[CCWG-ACCT] Report on Lawyers Call re Human Rights

Gregory, Holly holly.gregory at sidley.com
Thu Jan 21 02:40:58 UTC 2016

Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,

We had a good discussion  with ICANN lawyers (Sam and John) and with Kevin Espinola of Jones Day today as was certified to us regarding the Board’s understanding of the Human Rights language that we had proposed (set forth below).     As we now understand the Board’s concern, while the language we proposed would not create any additional responsibilities beyond what currently exists in applicable law, providing a Human Rights commitment  in the Bylaws  opens the range of human rights topics to IRP challenge where Board action or inaction is perceived by someone to be out of line with human rights obligations under applicable law.   Without benefit of the further definition around the scope of ICANN’s human rights obligations (the Framework for Interpretation) planned for Work Stream 2, in the interim there could be a slew of IRP challenges that have little actual merit from a legal perspective, placing the IRP panel (which may be comprised of persons without significant human rights law understanding) in a position of arbitrating a wide range of issues that may be driven by divergent  interests that have little relevance to ICANN.  This could result in a significant use of ICANN time and attention and scarce IRP resources with little actual added value in holding ICANN accountable.
This is a legitimate concern.   One solution that is in line with the discussion around options from the last CCWG call is to assure that the IRP process is not available until the Work Stream 2 effort to further articulate the human rights Framework for Interpretation is finished.

The CCWG may wish to consider including in the Bylaws something along the following lines (the language in red is new; the language in black is essentially what we had proposed originally) :

Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. This commitment shall  not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. In particular, this 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 is not a valid basis for, and shall not give rise to, any IRP process until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. ICANN shall  support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible.

Note that if the CCWG decides to move in this direction, Annex 12 (Work Stream 2) should include a reference to the commitment in the last sentence.

Kind regards,

Holly and Rosemary

Partner and Co-Chair
Global Corporate Governance & Executive Compensation Practice
Sidley Austin LLP
+1 212 839 5853
holly.gregory at sidley.com<mailto:holly.gregory at sidley.com>

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