[WP2] profound apologies and discussion on the human rights issue

[Burr, Becky]

First -  thanks for all the hard work in Paris.

Second – huge apologies – for some reason my computer was still on Paris time when I checked my calendar, so I thought the call was later

Third, I think the most significant open issue with respect to the Mission, Commitments and Core Values.  Nigel pointed us to a "controversial IRP" that addressed the topic of human rights.  I took a look at the ICM decision, and indeed it did turn in significant part on the inclusion of international law in ICANN’s Articles of Incorporation.  Not sure if this is what he was referring to said ICANN has already subjected itself to international law, including human rights

In paragraph 58, the declaration says

Professor Goldsmith observes that: “… “principles of international law and applicable international conventions and local law” refers to three types of law. Local law means the law of California. Applicable international conventions refers to treaties. “The term ‘principles of international law’ includes general principles of law. Given that the canonical reference to the sources of international law is Article 38 of the Statute of the International Court of Justice, which lists international conventions, customary international law, and “the general principles of law recognized by civilized nations”, the reference to “principles of international law” in ICANN’s Articles must refer to customary international law and to the general principles of law. (Expert Report, p. 12.)

Article 38 of the International Court of Justice reads (in relevant part) as follows:


 The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.


I am reminded that in addition to the reference to international law in the Articles of Incorporation, we brought international law into the Mission, Commitments, and Core Values – in fact it is the very first commitment.  Given the strong feelings on both sides of this issue I am wondering whether the current language already reflects ICANN’s obligation not to violate human rights?  Thoughts?


J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  / becky.burr at neustar.biz<mailto:becky.burr at neustar.biz> / www.neustar.biz
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