Malcolm,

Earlier, you (and several others) offered several phrases containing some qualifier and the word "law" as useful language to add.

My first point was to illustrate that neither "law" nor "contract" have much bearing on the set of activities usually referred to as the technical coordination of unique endpoint identifiers. Dr. Lisse made much the same point as did anyone else asking "which law?", and by now you've had a chance to see Becky Burr's comment.

My second point, which I think you've missed or I expressed poorly, is that when we construe the IANA Function very narrowly, and informed only by the commentary of the IAB, e.g., RFC 2826, historically significant and broad reaching "public interest" consequences follow. Scripts other than Latin now form DNS labels throughout the namespaces, addresses are allocated according to some forms of equity of access, etc.

Restated, the mere stewardship of unique endpoint identifiers and protocol parameters entails a significant public interest capability, and responsibility. This was true prior to 1998 when Dr. Postel held most the responsibility personally, and remains true after 1998 when these responsibilities began a process of institutionalization.

I hope this clarifies my earlier note.

Regards,
Eric Brunner-Williams
Eugene, Oregon

On 12/18/14 2:35 AM, Malcolm Hutty wrote:

On 2014-12-17 21:20, Eric Brunner-Williams wrote:

On 12/17/14 8:53 AM, Malcolm Hutty wrote:

Certainly I would regard it as being in the public interest that ICANN
should discharge its functions properly, and in accordance with generally
accepted principles of law.

Dear Malcolm,

What "generally accepted principles of law" do you suggest apply to
the management of protocol parameters?

[snip: other similar questions, that ultimately lead to:]

My point being that when the IANA Functions are as narrowly construed
as we can sensibly make them, "public interest" and "generally
accepted principles of law" are difficult to find points of
association, let alone concordance.

Eric,

I'm a bit surprised by the tone of your reply, which appears to signal a
disagreement between us that I don't recognise in the argument itself.

The main thrust of my intervention was to say that we should not make broad
statements about the public interest and "generally accepted principles
of international law" that could be construed to enlarge ICANN's role.

Your intervention seems to be aligned with this.

I am not a PIL expert, so I cannot guess what principles of PIL may be
applicable to ICANN. There certainly are broad principles that I do
believe are applicable to ICANN (including transparency, a rules-based approach,
bottom-up multi-stakeholder policy-making, impartiality of treatment
under the rules etc); some of these may be found in PIL too, or maybe not,
I don't know.

I do believe ICANN should apply only aspects of PIL as relevant
to its existing mission, rather than reshaping its mission to pursue
the multifarious goals of international public policy. On this may
I take it we are agreed?

Malcolm

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