[CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
avri doria
avri at acm.org
Tue May 3 06:24:19 UTC 2016
+1
On 02-May-16 23:09, Matthew Shears wrote:
> Thanks Greg - hopefully we can finalize this now.
>
> On 5/2/2016 10:20 PM, 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> 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> 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>:
>>>
>>> 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> 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>> 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>>:
>>> >>>
>>> >>> 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>> 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>>:
>>> >>>>
>>> >>>> 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>>
>>> >>>>> *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>>,
>>> "'Thomas Rickert'"
>>> >>>>> <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>>,
>>> "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>>
>>> >>>>> *Cc:* ACCT-Staff <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>>,
>>> >>>>> "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>>,
>>> >>>>> Sidley ICANN CCWG
>>> <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>"
>>> >>>>> <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>
>>> >>>>> 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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>>> >>
>>> >> --
>>> >> Niels ten Oever
>>> >> Head of Digital
>>> >>
>>> >> Article 19
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>>> --
>>> Niels ten Oever
>>> Head of Digital
>>>
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> --
>
> Matthew Shears | Director, Global Internet Policy & Human Rights Project
> Center for Democracy & Technology | cdt.org
> E: mshears at cdt.org | T: +44.771.247.2987
>
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