Hi Bruce, Thanks for your mail, further reply inline: On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
Hello Niels,
First of all it would be great if Samantha could produce some examples of caselaw or similar examples, because we have done quite extensive research as well as the Institute for Human Rights and Business and we didn't find any example of the risk that Samantha is referring to.
We don't really have any case law as it relates to the IRP panel's interpretation of our bylaws in this area.
A court will interpret the national law of the relevant country - and I gather from other postings to this list that national law doesn't usually apply to non-government organizations with respect to human rights. So I am not surprised that there is little case law as it relates to a non-government organization that you could find. Although laws against slavery etc I would assume apply to the private sector as well as the government sector - so I guess some human rights principles apply to all organizations.
Governments are responsible to protect human rights, therefore they protect human rights by for instance creating laws which uphold them. It would be however simplistic to say that it's only human rights law - human rights principles are getting incorporated into different areas of law. As you note yourself, slavery is illegal in practically all countries because of national legislation which are in line with human rights. So engaging in slavery is a criminal offense in many countries (thus, criminal law is applicable). Such incorporation as well as enforcement and protection is solely a duty of the governments.
The point Samantha is making is that for IRP purposes - we should wait until our community has defined how human rights principles applies to protocol parameters, domain names and IP addresses. The IRP panel is not interpreting national laws - it is interpreting whether we are complaint with our bylaws.
The IRPs, as you know, are there in order to 'compare contested actions of the ICANN Board to the Bylaws and Articles of Incorporation and to declare whether the ICANN Board has acted consistent with the provisions of those documents'. In the language developed for the Third Draft report, we suggested the transitional bylaw requiring the development and implementation of the Framework of Interpretation. So as long as the framework is not in place but ICANN is developing it in accordance with the bylaw, ICANN cannot be held to a specific interpretation of human rights. An IRP will not be able to either reinvent or reinterpret human rights. And the commitment is a positive obligation which we'll frame and shape in WS2.
So my personal view (not a Board view) is that option (c) might be workable.
I think option A also provides protection against the risk that you (and Samantha) are sketching. Happy to continue the discussion! Best, Niels
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9