Re: [CCWG-ACCT] Regarding mission statement and human rights
Fundamental Rights are not the same as Human Rights, necessarily. Human Rights are fundamental (but perhaps not Fundamental everywhere), universal (perhaps even Universal) and inalienable (not even by applicable law) and they transcend all jurisdiction, even though they can be reinforced and strengthened nationally (by applicable law) There is no such thing as "international human rights". el -- Sent from Dr Lisse's iPad mini 4
On 29 Jan 2016, at 11:58, Seth Johnson <seth.p.johnson@gmail.com> wrote:
"Fundamental" is precisely what international human rights aren't. A fundamental right is claimed by a people in their founding act for their country, and elicits the strictest standard of review, wherein any government act that touches them is unconstitutional unless it's addressing an extremely compelling state interest and also narrowly tailored to address that interest and affect the right to the least extent possible. International human rights are enacted by governments, so they are "statutory" and subject to a "balancing" standard at best -- an international human rights treaty does not create trump card fundamental rights so other treaties get cancelled because they messed with the human rights -- since the same body ("governments") enacted both, a judge can only assume other treaties are intended to qualify the human rights treaty. It's equivalent to a statutory right to drive, enacted by a legislature: they create the right and they subsequently qualify it, with requirements to hold insurance or wear seatbelts, etc.
Seth
On Fri, Jan 29, 2016 at 4:40 AM, Dr Eberhard W Lisse <epilisse@gmail.com> wrote: My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
el
-- Sent from Dr Lisse's iPad mini 4
On 29 Jan 2016, at 10:52, Nigel Roberts <nigel@channelisles.net> wrote:
On 29/01/16 01:16, Bruce Tonkin wrote: Hello Nigel,
With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated.
I think fundamentally as a global organization built on the multi-stakeholder model - the "applicable" law should be the rules we put in our bylaws.
Finally! Thank you for this!
This is the point exactly.
There is no other law applicable to human and fundamental rights other than te corporation adopts voluntarily, such as in its by laws. This is because the corporation is a private sector body. Thus any reference to applicable law in the by law is entirely disingenouus as there is none applican;e to private companies.
I would sugges, technically, the only 'applicable law' that could creates any binding obligation in respect of human rigths can only be the California company statutes that make the corporation legally bound to follow what decides and agrees to put in its by-laws and Articles.
There's passing previous judicial examination of this -- see the Report of the .XXX IRP.
So, it seems to me, what is needed is simply be a more detailed exploration of what the corporation committed to in by its original adoption of Article 4.
What is needed is an overarching committment to the corporation carrying out its work with full respect for human rights.
What is not needed are technical reservations and derogations, which on past form (see ICANN's submissions in the .XXX case) will be used by ICANN Legal to try weasel out of the corporations' basic obligations, instead of embracing them.
This is why we think that the effort should be on identifying the rules that ARE applicable to Internet protocol parameters (including IP addresses and domain names) and building those into the bylaws through a framework of interpretation.
The "court" will then be the IRP to make sure that ICANN is abiding by the rules in the bylaws.
I gather the reluctance to follow this path is a concern that this work will not happen. The Board can do what it can to commit to working with the community to develop the set of rules, assuming we can all reach agreement on what those rules are.
Regards, Bruce Tonkin
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Much of this is technicall true. But how does this apply to a proposed restriction to "applicable law! (which doesn't exist). On 29/01/16 10:25, Dr Eberhard W Lisse wrote:
Fundamental Rights are not the same as Human Rights, necessarily.
Human Rights are fundamental (but perhaps not Fundamental everywhere), universal (perhaps even Universal) and inalienable (not even by applicable law) and they transcend all jurisdiction, even though they can be reinforced and strengthened nationally (by applicable law)
There is no such thing as "international human rights".
el
participants (2)
-
Dr Eberhard W Lisse -
Nigel Roberts