[CCWG-ACCT] inconsistency in bylaws spotted

Tue Apr 26 14:12:44 UTC 2016

I don’t think we can “change the report” now … indeed, the entire scope of the argument we had earlier was that we could NOT insert anything new into the report because it had already been completed and approved by the chartering organizations and the only thing left was implementation.

I have no opinion on the merits of Greg’s language and whether it is the right thing to do broadly considered – but on process grounds it really cannot be acceptable to redraft language in a way that is “new” and a “change” from our accepted report.

Or, if it is, then I want to go back and talk about the GAC again :)

Paul

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Seun Ojedeji
Sent: Tuesday, April 26, 2016 7:30 AM
To: Greg Shatan <gregshatanipc at gmail.com>
Cc: Sidley ICANN CCWG <sidleyicannccwg at sidley.com>; ICANN at adlercolvin.com; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted

FWIW what Greg proposed is not inline with the text in the report. However if there is consensus (based on CCWG charter) to change the report that was already submitted in the manner proposed then i am fine with it as well.

Regards

On Tue, Apr 26, 2016 at 12:08 AM, Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> > wrote:

Holly and All,

I'm concerned that by reverting to the language in the Proposal, we are perpetuating the language that led to confusion in the first place. It should be clear that this is a "business as usual" process of Chartering Organization review of a CCWG-Accountability consensus recommendations, just as was done with the Proposal.  i would suggest adding the following clarifying language:

“(a) 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 (including Chartering Organizations’ approval as set forth in the CCWG-Accountability Charter), and  (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).”

I look forward to your thoughts.

Greg

On Mon, Apr 25, 2016 at 3:48 PM, Gregory, Holly <holly.gregory at sidley.com <mailto:holly.gregory at sidley.com> > wrote:

Dear CCWG-Accountability,  

We have been following this email stream and in re-reading the language of the Bylaws we understand how the language could be misread to call for a standard higher than what is intended.  Therefore we propose that a clarification would be helpful.  Specifically, to remove any confusion and help assure that the Bylaws are read in a manner that is consistent with the proposal, we recommend the following clarifying change to Section 27.3: 

“(a) 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 (including Chartering Organizations’ approval), and  (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).” 

If you agree, we recommend that you include this in the CCWG’s public comment.  

Kind regards, 

Holly 

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From: accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org>  [mailto:accountability-cross-community-bounces at icann.org <mailto:accountability-cross-community-bounces at icann.org> ] On Behalf Of McAuley, David
Sent: Monday, April 25, 2016 2:12 PM
To: Dr. Tatiana Tropina; accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> 

Subject: Re: [CCWG-ACCT] inconsistency in bylaws spotted

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>  [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 <mailto: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

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