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

[Jordan Carter]

On the face of it, this looks good to me.

best,
Jordan

On 21 January 2016 at 15:59, León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx> wrote:

> Dear Holly, dear Rosemary,
>
> Thank you very much for this update.
>
> I believe the suggested amendment does address concerns on both sides but
> I would like to, of course, hear the feedback from the larger group.
>
> All,
>
> The suggested text would, in my view, guarantee that a commitment to
> respect human rights is in place as part of WS1 and would also provide the
> safeguard to avoid the abuse of the bylaw in the meantime the FOI is
> developed.
>
> Please share your feedback at your earliest convenience so we can continue
> our way forward on this issue and hopefully finalize it in the next call we
> include the item as part of our agenda.
>
> Thanks to our legal team and ICANN’s legal team for helping us understand
> the different concerns around the issue and proposing a way forward.
>
> Saludos,
>
>
>
> León
>
> El 20/01/2016, a las 8:40 p.m., Gregory, Holly <holly.gregory at sidley.com>
> escribió:
>
> 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. I**CANN 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
>
>
>
> *HOLLY J. GREGORY*
> Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
>
> *Sidley Austin LLP*+1 212 839 5853
> holly.gregory at sidley.com
>
>
>
>
>
>
>
>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz
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*A better world through a better Internet *
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