[CCWG-ACCT] yet another human rights question - more gravy for counsel.

Nigel Roberts nigel at channelisles.net
Mon Jul 27 14:38:49 UTC 2015

I think this starts from entirely the wrong approach.

It starts from the premise of

"what are we (qua ICANN) legally OBLIGED to do"


"what we (in our special position) SHOULD be doing" (i.e. to ensure that 
ICANN, and all its works, comply with, and promote international human 
rights standards.

I think we should focus on the latter, and embed it in an Overriding 
Objective (with apologies to Lord Woolf for stealing the term)

But to answer the question asked:-

The USA, just like the UK, is a dualist state.

International treaties are simply not binding on the United States 
Government, their provisions requiring to be transposed into domestic 
law to fulfil the treaty obligation.

This contrasts clearly with countries such as France or the Netherlands, 
which are monist states. Meaning international treaties automatically 
become incorporated into binding domestic law, following ratification. 
To those used to the civil law, the dualist approach of the common-law 
world is puzzling. After all why would a state enter into a solemn 
binding international agreemnt it was not prepared to honour. (This can 
been seen as a form of estoppel, if further analysis was needed).

It seems clear, however, that NTIA *ITSELF* is not bound by 
international law, absent a Federal statute incorporating specific 
treaty obligations.

Thus, it is submitted, there can be no obligations ever imported onto 
ICANN under international law simply because of the IANA contract. Any 
such obligations, such as they are, arise elsewhere, such as the 
Articles, as Christopher helpfully highlighted.

But go ahead, do let's spend more of ICANN's money with Sidley and 
Austin -- the more they come to understand ICANN, the more there will be 
a credible alternative to Jones, Day when ICANN next tenders out the 
role of external counsel.

On 27/07/15 14:02, Edward Morris wrote:

> Once we have the answer to that question I think we could have a more meaningful discussion on this matter.

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