[CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading conclusions

Niels ten Oever lists at nielstenoever.net
Fri Jan 15 17:03:21 UTC 2016

Dear co-chairs (an all),

I am quite surprised by your proposal to invite members and board to
consider option C since WP4 and CCWG achieved consensus on option A,
which was reinforced by the independent lawyers advice. I really don't
think this work should be disregarded.

The ICANN lawyers did not provide examples, case-law or other documents
to outline any risk. So even though I am very willing to discuss, I see
no reason to only consider option C and I am very surprised that you as
co-chairs argue for that option even though consensus was reached
earlier on option A. As I said in my previous email, it is not
reasonable to consider option C before we agree that we won't proceed
with the option A.

All the best,


On 01/15/2016 05:26 PM, Alice Jansen wrote:
> _Sent on behalf of CoChairs _
> _
> _
> Please find below the main conclusions of our deliberations during call
> #76. The updated document is attached.
> 1.Agreement to rely on target dates instead of hard deadlines, in line
> with general approach agreed for WS2 
> 2. Discussed comments (including Icann Board, RrSG…) requesting that the
> inclusion of human rights language into the bylaws be delayed until the
> proposed framework of interpretation was completed or even only be
> considered in Work Stream 2. 
>     a.Independent lawyer input has been provided and concludes : While
>     the addition of the proposed human rights bylaw provision should not
>     increase the exposure of ICANN to legal liability, we recognize that
>     special interest groups and individuals might seek to bring
>     non-meritorious claims, but the risk of meritless claims is already
>     a risk that ICANN faces.   
>     b. Board clarified that concern included risk that IRP would
>     interpret the Bylaw language and create “case law policy” while the
>     FoI is finalized. 
>     c. Consider Lawyer input suggestion as follows : 
>         i. “ /expressly limiting the jurisdiction of any internal
>         dispute resolution systems within ICANN (such as the IRP) to
>         preclude claims of human rights violations that are not grounded
>         in a specific violation of an applicable law”./
> 3. Members and Board are invited to consider whether option c) could be
> an acceptable way forward
>     a. Confirm recommendation bylaw language as part of WS1, despite
>     concerns expressed 
>     b. Defer bylaw language adoption to WS2, when FoI is finalized
>     c. Adopt adjusted bylaw language as part of WS1 to clarify that it
>     can only be enforced or used in an IRP once the FoI is approved
>     (Such as : “This articles becomes effective 30 days after approval
>     of the FoI…”). 
> Second reading is planned for Tuesday, 19 January.
> Best regards
> Mathieu, Thomas, León
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Niels ten Oever
Head of Digital

Article 19

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