[CCWG-ACCT] inconsistency in bylaws spotted

[Dr. Tatiana Tropina]

Dear all,

I agree with Niels. I do see inconsistency in the requirement for the
approval from all chartering organisations and support the reference to
the CCWG Accountability charter, that has special procedures on approval
and mechanisms in place, when one of the CO does not approve the
proposal or part of it. Though the "so what" question is still there.
Will the same charter and procedures as WS1 applicable for the WS2? If
yes, why it's only HR FOI that specifically requires the full consensus?
 
Furthermore, if we look at the Final report, there are different
thresholds for consensus: for example, "Three support approval, and no
more than one objection" for fundamental bylaw changes, and others. I
wonder why such a high threshold on the FOI for human rights has been
introduced. If this is done to follow the processes outlined in
CCWG-Accoutability charter, then the reference to the charter is
necessary anyway (though I am a bit lost here, because the Charter was
developed for the proposal submission, not for the implementation).

Anyway, I would be more than grateful if any explanation on the
introduction of the approval from all the CO will follow to clarify this
situation. I do believe there shall be consensus in developing the FOI,
but since the requirement for the full consensus requirement was
definitely not in the final report (or at least I don't see it), I
wonder what the logic is. Many thanks!

Best regards
Tatiana

On 24/04/16 20:01, Niels ten Oever wrote:
> Dear all,
>
> I hope this email finds you well. Upon re-reading the bylaw text I came
> across the following issue which does not seem to be in accordance with
> what we agreed in WS1.
>
> The CCWG report says where it comes to Human Rights:
>
> [ccwg report]
>
>  “Within its Core Values, ICANN will commit to respect internationally
> recognized
>  Human Rights as required by applicable law. This provision does not
> create any
>  additional obligation for ICANN to respond to or consider any
> complaint, request,
>  or demand seeking the enforcement of Human Rights by ICANN. This Bylaw
>  provision will not enter into force until (1) a Framework of
> Interpretation for Human
>  Rights (FOI-HR) is developed by the CCWG-Accountability as a consensus
>  recommendation in Work Stream 2 (including Chartering Organizations’
> approval)
>  and (2) the FOI-HR is approved by the ICANN Board using the same
> process and
>
> criteria it has committed to use to consider the Work Stream 1
> recommendations.”
>
> [/ccwg report]
>
> But when I look at the bylaw text it says:
>
> [proposed bylaw]
>
> The Core Value set forth in Section 1.2(b)(viii) shall have no force or
> effect unless and until a framework of interpretation for human rights
> (“FOI-HR”) is approved by (i) the CCWG-Accountability as a consensus
> recommendation in Work Stream 2, (ii) each of the CCWG-Accountability’s
> chartering organizations and (iii) the Board (in the case of the Board,
> using the same process and criteria used by the Board to consider the
> Work Stream 1 Recommendations).
>
> [/proposed bylaw]
>
> Now it is explicitly required that all Chartering Organizations approve
> the Framework of Interpretation, whereas during WS1 it was agreed that
> for WS2 we would use exactly the same process of approval as for WS1.
>
> What makes this even more divergent is that this clause is only added
> for Human Rights in the proposed bylaws and not for any other bylaw.
> Whereas there was no exceptional procedure for human rights discussed
> for WS2.
>
> What I propose is to refer to the charter of the CCWG on Accountability
> for the decision making of all processes in WS2 (including the decision
> making on the FoI on Human Rights) and not create separate or new
> requirements or processes.
>
> All the best,
>
> Niels
>
>
>