[CCWG-ACCT] FW: yet another human rights question - more gravy for counsel.
gregshatanipc at gmail.com
Tue Jul 28 17:55:43 UTC 2015
I see some issues with your deconstruction.
ICANN had no legal obligations under international law (which by definition
does not apply inside the US).
This is somewhat oddly stated. It might be better stated that "ICANN
(consistent with its status as a non-governmental entity) had no specific
legal obligations under international law, beyond those embodied in US law
as a consequence of the US's treaty and convention obligations and
subsequent lawmaking." As for the parenthetical, is your point that
international law does not apply inside the borders of any country, or that
the US is somehow uniquely immune to international law? I don't think the
latter is correct, and the former is much more general than your statement,
so I don't see the point.
ICANN has only obligations under California law, or the law of any country
it does business in or with.
Well, no. ICANN also has obligations under US law (i.e., federal law),
which is quite a significant matter. (Remember, we have a Congress that
(theoretically) passes laws, and a President who signs them. Those are
federal laws.) There may also be obligations under other state laws and
the laws of the District of Columbia. Kudos for writing "California law"
rather than "Californian law," which is just nails on a blackboard to me.
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.
This seems fairly straightforward, until the last bit. Not sure what is
meant by "wooly". Perhaps a reference to Cardinal Wolsey. I might go with
"high-level." But then again, Articles of Incorporation generally are.
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."
Based on the reference (Apple) you so helpfully supplied, "general
principles of international law" is a concept that is actually completely
different from the concept of international law as "laws between nations"
or "laws established or on the basis of a treaty or convention." Instead
this refers to principles of internal laws of countries that are so
widespread and common that they can be seen as "general principles" of the
law of [nearly] every country. The author cites the law of contracts or
murder as examples of areas where you will find general principles that are
common to the judicial systems of most countries. Broadly stated, Apple
(quoting Janis) states it thus: "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." As such, the
general principles of international law will be found in the legal system
of the United States (federal law and applicable state and local laws and
regulations), just as they will be found in virtually every other internal
legal systems. Thus, virtually all "general principles of international law"
will be found in the laws applicable to ICANN. Therefore, ICANN as a
entity subject to those laws is prohibited from acting (or failing to act)
in a way that is incompatible with general principles of international law,
because those actions (or inactions) would violate US federal and
California law. It is really the fundamental precept that ICANN (like
every other person and entity in the US) is prohibited from breaking the
federal and state law that prevents ICANN from acting incompatibly with
general principles of international law -- not the NTIA contract. Sure,
NTIA like any public or private contracting party has various rights to get
out of contracts with parties who are breaking the law, but this is not
unique to the NTIA relationship or to the fact that the NTIA is a
government agency. The NTIA relinquishing its agreement does not in any
way provide carte blanche to ICANN to go around breaking the law. So, my
conclusion is that the NTIA disengagement does not introduce any
substantial risk that ICANN will be more able to act (or fail to act) in a
way that is incompatible with general principles of international law,
because ICANN will still be under fundamental obligations to comply with US
federal and state laws, which by definition embody "general principles of
international law" per Apple and Janis.
On Tue, Jul 28, 2015 at 10:25 AM, Nigel Roberts <nigel at channelisles.net>
> 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
>> 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.
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Accountability-Cross-Community