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

Nigel Roberts nigel at channelisles.net
Thu Jan 26 04:56:29 UTC 2017 

Greg

With respect, what you have written is the red herring.

NONE of the laws mentioned is human rights legislation. Unless 
voluntarily adhered (e.g. the Ruggle exampe) Human rights only apply 
between the individual and the State.

Human rights obligations do NOT affect private companies except indirectly.

The legislation you mention (and any other similar legislation) is 
something different. They are just examples of a particular State (i.e. 
the USA) enacting legislation to create domestic legal rules in pursuit 
of its treaty obligations.

Never mind that the USA has its own view of which human rights it cares 
to adhere to, Idifference between  am mildly surprised that  you 
continue to fail to appreciate the nature of universal human rights 
(such as the right to property) whi are freestanding and independent of 
the detail of any State's efforts to legislate domestically.

Rights such as are set out, for example, the Universal Declaration, ECHR 
and EU Charter.

These are not the same those domestic legal obligations (such as the law 
against theft) which the State has determined to create as some domestic 
obligations on individuals and legal persons.


Notwithstanding the above analysis, if you are right, then the human 
rights bylaw is entirely a waste of ink. In that case, all ICANN has to 
do to respect human rights is make sure all its actions are legal at all 
times.

I think, somehow the Board have to do that anyway, doesn't it?

Doing something different is not an option for an organsiont that 
respects the rule of law of the land(s) in which it operates

The example I would give, is prior to the 1998 Human Rights Act in the 
UK, no government department or emanation of the state (state actor) was 
legally obliged to respect human rights at all.

They alwyas had to follow the law, of course.

But frequently those laws contravene human rights. (There are numerous 
examples of the UK being found in breach of its human rights obligations 
due to defects in its applicable laws).

Therefore while it is necessary for ICANN to follow the applicable law 
(e.g. in California), it is not sufficient to merely follow domestic 
applicable law in order to achieve the purpose of respect for universal 
human rights.

For private sector bodies, the principle of freedom of contract trumps 
human rights. There is no denying this is the case.

A state actor, however, when it creates rules binding on others is 
obliged to conduct what the European Court of Human Rights refers to 
repeatedly as 'the balancing exercise'.

That is so, whenever different, competing, human rights are engaged, the 
ruleemaker and the associated tribunls must balance the both rights.

But a private company has an obligation only to itself and its members 
or shareholders.

So, for example, ICANN is entirely free to enter into contracts that are 
unbalanced, as between freedom of expression and the right to property. 
Or between freedom of expression and privacy rights.

The disconnect between EU Data Protecion law and ICANN WHOIS policy 
compared with European ccTLDs (who have to follow applicable law in 
Europe!)is a prime example of the lack of any obligation on ICANN's part 
to balance competing rights  -- there is no assessment of proportonality 
when considering the aim to be achieved.


All this is perfectly legal under "applicable law" yet it is undesirable.

The only way that the freedom of expression or privacy can be taken into 
account is when those advocating have an equally loud voice in the 
rulemaking process to the property interests.


So at the end of the day where are we?

Either Greg is right, which inevitably means  there was no need for the 
bylaw -- ICANN just has to keep on the right side of 'applicable law to 
be promoting human rights in its work.


Alternatively, perhaps the expression 'applicable law' (i.e. law 
applicable to ICANN) includes obligations from other sources, such as 
the Universal Declaration of Human Rights as was suggested in _ICM Registry_


The danger created is that, as shown in_ICM Registry (where ICANN 
claimed that the tribunal had to defer to ICANN's Board's judgment 
ICANN's approach clearly infrigeed ICM's universal fair hearing right) 
may assert that one of the sources of law that ICANN has legally (by 
applicable Calif. law) adhered to by its original incorporation 
documents, could be something entirely unexpected.  (I fear that in 
attempt to exclude it by the revised bylaws, ICANN may have opened the 
door to it.)




> <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 <mailto: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
> <mailto: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
> <tel:703-948-4154>
>
> -----Original Message----- From: ws2-hr-bounces at icann.org
> <mailto:ws2-hr-bounces at icann.org> [mailto: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
> <mailto: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
> <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
>
>
<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>
>>>
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>>
>>
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