[CCWG-ACCT] yet another human rights question

Nigel Roberts nigel at channelisles.net
Tue Jul 28 07:31:04 UTC 2015


Thank you for this, apparent confirmation of my earlier analysis.

To summarise the position :-

1.	International law is never binding on NTIA.

2.	International treaty obligations (a subset of international 	law) are 
not binding on NTIA. However, where they create a binding international 
obligation on the United States, a domestic law obligation must be 
imposed on the Federal and/or State government officials by way of 
legislation and/or regulations under existing legislation (which we call 
secondary legislation, over here).

3.	For there to be any human rights obligation upon ICANN flowing from 
its relationship with NTIA, it would need to be expressed in the 
existing contract.

4.	There are no such obligations.

5.	Therefore there are no overt human rights obligations upon ICANN as a 
result of its relationship with NTIA

6.	Therefore nothing will change IN LAW (for the better or for the 
worse) in this regard post-transition. It has no obligations beforehand 
  by virtue of the contract, and the same will obtain post-transition.

7.	However, what *will* change is the pragmatic ability of the US 
Government to bring ICANN into line if it starts to act in ways 
incompatible with accepted international norms (which private 
corporations do not have to abide by).

Nigel Roberts

PS: Thye existing human rights obligations upon ICANN do not come via 
its relationship with ICANN but via its obligation to follow its own 
Articles of Incorporation, and which, I submit, is currently, very 
weakly effective.

On 07/27/2015 09:53 PM, Samantha Eisner wrote:
>>From my understanding of government contracting, in general, if there were a treaty obligation that imposed a requirement on the US government and had the force of law, in order for it be promulgated onto ICANN as a US Contractor, it would have to be included in the Federal Acquisition Regulation and then incorporated into the contract.  From a quick review of the IANA functions contract, I don't see the specific human rights-related covenants and guidelines that Avri mentioned in her email to be incorporated into the IANA functions contract.
> Of course, ICANN is based in the U.S. and complies with all applicable laws and regulations.
> Hope this is helpful.
> Sam
> From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
> Date: Monday, July 27, 2015 at 12:34 PM
> To: Edward Morris <egmorris1 at toast.net<mailto:egmorris1 at toast.net>>
> Cc: "avri at acm.org<mailto:avri at acm.org>" <avri at acm.org<mailto:avri at acm.org>>, "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>" <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] yet another human rights question
> Great question Ed!
> Will be certifying it for the lawyers to answer it. Thanks for bringing it up!
> Best regards,
> León
> El 27/07/2015, a las 8:02, Edward Morris <egmorris1 at toast.net<mailto:egmorris1 at toast.net>> escribió:
> 1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?
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