Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
>From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that
certain Ruggie principals may apply, you are already including overviews of
the various views of the members of the group. I, for one, still have no
idea if any of the Ruggie principals would apply since I do not know whether
or not they are already subsumed by or preempted by California State law. I
hope your summary will be complete enough to include that at least one
person in the group believes we out to start with what applicable law is
already in place before we begin opining on whether or not third party
sources should govern ICANN behavior, since the bylaw makes it clear that
all of our work should end up with a product that is within applicable law.
We simply have no hope at hitting the target if we insist on having blinders
on. Not telling the Plenary CCWG that we have decided to put on blinders is
an important thing for them to know so that they can either tell us to take
off the blinders and look first at what human rights requirements already
exist under applicable law or they can consent to us trying to put the
puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first
(among many) times I have brought up this subject. Ask ICANN Legal what
Human Rights laws already apply to the organization. They have been
operating in California for some time now and they already know the answer
to this question.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com
-----Original Message-----
From: Niels ten Oever [mailto:lists@nielstenoever.net ]
Sent: Wednesday, October 19, 2016 11:24 AM
To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org
Cc: thomas@rickert.net
Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the
group, but I will try.
In the meantime I would still be very interested to hear from you how you
think we could approach this, with the limited resources of our group and in
conjunction with the current understanding of applicable law we're working
on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that IRights Bylaw as intended output.
have consistently called for us to evaluate what human rights
principles already apply to ICANN as a result of applicable California
law in order to get a baseline to begin a gap analysis, but that the
request has not been acted upon by the group. Thanks.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com
-----Original Message-----
From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org ] On
Behalf Of Niels ten Oever
Sent: Tuesday, October 18, 2016 11:24 AM
To: ws2-hr@icann.org
Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me
to report to the CCWG Plenary on the progress of our Subgroup. I
drafted the text underneath. Your input is more than welcome before
Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary
The CCWG WS2 Human Rights Subgroup has documented the historical
context of the discussions on ICANNs human rights bylaw, which
together with the CCWG report (especially Annex 6 and 12) form it's
scope of discussion, with a Framework of Interpretation of the Human
The subgroup is currently preparing a Framework of Interpretationthe set milestones.
which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue
2.1 Current State of Play
The CCWG WS2 Human Rights Subgroup started of with providing an
overview of the discussions and agreements as they were made during
CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN
Guiding Principles on Business and Human Rights (UNGPs), and their
relevance and applicability for ICANN. While there was consensus that
some principles were relevant for the development for a Framework of
Interpretation (such as 13a and 15a), it was also recognized that the
UNGPs have not been designed with an organization like ICANN in mind.
Therefore a drafting team is currently iteratively designing a draft
Framework of Interpretation which is being discussed in weekly calls.
It is expected, that at this rate, the subgroup will be able to achieve
2.2 Supplemental Report
See [0]
3 Recommendation
3.1 Requirements for Recommendation
We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation
We haven't reached consensus on a recommendation yet.
[0]
https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPO mYwmdr5B1_
M_aNMo
Zb4/edit?usp=sharing
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org
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Article 19
www.article19.org
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