[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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