On 27/07/2015 11:33, Nigel Roberts wrote:
accept them being traded off against other objectives): i) an obligation "to carry out its activities in conformity with relevant principles of international law", which includes human rights law; and
I would feel much more reassured had you been a position to be able to put the closing double quote where the semicolon is.
Look, ICANN's lawyers argued strongly that international law does not apply to ICANN in ICM Registry -v- ICANN.
It took a learned jurist in the IRP process to remind them otherwise -- since ICANN's founders has put this commitment in its bylaws, it is legally bound to uphold it.
I think this example proves my point: what is in the Bylaws is sufficient to establish this principle: what is lacking is not acceptance of the principle (when ICANN tried to deny the principle they were corrected) but an effective mechanism to compel adherence to it. Which is why we should focus not on adding more declaractive text, but on ensuring our mechanism for enforcement is as good as we can devise.
But without effective accountability measures available to those without deep pockets,
The need for deep pockets is a real problem, I agree. But having established the principle that ICANN needs to be subject to independent review for the benefit of any materially effected party, we should be able to leave to WS2 the job of devising means to make it more affordable and accessible in practice. If you doubt that we can rely on WS2 to deliver those improvements without something more in the Bylaws, I would suggest that the solution is not more declarative text but a more specific mechanism to enable us to build, in WS2, on the foundations we have laid in WS1. WP2 will discuss that in two hours' time, I believe.
It needs to be embedded so that any affected person effectively may hold the corporation accountable
Our proposal does now extend this commitment to any "materially affected" party. That's one of the key improvements we've made.
for infringing, or failing to protect, fundamental rights; ICANN holding a special position as an international multistakeholder body.
I believe what we have constructed would indeed allow an action under the IRP for infringing relevant principles of applicable law, if ICANN it ever did so infringe. As for ICANN "failing to protect", that goes further and implies both a duty and a capacity to protect: I suspect that to a large extent, ICANN's limited capacity will make this resolve back to avoiding infringement - but it's hard to really know when speaking in such barely abstract terms. Which is one of the reasons why embedding such vague language is difficult. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA