[Ws2-hr] Fwd: [CCWG-ACCT] Scope of mandate on HR FOI

[Greg Shatan]

All,

I tend to agree for the most part with Tatiana.

We have been asked to "confirm that [the Human Rights subgroup] it has
completed developing the Human Rights FOI per Annex 12."  This can't be a
rubber stamp. We need to satisfy ourselves that this FoI really reflects
*how* and *that *we have considered each of the following:

·         Consider which specific Human Rights conventions or other
instruments, if any, should be used by ICANN in interpreting and
implementing the Human Rights Bylaw.

·         Consider the policies and frameworks, if any, that ICANN needs to
develop or enhance in order to fulfill its commitment to respect 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 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.


Do we want "consider" to be synonymous with "duly take into account" which
can be satisfied by reviewing and considering an element (say, a public
comment) and then ​deciding that nothing will be as a result of that
review?  At the very least, we need to make sure we did the "review and
consider" part.  If no changes need to be made in the FoI on a given point,
then we should be able to say why we came to that conclusion.

*We need to have a substantial discussion to determine whether the FoI
reflects that we have considered each of these elements, and reflects the
outcome of that consideration.*

*Until we do this, I strongly question whether the Framework of
Interpretation document is ready for Public Comment.* If we decided that
separate documents/annexes/etc. were needed, then perhaps this could be put
out for comment.  But I question that as well.  Those really are parts of
the FoI package, and would also need to be put out for Public Comment
before the Bylaw graduates from "dormant" status.  Wouldn't it be better to
have the whole package out there at once?  As an alternative, we could put
the FoI out for a second set of comments while putting the added pieces out
for first comments (and possibly only comments).

​Also, the determination of the Co-Chairs​ was that we follow Annex 12,
rather than Annex 6.  Annex 12 calls for a single integrated document
reflecting all considerations.  Annex 6 calls for follow-on documents.
Since we are going with Annex 12 any additional material needed to reflect
our "consideration" *must be in the FoI itself.*

One last point.  I think that the open-ended invitation to "
develop suggestions for ICANN implementing the HR FOI
​"
 goes beyond our mandate.  The only implementation advice we should be
giving would be as a result of "considering" the 6 bullet points above. One
could say there is an express or implied element of implementation (or more
accuerately "implementation guidance," which is not quite the same thing)
​ in each of these bullet points.  A textual analysis of the Bylaw, no
matter how excellent it is, does not satisfy any of these points.  And
going beyond these points into an unfettered discussion of suggestions for
Implementation would be going too far.

So, I'm sorry to say, we're not there yet.

Greg


​
On Fri, Jan 27, 2017 at 1:15 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:

> Thanks, do find inline:
>
> On Jan 26, 2017 2:11 PM, "León Felipe Sánchez Ambía" <
> leonfelipe at sanchez.mx> wrote:
>
> Dear all,
>
>
> Considering these and other factors the Co-Chairs would recommend that the
> Human Rights sub-group confirm that it has completed developing the Human
> Rights FOI per Annex 12 of the CCWG-Accountability WS1 Recommendations.
>
>
> SO: Exact question that I have been asking as well, which also implies
> that it's not helpful to put the draft FoI to public comment without
> getting clear response on the point above!
>
>
>
> Should the sub-group feel that it should develop suggestions for ICANN
> implementing the HR FOI based on its work to date the Co-Chairs would be
> amenable to this and would invite the HR sub-group to submit any such
> suggestions to the plenary for consideration by early May 2017, if there
> was no objection from the plenary.
>
>
> SO: May I ask the Co-Chairs to clarify what part of the WS1 report
> mandates the HR subgroup to carry out the task above or is this WS2
> assigning a new task to the subgroup?. Like I have said, it seem to me that
> all HR needed to produce was the FoI and they just need to confirm if the
> draft they sent was done is consideration of Annex 12 period!
>
> Regards
>
>
> Best regards,
>
>
> Thomas, Mathieu and León
>
>
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