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

Fri Sep 9 06:13:33 UTC 2016

Sent from my LG G4
Kindly excuse brevity and typos

On 9 Sep 2016 6:46 a.m., "Nigel Roberts" <nigel at channelisles.net> wrote:
>
> 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.
>

SO: One question that keeps popping up in my mind whenever I read text
similar to the one stated above is on the actual implication of whatever HR
requirements we introduce into ICANN processes; Would ICANN be liable
(using a legal term which I believe loosely mean; will they lose a court
case when someone sue them on HR grounds) to HR requirements?. If the
answer to that question is a yes then I will only say I do not think such
possibility should be allowed based on the kind of work ICANN does. HR is
certainly not my area of expertise but while I love that term, I find the
attempt to scribble actual text for it into a technical organisation bylaw
like ICANN to be strange (perhaps it's because I have a numbering community
background).

ICANN should respect HR through the true implementation of processes that
has been setup by the various communities she serves. Anything that goes
beyond such remit opens up another way to waste registrants money on legal
issues, opens up ways to diminish the weight of existing policies, could
hamper relationships that ICANN has with other bodies It serves.

I initially sign up here as an observer but had to change in order to make
occasional comments. Happy deliberation.

Cheers!
PS: I am copying staff so they help forward to the list incase my status
has not been changed yet.
>
> 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).
>>
>>
>> ------------------------------------------------------------------------
>>
>>
>> This message and any attachments are intended only for the use of the
>> individual or entity to which they are addressed. If the reader of this
>> message or an attachment is not the intended recipient or the employee
>> or agent responsible for delivering the message or attachment to the
>> intended recipient you are hereby notified that any dissemination,
>> distribution or copying of this message or any attachment is strictly
>> prohibited. If you have received this communication in error, please
>> notify us immediately by replying to the sender. The information
>> transmitted in this message and any attachments may be privileged, is
>> intended only for the personal and confidential use of the intended
>> recipients, and is covered by the Electronic Communications Privacy Act,
>> 18 U.S.C. §2510-2521.
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20160909/4c20d2d0/attachment-0001.html>