness to take action in the event of non-compliance, we of course had the very clear statement that was adopted unanimously in resolution 2046 under Chapter VII in which the Council made it plain that if either party or any party fails to fulfill its obligations – their binding obligations – that the Council is ready to take action under Article 41 of the Charter.”

Earlier on September 6th, the US position on R2P was set forth in part as follows at an interactive dialogue in the General Assembly,: “Seven years ago, all member states of the United Nations came together to endorse and accept a shared responsibility to protect populations from genocide, ethnic cleansing, crimes against humanity, and war crimes. The United States remains a strong supporter of the Responsibility to Protect and is committed to working with international partners to advance this concept and put it into practice. * * *

“We all agree that our goal is for states to live up to their sovereign responsibilities to protect their own populations. However, if they cannot, or will not, we need to rely on a full panoply of tools, and as the Secretary-General’s report underscores ‘coercive measures should neither be left out of our comprehensive strategy nor relegated to use only after other measures have been used and found inadequate.’ ”

The presentation then goes on “to note several recent actions undertaken by the international community, with active US support, where we did prevent atrocities, we did protect civilians, and we are holding perpetrators accountable.” Libya, Cote d’Ivoire and Syria are mentioned. As to Syria, “Our responsibility to protect is clear as we encourage all parties to focus on a peaceful transition of power. Moreover, those responsible for committing crimes against the Syrian people must understand they will be held to account.”

Electronic transferable records.

Working Group IV (Electronic Commerce) of the UN Commission on International Trade Law (UNCITRAL) received a proposal from Colombia, Spain and the US, A/CN.9/WG.IV/WP.119. “The Working Group now has the opportunity to prepare international standards to provide legal certainty in the use of electronic transferable records.” Id. at 2.

“8. The fundamental distinction between an instrument and a document of title is that an instrument represents money while a document of title represents goods.” Id. at 3.

“11. Traditionally, both transferable instruments and transferable documents of title have been paper-based. There are presently both existing and developing models for electronic transferable records in various domestic and international laws. 12. For example, certain negotiable electronic transferable instruments are recognized under United States law. Negotiable electronic transferable documents are also recognized under United States law. * * *

“15. There is also a growing body of international law that recognized electronic transferable records. As stated below, this includes UNCITRAL texts.”

Identity management.

The same UNCITRAL Working Group IV also issued a background paper submitted by the Identity Management Legal Task Force of the American Bar Association. A/CN.9/WG.IV?WP.120.

“6. Identity management is a fundamental issue for most e-commerce transactions and other online activities. Verifying the identity of remote parties, such as determining who is seeking access to an online database of sensitive information, who is trying to do an online transfer of funds from an account, who signed an electronic contract, who remotely authorized a shipment of product, or who sent an email, is a fundamental concern. While participants in many low-risk online transactions are wiling to trust that they are dealing with a specific person or entity, as the sensitivity or value of the transaction increases, the importance of ensuring the availability and reliability of accurate information about the identity of the remote party in order to make a trust-based decision increases as well. * * *

“8. At its essence, identity management is designed to provide the answer to two simple questions that each party to an online transaction asks about the other party: ‘Who are you?’ and ‘How can you prove it?’ ” Id. at 5.

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