[CCWG-ACCT] Board comments on Recommendation 6 - Human Rights

[Bruce Tonkin]

Hello All,

In the spirit of the compromise throughout the CCWG proceedings, the Board is modifying its position, and is supportive of inserting a commitment to respect human rights into the ICANN Bylaws as follows:


	"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 (or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees) 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."

Rationale:

The clause on the timing of the effective date of the Bylaws provision addressed many, though not all, of the Board's timing concerns.  There were still significant concerns regarding some of the other detail, including possible interpretations that could impose human rights responsibilities on those with whom ICANN does business, or whether there are things that ICANN should affirmatively be doing today, in addition to compliance with law.  

One of the most pressing concerns that remained with the language was on the potential impact on external entities.  The Board remained concerned that the CCWG's attempt to exclude reach to "entit[ies] having a relationship with ICANN", could actually be interpreted in a manner that increases - not insulates - the reach of this provision. When ICANN is challenged for conduct alleged to be in violation of applicable laws on human rights, that that challenge could also reach third parties for alleged failures to protect or enforce human rights within applicable law.  This could reach entities with or without contracts, and many of which (including ICANN) have no enforcement power when it comes to the law.  This is a potential path to placing an affirmative (and out of mission) obligation to police those with whom ICANN has relationships for potential failures to protect or enforce human rights.  

This language could leave the door open for those doing business with ICANN to be held to, for example, the applicable laws in the USA or another place where ICANN is found to do business.  The applicable law is not defined as it applies to entities with relationships with ICANN, nor is that the type of language normally included in Bylaws.  

The Board supports the removal of the language that causes it concern, while allowing the CCWG to move forward with a recommendation to include a commitment in the Bylaws that ICANN treats human rights as a core value that guides the decisions and actions of ICANN:.  We hope this compromise can allow this issue to be closed.

Regards,
Bruce Tonkin

ICANN Board Liaison to the CCWG