[CCWG-ACCT] Regarding ICANN's adherence to "international law"

Tue Mar 17 13:32:40 UTC 2015

This is exactly right.  Since international law is, in the main as Dr. Lisse has said, an agreement between nation states and since, as well, there is almost no consensus on what the substantive content of international law is (beyond the very limited area of IHL) the idea of making ICANN subject to some amorphous idea of an international law is I think unworkable.    ICANN is a limited purpose entity.  It should be subject to the commercial  agreements it makes (with contracted parties, mostly) and to the commitments it makes and/or are adopted by its “member/stakeholders” – that is, us.  It cannot and should not be a vehicle for us pouring into it our dreams and hopes about human rights or some undefined public good.

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com> paul.rosenzweig at redbranchconsulting.com 

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

Skype: paul.rosenzweig1066

 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9> Link to my PGP Key

 <http://www.rsaconference.com/events/us15/register?utm_source=inhouse&utm_medium=email&utm_campaign=signature-us2015> 

From: David Post [mailto:david.g.post at gmail.com] 
Sent: Monday, March 16, 2015 5:49 PM
To: Rahul Sharma
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"

At 10:41 PM 3/15/2015, Rahul Sharma wrote:

+1Â  David and Phil

Â 

Since IRP is only meant to review if Board decisions are in line and consistent with procedures and principles established, and as such cannot challenge any Board decision, a Body that ensures that ICANN adheres to international laws, and if its decisions are legitimate or not Â and should be challenged should be (1) an independent body, constituted by a process independent from ICANN and (2) and have expertise in international law, and not just commercial arbitration

Rahul:  Just to be clear:  it wasn't my understanding that there would be a body the "ensures that ICANN adheres to international laws."  In my opinion (which may or may not be shared by others), an Independent Review Panel, which ensures that ICANN adheres to (a) its commitment to consensus decision-making (b) within the stated mission (i.e., only makes policies reasonably necessary for security and stability of the DNS), that will go a long way to keeping the Board within proper limits.  I'm not convinced that a second body charged with enforcing international law would be helpful or necessary, and might just over-complicate the process.
David

On 16 March 2015 at 05:10, Phil Corwin <psc at vlaw-dc.com <mailto:psc at vlaw-dc.com> > wrote:

Thatâ€™s exactly right, David, and what we just saw in the IRP brought by Booking.com over the finding that .Hotels and .Hoteis were in the same new gTLD contention set

Â 

The available accountability mechanisms were restricted to reviewing whether proper procedure had been observed, but could not reach the admittedly questionable merits of the original decision that found them confusingly similar at the gTLD level.

Â 

So when should the merits of a Board decision be susceptible to modification or reversal, who has standing to bring such a challenge, and what should be the standard of review? Important questions, and not easy to answer.

Â 

Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

202-255-6172/cell

Â 

Twitter: @VlawDC

Â 

"Luck is the residue of design" -- Branch Rickey

Â 

From: accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>  [ mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> ] On Behalf Of David Post

Sent: Sunday, March 15, 2015 9:26 AM

To: Accountability Cross Community

Subject: Re: [CCWG-ACCT] Regarding ICANN's adherence to "international law"

Â 

At 08:16 PM 3/14/2015, Bruce Tonkin wrote:

Under its Articles of Incorporation ICANN already operates Ã¢€œfor the benefit of the Internet community as a a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.Ã¢€ÂÂ Â  See: https://www.icann.org/en/about/governance/articles <https://wwww.icann.org/en/about/governance/articles> 

The Independent Review Process allows parties to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws.

[SNIP]

Just by way of clarification, while it's true that the IRP allows parties "to challenge Board decisions that are inconsistent with the Articles of Incorporation or Bylaws," the IRP panel does not have the power to actually decide the question of whether or not a Board decision WAS inconsistent with the Articles or Bylaws.Â  See Bylaws, Art IV sec 3(4):

"The IRP Panel must apply a defined standard of review to the IRP request, focusing on: 

1.     did the Board act without conflict of interest in taking its decision?; 

2.     did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; and 

3.     did the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?" 

That's a much narrower scope of inquiry than whether the Board acted outside the ByLaws, for example.

David

*******************************

David G Post - Senior Fellow, Open Technology Institute/New America Foundation

blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post

book (Jefferson's Moose)Â  http://tinyurl.com/c327w2nÂ Â Â Â Â <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0>   

music http://tinyurl.com/davidpostmusic publications etc.Â  http://www.davidpost.comÂ Â Â Â Â Â Â  

******************************* 

No virus found in this message.

Checked by AVG - www.avg.com <http://www.avg.com> 

Version: 2015.0.5751 / Virus Database: 4306/9294 - Release Date: 03/13/15

_______________________________________________

Accountability-Cross-Community mailing list

Accountability-Cross-Community at icann.org <mailto:Accountability-Cross-Community at icann.org> 

https://mm.icann.org/mailman/listinfo/accountability-cross-community 

*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>        
music http://tinyurl.com/davidpostmusic  <http://tinyurl.com/davidpostmusic%A0> publications etc.  http://www.davidpost.com <http://www.davidpost.com         />          
******************************* 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150317/fcf0cb79/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.jpg
Type: image/jpeg
Size: 14796 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150317/fcf0cb79/image003.jpg>