[CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading conclusions

Niels ten Oever lists at nielstenoever.net
Tue Jan 19 09:50:30 UTC 2016


Hi Greg,

On 01/19/2016 07:11 AM, Greg Shatan wrote:
> I'm not sure that all of the 3 alternatives are so "clear cut."
> 
> Does alternative "a" drop the transitional Bylaw that's in the Third
> Draft Proposal?  

No

> If not, what effect does the transitional bylaw have?
> 

It ensures that a framwork of interpretation will be made.

> Alternative "b" seems fairly clear.
> 
> Alternative "c" seems closest to the Third Draft Proposal, with the
> benefit that it clarifies the effect of the transitional bylaw.  (As of
> now, the effect of the transitional bylaw on whether the Human Rights
> bylaw is "open for business" is not as clear as it should be.)
> 

Disagree. Option C makes the bylaw dormant which was not the case in the
Third Draft Proposal.

That was the proposal of (your) minority opinion.

> If alternative "a" clearly means that the Human Rights bylaw is "open
> for business," and that ICANN must abide by the bylaw, and that SO/ACs
> must abide by the bylaw, and that ICANN can be taken to task for failing
> to abide by the bylaw (up to and including an IRP), all without the
> Framework of Interpretation -- then I have some considerable sympathy
> for the concerns raised by Paul and by the Board.
> 
> If the Bylaw is "open for business," then an /ad hoc/ series of
> discussions about interpretation and therefore an /ad hoc/ set of
> interpretations will develop out of necessity, and in many cases those
> discussions will be held within ICANN the corporation and between ICANN
> the corporation and its counsel.  At the same time, there may be efforts
> in various parts of the community (having nothing to do with WS2) to
> react to Board and staff actions or to proactively provide viewpoints to
> the Board and staff.  This will just be a free-for-all.  By the time the
> formal efforts in WS2 are brought forth, these results will have to
> supplant or compete with or try to somehow harmonize with all of these
> /ad hoc /efforts.  What a mess that would be.

I don't think human rights are that open for interpretation as is
sketched here.

> 
> The only way to hold back the /ad hoc/ growth of interpretive bits and
> pieces, is for the Bylaw not to be effective until the Framework of
> Interpretation is in place.  Some may argue that this was the intent of
> the transitional bylaw, though perhaps inartfully drafted.  Others may
> argue that the transitional bylaw means something different (not quite
> sure what, though).

Ensuring the development of an FoI in WS2

> 
> Alternative "c" gives us the powerful symbolism of having the HR Bylaw
> in place, even while the road to effectiveness is still being built.  (I
> would argue that this is what we have in the Third Draft Proposal,
> subject to clearing up ambiguities, but others may differ.)  

But no guarantee that the road _will_ actually be built.

> 
> On the other hand, the WS2 process may give us all a better idea of how
> to craft the Bylaw, which could give us the peculiar result that the HR
> Bylaw could be amended before it is even effective.  This seems to argue
> in favor of alternative "b," since there is little point in having an
> "unripe" and dormant Bylaw that is unlikely to be effective "as is."
>  That said, alternative "c" does provide the symbolism of an HR bylaw
> and the assurance that the bylaw is "in" (even if not "open for business").
> 
> I think we need to sharpen these alternatives a bit more; I hope this
> will happen very shortly, so we can set the course from here.
> 

Happy to disuss.

Best,

Niels

> Greg
> 
> 
> 
> On Mon, Jan 18, 2016 at 6:51 AM, Nigel Roberts <nigel at channelisles.net
> <mailto:nigel at channelisles.net>> wrote:
> 
>     Or to put it another way,
> 
>     to have our minds changed for us.
> 
> 
> 
>     On 18/01/16 10:09, Jorge.Cancio at bakom.admin.ch
>     <mailto:Jorge.Cancio at bakom.admin.ch> wrote:
> 
>         Dear all
> 
>         I agree. It would be tantamount to forgetting the hard work and long
>         discussions had in WP4.
> 
>         Regards
> 
>         Jorge
> 
>         *Von:*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>] *Im
>         Auftrag
>         von * Dr. Tatiana Tropina
>         *Gesendet:* Montag, 18. Januar 2016 11:00
>         *An:* accountability-cross-community at icann.org
>         <mailto:accountability-cross-community at icann.org>
>         *Betreff:* Re: [CCWG-ACCT] Recommendation 6 - Human Rights - 1st
>         reading
> 
>         conclusions
> 
>         Dear all,
>         Sorry I found that I missed an important word in my previous
>         email and
>         think this can lead to misunderstanding.
>         I meant there was "NO real dialogue" on consumer trust outside
>         of the
>         new gTLD discussions, while HR have been discussed extensively
>         at WP4
>         and CCWG.
>         Thus, we can't compare consumer trust and HR as re what shall be
>         moved
>         to WS2 completely.
>         Best
>         Tatiana
> 
>         On 18/01/16 10:45, Dr. Tatiana Tropina wrote:
> 
>             Dear Paul,
>             To answer your question
> 
>             On 18/01/16 08:57, Paul Szyndler wrote:
> 
>                 Further, what distinguishes the conversation of human rights
>                 from our recent discussion on consumer trust?
> 
>             The difference is, as it was pointed in the thread on "Christmas
>             Trees and Consumer Trust", that human rights have been
>         extensively
>             discussed during the preparation of the Third Draft Proposal
>         at the
>             WP4 and CCWG, while there has been a real dialogue on
>         consumer trust
>             outside of the new gTLD review discussions.
>             I think comparing human rights issues and implications to the
>             discussion on consumer trust is not feasible - neither in the
>             context of this group nor in the broader context. WP4 has
>         achieved
>             its a compromise and suggested the bylaw language after
>         extensive
>             discussions, so moving the issue of human rights completely
>         to WS2
>             is not justified - at least not if one uses comparison with
>         consumer
>             trust issues for such justification.
>             Best regards
>             Tatiana
> 
> 
> 
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-- 
Niels ten Oever
Head of Digital

Article 19
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