[CCWG-ACCT] inconsistency in bylaws spotted

[Nigel Roberts]

Niels

I'm not surprised at this in the slightest, given that despite the 
precatory sentiments, the new By-Laws will operate to remove any legal 
obligation to respect fundamental rights.

You only need to look at ICANN's submission to the ICM Registry -v ICANN 
case to see how this is scheduled to pan out.



On 04/24/2016 07:01 PM, Niels ten Oever wrote:
>
> Dear all,
>
> I hope this email finds you well. Upon re-reading the bylaw text I came
> across the following issue which does not seem to be in accordance with
> what we agreed in WS1.
>
> The CCWG report says where it comes to Human Rights:
>
> [ccwg report]
>
>   “Within its Core Values, ICANN will commit to respect internationally
> recognized
>   Human Rights as required by applicable law. This provision does not
> create any
>   additional obligation for ICANN to respond to or consider any
> complaint, request,
>   or demand seeking the enforcement of Human Rights by ICANN. This Bylaw
>   provision will not enter into force until (1) a Framework of
> Interpretation for Human
>   Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus
>   recommendation in Work Stream 2 (including Chartering Organizations’
> approval)
>   and (2) the FOI-HR is approved by the ICANN Board using the same
> process and
>
> criteria it has committed to use to consider the Work Stream 1
> recommendations.”
>
> [/ccwg report]
>
> But when I look at the bylaw text it says:
>
> [proposed bylaw]
>
> The Core Value set forth in Section 1.2(b)(viii) shall have no force or
> effect unless and until a framework of interpretation for human rights
> (“FOI-HR”) is approved by (i) the CCWG-Accountability as a consensus
> recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s
> chartering organizations and (iii) the Board (in the case of the Board,
> using the same process and criteria used by the Board to consider the
> Work Stream 1 Recommendations).
>
> [/proposed bylaw]
>
> Now it is explicitly required that all Chartering Organizations approve
> the Framework of Interpretation, whereas during WS1 it was agreed that
> for WS2 we would use exactly the same process of approval as for WS1.
>
> What makes this even more divergent is that this clause is only added
> for Human Rights in the proposed bylaws and not for any other bylaw.
> Whereas there was no exceptional procedure for human rights discussed
> for WS2.
>
> What I propose is to refer to the charter of the CCWG on Accountability
> for the decision making of all processes in WS2 (including the decision
> making on the FoI on Human Rights) and not create separate or new
> requirements or processes.
>
> All the best,
>
> Niels
>
>
>