[Ws2-hr] When should ICANN uphold human rights?

Thu Sep 8 21:50:54 UTC 2016

We should also keep in mind that once adopted by the Board, the FOI- HR provides a basis for Request for Reconsideration and Independent Review per Section 27 of the attachment.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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Lewis Roca Rothgerber Christie LLP

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From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Thursday, September 08, 2016 12:47 PM
To: 'Nigel Roberts'; John Curran
Cc: ws2-hr at icann.org
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Nigel,

I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard.

Having said that , I note that the obligations you cite are obligations of the State.  Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction.  You are often reciting the law of the European Union and the law that binds Member States.  But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU.    The answers to the questions we have posed to ICANN Legal will likely address these issues.  With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights.  The website you linked says:  "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated.  The Court interprets the Convention rights and clarifies their meaning."

ICANN is not a State and is not a court.  The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making.  Please note Annex 6 states that the scope of our work includes " Consistent with ICANN's existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process”  (bold emphasis added)

Thus, I am hopeful you are not suggesting that with  respect to the draft FOI – HR,  the CCWG-ACCT  can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws).    My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR  to the bodies within ICANN that are responsible for policy-making.    (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”,  Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.)

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_______________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

-----Original Message-----

From: Nigel Roberts [mailto:nigel at channelisles.net]

Sent: Thursday, September 08, 2016 4:44 AM

To: John Curran

Cc: Aikman-Scalese, Anne; ws2-hr at icann.org<mailto:ws2-hr at icann.org>

Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

> Note that these rights may be in conflict with one another in some

> situations (e.g. right of free expression and right to property)

This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'.

So, 'yes'.

N.

PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right.

I would just note, that  for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights,

http://www.ihrec.ie/training/guides/echr/section4therigh.html

In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).

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