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

Tue Jan 24 21:53:10 UTC 2017

Thank you Nigel - happy to receive this “Brexit”  decision in such a timely fashion.

As I understand it, the holding is that the UK, in light of its (unwritten) constitutional history and precedent, is bound by EU law ( i.e. such laws have domestic effect in the UK),  as a result of the 1972 Act of Parliament acceding to such EU laws and Treaties as were then in effect and would in the future be adopted by the Council.   Per the 1972 Act, “Treaties” with a capital “T” was a defined term and “ancillary treaties” were not automatically acceded to.   The decision addresses the power of the UK Government to withdraw from the EU as being  vested in Parliament rather than in the Royal Prerogative of ministers –  (the UK equivalent of the Executive).

I am not certain how you jump from this to a conclusion that treaties entered into by the U.S. Government (and binding on state actors) are likewise binding on California non-profit corporations.  As mentioned in the decision, in general treaties are not “self-executing”.  See especially Paragraph 56 of the decision citing the Higgs decision as follows:  “As a matter of constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.  Treaties, as it is sometimes expressed, are not self-executing.  Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation.”    In other words, the majority holds that EU laws became the domestic law of the UK by virtue of the 1972 Act of Parliament.  (See especially Paragraph 62 of the decision in this regard.)    Thus, it appears that for individuals who are citizens of (and entities created under the law of) a  country that is a party to a particular Treaty, whether or not the terms of the Treaty are binding on non-State actors would depend on the terms of that country’s Constitution and the  implementing legislation of the legislative authority (or branch) of that country.   Would this not be the case?

Regarding the IM Registry Decision, that decision construed what the panel deemed to be a “choice of law” provision in the ICANN Articles of Incorporation that was applicable to IRPs.    Of course “choice of law” in relation to a particular dispute is a different matter from the term “applicable law” where no “choice of law” is provided.  One can question the wisdom (and accuracy) of interpreting any portion of the ICANN Articles as a “choice of law” provision.   But perhaps more importantly, ICANN’s  Amended and Restated Articles of Incorporation are worded differently from the provisions being construed in the (non-binding) IRP decision you cited.  I believe the current language of the Amended and Restated Articles is:

The Corporation shall operate in a manner consistent with these Articles and its Bylaws for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law (emphasis added) and through open and transparent processes that enable competition and open entry in Internet-related markets.

Hopefully I have the correct version of the Articles. I would appreciate any clarifications you can provide as well as thoughts from others on the list.

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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-----Original Message-----
From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Nigel Roberts
Sent: Tuesday, January 24, 2017 3:47 AM
To: ws2-hr at icann.org
Subject: [Ws2-hr] "Applicable Law": Human Rights Law and dualist States - ICANN's obligations under California law

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<http://www.article19.org>

>>

>> PGP fingerprint    8D9F C567 BEE4 A431 56C4

>>                    678B 08B5 A0F2 636D 68E9

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