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

[Edward Morris]

Hi Becky,
  
  
 - 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?
  
  
 Perhaps. Perhaps not.
  
 The question turns more on what is customary and what is not customary international law and the specific human right involved. Precedential value of previous ICANN IRP decisions on future ones is also an issue here.
  
 I view human rights in ICANN as specifically involving three issues: due process, free expression and privacy. The ICM decision specifically referenced due process as being customary international law. I agree. I was also pleased to see their mention of "good faith" as being part of the customary legal acquis. I'd suggest that on occassion this foundational aspect of the law has been a bit questionable regarding ICANN's practice within it's current accountability mechanisms.
  
 I do not believe free expression and privacy, as I understand them, can be said to have fully reached the status of customary international law. In determining whether something is "customary" state practice needs to be considered. I would find it very difficult to argue that current state practice values free expression and privacy  to the extent western human rights advocates would want or that would be implied were we to include these values more specifically in ICANN's Bylaws.
  
 The ICM panel states that "it is perfectly appropriate to apply general principles in this IRP even though ICANN is technically a non-profit corporation and ICM is a private corporation". Where international law would apply via general principles or custom I agree with this view. If we are to accord precedential value to previous IRP decisions then due process is already safeguarded and protected in ICANN's bylaws and our mission statement  as it is part of both the general principles and custom of international law which the ICM panel has recognised.  The same can not be said for free expression or privacy rights.
  
  In the absence of agreement by custom or principle concerning free expression or privacy we are left, per Article 38,  with the law of international conventions if we are to claim that human rights (namely free expression or privacy)  are already comprehensively covered by references to "international law" in ICANN's governing documents. Human rights treaties generally confer obligations upon states, not private parties. Although the ICM panel was willing to impose customary and general principles of international law onto ICANN, largely due to the internet being classified as a "public good",  I do not necessarily believe the same would or should be true of state based international law developed by treaties or accords. Thus I don't believe free expression or privacy are necessarily covered by references to "international law" in ICANN's bylaws.  If we want ICANN to respect those specific human rights, or others, it would be necessary to develop further language for inclusion in ICANN's governing documents.
  
 Best,
  
 Ed 

   

  

  


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