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Nigel,<br>
with all respect, I think Holly and others were trying to reply the
question of applicable law. <br>
I will try again.<br>
There are three possible ways to commit to human rights:<br>
- respect <br>
- protect<br>
- enforce.<br>
The latter two are reserved for the governments.<br>
The bylaw is constructed in the following way:<br>
- the first part means the full commitment to <b>respecting</b>
human rights.<br>
- the second part says that those functions reserved for the
governmental intervention (enforce+protect) are outside of the scope
of the ICANN commitment <b>unless </b>there is applicable law.<br>
The second part doesn't exclude the full commitment to respect.<br>
ICANN can't really protect and enforce, in my opinion anyway. It's
not the governmental body, it is not a regulator. <br>
But it can fully commit to respect. And this is what the proposed
bylaw does. The applicable law clause is not applicable to the
"respect" obligation.<br>
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.<br>
This is a clear no-go as we discussed at WP4 and CCWG.<br>
<br>
Best regards<br>
Tatiana <br>
<br>
<div class="moz-cite-prefix">On 28/01/16 14:14, Nigel Roberts wrote:<br>
</div>
<blockquote cite="mid:56AA142A.3060102@channelisles.net" type="cite">With
respect, the point that there is no applicable law has NOT been
addressed, it has been ignored repeated.
<br>
<br>
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.
<br>
<br>
To understand why some of us outside the US are not convinced . .
<br>
<br>
<br>
<br>
<a class="moz-txt-link-freetext" href="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">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</a>
<br>
<br>
<br>
<br>
<br>
<br>
<br>
On 28/01/16 12:50, Matthew Shears wrote:
<br>
<blockquote type="cite">I think we need to follow our process. We
have worked very hard to get
<br>
to the point that we are at on HR. We have, with the help of
outside
<br>
counsel, addressed the concerns that have been raised by various
parts
<br>
of the community. Do we really need to pursue alternative paths
that
<br>
may not satisfy the CCWG and could add additional delays to our
work?
<br>
The CCWG has been discussing Human Rights in ICANN now for a
<br>
considerable period of time and should bring Rec 6 to a close.
<br>
<br>
On 28/01/2016 13:13, Kavouss Arasteh wrote:
<br>
<blockquote type="cite">Nigel
<br>
We do not release the Board once the framework of
interpretation is
<br>
prepared-and approved as results of WS2. We mention that in
the bylaw
<br>
the need that ICANN MUST RESPECT HR but we postpone the exact
text
<br>
reflecting the case . In the meantime , we consider the
Board,s Res.
<br>
Providing a firm commitment to fully respect, observe and
implement
<br>
the referenced HR once we receive that Res. And approve with
out
<br>
without amendment
<br>
Regards
<br>
Kavouss
<br>
<br>
Sent from my iPhone
<br>
<br>
<blockquote type="cite">On 28 Jan 2016, at 12:18, Nigel
Roberts <a class="moz-txt-link-rfc2396E" href="mailto:nigel@channelisles.net"><nigel@channelisles.net></a> wrote:
<br>
<br>
With respect, I disagree 100% with Tatiana's position.
<br>
<br>
Whilst I have serious reservations -- based on historical
behaviour
<br>
of the then Board -- that a commitment based on a Board
committment
<br>
will be upheld, I still think that trusting the Board to
deliver on
<br>
this in a Framework/WS2 is preferable to a by-law designed
by
<br>
committee of the loudest objectors, which on a strict
construction
<br>
(i.e. taking a strict legal interpretation) complete
relieves the
<br>
corporation of any obligations to respect human rights
*other than
<br>
those right that have "domestic horizontal application") .
<br>
<br>
We need to place it at the heart of ICANN's approach to its
special
<br>
world-wide role.
<br>
<br>
I suggest WS2 may even examine the UDHR in detail and
compare it to
<br>
ICANN@s work. You will probably find that except for the
three or
<br>
four core Rights whic are REALLY important to ICANN;s work
most of
<br>
the others are either obviously inapplicable, or tritely
applicable.
<br>
<br>
I am therefore surprised to find myself largely agreeing
with the
<br>
Board's approach, than the dog's breakfast that proposal
seems to
<br>
have reached.
<br>
<br>
<br>
<blockquote type="cite">On 28/01/16 11:02, Niels ten Oever
wrote:
<br>
I think we should indeed keep the discussion clear by
discussing issues
<br>
the board might have the current text, based on legal
analysis,
<br>
case-law, examples or otherwise.
<br>
<br>
If the CCWG doesn't receive this, I think we should go
ahead as
<br>
concluded in the last call.
<br>
<br>
Best,
<br>
<br>
Niels
<br>
<br>
PS I would of course very much welcome any concrete
commitment of the
<br>
board to human rights and I think it could strengthen the
work we'll do
<br>
in WS2 when the bylaw is in place.
<br>
<br>
<blockquote type="cite">On 01/28/2016 10:51 AM, Tropina,
Tatiana wrote:
<br>
Dear all,
<br>
<br>
I believe that the commitment of the board to support
human rights
<br>
principles is indeed a great constructive move that can
be
<br>
wholeheartedly welcome. However, if it is going to be
done to divert
<br>
the discussion from the main question, namely: what are
the risks
<br>
that the board sees if the bylaw text suggested on the
last call
<br>
(dormant bylaw) will be adopted? - I don't think it can
be considered
<br>
as a proper way forward. It has been discussed many
times that
<br>
commitment to human rights is a community exercise, I
doubt that the
<br>
top down commitment can replace the proper bylaw.
Moreover, I am not
<br>
sure that a resolution to respect human rights adopted
in urgency to
<br>
avoid the bylaw is a good substitute for the approach
CCWG suggested
<br>
after many hours of discussions and many attempts to
find a solution
<br>
that will address everyone's concern. If the board's
resolution is
<br>
what we are getting as an alternative to the bylaw, I am
not certain
<br>
it can be considered as a compromise. I am ready for
constructive
<br>
discussions, but when top-down approach replaces the
community
<br>
exercise I rather become cautious and concerned.
<br>
<br>
Best regards, Tatiana
________________________________________ From:
<br>
<a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a>
<br>
[<a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a>] on
behalf of
<br>
Kavouss Arasteh [<a class="moz-txt-link-abbreviated" href="mailto:kavouss.arasteh@gmail.com">kavouss.arasteh@gmail.com</a>] Sent: 28
January 2016
<br>
10:04 To: <a class="moz-txt-link-abbreviated" href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a>;
Bruce Tonkin
<br>
Subject: Re: [CCWG-ACCT] Regarding mission statement and
human
<br>
rights
<br>
<br>
Bruce, Your Resolution needs to capture major elements
of the
<br>
Recommendation regarding HF WITH A CLEAR ONE OR MORE
RESOLVES TO
<br>
provide the firm committment. Regards Kavouss
<br>
<br>
2016-01-28 8:58 GMT+01:00 Kavouss Arasteh
<br>
<<a class="moz-txt-link-abbreviated" href="mailto:kavouss.arasteh@gmail.com">kavouss.arasteh@gmail.com</a><a class="moz-txt-link-rfc2396E" href="mailto:kavouss.arasteh@gmail.com"><mailto:kavouss.arasteh@gmail.com></a>>:
Yes
<br>
You are absolutely right. I can not agree more than what
you very
<br>
well described, But THERE ARE MAJOR DIVERGENCE OF VIEWS
. We have two
<br>
options : One which was on the table by CCWG as a
possible emerged
<br>
consensus Another as the Board mentioned BUT to be
accompanied by a
<br>
strong REsolution as a firm committments to respect
,observe and
<br>
implement the fundamental right as you mentined, That
Board's
<br>
Resolution yet to be drafted agreed by Board ,examined
by CCWG and
<br>
ensorded by CCWG Regards Kavouss
<br>
<br>
2016-01-28 5:42 GMT+01:00 Seth Johnson
<br>
<<a class="moz-txt-link-abbreviated" href="mailto:seth.p.johnson@gmail.com">seth.p.johnson@gmail.com</a><a class="moz-txt-link-rfc2396E" href="mailto:seth.p.johnson@gmail.com"><mailto:seth.p.johnson@gmail.com></a>>:
<br>
Seriously need to say fundamental rights are the
question. Treaty
<br>
human rights are weak, and the concern has to be that
the transition
<br>
involves a loss of the strict standard that relates to
fundamental
<br>
rights. This might have been the standard the NTIA
would have been
<br>
expected to apply in its semiregular reviews of ICANN.
But note,
<br>
since there's no reference to the constitution (of the
US, just by
<br>
happenstance, could have been any other country with a
<br>
constitutional basis for rights) but just rights like
free speech,
<br>
the NTIA is free to just say all they would have applied
would have
<br>
been the standards that apply internationally.
<br>
<br>
The UN always says "human rights" and "fundamental
freedoms" rather
<br>
than "fundamental rights" because saying fundamental
raises the
<br>
issue of the fact that treaty-based rights are weak.
<br>
<br>
The international standard is really weak. There's no
way to
<br>
overrule a treaty on the basis of another treaty,
because even if one
<br>
is on human rights and another is on, say, fighting
terror, both are
<br>
enacted by the same "body" -- participating
governments. So the
<br>
standard is at best how do the two treaties interact and
balance
<br>
against each other.
<br>
<br>
If you just issue a statement on human rights, they've
conned the
<br>
group again, all along keeping the discussion narrowly
focused on
<br>
the issue of how to structure ICANN -- which never could
have
<br>
addressed the implications of the transition, from the
start -- as I
<br>
think you are seeing.
<br>
<br>
<br>
Seth Johnson
<br>
<br>
On Wed, Jan 27, 2016 at 4:06 PM, Bruce Tonkin
<br>
<<a class="moz-txt-link-abbreviated" href="mailto:Bruce.Tonkin@melbourneit.com.au">Bruce.Tonkin@melbourneit.com.au</a><a class="moz-txt-link-rfc2396E" href="mailto:Bruce.Tonkin@melbourneit.com.au"><mailto:Bruce.Tonkin@melbourneit.com.au></a>>
<br>
<br>
wrote:
<br>
<blockquote type="cite">Hello Kavouss,
<br>
<br>
<br>
<blockquote type="cite">
<blockquote type="cite">For the Human Rights issue,
one suggestion was to follow the
<br>
Board's request ( Not to include any thing about
HR in the
<br>
transitional/ intermediate Bylaws but receiving
the Board's
<br>
FIRM Commitment IN A BOARD'S RESOLUTION APPROVED
AND SENT TO
<br>
CCWG IMMEDIATELY) enabling CCWG whether it could
endorse that
<br>
and annex it to the Bylaws to cool down those who
are worried
<br>
about the HR.
<br>
</blockquote>
</blockquote>
Thanks for this suggestion. It is under active
consideration by
<br>
the Board.
<br>
<br>
One possible option is that we pass a resolution in
support of
<br>
human rights principles in our meeting in Singapore
next week.
<br>
<br>
I will provide an update next week.
<br>
<br>
Regards, Bruce Tonkin
<br>
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