[CCWG-ACCT] Regarding mission statement and human rights

Thu Jan 28 14:15:31 UTC 2016

Nigel, it means we are on the same page concerning the distinction
between respect and enforcement/protection. Then I fail to understand
where is the problem. Though I am happy to agree to disagree at this point.
Again, the commitment to *respect* human rights is not restricted by any
clause of the applicable law in the proposed text of the bylaw. It is a
full commitment. In the text of the bylaw.
The applicable law clause belongs the sentence, which aims to restrict
enforcement and protection - and it will be entirely wrong if ICANN will
be force to protect and enforce. It does not restrict the obligation to
respect.
This is well explained in the note to the proposed bylaw in the Third
Draft report.
However, my main message was not even about the bylaw text. My message
was about the process we decided to follow on the call, the process that
can be diverted without the reasonable ground.
If there will be a reasonable ground, like e.g. explanation of further
risks that the dormant bylaw might entail, I am more than happy to admit
that this needs further consideration. Replacing the compromise solution
with resolution without explanation and discussion, in my humble
opinion, is not the approach to follow.
Best regards
Tatiana

On 28/01/16 15:05, Nigel Roberts wrote:
> That is entirely wrong.
>
> ICANN must simply respect human rights. That's it.
>
>
> On 28/01/16 13:22, Dr. Tatiana Tropina wrote:
>
>> I am very much against making ICANN a human rights watchdog and what I
>> am getting from your emails is that you are insisting on it.
>> This is a clear no-go as we discussed at WP4 and CCWG.
>>
>> Best regards
>> Tatiana
>>
>> On 28/01/16 14:14, Nigel Roberts wrote:
>>> With respect, the point that there is no applicable law has NOT been
>>> addressed, it has been ignored repeated.
>>>
>>> If ICANN does not accept the Human Rights principles voluntarily,
>>> there is no applicable law that requires them to. That why a
>>> commitment to do so is required, and it needs to be entrenched so that
>>> a future ICANN Board.
>>>
>>> To understand why some of us outside the US are not convinced . .
>>>
>>>
>>>
>>> http://business-humanrights.org/en/bringing-rights-home-four-reasons-why-the-us-must-act-to-curb-rights-abuses-by-companies-domestically-not-just-abroad
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> On 28/01/16 12:50, Matthew Shears wrote:
>>>> I think we need to follow our process.  We have worked very hard to
>>>> get
>>>> to the point that we are at on HR.  We have, with the help of outside
>>>> counsel, addressed the concerns that have been raised by various parts
>>>> of the community.  Do we really need to pursue alternative paths that
>>>> may not satisfy the CCWG and could add additional delays to our work?
>>>> The CCWG has been discussing Human Rights in ICANN now for a
>>>> considerable period of time and should bring Rec 6 to a close.
>>>>
>>>> On 28/01/2016 13:13, Kavouss Arasteh wrote:
>>>>> Nigel
>>>>> We do not release the Board once the framework of interpretation is
>>>>> prepared-and approved as results of WS2. We mention that in the bylaw
>>>>> the need that ICANN MUST RESPECT HR but we postpone the exact text
>>>>> reflecting the case . In the meantime , we consider the Board,s Res.
>>>>> Providing a firm commitment to fully respect, observe and implement
>>>>> the referenced HR once we receive that Res. And approve with out
>>>>> without amendment
>>>>> Regards
>>>>> Kavouss
>>>>>
>>>>> Sent from my iPhone
>>>>>
>>>>>> On 28 Jan 2016, at 12:18, Nigel Roberts <nigel at channelisles.net>
>>>>>> wrote:
>>>>>>
>>>>>> With respect, I disagree 100% with Tatiana's position.
>>>>>>
>>>>>> Whilst I have serious reservations -- based on historical behaviour
>>>>>> of the then Board -- that a commitment based on a Board committment
>>>>>> will be upheld, I still think that trusting the Board to deliver on
>>>>>> this in a Framework/WS2 is preferable to a by-law designed by
>>>>>> committee of the loudest objectors, which on a strict construction
>>>>>> (i.e. taking a strict legal interpretation) complete relieves the
>>>>>> corporation of any obligations to respect human rights *other than
>>>>>> those right that have "domestic horizontal application") .
>>>>>>
>>>>>> We need to place it at the heart of ICANN's approach to its special
>>>>>> world-wide role.
>>>>>>
>>>>>> I suggest WS2 may even examine the UDHR in detail and compare it to
>>>>>> ICANN at s work. You will probably find that except for the three or
>>>>>> four core Rights whic are REALLY important to ICANN;s work most of
>>>>>> the others are either obviously inapplicable, or tritely applicable.
>>>>>>
>>>>>> I am therefore surprised to find myself largely agreeing with the
>>>>>> Board's approach, than the dog's breakfast that proposal seems to
>>>>>> have reached.
>>>>>>
>>>>>>
>>>>>>> On 28/01/16 11:02, Niels ten Oever wrote:
>>>>>>> I think we should indeed keep the discussion clear by discussing
>>>>>>> issues
>>>>>>> the board might have the current text, based on legal analysis,
>>>>>>> case-law, examples or otherwise.
>>>>>>>
>>>>>>> If the CCWG doesn't receive this, I think we should go ahead as
>>>>>>> concluded in the last call.
>>>>>>>
>>>>>>> Best,
>>>>>>>
>>>>>>> Niels
>>>>>>>
>>>>>>> PS I would of course very much welcome any concrete commitment
>>>>>>> of the
>>>>>>> board to human rights and I think it could strengthen the work
>>>>>>> we'll do
>>>>>>> in WS2 when the bylaw is in place.
>>>>>>>
>>>>>>>> On 01/28/2016 10:51 AM, Tropina, Tatiana wrote:
>>>>>>>> Dear all,
>>>>>>>>
>>>>>>>> I believe that the commitment of the board to support human rights
>>>>>>>> principles is indeed a great constructive move that can be
>>>>>>>> wholeheartedly welcome. However, if it is going to be done to
>>>>>>>> divert
>>>>>>>> the discussion from the main question, namely: what are the risks
>>>>>>>> that the board sees if the bylaw text suggested on the last call
>>>>>>>> (dormant bylaw) will be adopted? - I don't think it can be
>>>>>>>> considered
>>>>>>>> as a proper way forward. It has been discussed many times that
>>>>>>>> commitment to human rights is a community exercise, I doubt
>>>>>>>> that the
>>>>>>>> top down commitment can replace the proper bylaw. Moreover, I
>>>>>>>> am not
>>>>>>>> sure that a resolution to respect human rights adopted in
>>>>>>>> urgency to
>>>>>>>> avoid the bylaw is a good substitute for the approach CCWG
>>>>>>>> suggested
>>>>>>>> after many hours of discussions and many attempts to find a
>>>>>>>> solution
>>>>>>>> that will address everyone's concern. If the board's resolution is
>>>>>>>> what we are getting as an alternative to the bylaw, I am not
>>>>>>>> certain
>>>>>>>> it can be considered as a compromise. I am ready for constructive
>>>>>>>> discussions, but when top-down approach replaces the community
>>>>>>>> exercise I rather become cautious and concerned.
>>>>>>>>
>>>>>>>> Best regards, Tatiana ________________________________________
>>>>>>>> From:
>>>>>>>> accountability-cross-community-bounces at icann.org
>>>>>>>> [accountability-cross-community-bounces at icann.org] on behalf of
>>>>>>>> Kavouss Arasteh [kavouss.arasteh at gmail.com] Sent: 28 January 2016
>>>>>>>> 10:04 To: accountability-cross-community at icann.org; Bruce Tonkin
>>>>>>>> Subject: Re: [CCWG-ACCT] Regarding mission statement and human
>>>>>>>> rights
>>>>>>>>
>>>>>>>> Bruce, Your Resolution needs to capture major elements of the
>>>>>>>> Recommendation regarding HF WITH A CLEAR ONE OR MORE RESOLVES TO
>>>>>>>> provide the firm committment. Regards Kavouss
>>>>>>>>
>>>>>>>> 2016-01-28 8:58 GMT+01:00 Kavouss Arasteh
>>>>>>>> <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>: Yes
>>>>>>>> You are absolutely right. I can not agree more than what you very
>>>>>>>> well described, But THERE ARE MAJOR DIVERGENCE OF VIEWS . We have
>>>>>>>> two
>>>>>>>> options : One which was on the table by CCWG as a possible emerged
>>>>>>>> consensus Another as the Board mentioned BUT to be accompanied
>>>>>>>> by a
>>>>>>>> strong REsolution as a firm committments to respect ,observe and
>>>>>>>> implement the fundamental right as you mentined, That Board's
>>>>>>>> Resolution yet to be drafted agreed by Board ,examined by CCWG and
>>>>>>>> ensorded by CCWG Regards Kavouss
>>>>>>>>
>>>>>>>> 2016-01-28 5:42 GMT+01:00 Seth Johnson
>>>>>>>> <seth.p.johnson at gmail.com<mailto:seth.p.johnson at gmail.com>>:
>>>>>>>> Seriously need to say fundamental rights are the question.  Treaty
>>>>>>>> human rights are weak, and the concern has to be that the
>>>>>>>> transition
>>>>>>>> involves a loss of the strict standard that relates to fundamental
>>>>>>>> rights.  This might have been the standard the NTIA would have
>>>>>>>> been
>>>>>>>> expected to apply in its semiregular reviews of ICANN. But note,
>>>>>>>> since there's no reference to the constitution (of the US, just by
>>>>>>>> happenstance, could have been any other country with a
>>>>>>>> constitutional basis for rights) but just rights like free speech,
>>>>>>>> the NTIA is free to just say all they would have applied would
>>>>>>>> have
>>>>>>>> been the standards that apply internationally.
>>>>>>>>
>>>>>>>> The UN always says "human rights" and "fundamental freedoms"
>>>>>>>> rather
>>>>>>>> than "fundamental rights" because saying fundamental raises the
>>>>>>>> issue of the fact that treaty-based rights are weak.
>>>>>>>>
>>>>>>>> The international standard is really weak.  There's no way to
>>>>>>>> overrule a treaty on the basis of another treaty, because even if
>>>>>>>> one
>>>>>>>> is on human rights and another is on, say, fighting terror,
>>>>>>>> both are
>>>>>>>> enacted by the same "body" -- participating governments.  So the
>>>>>>>> standard is at best how do the two treaties interact and balance
>>>>>>>> against each other.
>>>>>>>>
>>>>>>>> If you just issue a statement on human rights, they've conned the
>>>>>>>> group again, all along keeping the discussion narrowly focused on
>>>>>>>> the issue of how to structure ICANN -- which never could have
>>>>>>>> addressed the implications of the transition, from the start --
>>>>>>>> as I
>>>>>>>> think you are seeing.
>>>>>>>>
>>>>>>>>
>>>>>>>> Seth Johnson
>>>>>>>>
>>>>>>>> On Wed, Jan 27, 2016 at 4:06 PM, Bruce Tonkin
>>>>>>>> <Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>
>>>>>>>>
>>>>>>>>
>>>>>>>>
>>>>>>>> wrote:
>>>>>>>>> Hello Kavouss,
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>>> For the Human Rights issue, one suggestion was to follow the
>>>>>>>>>>> Board's request ( Not to include any thing about HR in the
>>>>>>>>>>> transitional/ intermediate Bylaws but receiving the Board's
>>>>>>>>>>> FIRM Commitment IN A BOARD'S RESOLUTION APPROVED AND SENT TO
>>>>>>>>>>> CCWG IMMEDIATELY) enabling CCWG whether it could endorse that
>>>>>>>>>>> and annex it to the Bylaws to cool down those who are worried
>>>>>>>>>>> about the HR.
>>>>>>>>> Thanks for this suggestion.   It is under active consideration by
>>>>>>>>> the Board.
>>>>>>>>>
>>>>>>>>> One possible option is that we pass a resolution in support of
>>>>>>>>> human rights principles in our meeting in Singapore next week.
>>>>>>>>>
>>>>>>>>> I will provide an update next week.
>>>>>>>>>
>>>>>>>>> Regards, Bruce Tonkin
>>>>>>>>> _______________________________________________
>>>>>>>>> Accountability-Cross-Community mailing list
>>>>>>>>> Accountability-Cross-Community at icann.org<mailto:Accountability-Cross-Community at icann.org>
>>>>>>>>>
>>>>>>>>>
>>>>>>>>>
>>>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>>>
>>>>>>>>
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