[cc-humanrights] Fwd: [CCWG-ACCT] Board comments on Recommendation 6 - Human Rights

Niels ten Oever niels at article19.org
Thu Feb 4 09:02:17 UTC 2016

Hash: SHA256

Dear all,

The CCWG on Accountability has achieved consensus on human rights
commitment in the bylaws (as part of the CCWG proposal) now the board
has agreed to the text proposed by the CCWG.

The interpretation framework will be part of Workstream 2.

Congratulations all. Exciting work ahead!



- -------- Forwarded Message --------
Subject: [CCWG-ACCT] Board comments on Recommendation 6 - Human Rights
Date: Thu, 4 Feb 2016 07:33:34 +0000
From: Bruce Tonkin <Bruce.Tonkin at melbourneit.com.au>
To: CCWG-Accountability <accountability-cross-community at icann.org>

Hello All,

In the spirit of the compromise throughout the CCWG proceedings, the
Board is modifying its position, and is supportive of inserting a
commitment to respect human rights into the ICANN Bylaws as follows:

	"Within its Core Values, ICANN will commit to respect internationally
recognized Human Rights as required by applicable law. This provision
does not create any additional obligation for ICANN to respond to or
consider any complaint, request, or demand seeking the enforcement of
human rights by ICANN. This Bylaw provision will not enter into force
until (1) a Framework of Interpretation for Human Rights (FOI-HR) is
developed by the CCWG-Accountability (or another Cross Community
Working Group chartered for such purpose by one or more Supporting
Organizations or Advisory Committees) as a consensus recommendation in
Work Stream 2 (including Chartering Organizations' approval) and (2)
the FOI-HR is approved by the ICANN Board using the same process and
criteria it has committed to use to consider the Work Stream 1


The clause on the timing of the effective date of the Bylaws provision
addressed many, though not all, of the Board's timing concerns.  There
were still significant concerns regarding some of the other detail,
including possible interpretations that could impose human rights
responsibilities on those with whom ICANN does business, or whether
there are things that ICANN should affirmatively be doing today, in
addition to compliance with law.

One of the most pressing concerns that remained with the language was
on the potential impact on external entities.  The Board remained
concerned that the CCWG's attempt to exclude reach to "entit[ies]
having a relationship with ICANN", could actually be interpreted in a
manner that increases - not insulates - the reach of this provision.
When ICANN is challenged for conduct alleged to be in violation of
applicable laws on human rights, that that challenge could also reach
third parties for alleged failures to protect or enforce human rights
within applicable law.  This could reach entities with or without
contracts, and many of which (including ICANN) have no enforcement
power when it comes to the law.  This is a potential path to placing
an affirmative (and out of mission) obligation to police those with
whom ICANN has relationships for potential failures to protect or
enforce human rights.

This language could leave the door open for those doing business with
ICANN to be held to, for example, the applicable laws in the USA or
another place where ICANN is found to do business.  The applicable law
is not defined as it applies to entities with relationships with
ICANN, nor is that the type of language normally included in Bylaws.

The Board supports the removal of the language that causes it concern,
while allowing the CCWG to move forward with a recommendation to
include a commitment in the Bylaws that ICANN treats human rights as a
core value that guides the decisions and actions of ICANN:.  We hope
this compromise can allow this issue to be closed.

Bruce Tonkin

ICANN Board Liaison to the CCWG
Accountability-Cross-Community mailing list
Accountability-Cross-Community at icann.org

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