[Ws2-hr] "Applicable Law": Human Rights Law and dualist States - ICANN's obligations under California law
Greg Shatan
gregshatanipc at gmail.com
Thu Jan 26 00:00:33 UTC 2017
The issue of whether human rights treaties apply in the US without any
implementing legislation is largely a red herring. There are numerous
Human Rights laws in the US, at both the Federal and state level.
In the US, Federal Human Rights Laws include, without limitation:
- Title VII of the Civil Rights Act of 1964, as amended
<https://ohr.dc.gov/external-link/title-vii-civil-rights-act-1964-amended>
- Americans with Disabilities Act of 1990
<https://ohr.dc.gov/external-link/americans-disabilities-act-1990>
- Age Discrimination in Employment Act
<https://ohr.dc.gov/external-link/age-discrimination-employment-act>
- Equal Pay Act <https://ohr.dc.gov/external-link/equal-pay-act>
- Pregnancy Discrimination Act
<https://ohr.dc.gov/external-link/pregnancy-discrimination-act>
In addition, many portions of the US Constitution and particularly the
"Bill of Rights" (i.e., the first 10 amendments) protect human rights.
Here's a page with discussion and links relating to both California law and
Federal law protecting human rights:
https://oag.ca.gov/civil/lawleg#federalLaws
Also this: https://oag.ca.gov/civil
California passed a landmark human rights law in 2015 that extended the
ability to make claims for human rights abuses, among other things:
https://www.justsecurity.org/26619/california-human-rights-legislation/
Here's a Wikipedia entry on another California human rights law, the Unruh
Act: https://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act
If you have 90 minutes, you can watch this webinar from the California
Department of Human Resources: "Overview of Civil Rights Laws in the
Workplace": https://www.youtube.com/watch?v=JNK1bIHE3HY
Here's an interesting scholarly paper on using international human rights
instruments in state courts:
https://opportunityagenda.org/files/Human_Rights_in_State_Court.pdf (copy
attached) Red herring or not, this discusses how treaties have actually
been invoked effectively in state court litigation.
Here's a blog called "Human Rights at Home," which covers US human rights
laws and issues (as well as some international human rights issues):
http://lawprofessors.typepad.com/human_rights/
Here's a white paper from the Human Rights Institute at Columbia Law School
(my alma mater) on using human rights treaties at the state and local
level. It also has a good, if slightly self-flagellating, summary
discussion of human rights in the US, at the beginning of the document:
https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/Bringing%20Human%20Rights%20Home.pdf
(and attached).
As an aside, I would also note that California is one of the leading states
(if not the leading US state) with regard to state legislation protecting
human rights. So, if you wanted to choose an applicable state law in the
US from which to derive human rights protections, you could scarcely do
better than California. Among other things, California has a law
specifically protecting the human right to water; here's an implementation
framework for that law:
http://www.ushrnetwork.org/resources-media/human-right-water-bill-california
I could go on, but I think it's sufficient to demonstrate that state and
federal laws applicable to ICANN include many laws protecting human rights.
The one thing I haven't found in the bit of searching I have done, is a
comprehensive resource ("one stop shopping," if you will) for federal and
state human rights laws, whether generally or applicable to California
(although the second link above comes close on the latter front). If there
are any eager law students look for a note topic, or professors looking for
an article topic, that might be an interesting one (if I am in fact right
that no such resource yet exists; I have hardly plumbed the depths....)
Best regards,
Greg
On Wed, Jan 25, 2017 at 4:31 PM, Rudolph Daniel <rudi.daniel at gmail.com>
wrote:
> 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/syste
>> m/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
>> >> _______________________________________________
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>> >
>> >
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