[CCWG-ACCT] (no subject)

Niels ten Oever lists at nielstenoever.net
Mon Jan 18 13:05:13 UTC 2016

Hi Bruce,

Thanks for your mail, further reply inline:

On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
> Hello Niels,
>>> First of all it would be great if Samantha could produce some
>>> examples of caselaw or similar examples, because we have done
>>> quite extensive research as well as the Institute for Human
>>> Rights and Business and we didn't find any example of the risk
>>> that Samantha is referring to.
> We don't really have any case law as it relates to the IRP panel's
> interpretation of our bylaws in this area.
> A court will interpret the national law of the relevant country - and
> I gather from other postings to this list that national law doesn't
> usually apply to non-government organizations with respect to human
> rights.    So I am not surprised that there is little case law as it
> relates to a non-government organization that you could find.
> Although laws against slavery etc I would assume apply to the private
> sector as well as the government sector - so I guess some human
> rights principles apply to all organizations.

Governments are responsible to protect human rights, therefore they
protect human rights by for instance creating laws which uphold them. It
would be however simplistic to say that it's only human rights law -
human rights principles are getting incorporated into different areas of
law. As you note yourself, slavery is illegal in practically all
countries because of national legislation which are in line with human
rights. So engaging in slavery is a criminal offense in many countries
(thus, criminal law is applicable). Such incorporation as well as
enforcement and protection is solely a duty of the governments.

> The point Samantha is making is that for IRP purposes - we should
> wait until our community has defined how human rights principles
> applies to protocol parameters, domain names and IP addresses.    The
> IRP panel is not interpreting national laws - it is interpreting
> whether we are complaint with our bylaws.

The IRPs, as you know, are there in order to 'compare contested actions
of the ICANN Board to the Bylaws and Articles of Incorporation and to
declare whether the ICANN Board has acted consistent with the provisions
of those documents'.

In the language developed for the Third Draft report, we suggested the
transitional bylaw requiring the development and implementation of the
Framework of Interpretation. So as long as the framework is not in place
but ICANN is developing it in accordance with the bylaw, ICANN cannot be
held to a specific interpretation of human rights. An IRP will not be
able to either reinvent or reinterpret human rights. And the commitment
is a positive obligation which we'll frame and shape in WS2.

> So my personal view (not a Board view) is that option (c) might be
> workable.

I think option A also provides protection against the risk that you (and
Samantha) are sketching.

Happy to continue the discussion!



> Regards, Bruce Tonkin
> _______________________________________________ 
> Accountability-Cross-Community mailing list 
> Accountability-Cross-Community at icann.org 
> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Niels ten Oever
Head of Digital

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