Sent from my LG G4 Kindly excuse brevity and typos On 9 Sep 2016 6:46 a.m., "Nigel Roberts" <nigel@channelisles.net> wrote:
But what I am saying is, unless we find a way to ensure ICANN is seen to
have a binding commitment to respect fundamental rights, which informs and is taken into account durin policy development we have a lesser solution -- in this regard -- to government involvement.
SO: One question that keeps popping up in my mind whenever I read text similar to the one stated above is on the actual implication of whatever HR requirements we introduce into ICANN processes; Would ICANN be liable (using a legal term which I believe loosely mean; will they lose a court case when someone sue them on HR grounds) to HR requirements?. If the answer to that question is a yes then I will only say I do not think such possibility should be allowed based on the kind of work ICANN does. HR is certainly not my area of expertise but while I love that term, I find the attempt to scribble actual text for it into a technical organisation bylaw like ICANN to be strange (perhaps it's because I have a numbering community background). ICANN should respect HR through the true implementation of processes that has been setup by the various communities she serves. Anything that goes beyond such remit opens up another way to waste registrants money on legal issues, opens up ways to diminish the weight of existing policies, could hamper relationships that ICANN has with other bodies It serves. I initially sign up here as an observer but had to change in order to make occasional comments. Happy deliberation. Cheers! PS: I am copying staff so they help forward to the list incase my status has not been changed yet.
N. -- Nigel Roberts BSc LLB FBCS FRSA nigel@roberts.co.uk +44 1481 520618
On 08/09/16 20:47, Aikman-Scalese, Anne wrote:
Nigel,
I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard.
Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning."
ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " *Consistent with ICANN's existing processes and protocols, *consider how these new frameworks should be discussed and drafted*to ensure broad multistakeholder involvement in the process”*
(bold emphasis added)
Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.)
Anne
Anne E. Aikman-Scalese
Of Counsel
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AAikman@lrrc.com <mailto:AAikman@lrrc.com>
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-----Original Message-----
From: Nigel Roberts [mailto:nigel@channelisles.net]
Sent: Thursday, September 08, 2016 4:44 AM
To: John Curran
Cc: Aikman-Scalese, Anne; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'.
So, 'yes'.
N.
PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right.
I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights,
http://www.ihrec.ie/training/guides/echr/section4therigh.html
In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).
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