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