[Ws2-hr] "Applicable Law": Human Rights Law and dualist States - ICANN's obligations under California law

[Nigel Roberts]

Esteemed colleagues

THe UNK Supreme Court has today issued its reasoned judgment in the case 
of Miller & Santos -v- The Secretary of State for Exiting the EU.

As was entirely foreseeable, the Brexit Department lost their appeal, 
and comprehensively.

Not immediately relevant to this group's deliberations you might think?

The reasoned judgment (which, released by the Court just over an hour or 
so ago, you may find at

https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf)

is a brilliant exercise in setting out the UK's unwritten constitution 
and the interplay of treaties (such as the EU Treaty, the EU Charter of 
Fundamental Rights, and -- by implication - the various (non-EU) Human 
Rights instruments such as the 1950 Convention, and several other 
international human rights instruments to which the UK, and the US, have 
ratified).

Whilst it will be amusing and engaging to see the legal Gordan knot that 
the Prime Minister must untangle (and, I suspect, not the last) I would 
draw your attention to the background as set out in the judgment which 
clearly sts out the points I've been making about human rights law that 
is 'applicable' only to nation states, and binding only in international 
law, not domestic law.

At paragraph 52, their Lordships write:

"The first is that treaties between sovereign states have effect in 
international law and are not governed by the domestic law of any state. 
As Lord Kingsdown expressed it in Secretary of State in Council of India 
v Kamachee Boye Sahaba (1859) 13 Moo PCC 22, 75, treaties are “governed 
by other laws than those which municipal courts administer”.

The second proposition is that, although they are binding [on the United 
Kingdom] in international law, treaties are not part of [UK] law and 
give rise to no legal rights or obligations in domestic law."


This approach does NOT apply to 'monist' countries.

But it applies equally to the US (which, although having a written 
Constitution, is a dualist state in exactly the same way that the UK is).

Therefore, in my submission,

= either the ICANN Human Rights by-law is a nullity and the entire 
by-law is otiose (as I warned at the time!), or

= the approach to applicable law set out by ICM Registry -v- ICANN (ICDR 
Case No. 50 117 T 00224 08), accessible at
https://www.icann.org/en/system/files/files/-panel-declaration-19feb10-en.pdf 
(in particular contained in paras 104 et seq)

applies to the newly minted by-law.


Which is it?




On 24/01/17 09:14, Niels ten Oever wrote:
> Dear all,
>
> We're still at the same point: we did not yet receive guidance from the CCWG plenary or the CCWG co-chairs on how to proceed with our work, so I propose we also cancel todays meeting, and see whether we will receive guidance during the plenary meeting tomorrow.
>
> All the best,
>
> Niels
>
> On Tue, Jan 17, 2017 at 11:10:33AM +0100, Niels ten Oever wrote:
>> Dear all,
>>
>> I am put at a bit of a hard cross-road; I would love to continue our
>> work, but we're waiting for advice from the CCWG co-chairs on our
>> question to the plenary on how to proceed our work.
>>
>> Since we did not receive a (preliminary) answer from the co-chairs or
>> the plenary I think we can do nothing but wait.
>>
>> Therefore I propose we cancel this evenings call and wait until we hear
>> more from the co-chairs.
>>
>> If you have any other suggestion that would of course also be very welcome.
>>
>> All the best,
>>
>> Niels
>>
>> --
>> Niels ten Oever
>> Head of Digital
>>
>> Article 19
>> www.article19.org
>>
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>>                    678B 08B5 A0F2 636D 68E9
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