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

Wed Jan 25 21:15:52 UTC 2017

Thank you Nigel,

An interesting development in the drama playing out over the Brexit issue.

I cannot commit to read the entire Supreme Court Judgment or the IRP case (ICM Registry) at present and so my comments here, my personal opinions, are hardly a legal review.

I did go to some language from the case - the background that you alluded to - and came away thinking differently about human rights law and domestic law.

First, in paragraph 55, where the court says, "treaties are not part of UK law and give rise to no legal rights or obligations in domestic law" I would probably agree if trained at UK law. But treaties often do give rise to domestic legislation activating such rights/obligations under domestic law. That happens in US and probably elsewhere.

Recall that the bylaw requires ICANN to respect certain human rights - not treaties. And human rights get embedded in legislation from time to time - that is the point, as I recall, of Sidley's advice on the subject.

So I don't agree that human rights are not applicable under domestic law, and I would be surprised if certain human rights were not protected under UK domestic law.

With respect to the ICM Registry matter at IRP, I took a look a while back when you first mentioned it and went back just now to look at part of the decision - the applicable law part starting at paragraph 137. It seems to me that the panel said that ICANN's obligation, as the panel saw it, to act in conformance with principles of international law followed from ICANN's stated intentions. ICANN and the community just restated ICANN's intentions in new bylaws and this time expressly addressed respect for human rights. It seems to me this newly stated intention now drives this discussion.

Moreover, the panel said the parties differences on international law was not material to its decision - good faith was, a principle not only applicable in international law but also, importantly, in California corporate law.

I therefore remain of the view that the bylaw as written in Section 1.2(b)(viii) is meaningful and not a nullity, including the terms "internationally recognized" and "as required by applicable law."

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

-----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 5:47 AM
To: ws2-hr at icann.org
Subject: [EXTERNAL] [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
>>
>> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>>                    678B 08B5 A0F2 636D 68E9
>> _______________________________________________
>> Ws2-hr mailing list
>> Ws2-hr at icann.org
>> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
_______________________________________________
Ws2-hr mailing list
Ws2-hr at icann.org
https://mm.icann.org/mailman/listinfo/ws2-hr