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

[Robin Gross]

I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions.  For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder.  Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated.  But it looks like the only concerns placed before us for consideration are the board comments/objectives.  Let’s not forget the others!

Best,
Robin

> On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists at nielstenoever.net> wrote:
> 
> 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,
> 
> Niels
> 
> 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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>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> 
> 
> -- 
> Niels ten Oever
> Head of Digital
> 
> Article 19
> www.article19.org
> 
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