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

[Nigel Roberts]

> Speaking of Core Values -- the Core Values need to be adhered to (with
> the appropriate balancing of Core Values when they all can't be adhered
> to perfectly), and they inform the interpretation and implementation of
> Commitments, and with them, the Mission.  Before the Bylaw, Human Rights
> was not part of the Core Value equation, and it was not expressly part
> of the larger equation that is invoked when ICANN deliberates, decides
> and acts.  Now Human Rights is there, and expressly there, and attention
> must be paid. And that is significant.
>

On that we are ad idem.

It's a big step that ICANN took, and I do not mean to diminish it.

There is no getting away from the fundamental concept that Human Rights 
regulates the relationship between individuals (including corporations) 
and the State.

It is fairly recent (born out of the horrors of WW2) and it is much more 
recent that the idea that non-state actors have responsibilities to 
respect, if not promote Human Rights (the last decade or so, if I'm not 
too mistaken).

ICANN's role is in some ways, intended to replace the role of state 
actors. This is the essence of international multistakeholderism. ("We 
do it, so you don't have to").

So it is definitely the case that attention must be paid. It is 
definitely the case that it is significant.

But ICANN, in the past, has a history.

And I want to make sure that ICANN places human rights considerations at 
the heart of its future work -- since in its rulemaking, and in its 
executive decisions it affects peoples property worth millions of 
dollars, and affects people ability to communicate as they wish, and 
their private and family life.

And I want to make sure that future members of the Community can rely on 
arg the uments that ICANN should respect human rights (in the same way 
the UK Government, or the English Courts would) and that Community 
members in argument before future IRPs or similar quasi-judicial 
proceedings, whether they are seeking the protection of property 
(including intellectual property) the right to free expression, or the 
right to private and family life.

Unlike the efforts by ICANN in _ICM Registry_ to restrict the Claimant's 
fair hearing rights and impose a 'deferential standard' which would be 
applicable to commercial parties having had equality of arms in 
negotiations but not to a body like ICANN (The IRP panel wisely rejected 
this argument).