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

[Alan Greenberg]

Bruce, one small question. How can you have a Cross-Community WG 
chartered by just one AC/SO?

Alan

At 04/02/2016 02:33 AM, Bruce Tonkin wrote:
>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
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