[CCWG-ACCT] yet another human rights question

Malcolm Hutty malcolm at linx.net
Mon Jul 27 10:57:50 UTC 2015

On 27/07/2015 11:33, Nigel Roberts wrote:
>> accept them being traded off against other objectives):
>> i) an obligation "to carry out its activities in conformity with
>> relevant principles of international law", which includes human rights
>> law; and
> I would feel much more reassured had you been a position to be able to
> put the closing double quote where the semicolon is.
> Look, ICANN's lawyers argued strongly that international law does not
> apply to ICANN in ICM Registry -v- ICANN.
> It took a learned jurist in the IRP process to remind them otherwise --
> since ICANN's founders has put this commitment in its bylaws, it is
> legally bound to uphold it.

I think this example proves my point: what is in the Bylaws is
sufficient to establish this principle: what is lacking is not
acceptance of the principle (when ICANN tried to deny the principle they
were corrected) but an effective mechanism to compel adherence to it.

Which is why we should focus not on adding more declaractive text, but
on ensuring our mechanism for enforcement is as good as we can devise.

> But without effective accountability measures available to those without
> deep pockets, 

The need for deep pockets is a real problem, I agree. But having
established the principle that ICANN needs to be subject to independent
review for the benefit of any materially effected party, we should be
able to leave to WS2 the job of devising means to make it more
affordable and accessible in practice.

If you doubt that we can rely on WS2 to deliver those improvements
without something more in the Bylaws, I would suggest that the solution
is not more declarative text but a more specific mechanism to enable us
to build, in WS2, on the foundations we have laid in WS1. WP2 will
discuss that in two hours' time, I believe.

> It needs to be embedded so that any affected person effectively may hold
> the corporation accountable 

Our proposal does now extend this commitment to any "materially
affected" party. That's one of the key improvements we've made.

> for infringing, or failing to protect,
> fundamental rights; ICANN holding a special position as an international
> multistakeholder body.

I believe what we have constructed would indeed allow an action under
the IRP for infringing relevant principles of applicable law, if ICANN
it ever did so infringe. As for ICANN "failing to protect", that goes
further and implies both a duty and a capacity to protect: I suspect
that to a large extent, ICANN's limited capacity will make this resolve
back to avoiding infringement - but it's hard to really know when
speaking in such barely abstract terms. Which is one of the reasons why
embedding such vague language is difficult.

            Malcolm Hutty | tel: +44 20 7645 3523
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