[Wp4] Fwd: Re: [] Variety of formulation for Human Rights bylaw that were made. - corrected

[Paul Twomey]

Hi Nigel

Thanks for this - and sure, I do have particular experience which 
informs my view.  But I have never had the view that ICANN gives out the 
right to run ccTLDs.  Being recognized in the IANA database, however, is 
essential to be a ccTLD.

I think you are making my point.   Some specific clarity on rights for 
ccTLDs and others under specific ICANN actions/functions would be 
useful.   I note that you named at least 3 rights which may be the main 
ones relevant to ICANN's mission.

I am afraid I did not follow your argument of how subsidiarity 
automatically limits Human Rights protection.  The Ruggles language, 
which is the UN's recommendations on how companies should follow Human 
Rights explicitly says companies should act even if they have not 
contributed to the breach (see below).  I suspect that to protect the 
principle of subsidiarity, the bylaws' statement on Human Rights should 
explicitly state that subsidiary places a limit on ICANN's human rights 
accountability for policies at the ccTLD level.


13. The responsibility to respect human rights requires that business

enterprises:

     (a) Avoid causing or contributing to adverse human rights impacts

     through their own activities, and address such impacts when they occur;

     (b) Seek to prevent or mitigate adverse human rights impacts that

     are directly linked to their operations, products or services by

     their business relationships, even if they have not contributed to

     those impacts."



As as aside, the right to property is an interesting one - for the 
operation of the IANA it has been a standing position of the IETF 
community and IANA/ICANN from the beginning that a TLD is not property. 
   A recent decision in the US partly dealt with this and concluded that 
ccTLDs cannot be garnisheed like property. 
http://www.leagle.com/decision/In%20FDCO%2020150105808/STERN%20v.%20THE%20ISLAMIC%20REPUBLIC%20OF%20IRAN#

Other aspects of running a ccTLD (eg customer databases) etc are of 
course property.

We could go on...

Paul

PS  the  .xxx issue did get resolved before a independent tribunal. ;)


On 8/13/15 4:23 AM, Nigel Roberts wrote:
>
>
> On 12/08/15 19:03, Paul Twomey wrote:
>
>> into the bylaws we will directing the attention of various parties to
>> new ways to try to halt/affect ICANN decisions and operations. This may
>> be a good thing
>
> I submit that it is.
>
>
> >            but we need to consider the implications very carefully.
>
> I think this is correct.
>
>
>> real issue on ccTLD agreements.    I have to say that I am increasingly
>> wondering whether at least the ccTLD links should be exempted or at
>> least carefully prescribed.
>
> I suggest it is the ccTLD area where (careful) attention to respect 
> for fundamental rights IS needed.
>
> ICANN has no role in directing how a ccTLD manager sets their policy.
>
> That is a matter for subsidiarity and is clearly delineated in the 
> ICANN bylaws setting up the ccNSO, so how this affects ICANN, is 
> principally, how it affects the IANA role, and the policy making role.
>
> As a former CEO of ICANN, from a particular timeframe, you 
> understandably have a certain Weltanschaung - and perhaps it is one 
> which views ICANN as giving out the authority to run a ccTLD. I'm not 
> sure that this is the correct view.
>
> But I am certain that whatever the source authority of ICANN's role, 
> (i.e. a contract with the US government, tablets of stone from God 
> etc), that ICANN surely needs embrace certain minimum standards in all 
> its work (i.e gTLD and ccTLD) which, inter alia, must include
>
> - Protection of Property (including intellectual property) Rights
> - Protection of Private and Family Life
> - Protection of Free Expression
> - Right to fair hearing before independent and impartial tribunal
>
> And .AFRICA (and before that .XXX) is not the first time ICANN has 
> been see to be lacking in the latter, of particular note.
>
>
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-- 
Dr Paul Twomey
Managing Director
Argo P at cific

US Cell: +1 310 279 2366
Aust M: +61 416 238 501

www.argopacific.com

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