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

Alan Greenberg alan.greenberg at mcgill.ca
Fri Feb 5 16:35:42 UTC 2016

Yup, we agree. I should have picked up on the 
"one" originally, but I was focused on getting 
bogged down because things weren't exactly the same.


At 05/02/2016 02:09 AM, Chris Disspain wrote:
>Hi Alan,
>This wording was from the original CCWG wording.
>I raised the point in my email to the list on 27 January

>>It would not be sufficient for such a 
>>development to occur in a group chartered by 
>>one or more of the SOs and ACs. Such a group 
>>would need to be chartered in the same way as the they CCWG.
>You responded

>>I'm not sure we want to specify "precisely" the 
>>same rules. The CCWG was chartered by five 
>>AC/SOs in late 2014 and belatedly by the SSAC 
>>in mid-2015. It is unclear which AC/SOs would 
>>choose to charter a new CCWG on this subject. 
>>But it is reasonable to say that any future 
>>such effort should work on substantially the 
>>same principles and rules as the 
>>CCWG-Accountability. I mentioned in the chat 
>>today (in reference to IANAL) that I was fond 
>>of several Latin terms used in contracts. 
>>Mutatis mutandis is the operable one here.
>So, I think that means we agree. :-)
>>On 5 Feb 2016, at 16:00 , Alan Greenberg 
>><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca> wrote:
>>Bruce, one small question. How can you have a 
>>Cross-Community WG chartered by just one AC/SO?
>>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."
>>>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.
>>>Bruce Tonkin
>>>ICANN Board Liaison to the CCWG
>>>Accountability-Cross-Community mailing list
>>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
>>Accountability-Cross-Community mailing list
>><mailto:Accountability-Cross-Community at icann.org>Accountability-Cross-Community at icann.org
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