[Ws2-hr] [CCWG-ACCT] HR subgroup question to CCWG plenary

Wed Jan 4 17:37:12 UTC 2017

Brett

If none, the by-law must be given a literal construction.

If that were the case, it would be a nullity, since there is no 
applicable domestic law that requires a private California corporation 
to take account of human rights laws.

So, there must be at least one such instrument, otherwise (using a 
teleological construction) the purpose of the bylaw would be defeated.

On 04/01/17 17:19, Schaefer, Brett wrote:
> Niels,
>
>
>
> You misquoted one of the bullets. It should state, “Consider which
> specific Human Rights conventions or other instruments/, if any,/
>
> should be used by ICANN in interpreting and implementing the Human
> Rights Bylaw.”
>
>
>
> Best,
>
>
>
> Brett
>
>
>
> ------------------------------------------------------------------------
> BrettSchaefer
> Jay Kingham Senior Research Fellow in International Regulatory Affairs
> Margaret Thatcher Center for Freedom Davis Institute for National
> Security and Foreign Policy
> The Heritage Foundation
> 214 Massachusetts Avenue, NE
> Washington, DC 20002
> 202-608-6097
> heritage.org <http://heritage.org/>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf Of
> *Niels ten Oever
> *Sent:* Thursday, December 29, 2016 10:41 AM
> *To:* accountability-cross-community at icann.org
> *Cc:* ws2-hr at icann.org
> *Subject:* [CCWG-ACCT] HR subgroup question to CCWG plenary
>
>
>
> Dear CCWG Plenary,
>
> We hope this email finds you all very well. As you all know we shared
> with you the Framework of Interpretation of the Human Rights bylaw.
> After this the Human Rights Subgroup worked on next steps, which led us
> to taking a close look at our mandate and finding that there are
> different ways of interpreting this. This difference stems, in part,
> from the different constructions of our mandate in Annex 6 and in Annex 12.
>
> That is why we come to you for guidance to see where we are, and where
> we should go next.
>
> In a bit more detail:
>
> Paragraph 14 of Annex 6 of the CCWG reads:
>
> The Human Rights-related activities to be addressed in Work Stream 2 are:
> • Developing a Framework of Interpretation for the Bylaw.
> • Considering which specific Human Rights conventions or other
> instruments should be used by ICANN in interpreting and implementing the
> Bylaw.
> • Considering the policies and frameworks, if any, that ICANN needs to
> develop or enhance in order to fulfill its commitment to Human Rights.
> • Considering how these new frameworks should be discussed and drafted
> to ensure broad multistakeholder involvement in the process, consistent
> with ICANN’s existing processes and protocols.
> • Considering what effect, if any, this Bylaw will have on ICANN’s
> consideration of advice given by the GAC.
> • Considering how, if at all, this Bylaw will affect how ICANN’s
> operations are carried out
>
> Whereas Paragraph 18 of Annex 12 of the CCWG report reads:
>
> 18 To ensure that adding a draft Human Rights Bylaw into the ICANN
> Bylaws does not lead to an expansion of ICANN’s Mission or scope, the
> CCWG-Accountability will develop a designated Framework of
> Interpretation as part of Work Stream 2 and will consider the following
> as it elaborates on the language to be used:
> • Consider which specific Human Rights conventions or other instruments
> should be used by ICANN in interpreting and implementing the Draft Human
> Rights Bylaw.
> • Consider the policies and frameworks, if any, that ICANN needs to
> develop or enhance in order to fulfill its commitment to Human Rights.
> • Consistent with ICANN’s existing processes and protocols, consider how
> these new frameworks should be discussed and drafted to ensure broad
> multistakeholder involvement in the process.
> • Consider what effect, if any, this proposed Bylaw would have on
> ICANN’s consideration of advice given by the Governmental Advisory
> Committee (GAC).
> • Consider how, if at all, this Bylaw will affect how ICANN’s operations
> are carried out.
> • Consider how the interpretation and implementation of this Bylaw will
> interact with existing and future ICANN policies and procedures.
>
> Annex 6 makes it seem like each of the “bullet points” is a separate
> task, starting with the Framework of Interpretation. On the other hand,
> Annex 12 makes it seem like the “bullet points” are not really separate
> tasks, but only items to be considered as we prepare the Framework of
> Interpretation. This makes a significant difference in how we determine
> what work lies before us, and also how we look at the Framework of
> Interpretation we have completed.
>
> In our initial work we focused on providing a Framework of
> Interpretation of the Bylaw, clearly stating how it should be
> interpreted, and we did not focus on how the Bylaw could be
> “operationalized”, even though of course we considered the potential
> consequences this might have.
>
> The question is now, what are the next steps? We see different options:
>
> 1. We're done. The FoI is developed, and under consideration by the plenary.
> 2. We need to have a second look at the FoI and make potential
> amendments to the FoI to give more guidance based on the considerations
> listed in Annex 6.
> 3. We need to produce a new document that responds directly to each of
> the “bullet points,” which could include examples and recommendations on
> what potential next steps could be
> 4. We need to test specific cases on a hypothetical basis to see
> whether the FoI suffices. (in this regard, hypothetical cases suggested
> by the plenary would be helpful.)
>
> We've have made first steps into the direction of step 3, but this led
> us into quite detailed discussions on recommending the use of Human
> Rights Impact Assessments and how and where these could be integrated in
> PDPs and ICANN operations. In these discussions, it felt as though we
> were going into too much detail, and stepping outside of the mandate of
> our Subgroup.
>
> 5. A fifth option could be (and this might be a mix between option 1
> and 3) to issue high-level recommendations on how ICANN and the SO’s and
> AC’s could best operationalize the core value contained in the Human
> Rights Bylaw. These recommendations could include (a) chartering a GNSO
> Working Group on Human Rights to consider and recommend how the Bylaw
> should be taken into account in gTLD policy development and
> implementation, and/or (b) chartering Working Groups in each of the
> other SO’s and AC’s for purposes relevant to their remit, and/or (c)
> chartering a new CCWG on Human Rights to specifically consider the steps
> needed to make the Bylaw operational, and provide guidance to each of
> the SO's and AC's on how they could incorporate the CCWG’s output in
> their processes, as well as discussing measures that could be adopted by
> ICANN, the corporation, with respect to its own internal human
> resources, employment, and contracting practices based on the Bylaw.
>
> We would like to bring these five options in front of the plenary, and
> we would greatly appreciate your thoughts on these and potentially other
> options.
>
> The Human Rights Subgroup wishes you a revitalizing festive season and
> we're greatly looking forward to completing our work in Workstream 2
> with you all in 2017.
>
> All the best,
>
> The CCWG Accountability Human Rights Subgroup
>
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org <http://www.article19.org>
>
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