[governance] IANA transition - BR Gov comments on the CCWG-Accountability Draft Proposal

Seth Johnson seth.p.johnson at gmail.com
Wed Jun 10 17:47:31 EDT 2015

(Hate to add another edit, but the below clarification seems
necessary.  I'll snip to get right to it though)

On Wed, Jun 10, 2015 at 4:15 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:


> It is.  But no, you would not have recourse to US courts.  The problem
> for the international arena is that nobody has that "trump card"
> recourse that keeps governments in check *other than* those who have a
> claim that their own government is doing or allowing things to happen
> that violate their own fundamental rights as a citizen.  The kind of
> rights you get internationally are really almost what we call
> statutory rights -- the problem being that the "legislature" can
> always rewrite those kinds of rights.  Or, since in fact going and
> revising a treaty provision regarding rights poses some political
> difficulty, what you'll see more often is that the rights expressed in
> treaties have no more weight against things like "national interests"
> or "national security" or the "war on" x, y, and z -- than a
> "balancing standard."  Governments can well do whatever they say is
> necessary (like vacuum up all communications for surveillance, or for,
> hey, regular spying) for their national interests and they essentially
> just "bear in mind" whatever rights are expressed in treaties.  And no
> judge in an ostensible international tribunal can really simply cancel
> a treaty the way they can an unconstitutional law in a national
> context (without a clear founding act prior to the government, where
> the people(s) claim their priority and authorize government(s) to
> proceed only under certain limits).  Treaties are agreements among
> governments, so what the governments "meant" is what you have to
> deliberate over in interpreting the treaties -- not over whether the
> people have rights regardless of the governments' intention in the
> treaty.  A judge would at best weigh treaty elements and try to
> articulate how to settle all parts without saying any part is
> "unconstitutional."  The problem is how to get the closest you can to
> that kind of a "trump card" standing for fundamental rights.

Last sentence above should be:

The problem is how to get away from that kind of "balancing" approach
and how to get the closest to the kind of a "trump card" standing that
you get with real fundamental rights.



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