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

Thu Jan 26 17:45:15 UTC 2017

I think Greg’s statement at the end of his response is at the very heart of what will change in ICANN – that is the requirement for a more structured balancing process that Greg references and that Nigel also references when he speaks of the balancing of rights required under the EU Human Rights laws.

The reasons I continue to provide feedback on governance issues and what it means to say “applicable law” are:

(1)    The duties of the Directors must be clear.  If they are not clear, the Directors and the corporation face unreasonable risk that will disrupt ICANN’s daily operations.  So the standards for compliance with the new ByLaw cannot be “murky”.

(2)    The new ByLaw says that the duty of the Directors of the corporation is defined by applicable law and they cannot be required to go beyond this.  (That does not mean they cannot adopt policy generated in the normal ICANN processes and protocols referred to in Annex 6 – in accordance with the Directors’ normal procedures for policy adoption.)

(3)    The emphasis to date has been on privacy rights and a rather limited definition of “free expression”.  While I fully support free speech and the notion that persons expressing themselves on the Internet should not be repressed or harassed (or worse arrested in some countries where that speech may be illegal), I cannot agree that there is a right to be anonymous on the Internet, especially where counterfeit products and fraud (e.g. for donations) would be allowed to proceed, forcing consumers to suffer injury and bear the burden of an unfettered privacy right.  Many have already recognized this issue in relation to pharma.  It is certainly a problem in toys (lead paint).   It is also a problem in counterfeit goods represented as authentic goods of indigenous peoples and it is a problem in the realm of works of art (including motion pictures)  being misappropriated.  These wrongs also represent violations of Human Rights and it is wrong to pretend that the only Human Rights involved in the balancing act are free speech and privacy.  Rights of authors under the Universal Convention are particularly important.   In addition, every consumer should be able to find and proceed against sellers of infant formula laced with arsenic (to provide an extreme example).  Further, copyright infringers skimming profits from “click-throughs” or sales of pirated DVDs should not be able to run away from that activity (illegal in all the Berne Convention countries) because they can’t be located and (theoretically) default judgment is no longer available under the UDRP.  To the extent that remedies for these wrongs are not available in the DNS, the burden will begin in the private sector but will ultimately fall on governments who must protect consumers.

So indeed a careful balancing act is required among not only the Core Values, but among the competing Human Rights themselves and that is what we are asking the Community to do in a more focused way going forward via the development of the Framework of Interpretation and any further work we do.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

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Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Wednesday, January 25, 2017 11:05 PM
To: Nigel Roberts
Cc: <ws2-hr at icann.org>
Subject: Re: [Ws2-hr] "Applicable Law": Human Rights Law and dualist States - ICANN's obligations under California law

If I understand the point correctly,  national (or state) laws that protect human rights are not human rights laws; in particular, national (or state) laws that protect human rights from being violated by people, corporations or other non-state entities are not human rights laws; that national and state laws adopted to comply with human rights treaties and conventions are not human rights laws; that the only actual human rights laws are not laws at all, but treaties, conventions and other such instruments; that if a person, corporation or other non-state entity ensures that it upholds and is guided by such national (or state) laws it is not respecting human rights; and that the only way a person, corporation or other non-state entity can respect human rights is by voluntarily adhering to treaties, conventions and other instruments that do not in fact apply to such person, corporation or other non-state entity.

These seems to me to be very crabbed and peculiar definitions of both human rights laws and of respecting human rights.

I think the proper (and simpler, and more logical) way to view this is that laws that protect human rights are human rights laws, and that this certainly includes laws that protect persons, etc. from the actions of other persons, etc., and that this includes national and state laws adopted to comply with human rights treaties and conventions.  Also, that a corporation can respect human rights by respecting these laws and seeking to uphold and be guided by them.  This also has the advantage of being consistent with the thinking that underpins the Bylaw.  (As an aside, I think that those who passed those laws, and enforce those laws, and write about those laws would be surprised (to say the least) to find they are not human rights laws....)

I should also point out that the obligations of a non-profit public benefit corporation (like ICANN) are very different from a for-profit corporation, which (arguably) is only obligated to its owners/shareholders, or a mutual benefit corporation, which (unless otherwise specified) is only obligated to its members.  As a public benefit corporation, ICANN has obligations in the public interest.  This is readily apparent by looking at the Articles and at the Bylaws (in particular, the Mission, Commitments and Core Values), as well as the California Corporations Code as it applies to public benefit non-profits (not to mention the Attorney General's rules regarding same).  It's an apples and oranges comparison, and a critical distinction.

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.

Best regards,

Greg

On Wed, Jan 25, 2017 at 11:56 PM, Nigel Roberts <nigel at channelisles.net<mailto:nigel at channelisles.net>> wrote:
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> <mailto: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>
<mailto: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>
<tel: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>> [mailto: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>
<mailto: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> <http://www.article19.org>

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