Thanks to everyone contributing to this discussion. I know this is an ongoing topic in Work Party 2, so I may not be up to speed on the latest discussions, but I wanted to give my views on today's email exchange.

I think human rights is an important issue that will require more detailed attention in WS2. That said, I'm not opposed in principle to including a reference to human rights obligations in WS1, provided it is (a) very tightly defined in the context of existing international law, (b) does not allow for future expansion or creep of ICANN's mission, and (c) does not result in new obligations on ICANN's contracted parties (registries and registrars) to somehow enforce ICANN's corporate obligations, particularly related to matters of content.

Avri's point concerning the impact of NTIA's disengagement is consistent with the approach the CCWG has taken on most other WS1 issues, so we should consider it carefully. In other words, "Does NTIA's disengagement introduce risk that ICANN could disregard its existing human rights obligations under international law?"

With regard to NTIA's criteria #4 (open internet), here's the language from Secretary Strickling's April 2014 written testimony before Congress, where NTIA gave some additional context:

"Fourth, the transition proposal must maintain the openness of the Internet. The neutral and judgment free administration of the technical DNS and IANA functions has created an environment in which the technical architecture has not been used to interfere with the exercise of free expression or the free flow of information. Any transition of the NTIA role must maintain this neutral and judgment free administration, thereby maintaining the global interoperability of the Internet."

In the spirit of consensus-building, I'd like to think we can find common ground on this point and avoid a minority statement. It's not clear to me that this requires a bylaw change, but I'm open to further discussion on the topic.

Thanks and regards,

Keith

On Jul 27, 2015, at 4:39 PM, Nigel Roberts <nigel@channelisles.net> wrote:

I think this starts from entirely the wrong approach.

It starts from the premise of

"what are we (qua ICANN) legally OBLIGED to do"

not

"what we (in our special position) SHOULD be doing" (i.e. to ensure that ICANN, and all its works, comply with, and promote international human rights standards.

I think we should focus on the latter, and embed it in an Overriding Objective (with apologies to Lord Woolf for stealing the term)

But to answer the question asked:-

The USA, just like the UK, is a dualist state.

International treaties are simply not binding on the United States Government, their provisions requiring to be transposed into domestic law to fulfil the treaty obligation.

This contrasts clearly with countries such as France or the Netherlands, which are monist states. Meaning international treaties automatically become incorporated into binding domestic law, following ratification. To those used to the civil law, the dualist approach of the common-law world is puzzling. After all why would a state enter into a solemn binding international agreemnt it was not prepared to honour. (This can been seen as a form of estoppel, if further analysis was needed).

It seems clear, however, that NTIA *ITSELF* is not bound by international law, absent a Federal statute incorporating specific treaty obligations.

Thus, it is submitted, there can be no obligations ever imported onto ICANN under international law simply because of the IANA contract. Any such obligations, such as they are, arise elsewhere, such as the Articles, as Christopher helpfully highlighted.

But go ahead, do let's spend more of ICANN's money with Sidley and Austin -- the more they come to understand ICANN, the more there will be a credible alternative to Jones, Day when ICANN next tenders out the role of external counsel.

On 27/07/15 14:02, Edward Morris wrote:

Once we have the answer to that question I think we could have a more meaningful discussion on this matter.

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