Begin forwarded message:

From: CW Mail <mail@christopherwilkinson.eu> Subject: Re: [CCWG-ACCT] Human rights as a core value Fwd: Re: [] Mission, Commitments and Core Values Date: 18 Jul 2015 20:50:59 GMT+02:00 To: "accountability-cross-community@icann.org Accountability" <accountability-cross-community@icann.org>, "cwg-stewardship@icann.org IANA" <cwg-stewardship@icann.org> Cc: Becky Burr <Becky.Burr@neustar.biz>, Nigel Roberts <nigel@channelisles.net>

Actually, Article 4 of the Articles of Incorporation states:

<<4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law … >>

The reference to local law is essential for all non-US jurisdictions. It should be maintained in all related discussions, including that, below.

CW

On 18 Jul 2015, at 19:30, Nigel Roberts <nigel@channelisles.net> wrote:

...

Becky:

It's Article 4 of the Articles of Incorporation.

In ICM -v- ICANN, HHJ Tevrizian (retd.) wrote

...

140. In the view of the Panel, ICANN, in carrying out its activities “in conformity with the relevant principles of international law,” is charged with acting consistently with relevant principles of international law, including the general principles of law recognized as a source of international law.

That follows from the terms of Article 4 of its Articles of Incorporation and from the intentions that animated their inclusion in the Articles, an intention that the Panel understands to have been to subject ICANN to relevant international legal principles because of its governance of an intrinsically international resource of immense importance to global communications and economies. Those intentions might not be realized were Article 4 interpreted to exclude the applicability of general principles of law.

Now were this a judgment in a common-law jurisdiction, one might concede that the above remarks of Judge Tevrizian are persuasive rather than binding precedent (but that was always going be the case anyway, as it isn't a court judgment; rather a decision in an arbitration).

Nonetheless, the eminence and experience of the author, coupled with what clearly is his very high-level of understanding of ICANN and its role leads me to believe this is an accurate construction of the meaning of Art. 4, and I so submit.

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