[CCWG-ACCT] inconsistency in bylaws spotted
Matthew Shears
mshears at cdt.org
Tue Apr 26 10:23:54 UTC 2016
Agreed +1 to Greg's formulation.
On 4/26/2016 9:11 AM, Niels ten Oever wrote:
> Dear all,
>
> Thank you for your great reactions. The proposal by Holly is much better
> than what we had in the proposed bylaws, but I have to completely agree
> with Gregs worries and proposal underneath, since it leaves no room for
> interpretation which will benefit our work in Workstream 2.
>
> So +1 to Greg.
>
> All the best,
>
> Niels
>
>
>
> On 04/26/2016 01:08 AM, Greg Shatan wrote:
>> Holly and All,
>>
>> I'm concerned that by reverting to the language in the Proposal, we are
>> perpetuating the language that led to confusion in the first place. It
>> should be clear that this is a "business as usual" process of Chartering
>> Organization review of a CCWG-Accountability consensus recommendations,
>> just as was done with the Proposal. i would suggest adding the
>> following clarifying language:
>>
>> “(a) 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 /_(including Chartering
>> Organizations’ approval *as set forth in the CCWG-Accountability
>> Charter*), and _/ (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).”
>>
>> I look forward to your thoughts.
>>
>> Greg
>>
>> On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly
>> <holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>> wrote:
>>
>> Dear CCWG-Accountability,
>>
>> ____
>>
>> We have been following this email stream and in re-reading the
>> language of the Bylaws we understand how the language could be
>> misread to call for a standard higher than what is intended.
>> Therefore we propose that a clarification would be helpful.
>> Specifically, to remove any confusion and help assure that the
>> Bylaws are read in a manner that is consistent with the proposal, we
>> recommend the following clarifying change to Section 27.3: ____
>>
>> ____
>>
>> “(a) 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 /_(including
>> Chartering Organizations’ approval), and _/ (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).” ____
>>
>> __ __
>>
>> If you agree, we recommend that you include this in the CCWG’s
>> public comment. ____
>>
>> __ __
>>
>> Kind regards, ____
>>
>> Holly ____
>>
>> __ __
>>
>> *HOLLY* *J. GREGORY*
>> Partner and Co-Chair
>> Corporate Governance & Executive Compensation Practice Group____
>>
>> *Sidley Austin LLP*
>> 787 Seventh Avenue
>> New York, NY 10019
>> +1 212 839 5853 <tel:%2B1%20212%20839%205853>
>> holly.gregory at sidley.com <mailto:holly.gregory at sidley.com>
>> www.sidley.com <http://www.sidley.com/>____
>>
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*____
>>
>> ____
>>
>> __ __
>>
>> *From:*accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>
>> [mailto:accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>] *On
>> Behalf Of *McAuley, David
>> *Sent:* Monday, April 25, 2016 2:12 PM
>> *To:* Dr. Tatiana Tropina; accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>
>>
>>
>> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____
>>
>> __ __
>>
>> In my personal opinion, I think Tatiana was correct in observing
>> that there can be different interpretations in this respect. ____
>>
>> __ __
>>
>> I respectfully don’t think we can now say that decision making
>> regarding the FoI in WS2 is simply based on the charter. The charter
>> set WS1 in motion and in WS1 we specifically agreed that the HR
>> bylaw will not enter into force until, among other things, an FoI is
>> developed as a consensus WS2 recommendation “(including Chartering
>> Organizations’ approval)” – we cannot delete that quoted bylaw
>> language as it means something. ____
>>
>> __ __
>>
>> Here is what the draft bylaw-language in the proposal provides:____
>>
>> __ __
>>
>> “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.”____
>>
>> __ __
>>
>> If that requires further clarity it seems to me that it will need to
>> be developed in WS2 given that our charge now is to see if the
>> bylaws draft tracks the final proposal. In this respect it appears
>> to do so.____
>>
>> __ __
>>
>> David McAuley____
>>
>> __ __
>>
>> *From:*accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>
>> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
>> Of *Dr. Tatiana Tropina
>> *Sent:* Sunday, April 24, 2016 4:42 PM
>> *To:* accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>
>> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted____
>>
>> __ __
>>
>> Hi all,
>> I certainly understand that there can be different interpretations
>> of the intent of the report.
>>
>> The item (ii) of the bylaw in the report says: "*consensus
>> recommendation in Work Stream 2 *(including Chartering
>> Organizations’ approval)".
>>
>> We have even have different thresholds for consensus in the report
>> itself, which one is applicable here? What is the process for
>> reaching this consensus? The same as for WS1? Then we might need a
>> reference to WS1 may be? Furthermore: will everything developed in
>> the WS2 require a full consensus and approval of all COs? I read the
>> chapter in the bylaws about WS2 and it refers to the process and
>> charter of WS1. No requirement for full consensus or approval of the
>> all the COs there. Why does not HR bylaw refer to the previous
>> section in the bylaw that specifically outlines the requirements for
>> Ws, but introduces the approval of all COs instead? I don't mind
>> this, but the clarification seems to be necessary.
>>
>> Is there already a definition of consensus for the purpose of the
>> WS2 and if yes, is it the same that has been introduced for HR FOI
>> in HR bylaw text? This is my question.
>>
>> If the answer is "yes" - then there is no inconsistency. However, I
>> agree with Niels that this should be clarified, so we all will be on
>> the same page.
>>
>> Cheers
>> Tanya ____
>>
>> On 24/04/16 20:44, Seun Ojedeji wrote:____
>>
>> Hi,____
>>
>> Are you saying that the bylaw text is different from the intent
>> of the report as I don't think that is the case. The report
>> indeed required approval of the CO which was rightly reflected
>> as item ii in the bylaw text.____
>>
>> I therefore think the bylaw text is consistent with the intent
>> of the report.____
>>
>> Regards____
>>
>> Sent from my LG G4
>> Kindly excuse brevity and typos____
>>
>> On 24 Apr 2016 7:01 p.m., "Niels ten Oever"
>> <lists at nielstenoever.net <mailto:lists at nielstenoever.net>>
>> 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
>>
>>
>>
>> --
>> Niels ten Oever
>> Head of Digital
>>
>> Article 19
>> www.article19.org
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>>
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--
Matthew Shears | Director, Global Internet Policy & Human Rights Project
Center for Democracy & Technology | cdt.org
E: mshears at cdt.org | T: +44.771.247.2987
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