[CCWG-ACCT] inconsistency in bylaws spotted

Sun Apr 24 22:04:43 UTC 2016

You will agree with me that if there is a different process explaining
consensus building for WS2 then it's not really about HR decision making in
WS2 it's about decision making on any item in WS2.

The HR requirements were clear from the report.

1. Consensus in WS2 for the recommendation

2. Approvals of CO(which is not about consensus, it's referring to outright
approval here)

3. Board approval while following the approach used by WS 1

The consensus referred to in point 1 is what is in question and I agree to
clarifying what consensus building model will be used for decision making
in WS 2 but it should be clear it's not specifically an HR issue; Whatever
consensus building model that is applied should affect all issues requiring
decisions, including that of HR/FOI

Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 24 Apr 2016 21:42, "Dr. Tatiana Tropina" <t.tropina at mpicc.de> wrote:

> Hi all,
> I certainly understand that there can be different interpretations of the
> intent of the report.
>
> The item (ii) of the bylaw in the report says: "*consensus recommendation
> in Work Stream 2 *(including Chartering Organizations’ approval)".
>
> We have even have different thresholds for consensus in the report itself,
> which one is applicable here? What is the process for reaching this
> consensus? The same as for WS1? Then we might need a reference to WS1 may
> be? Furthermore: will everything developed in the WS2 require a full
> consensus and approval of all COs? I read the chapter in the bylaws about
> WS2 and it refers to the process and charter of WS1. No requirement for
> full consensus or approval of the all the COs there. Why does not HR bylaw
> refer to the previous section in the bylaw that specifically outlines the
> requirements for Ws, but introduces the approval of all COs instead? I
> don't mind this, but the clarification seems to be necessary.
>
> Is there already a definition of consensus for the purpose of the WS2 and
> if yes, is it the same that has been introduced for HR FOI in HR bylaw
> text?  This is my question.
>
> If the answer is "yes" - then there is no inconsistency. However, I agree
> with Niels that this should be clarified, so we all will be on the same
> page.
>
> Cheers
> Tanya
>
> On 24/04/16 20:44, Seun Ojedeji wrote:
>
> Hi,
>
> Are you saying that the bylaw text is different from the intent of the
> report as I don't think that is the case. The report indeed required
> approval of the CO which was rightly reflected as item ii in the bylaw text.
>
> I therefore think the bylaw text is consistent with the intent of the
> report.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
> On 24 Apr 2016 7:01 p.m., "Niels ten Oever" <lists at nielstenoever.net>
> 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
>>
>>
>>
>> --
>> Niels ten Oever
>> Head of Digital
>>
>> Article 19
>> www.article19.org
>>
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