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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.<br>
Again, the commitment to <b>respect</b> 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.<br>
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. <br>
This is well explained in the note to the proposed bylaw in the
Third Draft report.<br>
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.<br>
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.<br>
Best regards<br>
Tatiana <br>
<br>
<div class="moz-cite-prefix">On 28/01/16 15:05, Nigel Roberts wrote:<br>
</div>
<blockquote cite="mid:56AA2026.3020209@channelisles.net" type="cite">That
is entirely wrong.
<br>
<br>
ICANN must simply respect human rights. That's it.
<br>
<br>
<br>
On 28/01/16 13:22, Dr. Tatiana Tropina wrote:
<br>
<br>
<blockquote type="cite">I am very much against making ICANN a
human rights watchdog and what I
<br>
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>
On 28/01/16 14:14, Nigel Roberts wrote:
<br>
<blockquote type="cite">With respect, the point that there is no
applicable law has NOT been
<br>
addressed, it has been ignored repeated.
<br>
<br>
If ICANN does not accept the Human Rights principles
voluntarily,
<br>
there is no applicable law that requires them to. That why a
<br>
commitment to do so is required, and it needs to be entrenched
so that
<br>
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>
<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>
<br>
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
<br>
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
<br>
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
<br>
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
<br>
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
<br>
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>
<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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