[Wp4] Discrete issue: Which bylaws formulation

Mon Oct 12 06:23:57 UTC 2015

Avri, I agree that principles might be mentioned in the analysis since there was a public comment against them + poll, but I don't see the logic in the argument that one public comment against the inclusion of principles shall make us proposing them as an option for bylaws language...
I wrote in the email exchange yesterday that we have this negative comment from business constituency as well as negative comments from WP4 members so I am aware of this and have no intention to manipulate information :) 
I am not trying so say that this discussion shall be closed, but I seriously don't see how adding Ruggie principles in the proposed language in the document can be justified in the current context. 
I think the compromise solution will be to mention a negative comment from BC and the poll results in the summary of the comments instead of adding the principles into the proposal because I am not sure such inclision reflects either public comments or WP4 consensus. 
Best regards 
Tanya 
________________________________________
From: wp4-bounces at icann.org [wp4-bounces at icann.org] on behalf of Avri Doria [avri at acm.org]
Sent: 12 October 2015 07:11
To: wp4 at icann.org
Subject: Re: [Wp4] Discrete issue: Which bylaws formulation

Ok, so I am confused, i thought the document was both doing comment
analysis and sending forward recommended bylaw text.  while just comment
analysis was the goal for the other groups, i did not think that was the
only goal for this group.

If this is just analysis with no forward looking suggestion of the text
for bylaws, and indeed the Principles were not mentioned in the comments
anywhere (oversight on my part) then you would win.   But they are
mentioned in the comments, if only in a comment by the business
constituency against their inclusion.  BTW, so are the disability rights.

avri

On 11-Oct-15 18:41, Dr. Tatiana Tropina wrote:
> Avri,
> I wouldn't mind to list anything (with the proper rationale, comments
> and discussions) as a possible option but not in the document we are
> working on now.
> The main point is that right now we are summarising public comments.
> This is the very and the only purpose of the current document - and
> there was no suggestion to include Ruggie principles in the public
> comments. Only on the poll - but the poll was created to address
> (several!) public comments suggesting the inclusion of UDHR. We are
> going far beyond the task we are supposed to perform without having even
> a tiny chance to reach an agreement on the issue, which is actually
> irrelevant for the current document.
> Unfortunately, we can't keep it absolutely simple and list none of the
> docs (after deleting Ruggie and whatever else), because UDHR was in the
> comments and this issue has to be addressed/solved somehow. I am
> strongly against the inclusion of UDHR as well, but as much as I dislike
> this proposal I have to be fair and agree that we have to include (in
> brackets) it because it was "agreed" on the call and it appeared in the
> comments.
> We can discuss/include Ruggie and whatever else on a later stage, no? We
> have more options to discuss this later.
> Actually, I stated this so many times already so I probably have to give
> in, stop spamming the mailing list and rather hear what other WP4
> members say :)
> Cheers
> Tanya
>
>
> On 12/10/15 00:11, Avri Doria wrote:
>> Hi,
>>
>> First let me reiterate, I am fine with listing none of the documents.
>>
>> However, if we go beyond that and start listing documents, I believe the
>> Ruggie principles are an important guidance, since they not only include
>> references to the fundamental documents, but it creates a possible
>> framework for actually doing it.  As I am suggesting they only be listed
>> as guidance as a framework.  otherwise it is just a bunch of references
>> that may or may not be applicable with no framework for determining the
>> applicability.
>>
>> But again if we keep it simple and list none of the docs, I am
>> comfortable leaving this one out as well.
>>
>> Or we just move the entire conversation to the CCWG.  I am fine with
>> that as well.
>>
>> avri
>>
>>
>>
>>
>> On 11-Oct-15 17:03, Paul Twomey 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
>>>>> _______________________________________________
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>>>>> Wp4 at icann.org
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