[CCWG-Accountability] Related work on ICANN's Public Interest

[Greg Shatan]

I don't think that "international law" as referred to in this discussion
was intended to mean "law binding states in regards to bilateral and
multilateral relationships between themselves (states), emanating from
bilateral and multilateral agreements between themselves (states),"
 Rather, I expect that what was meant was "principles of international
law," as referred to in ICANN's Articles of Incorporation, Article 4,
(emphasis added):

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 and, to the extent appropriate and consistent with these Articles and
its Bylaws, through open and transparent processes that enable competition
and open entry in Internet-related markets. To this effect, the Corporation
shall cooperate as appropriate with relevant international organizations.

Article 38(1) of the Statute of the International Court of Justice
refers to “the
general principles of law recognized by civilized nations,” which can be
described as follows:

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. When treaties and customary international law fail to offer a
needed international rule, a search may be launched in comparative law to
discover if national legal systems use a common legal principle. If such a
common legal principle is found, then it is presumed that a comparable
principle should be attributed to fill the gap in international law. (Ja
nis,

*An Introduction to International Law)*

There is a useful discussion of the interpretation of the term "principles
of international law" in the Declaration of the Independent Review
Panel in *ICM
v. ICANN*, which summarizes the arguments of both parties' international
law experts before the panel comes to its own conclusion:


*138. In the view of ICM Registry, principles of international law are*

*applicable; that straightforwardly follows from their specification in the*

*foregoing phrase of Article 4 of the Articles, and from the reasons given
in*

*introducing that specification. (Supra, paragraphs 53-54.) Principles of*

*international law in ICM’s analysis include the general principles of law*

*recognized as a source of international law in Article 38 of the Statute
of the*

*International Court of Justice. Those principles are not confined, as
ICANN*

*argues, to the few principles that may be relevant to the interests of
Internet*

*stakeholders, such as principles relating to trademark law and freedom of*

*expression. Rather they include international legal principles of general*

*applicability, such as the fundamental principle of good faith and allied*

*principles such as estoppel and abuse of right. ICM’s expert, Professor*

*Goldsmith, observes that there is ample precedent in international
contracts*

*and in the holdings of international tribunals for the proposition that
nonsovereigns*

*may choose to apply principles of international law to the*


*determination of their rights and to the disposition of their disputes.*

*139. ICANN and its expert, Professor David Caron, maintain that*

*international law essentially governs relations among sovereign States;
and*

*that to the extent that such principles are “relevant” in this case, it is
those*

*few principles that are applicable to a private non-profit corporation
that*

*bear on the activities of ICANN described in Article 3 of its Articles of*

*Incorporation (supra, paragraph 2). General principles of law, such as
that of*

*good faith, are not imported by Article 4 of ICANN’s Articles of
Incorporation;*

*still less are principles derived from treaties that protect legitimate*

*expectations. Nor is Article 4 of the Articles a choice-of-law provision;
in*

*fact, no governing law has been specified by the disputing parties in this*

*case. If ICANN, by reason of its functions, is to be treated as analogous
to*

*public international organizations established by treaty (which it clearly
is*

*not), then a relevant principle to be extracted and applied from the*

*jurisprudence of their administrative tribunals is that of deference to
the*

*discretionary authority of executive organs and of bodies whose decisions*



*are subject to review.*

*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.
64*

*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.


While not dispositive, the Declaration can hardly be dismissed as
inconsequential.  It is clearly from even a brief review of the document
that it is the result of many of hours of careful research, analysis and
argument by knowledgeable professionals on both sides of the case, as well
as a careful review by the panel (which included a former presiding judge
of the ICJ, a distinguished scholar of international arbitration and a
former US District Court judge).  Given that these contributors trod the
very ground upon which we now walk, the Declaration is, at the least,
instructive.

Greg Shatan




On Tue, Dec 16, 2014 at 2:20 PM, Dr Eberhard W Lisse <el at lisse.na> wrote:
>
> Becky,
>
> as if that was of any consequence.
>
>
> el
>
> Sent from Dr Lisse's iPad mini
>
> On Dec 16, 2014, at 20:50, Burr, Becky <Becky.Burr at neustar.biz> wrote:
>
>  Also, fwiw, the panel in ICM v. ICANN held that ICANN is subject to
> international law.
>
>
>
> J. Beckwith Burr
>
> [...]
>
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