[Ws2-hr] Report to CCWG

Wed Oct 19 18:51:11 UTC 2016

All the more reason that we need to be clear about what "applicable law"
means and how it applies in this context.

On Wed, Oct 19, 2016 at 2:48 PM, Nigel Roberts <nigel at channelisles.net>
wrote:

> Paul
>
> This is where you and I part company.
>
> On a strict construction, there is no applicable law which says ICANN has
> to respect any of the human rights.  The law just says "ICANN has to follow
> the law" (e.g of California).
>
> Of course this may include obligations that the the State (i.e the United
> States) and the state (i.e. California) place on private parties as a
> result of its own obligation to respect human rights, but this does not
> engage ICANN with fundamental rights PER SE, but with the domestic
> implementation thereof.
>
> Avri had it right.
>
> She said that 'all this ACTUALLY means is that ICANN must follow the law',
> if I am not misquoting.
>
>
>
> HOWEVER, as I have repeatedly reminded everyone, and I am beginning to
> feel that the lack of dealing with it is intentional . . .
>
> whilst true, (and the reason I argued strongly against that formulation in
> WS1) that is not /necessarily/ the end of the story.
>
> 'Applicable law' can include international law (which does not normally
> bind domestically) that ICANN voluntarily agrees to be bound by.
>
> And ICANN has, it appears, done so.
>
> The analysis I prefer, which engages ICANN squarely in fundamental rights
> obligations is that of the learned Panellist, Judge Schwbel in ICM Registry
> Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
>
> From which it is clear that ICANN's founders have bound ICANN in law (i.e.
> California law) to respect international law.
>
> Unless someone wishes to advance a different legal authority for
> "applicable law".
>
>
>
> On 19/10/16 19:13, Paul McGrady wrote:
>
>> Thanks Niels.  By saying the group has reached some sort of consensus that
>>
>> certain Ruggie principals may apply, you are already including overviews
>> of
>> the various views of the members of the group.  I, for one, still have no
>> idea if any of the Ruggie principals would apply since I do not know
>> whether
>> or not they are already subsumed by or preempted by California State
>> law.  I
>> hope your summary will be complete enough to include that at least one
>> person in the group believes we out to start with what applicable law is
>> already in place before we begin opining on whether or not third party
>> sources should govern ICANN behavior, since the bylaw makes it clear that
>> all of our work should end up with a product that is within applicable
>> law.
>> We simply have no hope at hitting the target if we insist on having
>> blinders
>> on.  Not telling the Plenary CCWG that we have decided to put on blinders
>> is
>> an important thing for them to know so that they can either tell us to
>> take
>> off the blinders and look first at what human rights requirements already
>> exist under applicable law or they can consent to us trying to put the
>> puzzle together in the dark.
>>
>> As far as my suggestions for next steps, they remain the same as the first
>> (among many) times I have brought up this subject.  Ask ICANN Legal what
>> Human Rights laws already apply to the organization.  They have been
>> operating in California for some time now and they already know the answer
>> to this question.
>>
>> Best,
>> Paul
>>
>>
>> Paul D. McGrady, Jr.
>> policy at paulmcgrady.com
>>
>>
>>
>> -----Original Message-----
>> From: Niels ten Oever [mailto:lists at nielstenoever.net]
>> Sent: Wednesday, October 19, 2016 11:24 AM
>> To: Paul McGrady <policy at paulmcgrady.com>; ws2-hr at icann.org
>> Cc: thomas at rickert.net
>> Subject: Re: [Ws2-hr] Report to CCWG
>>
>> Hi Paul,
>>
>> I am a bit hesitant to add an overview of different views of members of
>> the
>> group, but I will try.
>>
>> In the meantime I would still be very interested to hear from you how you
>> think we could approach this, with the limited resources of our group and
>> in
>> conjunction with the current understanding of applicable law we're working
>> on.
>>
>> Best,
>>
>> Niels
>>
>> On 10/19/2016 05:31 PM, Paul McGrady wrote:
>>
>>> Thanks Niels.  I would like for your summary to include notice that I
>>> have consistently called for us to evaluate what human rights
>>> principles already apply to ICANN as a result of applicable California
>>> law in order to get a baseline to begin a gap analysis, but that the
>>> request has not been acted upon by the group.  Thanks.
>>>
>>> Best,
>>> Paul
>>>
>>>
>>> Paul D. McGrady, Jr.
>>> policy at paulmcgrady.com
>>>
>>>
>>>
>>> -----Original Message-----
>>> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On
>>> Behalf Of Niels ten Oever
>>> Sent: Tuesday, October 18, 2016 11:24 AM
>>> To: ws2-hr at icann.org
>>> Subject: [Ws2-hr] Report to CCWG
>>>
>>> Dear all,
>>>
>>> I hope this email finds you well. Coming Friday is the deadline for me
>>> to report to the CCWG Plenary on the progress of our Subgroup. I
>>> drafted the text underneath. Your input is more than welcome before
>>> Friday, when I will submit it to the CCWG co-chairs.
>>>
>>> All your input is of course very much appreciated.
>>>
>>> Best,
>>>
>>> Niels
>>>
>>> 1. Executive Summary
>>> The CCWG WS2 Human Rights Subgroup has documented the historical
>>> context of the discussions on ICANNs human rights bylaw, which
>>> together with the CCWG report (especially Annex 6 and 12) form it's
>>> scope of discussion, with a Framework of Interpretation of the Human
>>>
>> Rights Bylaw as intended output.
>>
>>> The subgroup is currently preparing a Framework of Interpretation
>>> which in due time will be presented to the CCWG plenary for discussion.
>>>
>>> 2. Description of the Issue
>>> 2.1 Current State of Play
>>> The CCWG WS2 Human Rights Subgroup started of with providing an
>>> overview of the discussions and agreements as they were made during
>>> CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN
>>> Guiding Principles on Business and Human Rights (UNGPs), and their
>>> relevance and applicability for ICANN. While there was consensus that
>>> some principles were relevant for the development for a Framework of
>>> Interpretation (such as 13a and 15a), it was also recognized that the
>>> UNGPs have not been designed with an organization like ICANN in mind.
>>> Therefore a drafting team is currently iteratively designing a draft
>>> Framework of Interpretation which is being discussed in weekly calls.
>>> It is expected, that at this rate, the subgroup will be able to achieve
>>>
>> the set milestones.
>>
>>>
>>> 2.2 Supplemental Report
>>> See [0]
>>>
>>> 3 Recommendation
>>> 3.1 Requirements for Recommendation
>>> We haven't reached consensus on a recommendation yet.
>>>
>>> 3.2 Rationale for Recommendation
>>> We haven't reached consensus on a recommendation yet.
>>>
>>> [0]
>>> https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_
>>> M_aNMo
>>> Zb4/edit?usp=sharing
>>>
>>> --
>>> Niels ten Oever
>>> Head of Digital
>>>
>>> Article 19
>>> www.article19.org
>>>
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>>> _______________________________________________
>>> Ws2-hr mailing list
>>> Ws2-hr at icann.org
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>>>
>>>
>> --
>> Niels ten Oever
>> Head of Digital
>>
>> Article 19
>> www.article19.org
>>
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>>
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