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

Nigel Roberts nigel at channelisles.net
Tue Jul 28 14:25:29 UTC 2015


I'm entirely neutral as to where this discussion takes place, so long as 
it does.

> should consider it carefully. In other words, "Does NTIA's disengagement
> introduce risk that ICANN could disregard its existing human rights
> obligations under international law?"

I'm probably interpreting too literally but let's try and deconstruct 
the question a little.

ICANN had no legal obligations under international law (which by 
definition does not apply inside the US).

ICANN has only obligations under California law, or the law of any 
country it does business in or with.

But, I think we are agreed that some obligations that originate from 
international law have been legally imported into ICANN by the choice of 
the founders, as per the words in Art. 4; however they remain fairly wooly.

I'd reprhase the question more precisely to say

"Does NTIA's disengagement introduce risk that, without the future 
oversight of the NTIA, ICANN would be more able to act (or fail to act) 
in a way that is incompatible with general principles of international law."

(For clarificaiton, I use the term 'general principles' in the meaning 
given in James Apple's article at 
http://www.judicialmonitor.org/archive_0707/generalprinciples.html )

> With regard to NTIA's criteria #4 (open internet), here's the language
> from Secretary Strickling's April 2014 written testimony before
> Congress, where NTIA gave some additional context:
>          "Fourth, the transition proposal must maintain the openness of
> the Internet.  The neutral and judgment free administration of the
> technical DNS and IANA functions has created an environment in which
> the       technical architecture has not been used to interfere with the
> exercise of free expression or the free flow of information.  Any
> transition of the NTIA role must maintain this neutral and judgment free
> administration, thereby maintaining the global interoperability of the
> Internet."
> In the spirit of consensus-building, I'd like to think we can find
> common ground on this point and avoid a minority statement. It's not
> clear to me that this requires a bylaw change, but I'm open to further
> discussion on the topic.

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