[CCWG-ACCT] inconsistency in bylaws spotted
Dr. Tatiana Tropina
t.tropina at mpicc.de
Mon Apr 25 18:45:56 UTC 2016
David,
there is a whole section in the bylaw outlining the process for WS2.
Why does HR section establishes something exceptional for Human Rights
is WS2 with quite a high bar instead of referring to WS2 processes? I
personally read "Including CO's approval" clause in the report as a
reference that we decided to follow the same process as in WS1. I
believe this is a very reasonable interpretation,especially when I see
that there is a reference to the WS1 when it comes to the board approval
(in the text you cited).
We can not delete the bylaw language, but I agree with Niels and others
that the clause in the text on the approval wasn't meant to imply the
highest possible bar. It was meant to refer to the WS2 processes. There
is a whole chapter on the WS2 in the bylaw. So the question why
extraordinary process for HR has been introduced has to be answered.
Best regards
Tanya
On 25/04/16 20:12, McAuley, David wrote:
>
> In my personal opinion, I think Tatiana was correct in observing that
> there can be different interpretations in this respect.
>
>
>
> I respectfully don’t think we can now say that decision making
> regarding the FoI in WS2 is simply based on the charter. The charter
> set WS1 in motion and in WS1 we specifically agreed that the HR bylaw
> will not enter into force until, among other things, an FoI is
> developed as a consensus WS2 recommendation “(including Chartering
> Organizations’ approval)” – we cannot delete that quoted bylaw
> language as it means something.
>
>
>
> Here is what the draft bylaw-language in the proposal provides:
>
>
>
> “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.”
>
>
>
> If that requires further clarity it seems to me that it will need to
> be developed in WS2 given that our charge now is to see if the bylaws
> draft tracks the final proposal. In this respect it appears to do so.
>
>
>
> David McAuley
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Dr. Tatiana Tropina
> *Sent:* Sunday, April 24, 2016 4:42 PM
> *To:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] inconsistency in bylaws spotted
>
>
>
> 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 <mailto: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 <http://www.article19.org>
>
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