[Acct-Legal] [EXTERNAL] Re: Request for input on Human Rights questions

[Samantha Eisner]

Dear Léon,

Here are ICANN’s responses:


As part of the CCWG-Legal Committee works, we hereby request for your answers to the following questions related to the HRs subgroup:

1.       With respect to ICANN legal’s understanding of the definition
of “applicable law”:

a.       Has ICANN legal developed an understanding of the meaning of
the term “applicable law”?
Yes.  ICANN’s understanding of the term “applicable law” is largely consistent with the CCWG WS2 Sub-Team on Human Rights excerpt that is found below.  Applicable law could also mean laws that are applicable and binding upon others, and not just ICANN, based on the facts and circumstances of any individual situation. Applicable law can also be agreed upon by parties to a contract, such as identifying what law will apply in the event of a dispute.


b.      If so, does that understanding apply in the context of the new
bylaw at Article 1.2(b)(viii)?
The concept of “applicable law” does not change dependent upon whether the term is used in Bylaws or elsewhere.


c.       Would the following definition of “applicable law,” currently
under consideration by the CCWG WS2 Sub-Team on Human Rights, be
consistent with either or both of those?:

<quote>: Applicable law refers to the body of law that binds
ICANN at any given time, in any given circumstance and in any relevant
jurisdiction. It consists of statutes, rules, regulations, etcetera,
as well as judicial opinions, where appropriate. It is a dynamic
concept inasmuch as laws, regulations, etcetera, change over time.
Applicable law can have disparate impacts on ICANN around the globe:
for example, if ICANN employs personnel in different jurisdictions
then it must observe the appropriate labour laws in those various
locales. Applicable law is thus a large body of law that eludes our
ability to catalogue, but it is ascertainable in the context of a
specific question or issue. </quote>

d.      Please share the applicable understanding(s).
See above.


2.       In the view of ICANN legal, what does the term “Respect” mean
according to the bylaws (in relation to Core Values)?
As supported through the CCWG-Accountability WS1 conversations, “respect” denotes that ICANN is not in an enforcement role, but that – as ICANN does today – respects the laws and regulations to which it is bound and acts within them.


3.       In the view of ICANN legal, what is the relationship between
core values and commitments in general; and the HR core value and
commitments in particular?
The ICANN Bylaws are clear on the relationship between core values and commitments: "(c) The Commitments and Core Values are intended to apply in the broadest possible range of circumstances. The Commitments reflect ICANN's fundamental compact with the global Internet community and are intended to apply consistently and comprehensively to ICANN's activities. The specific way in which Core Values are applied, individually and collectively, to any given situation may depend on many factors that cannot be fully anticipated or enumerated. Situations may arise in which perfect fidelity to all Core Values simultaneously is not possible. Accordingly, in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN's Mission."

It should be noted that to the extent the HR Core Value relies on ICANN adhering to relevant obligations of applicable law, ICANN is not authorized to violate laws.

4.       In the view of ICANN legal, how does the balancing process
between core values, as described in the bylaws, take place?  Is it
documented?

There is not yet a documented process for the balancing of core values, however ICANN continues to refine its practice of producing rationales in support of decisions of the Board that identify the core values guiding a particular decision.  Community groups producing recommendations for the Board to consider are also encouraged to begin documenting the core values supporting their recommendations.  It is important to note that many of the items identified under the revised core values section are well integrated across all of ICANN’s work today, for example, the recognition of where ICANN’s policy roles start and stop; and seeking and supporting diverse participation in policy development at ICANN.  As set out in the Bylaws, ICANN is always striving to achieve a reasonable balance between the interests of different stakeholders, which could impact how competition in the registration of domain names is introduced and promoted, for example.  As discussed above, the balancing test cannot be used to support an outcome in violation of applicable laws.


—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631

From: León Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>>
Date: Monday, December 12, 2016 at 5:59 AM
To: Samantha Eisner <samantha.eisner at icann.org<mailto:samantha.eisner at icann.org>>, John Jeffrey <JJ at ICANN.org<mailto:JJ at ICANN.org>>
Cc: "ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>" <ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org>>, MSSI Secretariat <mssi-secretariat at icann.org<mailto:mssi-secretariat at icann.org>>
Subject: [EXTERNAL] Re: Request for input on Human Rights questions

Dear Sam and John,

I believe we have not had either confirmation of reception nor reply to the questions below. If you have in fact replied, I might have missed it.

Could you please update us on the status of the replies for these questions? When can we expect to have the answers?

As you may be aware we have a plenary call tomorrow and this will be an agenda item so we appreciate any information you can provide.

Best regards,


León

El 30/11/2016, a las 09:24, León Felipe Sánchez Ambía <leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>> escribió:

Dear John and Sam,


As part of the CCWG-Legal Committee works, we hereby request for your answers to the following questions related to the HRs subgroup:

1.       With respect to ICANN legal’s understanding of the definition
of “applicable law”:

a.       Has ICANN legal developed an understanding of the meaning of
the term “applicable law”?

b.      If so, does that understanding apply in the context of the new
bylaw at Article 1.2(b)(viii)?

c.       Would the following definition of “applicable law,” currently
under consideration by the CCWG WS2 Sub-Team on Human Rights, be
consistent with either or both of those?:

<quote>: Applicable law refers to the body of law that binds
ICANN at any given time, in any given circumstance and in any relevant
jurisdiction. It consists of statutes, rules, regulations, etcetera,
as well as judicial opinions, where appropriate. It is a dynamic
concept inasmuch as laws, regulations, etcetera, change over time.
Applicable law can have disparate impacts on ICANN around the globe:
for example, if ICANN employs personnel in different jurisdictions
then it must observe the appropriate labour laws in those various
locales. Applicable law is thus a large body of law that eludes our
ability to catalogue, but it is ascertainable in the context of a
specific question or issue. </quote>

d.      Please share the applicable understanding(s).

2.       In the view of ICANN legal, what does the term “Respect” mean
according to the bylaws (in relation to Core Values)?

3.       In the view of ICANN legal, what is the relationship between
core values and commitments in general; and the HR core value and
commitments in particular?

4.       In the view of ICANN legal, how does the balancing process
between core values, as described in the bylaws, take place?  Is it
documented?
Saludos,

As the answers to these questions will enable to continue the work of the Human Rights sub-group on different topics, we would kindly ask to have an answer to them at your earliest convenience.

Kind regards,



León


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