[CCWG-ACCT] (no subject)
Niels ten Oever
lists at nielstenoever.net
Tue Jan 19 09:45:22 UTC 2016
On 01/19/2016 06:56 AM, Greg Shatan wrote:
> The idea that ICANN would be safe from litigation or IRP (or other forms
> of challenge or pressure) because it could not be held to any specific
> interpretation of the Bylaw is not comforting to me. First, I think
> this is just not true. This needs to be seen in the context of the
> Bylaws as a whole. The Bylaws are full of verbiage that has no
> particular interpretation attached to it. If ICANN is seen to be in
> violation of one of these provisions, I think it's fair to say that any
> challenge will involve a determination of what the proper interpretation
> is.
Except that there is quite some litertature, case-law and examples on
human rights law as well as company commitments to human rights. It's
not just random language.
> Second, if this were true, it would actually be a bad result for
> the community. If ICANN could respond to a community challenge to any
> Bylaw (including the HR Bylaw) by saying that there's no specific
> interpretation of the challenged provisions, it would be much harder to
> hold ICANN accountable. This essentially gives ICANN the last word on
> all matters of Bylaws interpretation.
That is why we will work in WS2 on a specific interpretation.
> The Board clearly has a strong
> role to play in interpreting the Bylaws -- but giving them /carte
> blanche /to make their own interpretation runs counter to everything
> we've tried to do in this group.
Agree, but as explained above, human rights are not really a tabula rasa
concept.
> If we need to accept this argument to
> move forward with alternative "a," then that is another strong reason to
> avoid it.
>
All the best,
Niels
> Greg
>
> On Mon, Jan 18, 2016 at 8:05 AM, Niels ten Oever
> <lists at nielstenoever.net <mailto:lists at nielstenoever.net>> wrote:
>
> Hi Bruce,
>
> Thanks for your mail, further reply inline:
>
> On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
> > Hello Niels,
> >
> >
> >>> First of all it would be great if Samantha could produce some
> >>> examples of caselaw or similar examples, because we have done
> >>> quite extensive research as well as the Institute for Human
> >>> Rights and Business and we didn't find any example of the risk
> >>> that Samantha is referring to.
> >
> > We don't really have any case law as it relates to the IRP panel's
> > interpretation of our bylaws in this area.
> >
> > A court will interpret the national law of the relevant country - and
> > I gather from other postings to this list that national law doesn't
> > usually apply to non-government organizations with respect to human
> > rights. So I am not surprised that there is little case law as it
> > relates to a non-government organization that you could find.
> > Although laws against slavery etc I would assume apply to the private
> > sector as well as the government sector - so I guess some human
> > rights principles apply to all organizations.
>
> Governments are responsible to protect human rights, therefore they
> protect human rights by for instance creating laws which uphold them. It
> would be however simplistic to say that it's only human rights law -
> human rights principles are getting incorporated into different areas of
> law. As you note yourself, slavery is illegal in practically all
> countries because of national legislation which are in line with human
> rights. So engaging in slavery is a criminal offense in many countries
> (thus, criminal law is applicable). Such incorporation as well as
> enforcement and protection is solely a duty of the governments.
>
> >
> > The point Samantha is making is that for IRP purposes - we should
> > wait until our community has defined how human rights principles
> > applies to protocol parameters, domain names and IP addresses. The
> > IRP panel is not interpreting national laws - it is interpreting
> > whether we are complaint with our bylaws.
> >
>
> The IRPs, as you know, are there in order to 'compare contested actions
> of the ICANN Board to the Bylaws and Articles of Incorporation and to
> declare whether the ICANN Board has acted consistent with the provisions
> of those documents'.
>
>
>
> In the language developed for the Third Draft report, we suggested the
> transitional bylaw requiring the development and implementation of the
> Framework of Interpretation. So as long as the framework is not in place
> but ICANN is developing it in accordance with the bylaw, ICANN cannot be
> held to a specific interpretation of human rights. An IRP will not be
> able to either reinvent or reinterpret human rights. And the commitment
> is a positive obligation which we'll frame and shape in WS2.
>
> > So my personal view (not a Board view) is that option (c) might be
> > workable.
> >
>
> I think option A also provides protection against the risk that you (and
> Samantha) are sketching.
>
> Happy to continue the discussion!
>
> Best,
>
> Niels
>
> > Regards, Bruce Tonkin
> >
> >
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> >
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org <http://www.article19.org>
>
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--
Niels ten Oever
Head of Digital
Article 19
www.article19.org
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