[CCWG-ACCT] Two items on draft bylaws

[Edward Morris]

Hi David,
  
  
  

And second, about human rights, specifically an implication in Article 27.3.(c) that HR claims might be a proper subject for RR or IRP after the FOI is developed.   

   

This implication is not in the Annex 06 bylaw text (paragraph 23), although it appears in explanatory text (paragraph 19). But both bylaw text and explanatory text say that acceptance of the FOI will depend on the same processes followed in WS1, and bylaw text makes clear that the FOI has to be approved by the Board after it follows the same process and criteria it used in WS1.   

   

In my opinion it is a mistake to insert this implication in "real" bylaws as the issue is important as well as complex and the WS2 FOI group should have a chance to debate the merits.   

   

I share your concerns regarding section 27.3, but for an entirely different and perhaps philosophically opposite reason.  

   

I am of the opinion, supported by the IRP decision in the matter of ICM Registry, LLC v. ICANN ( ICDR Case No. 50 117 T 00224 08, 19 February 2010), that ICANN is currently already obligated to respect and, indeed, to operate in accordance with many of, if not all, human rights laws and principles that may be under consideration for inclusion in the FOI. This obligation springs from Article 4 of ICANN's Articles of Incorporation which oblige ICANN to carry  "out its activities in conformity with relevant principles of international law and applicable international conventions".  

   

It was specifically held in the ICM case that ICANN is required to "to operate in conformity with relevant general principles of law (such as good faith) as well as relevant principles of international law, applicable international conventions, and the law of the State of California." In support of this holding, due process is a specifically cited as a right ICANN has assumed as a result of this Article (paragraph 58 of ICM v ICANN).  

   

My purpose here is not to generate a substantive discussion of my view in this matter but rather is to suggest that it was not the intent of the community to draw back in any way ICANN's current human right commitment through inclusion of the language of section 27.3. My fear is the limiting language of 27.3.c could be read to prohibit recourse to reconsideration or IRP processes to enforce rights already existing under Article 4 of the Articles of Incorporation. If we are to keep 27.3.c I would ask that consideration be given to including clarifying language therein stating that 27.3.c is not intended to limit the ability of parties to refer to other aspects of ICANN's legal acquis that may arguably involve human rights but merely prohibits any reliance on section 27.3 itself  in reconsideration requests or independent review processes until such time as the FOI is approved per section 27.3.b.  

   

Thanks,   

   

Ed Morris  

   

   

   

  


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