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

Tue Dec 16 21:31:43 UTC 2014

I agree that there is a danger of going down a rabbit hole here.  Debating
what "international law" or "the principles of international law" means
will get us nowhere.

Article 4 of ICANN's Articles of Incorporation (which I quoted above) is
somewhat more relevant.

But the real work here is in defining concrete elements of accountability
and areas of improvement.

I suggest that we all followed the scent of the wrong question here when
Carl Schonander posted "Respect for international and national law is
essential.”  Instead of asking what do you mean (or, if you are from New
York, like me, "Whaddaya mean") by international law, questions like the
following might have brought us to more fruitful discussions:

What are you trying to protect against?
Is this a reaction to a past failure of accountability by ICANN, and what
exactly was it?
What do you hope to accomplish by putting this in?

Accountability mechanisms are tools that need to be "fit for purpose".  If
you are afraid of fire, you get smoke detectors and fire extinguishers and
use flame retardant materials, etc.  Proposing a random tool, without
identifying the specific threat (and I don't consider "failing to respect
the law" to be specific), will not get us very far.

Greg Shatan

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On Tue, Dec 16, 2014 at 4:10 PM, Kavouss Arasteh <kavouss.arasteh at gmail.com>
wrote:
>
> Dear All,
> Any treaty unless is ratified by the parties adhered to it is not binding.
> Moreover, International Customary Law is merely applicable between states
> and not priovaite coopration ,Moreover, it is  not legally binding .
> However, like many other similar cases it is only morally binding.
> Consequently that would not be applicable notr to be referred to by CCWG.
> i SUGGEST WE DO NOT GET INTO THAT DELEMA ,otherwise we never get out of it
> due to the fact that there are divergence view even between professionals
> on lega affairs
> Regards
> Kavouss
>
> 2014-12-16 21:43 GMT+01:00 Greg Shatan <gregshatanipc at gmail.com>:
>
>> 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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>>
>>
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