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

Wed Jan 4 19:09:23 UTC 2017

Dear Brett
No . your is not correct.
There is an " or" between the two parts and the qualifier pointed to the
second part not to the first and second.
I have no time to get in another series of disputes with colleagues.
Regards Good night
Kavouss

2017-01-04 19:30 GMT+01:00 Seun Ojedeji <seun.ojedeji at gmail.com>:

> Hello Nigel,
>
> Kindly find inline:
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
> On 4 Jan 2017 6:38 p.m., "Nigel Roberts" <nigel at channelisles.net> wrote:
>
> Brett
>
> If none, the by-law must be given a literal construction.
>
> If that were the case, it would be a nullity,
>
>
> SO: Just to clarify, was the intent of the bylaw entry on HR supposed to
> make ICANN legally bound to some HR requirements? As your comment above
> seem to imply such (re: nullity)
>
> Regards
>
> 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 <(202)%20608-6097>
>> 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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