[CCWG-ACCT] Board comments on Recommendation 6 - Human Rights
Alan Greenberg
alan.greenberg at mcgill.ca
Fri Feb 5 05:00:24 UTC 2016
Bruce, one small question. How can you have a Cross-Community WG
chartered by just one AC/SO?
Alan
At 04/02/2016 02:33 AM, Bruce Tonkin wrote:
>Hello All,
>
>In the spirit of the compromise throughout the CCWG proceedings, the
>Board is modifying its position, and is supportive of inserting a
>commitment to respect human rights into the ICANN Bylaws as follows:
>
>
> "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 (or another Cross Community Working Group
> chartered for such purpose by one or more Supporting Organizations
> or Advisory Committees) 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."
>
>Rationale:
>
>The clause on the timing of the effective date of the Bylaws
>provision addressed many, though not all, of the Board's timing
>concerns. There were still significant concerns regarding some of
>the other detail, including possible interpretations that could
>impose human rights responsibilities on those with whom ICANN does
>business, or whether there are things that ICANN should
>affirmatively be doing today, in addition to compliance with law.
>
>One of the most pressing concerns that remained with the language
>was on the potential impact on external entities. The Board
>remained concerned that the CCWG's attempt to exclude reach to
>"entit[ies] having a relationship with ICANN", could actually be
>interpreted in a manner that increases - not insulates - the reach
>of this provision. When ICANN is challenged for conduct alleged to
>be in violation of applicable laws on human rights, that that
>challenge could also reach third parties for alleged failures to
>protect or enforce human rights within applicable law. This could
>reach entities with or without contracts, and many of which
>(including ICANN) have no enforcement power when it comes to the
>law. This is a potential path to placing an affirmative (and out of
>mission) obligation to police those with whom ICANN has
>relationships for potential failures to protect or enforce human rights.
>
>This language could leave the door open for those doing business
>with ICANN to be held to, for example, the applicable laws in the
>USA or another place where ICANN is found to do business. The
>applicable law is not defined as it applies to entities with
>relationships with ICANN, nor is that the type of language normally
>included in Bylaws.
>
>The Board supports the removal of the language that causes it
>concern, while allowing the CCWG to move forward with a
>recommendation to include a commitment in the Bylaws that ICANN
>treats human rights as a core value that guides the decisions and
>actions of ICANN:. We hope this compromise can allow this issue to be closed.
>
>Regards,
>Bruce Tonkin
>
>ICANN Board Liaison to the CCWG
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