yet another human rights question
Hi, I am currently writing up my minority report and came to a question I could not answer. Point 4 of the NTIA requirements includes: * Maintain the openness of the Internet. This is a Human rights requirement that I do not see reflected in our stress tests. Can someone point me at the stress test? Openness of the Internet is a derivative or 'umbrella' right that is defined by reference to human rights such as freedom of expression, freedom of association, privacy, property, security &c and their interplay. This is one of the stress factors: * the US and thus NTIA, is a human rights duty bearer. * if we were to violate human rights, NTIA in its oversight role would have to stop us from doing so and I am sure they would have done so. o e.g. if we were to start making rules that discriminated and were to injure human rights such as expressions or association in our policies, policies that infringed on the requirement of openness of the Internet, they would have to do something about it. * Without the NTIA as oversight, what is to stop us from infringing on the human right of an Open Internet? We do not have, as far as I can tell, a stress test that covers this. We need, as part of WS1, a bylaw that covers this deficiency. Despite the fact that there has been a 'vote' to exclude any mention of human rights and human rights impact analyses from the bylaws, I persist in the belief that we need a bylaw to cover this and meet the NTIA requirements. I understand that for some I went too far in suggesting a remedy for how we might do that, within the bylaw I orinigally suggested and want to try another suggestion before I go back to writing my minority report. /In order to enure that openness of the Internet within ICANN's mission may be maintained, human rights impact assessments will be done/ /on ICANN policies [as appropriate]/. Note this is not per--se requiring us to live up to human rights, but is requiring that we understand the impact of our actions. It can also includes the weasel words 'as appropriate' at the end if required. Figuring how we do this then becomes the WS2 issue. Thanks and apologies for bringing it up again, but on realizing that we do not stress test against the requirements for maintaining the human right of openness of the Internet made me realize that the deficiency was larger than just one of ignoring comments on our draft. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
I agree with Avri. There are a number of fundamental rights that are impacted by ICANN's work. I refer to the European Convention, but obviously, if you are outside of Europe there are almost direct equivalents in the US Constitution, the Canadian Charter, and of course, the Universal Declaration. Ther are the "obvious" rights. such Art.1 of Prot. 1, Art 6(1), Art 8, Art 10. There are also the less obviously applicable -- it should be entirely uncontroversial that ICANN should always act in a way that protects the unqualified rights, such as the right to life and freedom from slavery and torture. ICANN HAS in its bylaws already given a binding committment to uphold international customary norms, but what is lacking is a mechanism to ensure it does -- without which they are empty words, except when somone spends half a million dollars in court, or IRP to make them. On 27/07/15 08:44, Avri Doria wrote:
Hi,
I am currently writing up my minority report and came to a question I could not answer.
Point 4 of the NTIA requirements includes:
* Maintain the openness of the Internet.
This is a Human rights requirement that I do not see reflected in our stress tests. Can someone point me at the stress test? Openness of the Internet is a derivative or 'umbrella' right that is defined by reference to human rights such as freedom of expression, freedom of association, privacy, property, security &c and their interplay.
This is one of the stress factors:
* the US and thus NTIA, is a human rights duty bearer. * if we were to violate human rights, NTIA in its oversight role would have to stop us from doing so and I am sure they would have done so. o e.g. if we were to start making rules that discriminated and were to injure human rights such as expressions or association in our policies, policies that infringed on the requirement of openness of the Internet, they would have to do something about it. * Without the NTIA as oversight, what is to stop us from infringing on the human right of an Open Internet?
We do not have, as far as I can tell, a stress test that covers this.
We need, as part of WS1, a bylaw that covers this deficiency. Despite the fact that there has been a 'vote' to exclude any mention of human rights and human rights impact analyses from the bylaws, I persist in the belief that we need a bylaw to cover this and meet the NTIA requirements.
I understand that for some I went too far in suggesting a remedy for how we might do that, within the bylaw I orinigally suggested and want to try another suggestion before I go back to writing my minority report.
/In order to enure that openness of the Internet within ICANN's mission may be maintained, human rights impact assessments will be done/ /on ICANN policies [as appropriate]/.
Note this is not per--se requiring us to live up to human rights, but is requiring that we understand the impact of our actions. It can also includes the weasel words 'as appropriate' at the end if required.
Figuring how we do this then becomes the WS2 issue.
Thanks and apologies for bringing it up again, but on realizing that we do not stress test against the requirements for maintaining the human right of openness of the Internet made me realize that the deficiency was larger than just one of ignoring comments on our draft.
avri
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Hi, The problem with the commitment to International Laws and Norms in the articles is that the Human Rights covenants laws only apply directly to governments, not to a business/ngo like ICANN. In order for them to apply to ICANN, we need to add them to the bylaws once NTIA is no longer sitting in oversight. The apply to us now because of NTIA, once NTIA is gone we will be free of them, except in so far as they have been codified by California and US law. That is unless we incorporate a comitment to care in the bylaws. avri On 27-Jul-15 12:12, Nigel Roberts wrote:
I agree with Avri.
There are a number of fundamental rights that are impacted by ICANN's work.
I refer to the European Convention, but obviously, if you are outside of Europe there are almost direct equivalents in the US Constitution, the Canadian Charter, and of course, the Universal Declaration.
Ther are the "obvious" rights. such Art.1 of Prot. 1, Art 6(1), Art 8, Art 10.
There are also the less obviously applicable -- it should be entirely uncontroversial that ICANN should always act in a way that protects the unqualified rights, such as the right to life and freedom from slavery and torture.
ICANN HAS in its bylaws already given a binding committment to uphold international customary norms, but what is lacking is a mechanism to ensure it does -- without which they are empty words, except when somone spends half a million dollars in court, or IRP to make them.
On 27/07/15 08:44, Avri Doria wrote:
Hi,
I am currently writing up my minority report and came to a question I could not answer.
Point 4 of the NTIA requirements includes:
* Maintain the openness of the Internet.
This is a Human rights requirement that I do not see reflected in our stress tests. Can someone point me at the stress test? Openness of the Internet is a derivative or 'umbrella' right that is defined by reference to human rights such as freedom of expression, freedom of association, privacy, property, security &c and their interplay.
This is one of the stress factors:
* the US and thus NTIA, is a human rights duty bearer. * if we were to violate human rights, NTIA in its oversight role would have to stop us from doing so and I am sure they would have done so. o e.g. if we were to start making rules that discriminated and were to injure human rights such as expressions or association in our policies, policies that infringed on the requirement of openness of the Internet, they would have to do something about it. * Without the NTIA as oversight, what is to stop us from infringing on the human right of an Open Internet?
We do not have, as far as I can tell, a stress test that covers this.
We need, as part of WS1, a bylaw that covers this deficiency. Despite the fact that there has been a 'vote' to exclude any mention of human rights and human rights impact analyses from the bylaws, I persist in the belief that we need a bylaw to cover this and meet the NTIA requirements.
I understand that for some I went too far in suggesting a remedy for how we might do that, within the bylaw I orinigally suggested and want to try another suggestion before I go back to writing my minority report.
/In order to enure that openness of the Internet within ICANN's mission may be maintained, human rights impact assessments will be done/ /on ICANN policies [as appropriate]/.
Note this is not per--se requiring us to live up to human rights, but is requiring that we understand the impact of our actions. It can also includes the weasel words 'as appropriate' at the end if required.
Figuring how we do this then becomes the WS2 issue.
Thanks and apologies for bringing it up again, but on realizing that we do not stress test against the requirements for maintaining the human right of openness of the Internet made me realize that the deficiency was larger than just one of ignoring comments on our draft.
avri
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Hi, Sent from my iPhone
On Jul 27, 2015, at 1:48 PM, Avri Doria <avri@acm.org> wrote:
Hi,
The problem with the commitment to International Laws and Norms in the articles is that the Human Rights covenants laws only apply directly to governments, not to a business/ngo like ICANN.
This is a very important point that needs to be considered. If we are to duplicate ICANN's current human rights obligations as a government contractor in our newly independent corporation I'd suggest we should first find out exactly what they are. Would it be possible to refer to our lawyers the following question?: 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity? Once we have the answer to that question I think we could have a more meaningful discussion on this matter. Thanks for raising this most important and most interesting issue Avri.
In order for them to apply to ICANN, we need to add them to the bylaws once NTIA is no longer sitting in oversight.
The apply to us now because of NTIA, once NTIA is gone we will be free of them, except in so far as they have been codified by California and US law. That is unless we incorporate a comitment to care in the bylaws.
avri
On 27-Jul-15 12:12, Nigel Roberts wrote: I agree with Avri.
There are a number of fundamental rights that are impacted by ICANN's work.
I refer to the European Convention, but obviously, if you are outside of Europe there are almost direct equivalents in the US Constitution, the Canadian Charter, and of course, the Universal Declaration.
Ther are the "obvious" rights. such Art.1 of Prot. 1, Art 6(1), Art 8, Art 10.
There are also the less obviously applicable -- it should be entirely uncontroversial that ICANN should always act in a way that protects the unqualified rights, such as the right to life and freedom from slavery and torture.
ICANN HAS in its bylaws already given a binding committment to uphold international customary norms, but what is lacking is a mechanism to ensure it does -- without which they are empty words, except when somone spends half a million dollars in court, or IRP to make them.
On 27/07/15 08:44, Avri Doria wrote: Hi,
I am currently writing up my minority report and came to a question I could not answer.
Point 4 of the NTIA requirements includes:
* Maintain the openness of the Internet.
This is a Human rights requirement that I do not see reflected in our stress tests. Can someone point me at the stress test? Openness of the Internet is a derivative or 'umbrella' right that is defined by reference to human rights such as freedom of expression, freedom of association, privacy, property, security &c and their interplay.
This is one of the stress factors:
* the US and thus NTIA, is a human rights duty bearer. * if we were to violate human rights, NTIA in its oversight role would have to stop us from doing so and I am sure they would have done so. o e.g. if we were to start making rules that discriminated and were to injure human rights such as expressions or association in our policies, policies that infringed on the requirement of openness of the Internet, they would have to do something about it. * Without the NTIA as oversight, what is to stop us from infringing on the human right of an Open Internet?
We do not have, as far as I can tell, a stress test that covers this.
We need, as part of WS1, a bylaw that covers this deficiency. Despite the fact that there has been a 'vote' to exclude any mention of human rights and human rights impact analyses from the bylaws, I persist in the belief that we need a bylaw to cover this and meet the NTIA requirements.
I understand that for some I went too far in suggesting a remedy for how we might do that, within the bylaw I orinigally suggested and want to try another suggestion before I go back to writing my minority report.
/In order to enure that openness of the Internet within ICANN's mission may be maintained, human rights impact assessments will be done/ /on ICANN policies [as appropriate]/.
Note this is not per--se requiring us to live up to human rights, but is requiring that we understand the impact of our actions. It can also includes the weasel words 'as appropriate' at the end if required.
Figuring how we do this then becomes the WS2 issue.
Thanks and apologies for bringing it up again, but on realizing that we do not stress test against the requirements for maintaining the human right of openness of the Internet made me realize that the deficiency was larger than just one of ignoring comments on our draft.
avri
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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.
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<mailto: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. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
In other words, "Does NTIA's disengagement introduce risk that ICANN could disregard its existing human rights obligations under international law?"
Whilst I appreciate the creative restatement, this is most certainly NOT the question. ICANN *has* no existing human rights obligations under international law. Zero. Zip. Nada. And that is of concern. It has some fundamental rights obligations under California Law and the Art. 4 of the Articles of Association, but this has proved woolly and less than effective. (Ask both ICM and DCA about whether ICANN, in the exercise of discretion as a decision-maker respects the fair hearing right, for example). We need to somehow infuse ICANN with a culture of respect for fundamental rights, such as the right to intellectual property (currently well covered) and the rights to fair hearing, the right to privacy and the right to free expression (the latter rights covered much less so than the former).
According to the UN, Intl. Law includes a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. .(...)judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. If we will have to list all specific categories, then lets leave it to WS2, because it is going to be a long and very specialised exercise beyond the special fiel of Human Rights Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 27 Jul 2015, at 10:19, Nigel Roberts wrote:
In other words, "Does NTIA's disengagement introduce risk that ICANN could disregard its existing human rights obligations under international law?"
Whilst I appreciate the creative restatement, this is most certainly NOT the question.
ICANN *has* no existing human rights obligations under international law. Zero. Zip. Nada.
And that is of concern.
It has some fundamental rights obligations under California Law and the Art. 4 of the Articles of Association, but this has proved woolly and less than effective. (Ask both ICM and DCA about whether ICANN, in the exercise of discretion as a decision-maker respects the fair hearing right, for example).
We need to somehow infuse ICANN with a culture of respect for fundamental rights, such as the right to intellectual property (currently well covered) and the rights to fair hearing, the right to privacy and the right to free expression (the latter rights covered much less so than the former). _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, I think we are referring just to ICCPR and the ICESCR with the UDHR - the of which together are called the International Bill of Rights. these 3 relatively documents are the crux of the issue. Several people have asked me for the references. The point of departure in this discussion is the Universal Declaration of Human Rights (UDHR) <http://www.un.org/en/documents/udhr/> which is aspirational and not binding. The rights to which all human being are inherently entitled as set out in the UDHR are elaborated in the * International Covenant on Economic, Social and Cultural Rights (ICESCR) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> * and the International Covenant on Civil and Political Rights (ICCPR) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> Which are the covenants that most all of our nations have signed and ratified and which are therefore binding for states.. These fundamental are often referred to as the * International Bill of Rights <http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf> A guideline framework is documented by the UN called * Guiding Principles on Business and Human Rights <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.p...> Discussion of corporate responsibility in the framework begins on page 13. This is also referred to as the Ruggie Principes of Human Rights. John Ruggies was the Special Rapporteur for human rights. * <http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-pr...> The document that explains the connections between Human Rights and the Internet was released by the UN, Human Rights Council, * The promotion, protection and enjoyment of human rights on the Internet (5 July 2012) UN Doc. A/HRC/20/L.13, <http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_20_L13.doc> I believe that a commitment to ensuring that ICANN does human rights impact analyses, within its mission, taking thse documents into account would not only satisfy the comments we received but would also satisfy the need to maintain the openness of the Internet within our mission given the lost of NTIA oversight in WS1. Thanks for allowing me to continue discussing this important issue. avri On 27-Jul-15 18:36, Nigel Roberts wrote:
If you have to make a long list, we have already failed.
On 07/27/2015 05:33 PM, Carlos Raúl Gutiérrez wrote:
According to the UN, Intl. Law includes
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Sounds very reasonable and means no change in ICANN mission. Regards Jorge Cancio -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Avri Doria Gesendet: Montag, 27. Juli 2015 22:11 An: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] yet another human rights question Hi, I think we are referring just to ICCPR and the ICESCR with the UDHR - the of which together are called the International Bill of Rights. these 3 relatively documents are the crux of the issue. Several people have asked me for the references. The point of departure in this discussion is the Universal Declaration of Human Rights (UDHR) <http://www.un.org/en/documents/udhr/> which is aspirational and not binding. The rights to which all human being are inherently entitled as set out in the UDHR are elaborated in the * International Covenant on Economic, Social and Cultural Rights (ICESCR) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> * and the International Covenant on Civil and Political Rights (ICCPR) <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> Which are the covenants that most all of our nations have signed and ratified and which are therefore binding for states.. These fundamental are often referred to as the * International Bill of Rights <http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf> A guideline framework is documented by the UN called * Guiding Principles on Business and Human Rights <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.p...> Discussion of corporate responsibility in the framework begins on page 13. This is also referred to as the Ruggie Principes of Human Rights. John Ruggies was the Special Rapporteur for human rights. * <http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-pr...> The document that explains the connections between Human Rights and the Internet was released by the UN, Human Rights Council, * The promotion, protection and enjoyment of human rights on the Internet (5 July 2012) UN Doc. A/HRC/20/L.13, <http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_20_L13.doc> I believe that a commitment to ensuring that ICANN does human rights impact analyses, within its mission, taking thse documents into account would not only satisfy the comments we received but would also satisfy the need to maintain the openness of the Internet within our mission given the lost of NTIA oversight in WS1. Thanks for allowing me to continue discussing this important issue. avri On 27-Jul-15 18:36, Nigel Roberts wrote:
If you have to make a long list, we have already failed.
On 07/27/2015 05:33 PM, Carlos Raúl Gutiérrez wrote:
According to the UN, Intl. Law includes
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Resending From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Monday, July 27, 2015 5:41 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question - more gravy for counsel. 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<mailto: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. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Helpful. I'm entirely neutral as to where this discussion takes place, so long as it does.
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?"
I'm probably interpreting too literally but let's try and deconstruct the question a little. ICANN had no legal obligations under international law (which by definition does not apply inside the US). ICANN has only obligations under California law, or the law of any country it does business in or with. But, I think we are agreed that some obligations that originate from international law have been legally imported into ICANN by the choice of the founders, as per the words in Art. 4; however they remain fairly wooly. I'd reprhase the question more precisely to say "Does NTIA's disengagement introduce risk that, without the future oversight of the NTIA, ICANN would be more able to act (or fail to act) in a way that is incompatible with general principles of international law." (For clarificaiton, I use the term 'general principles' in the meaning given in James Apple's article at http://www.judicialmonitor.org/archive_0707/generalprinciples.html )
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.
I see some issues with your deconstruction. ICANN had no legal obligations under international law (which by definition does not apply inside the US). This is somewhat oddly stated. It might be better stated that "ICANN (consistent with its status as a non-governmental entity) had no specific legal obligations under international law, beyond those embodied in US law as a consequence of the US's treaty and convention obligations and subsequent lawmaking." As for the parenthetical, is your point that international law does not apply inside the borders of any country, or that the US is somehow uniquely immune to international law? I don't think the latter is correct, and the former is much more general than your statement, so I don't see the point. ICANN has only obligations under California law, or the law of any country it does business in or with. Well, no. ICANN also has obligations under US law (i.e., federal law), which is quite a significant matter. (Remember, we have a Congress that (theoretically) passes laws, and a President who signs them. Those are federal laws.) There may also be obligations under other state laws and the laws of the District of Columbia. Kudos for writing "California law" rather than "Californian law," which is just nails on a blackboard to me. But, I think we are agreed that some obligations that originate from international law have been legally imported into ICANN by the choice of the founders, as per the words in Art. 4; however they remain fairly wooly. This seems fairly straightforward, until the last bit. Not sure what is meant by "wooly". Perhaps a reference to Cardinal Wolsey. I might go with "high-level." But then again, Articles of Incorporation generally are. I'd reprhase the question more precisely to say "Does NTIA's disengagement introduce risk that, without the future oversight of the NTIA, ICANN would be more able to act (or fail to act) in a way that is incompatible with general principles of international law." Based on the reference (Apple) you so helpfully supplied, "general principles of international law" is a concept that is actually completely different from the concept of international law as "laws between nations" or "laws established or on the basis of a treaty or convention." Instead this refers to principles of internal laws of countries that are so widespread and common that they can be seen as "general principles" of the law of [nearly] every country. The author cites the law of contracts or murder as examples of areas where you will find general principles that are common to the judicial systems of most countries. Broadly stated, Apple (quoting Janis) states it thus: "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." As such, the general principles of international law will be found in the legal system of the United States (federal law and applicable state and local laws and regulations), just as they will be found in virtually every other internal legal systems. Thus, virtually all "general principles of international law" will be found in the laws applicable to ICANN. Therefore, ICANN as a entity subject to those laws is prohibited from acting (or failing to act) in a way that is incompatible with general principles of international law, because those actions (or inactions) would violate US federal and California law. It is really the fundamental precept that ICANN (like every other person and entity in the US) is prohibited from breaking the federal and state law that prevents ICANN from acting incompatibly with general principles of international law -- not the NTIA contract. Sure, NTIA like any public or private contracting party has various rights to get out of contracts with parties who are breaking the law, but this is not unique to the NTIA relationship or to the fact that the NTIA is a government agency. The NTIA relinquishing its agreement does not in any way provide carte blanche to ICANN to go around breaking the law. So, my conclusion is that the NTIA disengagement does not introduce any substantial risk that ICANN will be more able to act (or fail to act) in a way that is incompatible with general principles of international law, because ICANN will still be under fundamental obligations to comply with US federal and state laws, which by definition embody "general principles of international law" per Apple and Janis. Greg On Tue, Jul 28, 2015 at 10:25 AM, Nigel Roberts <nigel@channelisles.net> wrote:
Helpful.
I'm entirely neutral as to where this discussion takes place, so long as it does.
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?"
I'm probably interpreting too literally but let's try and deconstruct the question a little.
ICANN had no legal obligations under international law (which by definition does not apply inside the US).
ICANN has only obligations under California law, or the law of any country it does business in or with.
But, I think we are agreed that some obligations that originate from international law have been legally imported into ICANN by the choice of the founders, as per the words in Art. 4; however they remain fairly wooly.
I'd reprhase the question more precisely to say
"Does NTIA's disengagement introduce risk that, without the future oversight of the NTIA, ICANN would be more able to act (or fail to act) in a way that is incompatible with general principles of international law."
(For clarificaiton, I use the term 'general principles' in the meaning given in James Apple's article at http://www.judicialmonitor.org/archive_0707/generalprinciples.html )
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.
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This is getting very angels on a pin, and I'm happy to take it offlist if it starts to irritate everyone else. It's most interesting though. All I meant is to say this. International law applies to and between countries, and has (in dualist countries) no legal effect inside the domestic law of that country. You can't prosecute someone in who, as a state actor, unlawfully deprives someone of their life (apparently quite common in the US) by relying on Article 3 of the Universal Declaration -- you have to go to state law on murder and manslaughter (or in the UK, the 17th century Lord Coke). You can't rely the Universal Declaration as black letter law, only as an aid to construction. (Pre-1998, the ECHR was similarly non-justiciable in the UK.) On another topic: "Wooly" is an idiom we use to mean "fuzzy". And by using I meant that ICANN (as can be seen from their pleadings in both .XXX and .AFRICA) don't quite "get it" and I think sometimes they may believe that their job is to be a good referee, not on the pitch kicking the ball about. There are high-level principles in Art. 4 of ICANN's M&A, but a distinct lack of accountability measures, would'nt you agree?
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Great question Ed! Will be certifying it for the lawyers to answer it. Thanks for bringing it up! Best regards, León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
Do you also want us to weigh in on what obligations corporations organized under the laws of the US and operating in the US have with respect to human rights? I wrote a paper on the topic 2 years ago for the Ruggie Commission at the United Nations. HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of León Felipe Sánchez Ambía Sent: Monday, July 27, 2015 3:35 PM To: Edward Morris Cc: avri@acm.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question Great question Ed! Will be certifying it for the lawyers to answer it. Thanks for bringing it up! Best regards, León El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió: 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity? **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
While I can’t certify the request I think this would be valuable input to the discussion. -James From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Gregory, Holly Sent: Monday, July 27, 2015 8:52 PM To: 'León Felipe Sánchez Ambía'; Edward Morris Cc: avri@acm.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question Do you also want us to weigh in on what obligations corporations organized under the laws of the US and operating in the US have with respect to human rights? I wrote a paper on the topic 2 years ago for the Ruggie Commission at the United Nations. HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of León Felipe Sánchez Ambía Sent: Monday, July 27, 2015 3:35 PM To: Edward Morris Cc: avri@acm.org<mailto:avri@acm.org>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] yet another human rights question Great question Ed! Will be certifying it for the lawyers to answer it. Thanks for bringing it up! Best regards, León El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió: 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity? **************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. ****************************************************************************************************
Hi, I think we also need to understand the change no being under contract and thus no longer under the oversight of the US government would mean to our obligations. Not that I am assuming I can request things of you. thanks avri On 27-Jul-15 21:52, Gregory, Holly wrote:
Do you also want us to weigh in on what obligations corporations organized under the laws of the US and operating in the US have with respect to human rights?
I wrote a paper on the topic 2 years ago for the Ruggie Commission at the United Nations.
*HOLLY* *J.****GREGORY* Partner
*Sidley Austin LLP** *+1.212.839.5853 holly.gregory@sidley.com <mailto:holly.gregory@sidley.com>
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *León Felipe Sánchez Ambía *Sent:* Monday, July 27, 2015 3:35 PM *To:* Edward Morris *Cc:* avri@acm.org; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] yet another human rights question
Great question Ed!
Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
Best regards,
León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
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On 7/27/15, Gregory, Holly <holly.gregory@sidley.com> wrote:
Do you also want us to weigh in on what obligations corporations organized under the laws of the US and operating in the US have with respect to human rights?
SO: Good question from the lawyers which i expect has its implications ;-), Well if this will help us achieve anything in this process fine, otherwise i think we should be mindful of pushing stuffs to the lawyers.
I wrote a paper on the topic 2 years ago for the Ruggie Commission at the United Nations.
SO: Great perhaps sharing that with those interested could could help save some billable hours (thats assuming sharing is not billable ;-) ) Cheers!
HOLLY J. GREGORY Partner
Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of León Felipe Sánchez Ambía Sent: Monday, July 27, 2015 3:35 PM To: Edward Morris Cc: avri@acm.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question
Great question Ed!
Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
Best regards,
León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
You can have us sit silently on the sidelines and wait for you to ask, which we largely do. (I am not convinced that is the best way to use our expertise and in fact I think it leads to larger problems at times.) However, there are times when we feel we are not doing our job as counsel to sit idly by why you struggle with an issue and fail to ask the right question :) :) I offered to share the paper and I did share the paper. You should have received. HOLLY J. GREGORY Partner Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com -----Original Message----- From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Monday, July 27, 2015 5:14 PM To: Gregory, Holly Cc: León Felipe Sánchez Ambía; Edward Morris; avri@acm.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question On 7/27/15, Gregory, Holly <holly.gregory@sidley.com> wrote:
Do you also want us to weigh in on what obligations corporations organized under the laws of the US and operating in the US have with respect to human rights?
SO: Good question from the lawyers which i expect has its implications ;-), Well if this will help us achieve anything in this process fine, otherwise i think we should be mindful of pushing stuffs to the lawyers.
I wrote a paper on the topic 2 years ago for the Ruggie Commission at the United Nations.
SO: Great perhaps sharing that with those interested could could help save some billable hours (thats assuming sharing is not billable ;-) ) Cheers!
HOLLY J. GREGORY Partner
Sidley Austin LLP +1.212.839.5853 holly.gregory@sidley.com<mailto:holly.gregory@sidley.com>
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of León Felipe Sánchez Ambía Sent: Monday, July 27, 2015 3:35 PM To: Edward Morris Cc: avri@acm.org; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] yet another human rights question
Great question Ed!
Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
Best regards,
León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
**************************************************************************************************** This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately.
****************************************************************************************************
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
From my understanding of government contracting, in general, if there were a treaty obligation that imposed a requirement on the US government and had the force of law, in order for it be promulgated onto ICANN as a US Contractor, it would have to be included in the Federal Acquisition Regulation and then incorporated into the contract. From a quick review of the IANA functions contract, I don't see the specific human rights-related covenants and guidelines that Avri mentioned in her email to be incorporated into the IANA functions contract.
Of course, ICANN is based in the U.S. and complies with all applicable laws and regulations. Hope this is helpful. Sam From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Date: Monday, July 27, 2015 at 12:34 PM To: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Cc: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] yet another human rights question Great question Ed! Will be certifying it for the lawyers to answer it. Thanks for bringing it up! Best regards, León El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió: 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
Looking at the contract was a good idea. :-) Greg On Mon, Jul 27, 2015 at 4:53 PM, Samantha Eisner <Samantha.Eisner@icann.org> wrote:
From my understanding of government contracting, in general, if there were a treaty obligation that imposed a requirement on the US government and had the force of law, in order for it be promulgated onto ICANN as a US Contractor, it would have to be included in the Federal Acquisition Regulation and then incorporated into the contract. From a quick review of the IANA functions contract, I don’t see the specific human rights-related covenants and guidelines that Avri mentioned in her email to be incorporated into the IANA functions contract.
Of course, ICANN is based in the U.S. and complies with all applicable laws and regulations.
Hope this is helpful.
Sam
From: <accountability-cross-community-bounces@icann.org> on behalf of León Sánchez Ambía <leonfelipe@sanchez.mx> Date: Monday, July 27, 2015 at 12:34 PM To: Edward Morris <egmorris1@toast.net> Cc: "avri@acm.org" <avri@acm.org>, " accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] yet another human rights question
Great question Ed!
Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
Best regards,
León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
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Sam Thank you for this, apparent confirmation of my earlier analysis. To summarise the position :- 1. International law is never binding on NTIA. 2. International treaty obligations (a subset of international law) are not binding on NTIA. However, where they create a binding international obligation on the United States, a domestic law obligation must be imposed on the Federal and/or State government officials by way of legislation and/or regulations under existing legislation (which we call secondary legislation, over here). 3. For there to be any human rights obligation upon ICANN flowing from its relationship with NTIA, it would need to be expressed in the existing contract. 4. There are no such obligations. 5. Therefore there are no overt human rights obligations upon ICANN as a result of its relationship with NTIA 6. Therefore nothing will change IN LAW (for the better or for the worse) in this regard post-transition. It has no obligations beforehand by virtue of the contract, and the same will obtain post-transition. 7. However, what *will* change is the pragmatic ability of the US Government to bring ICANN into line if it starts to act in ways incompatible with accepted international norms (which private corporations do not have to abide by). Nigel Roberts gg.gg/nigel PS: Thye existing human rights obligations upon ICANN do not come via its relationship with ICANN but via its obligation to follow its own Articles of Incorporation, and which, I submit, is currently, very weakly effective. On 07/27/2015 09:53 PM, Samantha Eisner wrote:
From my understanding of government contracting, in general, if there were a treaty obligation that imposed a requirement on the US government and had the force of law, in order for it be promulgated onto ICANN as a US Contractor, it would have to be included in the Federal Acquisition Regulation and then incorporated into the contract. From a quick review of the IANA functions contract, I don't see the specific human rights-related covenants and guidelines that Avri mentioned in her email to be incorporated into the IANA functions contract.
Of course, ICANN is based in the U.S. and complies with all applicable laws and regulations.
Hope this is helpful.
Sam
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of León Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>> Date: Monday, July 27, 2015 at 12:34 PM To: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Cc: "avri@acm.org<mailto:avri@acm.org>" <avri@acm.org<mailto:avri@acm.org>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] yet another human rights question
Great question Ed!
Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
Best regards,
León
El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> escribió:
1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
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Thanks Leon. I think this will make our discussion a bit more fact based, and a little less speculative. Best, Ed ---------------------------------------- From: "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> Sent: Monday, July 27, 2015 8:34 PM To: "Edward Morris" <egmorris1@toast.net> Cc: "avri@acm.org" <avri@acm.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] yet another human rights question Great question Ed! Will be certifying it for the lawyers to answer it. Thanks for bringing it up! Best regards, León El 27/07/2015, a las 8:02, Edward Morris <egmorris1@toast.net> escribió: 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
On 27/07/2015 08:44, Avri Doria wrote:
Hi,
I am currently writing up my minority report and came to a question I could not answer.
Point 4 of the NTIA requirements includes:
* Maintain the openness of the Internet.
This is a Human rights requirement that I do not see reflected in our stress tests. Can someone point me at the stress test? Openness of the Internet is a derivative or 'umbrella' right that is defined by reference to human rights such as freedom of expression, freedom of association, privacy, property, security &c and their interplay.
We do not have, as far as I can tell, a stress test that covers this.
Actually, quite a number of the stress tests address this, maybe not as a broad academic principle, but as a direct analysis of the concrete things that ICANN might do to infringe on these rights. But stress tests are just a tool for checking our work: first, let's look at our work itself, to see what we have done to address the points you raise. The Mission Statement is clearly limited, and explicitly limits ICANN's actions to things that can be justified as falling within the Mission (which does include those things that are needed in order to carry out the Mission effectively). Moreover, it explicitly states "ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide." That itself eliminates a huge chunk of potential rights violations of the kind to which you were referring. The Core Values include two relevant obligations, both of which we have elevated to the status of a Commitment (and thereby said we do not 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 ii) to "Respect the creativity, innovation, and flow of information made possible by the Internet by limiting ICANN's activities to matters that are within ICANN’s Mission and require or significantly benefit from global coordination" Regarding the principle of an "Open Internet", this is also addressed within the Mission Statement "In this role, with respect to domain names, ICANN’s Mission is to coordinate the development and implementation of policy policies: - for which uniform or coordinated resolution is reasonably necessary to facilitate the *openness*, *interoperability*, resilience, security and/or stability of the DNS ;" [emphasis added]. I would argue that interoperability is a technical principle that delivers, in concrete practical terms, the Openness to which you refer. Interoperability prevents me from saying "if you want things to work, you must do it my way and through me, and only those things that I offer" and insteads ensures that you can do things yourself, your way, and still have them interoperate with what others are doing themselves. Interoperability is, in short, an objective technical test for Openness. Turning now to the stress tests, as you asked: * Stress Test 16 deals generally with ICANN acting outside the scope of its limited technical mission. * Stress Test 22 deals with a failure to honour the Bylaws more generally. At the time it was written it was not duplicative of #16, but thanks to our new language this assessment now includes testing whether we are abiding by our limited Mission, and the Commitments and Core Values. Importantly, it also asks whether there is an effective redress mechanism in place should we violate it. * Stress Test 23 examines a particular type of ultra-vires action, a scenario that is particularly relevant to the rights issues you mention (and may indeed be stetched to cover nearly all of what you mention). I think one could argue that the test in #23 is coverd by the test in #22; this is debatable. We chose to keep it as a separate item because we recognised the importance of providing a clear focus on testing the specifically for the impact on these issues. Stress Test 24 considers ICANN's ability to re-define its own Mission, and so is also relevant to the above as it checks whether we have plugged this potential loophole.
* Without the NTIA as oversight, what is to stop us from infringing on the human right of an Open Internet?
Good point. No matter what well-meaning and impressive sounding commitments we make it would mean little if there were nothing to stop us violating them anyway. /Some/ of us have made it the focus of their engagement with CCWG to address this problem and bring forward plans for a credible independent mechanism to determine whether they have in fact been violated, and to require ICANN to correct itself if they have. As a result we now propose a greatly strengthened IRP to guarantee these commitments and correct us if we violate them; and a Sole Member that is empowered to require ICANN to use the IRP and to abide by its decisions. It wasn't easy reaching agreement on this last point, and frankly your intervention now would engender more sympathy if you hadn't personally been amongst those who have consistently placed every obstacle and objection in the path of that effort, but we do have it in our proposal now.
We need, as part of WS1, a bylaw that covers this deficiency.
What we need is clear bylaws that convert this aspiration from vague statements with contestable meaning and uncertain applicability into clear and objectively understood principles of clear applicability, together with a credible mechanism for ensuring that they are honoured. I believe we now have that, and that introducing broad language that refers to human rights in their utmost generality will add nothing, and is likely to detract, from the measures we have put in place to ensure that they are honoured. That said, if you can identify specific rights with specific applicability within the Mission that we have overlooked, I am personally still willing to be persuaded that there's a gap we need to fill, even at this late stage. Unfortunately, because you spent so much of your own effort for so long trying to block the measures we designed to provide effective redress for the violation of the rights we do understand to be engaged in ICANN's activities, you either haven't given us - or have greatly distracted from - the benefit of your undoubted expertise in identifying any gaps we may have left.
I understand that for some I went too far in suggesting a remedy for how we might do that, within the bylaw I orinigally suggested and want to try another suggestion before I go back to writing my minority report.
/In order to enure that openness of the Internet within ICANN's mission may be maintained, human rights impact assessments will be done/ /on ICANN policies [as appropriate]/.
Personally, I have no objection to this, but it seems to me to be an almost archetypal WS2 item: a process-oriented approach to implementing principles already established in WS1 (you may be arguing now that this is not so, but not only do I disagree, I confidently predict you will reverse yourself when the opportunity to amend WS1 has passed), that has little prospect of being resisted by ICANN or by anyone within the community.
Thanks and apologies for bringing it up again, but on realizing that we do not stress test against the requirements for maintaining the human right of openness of the Internet made me realize that the deficiency was larger than just one of ignoring comments on our draft.
For the reasons above, I don't agree with this assessment. Malcolm. -- 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
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. But without effective accountability measures available to those without deep pockets, it remains unsatisfactory -- both .XXX and .AFRICA IRPs, coupled with (a) the derision shown by the previous CEO towards, and (b) the ineffectivess of the current CEO in acheiving the engagement of fundamental rights inside ICANN has shown the corporate culture of ICANN is actually inimical to the promotion of fundamental rights. My view is that upholding fundamental rights is not simple 'motherhood and apple pie'. It needs to be embedded so that any affected person effectively may hold the corporation accountable for infringing, or failing to protect, fundamental rights; ICANN holding a special position as an international multistakeholder body.
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
participants (13)
-
Avri Doria -
Carlos Raúl Gutiérrez -
Drazek, Keith -
Edward Morris -
Greg Shatan -
Gregory, Holly -
James Gannon -
Jorge.Cancio＠bakom.admin.ch -
León Felipe Sánchez Ambía -
Malcolm Hutty -
Nigel Roberts -
Samantha Eisner -
Seun Ojedeji