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

[Seun Ojedeji]

sent from Google nexus 4
kindly excuse brevity and typos.
On 16 Dec 2014 22:32, "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>
> 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.
>

I agree with what Greg say above... accountability solutions/mechanisms are
to fix known loop holes/issues and reduce possibility of having such
occurrence in other forms.

Cheers!

> Greg Shatan
>
> Gregory S. Shatan | Abelman Frayne & Schwab
>
> 666 Third Avenue | New York, NY 10017-5621
>
> Direct  212-885-9253 | Main 212-949-9022
>
> Fax  212-949-9190 | Cell 917-816-6428
>
> gsshatan at lawabel.com
>
> ICANN-related: gregshatanipc at gmail.com
>
> www.lawabel.com
>
>
> 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. (Janis, 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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