sent from Google nexus 4 kindly excuse brevity and typos. On 16 Dec 2014 22:32, "Greg Shatan" <gregshatanipc@gmail.com> wrote:
Accountability mechanisms are tools that need to be "fit for purpose".
If you are afraid of fire, you get smoke detectors and fire extinguishers and use flame retardant materials, etc. Proposing a random tool, without identifying the specific threat (and I don't consider "failing to respect the law" to be specific), will not get us very far.
I agree with what Greg say above... accountability solutions/mechanisms are to fix known loop holes/issues and reduce possibility of having such occurrence in other forms. Cheers!
Greg Shatan
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On Tue, Dec 16, 2014 at 4:10 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:
Dear All, Any treaty unless is ratified by the parties adhered to it is not
binding.
Moreover, International Customary Law is merely applicable between states and not priovaite coopration ,Moreover, it is not legally binding . However, like many other similar cases it is only morally binding. Consequently that would not be applicable notr to be referred to by CCWG. i SUGGEST WE DO NOT GET INTO THAT DELEMA ,otherwise we never get out of it due to the fact that there are divergence view even between professionals on lega affairs Regards Kavouss
2014-12-16 21:43 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:
I don't think that "international law" as referred to in this
discussion was intended to mean "law binding states in regards to bilateral and multilateral relationships between themselves (states), emanating from bilateral and multilateral agreements between themselves (states)," Rather, I expect that what was meant was "principles of international law," as referred to in ICANN's Articles of Incorporation, Article 4, (emphasis added):
4. The Corporation shall operate for the benefit of the Internet
community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations.
Article 38(1) of the Statute of the International Court of Justice
refers to “the general principles of law recognized by civilized nations,” which can be described as follows:
The basic notion is that a general principle of international law is
some proposition of law so fundamental that it will be found in virtually every legal system. When treaties and customary international law fail to offer a needed international rule, a search may be launched in comparative law to discover if national legal systems use a common legal principle. If such a common legal principle is found, then it is presumed that a comparable principle should be attributed to fill the gap in international law. (Janis, An Introduction to International Law)
There is a useful discussion of the interpretation of the term "principles of international law" in the Declaration of the Independent Review Panel in ICM v. ICANN, which summarizes the arguments of both parties' international law experts before the panel comes to its own conclusion:
138. In the view of ICM Registry, principles of international law are
applicable; that straightforwardly follows from their specification
in the
foregoing phrase of Article 4 of the Articles, and from the reasons
given in
introducing that specification. (Supra, paragraphs 53-54.) Principles
of
international law in ICM’s analysis include the general principles of
law
recognized as a source of international law in Article 38 of the
Statute of the
International Court of Justice. Those principles are not confined, as
ICANN
argues, to the few principles that may be relevant to the interests
of Internet
stakeholders, such as principles relating to trademark law and
freedom of
expression. Rather they include international legal principles of
general
applicability, such as the fundamental principle of good faith and
allied
principles such as estoppel and abuse of right. ICM’s expert,
Professor
Goldsmith, observes that there is ample precedent in international
contracts
and in the holdings of international tribunals for the proposition
that nonsovereigns
may choose to apply principles of international law to the
determination of their rights and to the disposition of their
disputes.
139. ICANN and its expert, Professor David Caron, maintain that
international law essentially governs relations among sovereign
States; and
that to the extent that such principles are “relevant” in this case,
it is those
few principles that are applicable to a private non-profit
corporation that
bear on the activities of ICANN described in Article 3 of its
Articles of
Incorporation (supra, paragraph 2). General principles of law, such
as that of
good faith, are not imported by Article 4 of ICANN’s Articles of
Incorporation;
still less are principles derived from treaties that protect
legitimate
expectations. Nor is Article 4 of the Articles a choice-of-law
provision; in
fact, no governing law has been specified by the disputing parties in
this
case. If ICANN, by reason of its functions, is to be treated as
analogous to
public international organizations established by treaty (which it
clearly is
not), then a relevant principle to be extracted and applied from the
jurisprudence of their administrative tribunals is that of deference
to the
discretionary authority of executive organs and of bodies whose
decisions
are subject to review.
140. In the view of the Panel, ICANN, in carrying out its activities
“in
conformity with the relevant principles of international law,” is
charged with
acting consistently with relevant principles of international law,
including
the general principles of law recognized as a source of international
law. 64
That follows from the terms of Article 4 of its Articles of
Incorporation and
from the intentions that animated their inclusion in the Articles, an
intention
that the Panel understands to have been to subject ICANN to relevant
international legal principles because of its governance of an
intrinsically
international resource of immense importance to global communications
and
economies. Those intentions might not be realized were Article 4
interpreted to exclude the applicability of general principles of law.
While not dispositive, the Declaration can hardly be dismissed as inconsequential. It is clearly from even a brief review of the document that it is the result of many of hours of careful research, analysis and argument by knowledgeable professionals on both sides of the case, as well as a careful review by the panel (which included a former presiding judge of the ICJ, a distinguished scholar of international arbitration and a former US District Court judge). Given that these contributors trod the very ground upon which we now walk, the Declaration is, at the least, instructive.
Greg Shatan
On Tue, Dec 16, 2014 at 2:20 PM, Dr Eberhard W Lisse <el@lisse.na> wrote:
Becky,
as if that was of any consequence.
el
Sent from Dr Lisse's iPad mini
On Dec 16, 2014, at 20:50, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Also, fwiw, the panel in ICM v. ICANN held that ICANN is subject to
international law.
J. Beckwith Burr
[...]
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