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

Fri Sep 9 05:45:08 UTC 2016

No, I do not refer to the European Union.  The Convention is nothing to 
do with the EU. It applies to many more countries than the Member 
States, including Russia and (possibly not for much longer) Turkey.

I simply refer to Convention articles since that is what I am more 
familar with -- however they are almost identical to the Universal 
Declaration. If it will help, I will use the UDHR Articles which specify 
the same rights and apply to more countries.

The point is - as I have repeatedly said, is that the by-law (which in 
any event is in suspense), as currently written, absolves ICANN from any 
obligations to consider humna rights.

As a private sector organsiation, in law, there is no "horizontal effect".

Currently, the US Government's involvement insures the basic compliance 
with the UDHR, although it's not directly justiciable, the way similar 
rights are in Europa against 'emanations of the state'.

Post-transition, ICANN has NO obligations, even once the by-law is in 
place. This is a major negative comparator when compared with a UN o=bidy.

ICANN is going to be completely free to clamp down on free expression at 
the expense of intellectual property rights, if the MS policy 
development requires it to.

Or vice versa.

I am certainly not proposing skipping policy development in the 
multi-stakeholder model -- I have bene working to support htis since 1998.

But what I am saying is, unless we find a way to ensure ICANN is seen to 
have a binding commitment to respect fundamental rights, which informs 
and is taken into account durin policy development we have a lesser 
solution -- in this regard -- to government involvement.

N.
--
Nigel Roberts BSc LLB FBCS FRSA
nigel at roberts.co.uk
+44 1481 520618

On 08/09/16 20:47, Aikman-Scalese, Anne wrote:
> 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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