[Wp4] Discrete issue: Which bylaws formulation

[Greg Shatan]

Let's go back to first principles for a moment.  I think we are losing
sight of our "assignment."

The primary purpose of this document is to provide a neutral synthesis and
analysis of the public comments.

A possible secondary purpose of this document is to provide some guidance
to the CCWG in considering the public comments and how (if at all) the CCWG
Proposal should be revised in light of these comments.

This is not supposed to be a "think piece" independent of the public
comments.  I'm not saying that such a document is inappropriate.  But it's
not our assignment.

I think the topics under discussion at this point would be more appropriate
for another document, and not for the analysis of comments. Indeed, the
very idea that we could have a number of disagreements or open issues in an
analysis of public comments provides a very significant clue that we have
strayed from our task of neutral reportage.  There should be few if any
disagreements when it comes to accurately stating the results of the public
comment period, and indeed, I think there are few if any disagreements with
regard to that part of our document.

It's when we turn to "making news" instead of "reporting news" that we lose
our way.  I don't think these topics are out of place in WP4 or in the
CCWG, but I think they are out of place in this document.  I think they are
more appropriate for the framework or rationale document that we need to
produce, or for some other document that is the output of WP4 (but which is
not the analysis of comments).

At this point, I would very strongly urge us to pare back this document and
to move the WP's comments, discussions, etc. (except the very few that
provide direct guidance to the CCWG in considering a particular comment or
comments) into another document (or documents, if we want to get some
pieces circulating more quickly into the CCWG, while we continue to work on
other pieces).

Greg

On Sun, Oct 11, 2015 at 5:03 PM, Paul Twomey <paul.twomey at argopacific.com>
wrote:

> Nigel
>
> I am of a similar view as Tatiana's below.
>
> My stated concern has always been with some subset sections of the Ruggie
> principles.  Not necessarily with UDHR.
>
> Paul
>
>
> On 10/12/15 6:22 AM, Dr. Tatiana Tropina wrote:
>
>> Nigel,
>> I think there is confusion about the matter we are actually trying to
>> discuss here, namely, which instruments should stay in the bracketed text.
>> You refer to UDHR - but it's not the issue. A reference to UDHR was
>> suggested in the group discussion and we decided that it will stay in
>> the bracketed text of the proposed bylaw language as one of the choices.
>> I am for more general bylaw language, but I can live the inclusion of
>> UDHR and other two legal instruments proposed because they reflect
>> international human rights law. So this bracketed text will stay in the
>> proposed language anyway.
>> The discussion here, however, focuses on the inclusion of the Ruggie
>> principles, not UDHR. And whatever issue is raised as a potential
>> concern - be it legal issue, potential liability or just simply the
>> absence of even a rough consensus between the members of the group on a
>> possible inclusion of Ruggie principles into the bylaw language and
>> possible consequences of such inclusion - it means, IMHO, that we can't
>> propose to include UN Guiding principles.
>> Proper legal instruments, such as UDHR, will stay in brackets as a
>> possible choice in any case.
>> That's how I see it.
>> Best regards
>> Tatiana
>>
>> On 11/10/15 21:00, Nigel Roberts wrote:
>>
>>> Paul
>>>
>>> What legal connection does ICANN have to ccTLDs that would make it
>>> potentially liable in the way you suggest.
>>>
>>> This is a serious question. You have raised it as a /legal/ issue here.
>>>
>>> I repeat my submission that to omit a reference to the applicable
>>> human rights standard (UDHR) instrument could potentially make ICANN
>>> liable under other instruments.
>>>
>>> On 11/10/15 19:51, Paul Twomey wrote:
>>>
>>> ICANN being held legally liable for the actions of ccTLDs, RIRs and
>>>>
>>> _______________________________________________
>>> Wp4 mailing list
>>> Wp4 at icann.org
>>> https://mm.icann.org/mailman/listinfo/wp4
>>>
>>
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>>
> --
> Dr Paul Twomey
> Managing Director
> Argo P at cific
>
> US Cell: +1 310 279 2366
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>
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