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

Wed Jan 25 21:31:39 UTC 2017

Thank you Nigel,  Ann, David...as I and maybe one or two others on this
list  continue to comprehend legalese and applicable law.
Looking forward to comments from the plenty and public.
rd

On Jan 25, 2017 5:15 PM, "McAuley, David" <dmcauley at verisign.com> wrote:

> 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
> _______________________________________________
> 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/20170125/7da061d3/attachment-0001.html>