[CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
Dr. Tatiana Tropina
t.tropina at mpicc.de
Mon May 2 20:31:27 UTC 2016
+1 to Greg.
I'm certain that there will be no such statement or intent to require
the high standard of approval for FoI (I keep repeating this again and
again). I think - if necessary - one can even try to find the
transcripts of the calls, where we always referred to the same process
for FOI as for WS1.
We wouldn't even have got this discussions if there were no
inconsistency in the bylaw drafting, so I am even a bit surprised how
the issue that has never been even discussed (the requirement for full
approval) out of sudden is being debated as something that we could ever
"say" or "write".
Best regards
Tanya
On 02/05/16 22:20, Greg Shatan wrote:
> I am also referring to what we [said/wrote]* in the report, which is
> the following:
>
> "The proposed draft Bylaw also clarifies that no IRP challenges can be
> made on the grounds of this Bylaw until a Framework of Interpretation
> on Human Rights (FOI-HR) is developed and approved as part of Work
> Stream 2 activities. It further clarifies that *acceptance of
> the **FOI**-HR will require the same process as for Work Stream 1
> recommendations* (as agreed for all Work Stream 2 recommendations)."
>
> We said ... er sorry .. wrote this *_three_* times in the report, and
> we need to give this effect. The language in the draft circulated for
> comment is inconsistent with this statement, to the extent that it
> appears to require the positive approval of all Chartering
> Organizations, which would be a _different_ process than the one used
> for Work Stream 1 recommendations. As such, the draft needs to be
> corrected.
>
> I was on the calls and email exchanges when the parenthetical about
> the chartering organizations was inserted in the "bylaws" language in
> the Proposal. All that was meant by the insertion was to clarify that
> the FoI did not go straight from Working Group approval to the Board,
> but had to be reviewed by the Chartering Organizations first, just as
> the WS1 recommendations were reviewed. There was never any discussion
> or intent to imply that a higher standard of approval was needed for
> the FoI vs. all other CCWG recommendations.
>
> If anyone can find a clear and unequivocal statement that shows the
> CCWG meant to have a heightened standard for the FoI, I'll reconsider
> my view. However, I'm confident there is no such statement. We spent
> many, many hours of discussing and drafting sections on levels of
> approval for the Empowered Community and relating to levels of
> approval within the GAC. As such, it defies logic to claim that the
> simple insertion of a parenthetical, without any specific discussion
> or explanation of a heightened standard, created a requirement for
> unanimous and/or positive approval.
>
> Greg
>
> ______
> * You are inventing a dichotomy where there is none. In either case,
> I was referring to the report, not to some verbal utterance. I'm
> sorry if my somewhat colloquial use of "said" confused you. It's
> perfectly acceptable to use "said" to refer to a written document, at
> least in everyday usage.
>
> On Mon, May 2, 2016 at 11:10 AM, Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Depends on how you are interpreting the word "bundle"; the WS1 was
> presented as a single document, while some COs decided to
> approve/respond recommendation by recommendation, others approved
> the document as a whole. Perhaps a simple application of the
> report(if you want to avoid round trips proposed in the report
> without distorting the intent) will be to highlight FoI as a
> single recommendation in WS2 which gives the COs the option to
> approve/reject it out rightly and then the CCWG can determine what
> to do with the FoI based on the outcome of the COs approval process.
>
> On your second point, at this juncture I am not talking about what
> we said but rather about what we WROTE in the report, which is
> what anyone who have not followed the process would rely upon. So
> do you want to reflect "what we said" or "what we wrote" either of
> them is fine by me but we should be clear on the path we have
> chosen, knowing it's implications as well.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On 2 May 2016 3:51 p.m., "Greg Shatan" <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
>
> At no point did we say that the FoI would be bundled with
> other WS2 recommendations as a complete package. Indeed,
> we've never said that any of the WS2 projects had to be
> bundled with others.
>
> At no point did we say that there would be a special process
> for approving the FoI. It should be the same as WS1, which
> contemplates a review by the Chartering Organizations, and
> then allows the CCWG to forward recommendation to the Board
> even if less than all of the COs approve of the recommendation.
>
> As long as we can find ways to reflect that clearly, we will
> be carrying out the intent of the Proposal.
>
> Greg
>
> On Mon, May 2, 2016 at 10:43 AM, Seun Ojedeji
> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Hello Thomas,
>
> If I process this correctly, it implies approval of the
> FoI will be done based on ratification process in the CCWG
> charter, which is different from approval of the whole WS2
> package as per the charter.
>
> If that is it, then I will say it's somewhat closer to
> what was proposed in the report (even though the report
> did not mention that CO ratification of FoI is based on
> the charter).
>
> Regards
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On 2 May 2016 3:24 p.m., "Thomas Rickert"
> <thomas at rickert.net <mailto:thomas at rickert.net>> wrote:
>
> Hi all,
> Tijani has proposed a solution at the end of his
> latest e-mail:
>
> I understand that the first proposal made the approval
> of all the chartering organizations necessary, The
> modification should keep the reference to the
> ratification of the chartering organizations and add
> "as defined in the CCWG charter“.
>
> Would that be a way forward?
>
> Best,
> Thomas
>
>
>
>> Am 02.05.2016 um 16:19 schrieb Seun Ojedeji
>> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>>:
>>
>> Hello Niels,
>>
>> I think we may just be playing around with words
>> here, definitely you understand Tijani's concern ;-).
>> Let me attempt to spell out(even though I have done
>> this before) my understanding of the report which I
>> must say is obvious:
>>
>> 1. The report clearly used the phrase "...*including*
>> approval of chartering organisations"
>>
>> 2. Equating that to mean that it's equivalent to the
>> CO approval within CCWG may be out of order because
>> as per the charter irrespective of number of support
>> from CO, the package goes to board for approval.
>>
>> 3. The intent of item 2 above is not the same thing
>> as item 1; What I understand is that the FoI as a
>> critical document it is needs to be developed during
>> WS2, approved by the CO and incoporated into the WS2
>> proposal which is then sent to COs for approval as a
>> complete package.
>>
>> That said, i will again say that if the goal is to
>> reflect what was written in the report then we are
>> out of order. However we may just agree that what we
>> have done is correcting a *mistake* in the report
>> through the bylaw. In that case, we should present it
>> as such and not on claims that the report did not say
>> approval of CO is required.
>>
>> Regards
>>
>> Sent from my LG G4
>> Kindly excuse brevity and typos
>>
>> On 2 May 2016 9:40 a.m., "Niels ten Oever"
>> <lists at nielstenoever.net
>> <mailto:lists at nielstenoever.net>> wrote:
>>
>> Hi Tijani,
>>
>> But the chartering organizations are mentioned in
>> the charter of the
>> CCWG, so am not sure if I understand your concern.
>>
>> Best,
>>
>> Niels
>>
>> On 05/02/2016 10:22 AM, Tijani BEN JEMAA wrote:
>> > Hi Niels,
>> >
>> > The last modification of the bylaws proposed by
>> the lawyers didn’t make
>> > any reference to the chartering organizations
>> approval while it is
>> > clearly mentioned in the CCWG last proposal
>> ratified by the chartering
>> > organizations.
>> >
>> > Have a nice day
>> >
>> >
>> -----------------------------------------------------------------------------
>> > *Tijani BEN JEMAA*
>> > Executive Director
>> > Mediterranean Federation of Internet
>> Associations (*FMAI*)
>> > Phone: +216 98 330 114
>> <tel:%2B216%2098%20330%20114>
>> > +216 52 385 114
>> <tel:%2B216%2052%20385%20114>
>> >
>> -----------------------------------------------------------------------------
>> >
>> >
>> >> Le 2 mai 2016 à 09:11, Niels ten Oever
>> <lists at nielstenoever.net
>> <mailto:lists at nielstenoever.net>
>> >> <mailto:lists at nielstenoever.net
>> <mailto:lists at nielstenoever.net>>> a écrit :
>> >>
>> >> Dear Tijani and Kavouss,
>> >>
>> >> Could you please indicate where the proposed
>> text is not consistent with
>> >> the report? Concrete references would be
>> helpful for me to better
>> >> understand your point.
>> >>
>> >> Thanks in advance,
>> >>
>> >> Niels
>> >>
>> >>
>> >>
>> >> On 05/02/2016 09:38 AM, Kavouss Arasteh wrote:
>> >>> Tijani +1
>> >>> I fully agree with Tijani
>> >>> People misuse the opportunity to make
>> modifications that were not agreed
>> >>> during the lkast 16 months
>> >>> NO CHANGE NO MODIFICATIONS.
>> >>> During the WSIS I WILL tell everybody that
>> there is no supervision nor
>> >>> control on what we have agreed and the people
>> will make whatever change
>> >>> they wish without the agreements of the others
>> >>>
>> >>> KAVOUSS
>> >>>
>> >>> 2016-05-02 8:14 GMT+02:00 Tijani BEN JEMAA
>> <tijani.benjemaa at topnet.tn
>> <mailto:tijani.benjemaa at topnet.tn>
>> >>> <mailto:tijani.benjemaa at topnet.tn
>> <mailto:tijani.benjemaa at topnet.tn>>
>> >>> <mailto:tijani.benjemaa at topnet.tn
>> <mailto:tijani.benjemaa at topnet.tn>>>:
>> >>>
>> >>> Mathieu and all,
>> >>>
>> >>> The modification proposed doesn’t reflect
>> the CCWG last proposal
>> >>> approved by the chartering organization. I
>> don’t think we are
>> >>> allowed to write bylaws that are not the
>> exact interpretation of the
>> >>> approved document that had the CCWG
>> consensus and the charting
>> >>> organizations ratification.
>> >>>
>> >>>
>> -----------------------------------------------------------------------------
>> >>> *Tijani BEN JEMAA*
>> >>> Executive Director
>> >>> Mediterranean Federation of Internet
>> Associations (*FMAI*)
>> >>> Phone: +216 98 330 114
>> <tel:%2B216%2098%20330%20114>
>> >>> +216 52 385 114
>> <tel:%2B216%2052%20385%20114>
>> >>>
>> -----------------------------------------------------------------------------
>> >>>
>> >>>
>> >>>> Le 2 mai 2016 à 04:23, Kavouss Arasteh
>> <kavouss.arasteh at gmail.com
>> <mailto:kavouss.arasteh at gmail.com>
>> >>>> <mailto:kavouss.arasteh at gmail.com
>> <mailto:kavouss.arasteh at gmail.com>>
>> >>>> <mailto:kavouss.arasteh at gmail.com
>> <mailto:kavouss.arasteh at gmail.com>>> a écrit :
>> >>>>
>> >>>> Mathieu,
>> >>>> Tks
>> >>>> Pls NOTE MY SERIOUS OBJECTIONS to:
>> >>>> 1.NOT MENTIONING REFERNCE TO THE APPROVAL
>> OF CHARTERING
>> >>>> ORGANIZATIONBS in HR
>> >>>> 2. GIVE GIVE A BLANKET AGREEMENT TO THE
>> DOCUMENTS WHICH YET TO BE
>> >>>> DRAFTED.
>> >>>> 3. Making so many changes to the Third
>> proposals . We must avoid
>> >>>> having a new proposal
>> >>>> Kavouss
>> >>>>
>> >>>>
>> >>>> 2016-05-01 22:42 GMT+02:00 Mathieu Weill
>> <mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>
>> >>>> <mailto:mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>
>> >>>> <mailto:mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>>:
>> >>>>
>> >>>> Dear colleagues,
>> >>>>
>> >>>> Please find below for your
>> consideration some suggestions from
>> >>>> our lawyers for clarification of the
>> bylaw language regarding
>> >>>> the Human rights FoI. This follows
>> our request during the
>> >>>> previous call.
>> >>>>
>> >>>> Best,
>> >>>>
>> >>>> Mathieu Weill
>> >>>> ---------------
>> >>>> Depuis mon mobile, désolé pour le style
>> >>>>
>> >>>> Début du message transféré :
>> >>>>
>> >>>>> *Expéditeur:* "Gregory, Holly"
>> <holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>
>> >>>>> <mailto:holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>
>> >>>>> <mailto:holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>>
>> >>>>> *Date:* 1 mai 2016 19:10:53 UTC+2
>> >>>>> *Destinataire:* "'Mathieu Weill'"
>> <mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>
>> >>>>> <mailto:mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>
>> >>>>> <mailto:mathieu.weill at afnic.fr
>> <mailto:mathieu.weill at afnic.fr>>>, "'Thomas Rickert'"
>> >>>>> <thomas at rickert.net
>> <mailto:thomas at rickert.net>
>> >>>>> <mailto:thomas at rickert.net
>> <mailto:thomas at rickert.net>>
>> <mailto:thomas at rickert.net
>> <mailto:thomas at rickert.net>>>, León Felipe
>> >>>>> Sánchez Ambía <leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>
>> >>>>> <mailto:leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>>
>> >>>>> <mailto:leonfelipe at sanchez.mx
>> <mailto:leonfelipe at sanchez.mx>>>,
>> "bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>
>> >>>>> <mailto:bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>>
>> >>>>> <mailto:bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>>"
>> <bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>
>> >>>>> <mailto:bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>>
>> >>>>> <mailto:bylaws-coord at icann.org
>> <mailto:bylaws-coord at icann.org>>>
>> >>>>> *Cc:* ACCT-Staff
>> <acct-staff at icann.org <mailto:acct-staff at icann.org>
>> >>>>> <mailto:acct-staff at icann.org
>> <mailto:acct-staff at icann.org>>
>> >>>>> <mailto:acct-staff at icann.org
>> <mailto:acct-staff at icann.org>>>, "Rosemary E. Fei"
>> >>>>> <rfei at adlercolvin.com
>> <mailto:rfei at adlercolvin.com>
>> >>>>> <mailto:rfei at adlercolvin.com
>> <mailto:rfei at adlercolvin.com>>
>> <mailto:rfei at adlercolvin.com
>> <mailto:rfei at adlercolvin.com>>>,
>> >>>>> "ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>
>> >>>>> <mailto:ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>>
>> <mailto:ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>>"
>> >>>>> <ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>
>> >>>>> <mailto:ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>>
>> <mailto:ICANN at adlercolvin.com
>> <mailto:ICANN at adlercolvin.com>>>,
>> >>>>> Sidley ICANN CCWG
>> <sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>
>> >>>>> <mailto:sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>>
>> >>>>> <mailto:sidleyicannccwg at sidley.com
>> <mailto:sidleyicannccwg at sidley.com>>>,
>> >>>>> "Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>
>> <mailto:Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>>
>> >>>>> <mailto:Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>>"
>> >>>>> <Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>
>> >>>>> <mailto:Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>>
>> <mailto:Samantha.Eisner at icann.org
>> <mailto:Samantha.Eisner at icann.org>>>
>> >>>>> *Objet:* *Human Rights Transition
>> Provision: Bylaws Section
>> >>>>> 27.3(a)*
>> >>>>>
>> >>>>>
>> >>>>> Dear Co-Chairs and Bylaws
>> Coordinating Group:
>> >>>>>
>> >>>>> On the CCWG call last week, there
>> was a discussion of the
>> >>>>> Bylaws language regarding the
>> transition provision on Human
>> >>>>> Rights*//*[27.3(a)] and it was
>> suggested that the language be
>> >>>>> clarified to ensure that the same
>> approval process used for
>> >>>>> Work Stream 1 would apply. We
>> propose the following
>> >>>>> clarifying edits. We suggest that
>> you share this with the
>> >>>>> CCWG and if there is agreement, the
>> following proposed edit
>> >>>>> should be included in the CCWG’s
>> public comment:____
>> >>>>>
>> >>>>> Redline:____
>> >>>>>
>> >>>>> *Section 27.3. HUMAN RIGHTS____*
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> (a) The Core Value set forth in
>> Section 1.2(b)(viii) shall
>> >>>>> have no force or effect unless and
>> until a framework of
>> >>>>> interpretation for human rights
>> (“*FOI-HR*”) is approved by
>> >>>>> (i) approved for submission to the
>> Board by the
>> >>>>> CCWG-Accountability as a consensus
>> recommendation in Work
>> >>>>> Stream 2, and (ii) approved by each
>> of the
>> >>>>> CCWG-Accountability’s chartering
>> organizations and (iii) the
>> >>>>> Board, (in each thecase of the
>> Board, using the same process
>> >>>>> and criteria used by the Boardto
>> consider the as for Work
>> >>>>> Stream 1 Recommendations).____
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> (b) No person or entity shall be
>> entitled to invoke the
>> >>>>> reconsideration process provided in
>> Section 4.2, or the
>> >>>>> independent review process provided
>> in Section 4.3, based
>> >>>>> solely on the inclusion of the Core
>> Value set forth in
>> >>>>> Section 1.2(b)(viii) (i) until after
>> the FOI-HR contemplated
>> >>>>> by Section 27.3(a) is in place or
>> (ii) for actions of ICANN
>> >>>>> or the Board that occurred prior to
>> the____
>> >>>>>
>> >>>>> effectiveness of the FOI-HR.____
>> >>>>>
>> >>>>> Clean:____
>> >>>>>
>> >>>>> *Section 27.3. HUMAN RIGHTS____*
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> (a) The Core Value set forth in
>> Section 1.2(b)(viii) shall
>> >>>>> have no force or effect unless and
>> until a framework of
>> >>>>> interpretation for human rights
>> (“*FOI-HR*”) is (i) approved
>> >>>>> for submission to the Board by the
>> CCWG-Accountability as a
>> >>>>> consensus recommendation in Work
>> Stream 2 and (ii) approved
>> >>>>> by the Board, in each case, using
>> the same process and
>> >>>>> criteria as for Work Stream 1
>> Recommendations.____
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> (b) No person or entity shall be
>> entitled to invoke the
>> >>>>> reconsideration process provided in
>> Section 4.2, or the
>> >>>>> independent review process provided
>> in Section 4.3, based
>> >>>>> solely on the inclusion of the Core
>> Value set forth in
>> >>>>> Section 1.2(b)(viii) (i) until after
>> the FOI-HR contemplated
>> >>>>> by Section 27.3(a) is in place or
>> (ii) for actions of ICANN
>> >>>>> or the Board that occurred prior to
>> the____
>> >>>>>
>> >>>>> effectiveness of the FOI-HR.____
>> >>>>>
>> >>>>> Kind regards, ____
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> Holly and Rosemary____
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>> *HOLLY* *J. GREGORY*
>> >>>>> Partner and Co-Chair
>> >>>>> Corporate Governance & Executive
>> Compensation Practice Group____
>> >>>>>
>> >>>>> *Sidley Austin LLP*
>> >>>>> 787 Seventh Avenue
>> >>>>> New York, NY 10019
>> >>>>> +1 212 839 5853
>> <tel:%2B1%20212%20839%205853>
>> >>>>> holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>
>> >>>>> <mailto:holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>
>> <mailto:holly.gregory at sidley.com
>> <mailto:holly.gregory at sidley.com>>
>> >>>>> www.sidley.com <http://www.sidley.com/>
>> >>>>> <http://www.sidley.com/>
>> <http://www.sidley.com/>____
>> >>>>>
>> >>>>>
>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>> >>>>> <http://www.sidley.com/> *SIDLEY
>> AUSTIN LLP*____
>> >>>>>
>> >>>>> __ __
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> >>>>>
>> ****************************************************************************************************
>> >>>>> This e-mail is sent by a law firm
>> and may contain information
>> >>>>> that is privileged or confidential.
>> >>>>> If you are not the intended
>> recipient, please delete the
>> >>>>> e-mail and any attachments and notify us
>> >>>>> immediately.
>> >>>>>
>> >>>>>
>> >>>>>
>> ****************************************************************************************************
>> >>>>>
>> >>>>
>> >>>>
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>> >> Head of Digital
>> >>
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