[CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading conclusions
Paul Szyndler
paul.szyndler at auda.org.au
Mon Jan 18 07:57:55 UTC 2016
All,
I have silently, but closely, followed the deliberations on how a
recognition of Human Rights should be incorporated in to ICANN’s corporate
structures and documents.
However, now that we appear to be at a point of choosing between three
clear-cut options, I feel the need to comment and raise a few questions.
I am taking a step back in the discussions and acknowledge that this
perspective may not be popular.
To set the scene:
auDA has made two submissions to previous Public Comment periods where we
unequivocally supported the concept of recognising Human Rights-related
principles within ICANN.
However, we were equally clear in expressing our concerns that a hurried or
partial implementation would be problematic.
These comments were drawn from my previous governmental experience,
observing both individual governments and inter-governmental organisations
grappling with the complex minutiae of how HR statements should be crafted.
I agree with Avri that the departure of the NTIA requires some form of
“backstop” to ensure Human Rights obligations are met but do not agree that
it necessarily requires short-term implementation in order to adequately
display a corporate commitment.
I believe that a carefully-executed FoI is essential.
Wouldn’t a commitment to considered deliberation and implementation through
WS2 be adequate?
Further, what distinguishes the conversation of human rights from our recent
discussion on consumer trust?
Both are “new” issues, not previously incorporated in the Bylaws or
envisioned in the AoC.
>From my reading, when talking about consumer trust, we have all-but agreed
that bylaw changes without adequate deliberation are a bad idea. Hence it
appears likely to be pushed to WS2, where the FoI will be developed. Why
should this not be so for human rights-related amendments?
Overall, I am compelled toward the current “Alternative B”.
But this is not for fear of legal liability / action.
Rather:
1) I value the importance of making sure a challenging issue is
resolved properly and thoroughly; and
2) I believe the WG should apply the same approach as it has done to
similarly complex topics.
I welcome your slings and arrows.
Regards,
Paul
Paul Szyndler | General Manager, International and Government Affairs
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From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg
Shatan
Sent: Monday, 18 January 2016 10:36 AM
To: Dr Eberhard W Lisse <epilisse at gmail.com>
Cc: Lisse Eberhard <directors at omadhina.net>; CCWG Accountability
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading
conclusions
The Third Draft Proposal is actually ambiguous on the issue of implementing
the Human Rights Bylaw, and the Proposal is not accurately represented by
Alternative A. The Third Draft Proposal includes a transitional Bylaw,
which states ""Bylaw xx will be implemented in accordance with the framework
of interpretation to be developed as part of “Work Stream 2”." There is no
further discussion of this language in the Proposal or Annex.
The practical effect of this language is that the Human Rights bylaw cannot
be implemented until the framework of interpretation is developed in WS2.
The bylaw cannot be implemented any earlier than that, because it would then
be impossible to implement the bylaw "in accordance with the framework of
interpretation."
As such, Alternative C is actually closer to the intent of the Third Draft
than Alternative A. Alternative A is essentially incomplete, because it
does not take the transitional bylaw into account.
Greg
On Sun, Jan 17, 2016 at 4:16 PM, Dr Eberhard W Lisse <epilisse at gmail.com
<mailto:epilisse at gmail.com> > wrote:
"Our" agreement? Who is "we"?
Never mind that ALAC can have their mind changed for them any time.
el
--
Sent from Dr Lisse's iPad mini 4
On 17 Jan 2016, at 22:55, Tijani BEN JEMAA <tijani.benjemaa at benjemaa.com
<mailto:tijani.benjemaa at benjemaa.com> > wrote:
Avri,
You know that I’m not against including ICANN human rights commitment into
its bylaw assuming that it will be limited to the ICANN mission. I don’t
understand that we want to include such commitments in the bylaws before we
define the interpretation that will insure that they will only be applied
according to the limited ICANN mission.
Our agreement was to have a high level mention about those commitments in
the CCWG proposal for Work Stream 1, and address the whole issue in Work
Stream 2 to be included in the bylaws (commitments + interpretation).
-----------------------------------------------------------------------------
Tijani BEN JEMAA
Directeur Exécutif
Fédération Méditerranéenne des associations d'Internet (FMAI)
Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114>
+216 52 385 114 <tel:%2B216%2052%20385%20114>
-----------------------------------------------------------------------------
Le 17 janv. 2016 à 18:58, Avri Doria <avri at acm.org <mailto:avri at acm.org> > a
écrit :
Hi,
There would no legal difference in respect of the laws they need to obey.
There will be a difference in the set of considerations that could be
brought into consideration at the time of IANA contract renewal. The
contract renewal is a checkpoint when NTIA can insure that ICANN is
meeting all of its obligations including the various freedoms guaranteed
by the government's HR obligations, not just the legal ones. rember the
consultations that went on last time. And remmeber that ICANN had to
fix its application in order to gain approval. With transition we lose
this checkpoint and this loss needs something to take its place. In
regard to HR issues, corporate responsibility is the best way to
maintain that commitment. A simple commitment to respect human rights is
the first step toward ICANN accepting its corporate responsibilities on
this and other issues. Choice A is the closest we were able to get to
making a simple first baby step toward ICANN accepting corporate
responsibilities.
avri
On 17-Jan-16 12:05, Tijani BEN JEMAA wrote:
The CCWG-Accountability sought legal advice on whether, upon the
termination of the IANA Functions Contract between ICANN and the NTIA,
ICANN’s specific Human Rights obligations could be called into
question. It
was found that, upon termination of the Contract, there would be no
significant impact on ICANN’s Human Rights obligations.
-----------------------------------------------------------------------------
*Tijani BEN JEMAA*
Directeur Exécutif
Fédération Méditerranéenne des associations d'Internet (*FMAI*)
Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114>
+216 52 385 114 <tel:%2B216%2052%20385%20114>
-----------------------------------------------------------------------------
Le 17 janv. 2016 à 00:14, Avri Doria <avri at acm.org <mailto:avri at acm.org>
<mailto:avri at acm.org>> a écrit :
Hi,
I had understood that much of the opposition expressed by those
supporting B had to do with the fear of legal action. Since that fear
seems not to be fact based, I was thinking some of that opposition has
been answered.
There is also the fact that with the departure of NTIA we have no
backstop for the human rights obligations of the open internet without
declaring a corporate commitment to human rights. This is not one of
those nice to have Accountability changes made while there is a chance.
This is a direct necessity based on losing the governmental backstop,
given their obligation for human rights (whatever we think of their
implementation of their governmental responsibilities).
avri
On 16-Jan-16 15:59, Tijani BEN JEMAA wrote:
Some facts:
* it wasn’t only the board who expressed concerns: some other
comments did
* on the call, there were different views expressed: some were for
option A, others for option B and most for option C
* Option C is a compromise between A and B
Other facts:
* the issue of Human rights was raised at the beginning of our
works, and the position of the CCWG members was « since ICANN is
about names and numbers, and has nothing to do with the content,
no need to address this issue ».
* It was raised again I think in Paris meeting, and the decision was
to address it in work stream 2. and under the insistence of some,
the CCWG decided to have a very high level mention on the issue in
the proposal of Work Stream 1.
-----------------------------------------------------------------------------
*Tijani BEN JEMAA*
Executive Director
Mediterranean Federation of Internet Associations (*FMAI*)
Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114>
+216 52 385 114 <tel:%2B216%2052%20385%20114>
-----------------------------------------------------------------------------
Le 16 janv. 2016 à 20:04, Schaefer, Brett
<Brett.Schaefer at heritage.org <mailto:Brett.Schaefer at heritage.org>
<mailto:Brett.Schaefer at heritage.org> <mailto:Brett.Schaefer at heritage.org>>
a
écrit :
Agree with this. In addition to the Board's comments being the focus
for the rec discussions (at least it appears that way to me) it seems
like unless a comment is raised during the Adobe it is considered
resolved. Not all commenters participate in the Adobe chats, but that
should not mean their comments should be dismissed or downplayed.
__________
________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National
Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097 <tel:202-608-6097>
heritage.org <http://heritage.org/>
<http://heritage.org/> <http://heritage.org/><http://heritage.org/>
On Jan 16, 2016, at 3:11 AM, Avri Doria <avri at acm.org <mailto:avri at acm.org>
<mailto:avri at acm.org>
<mailto:avri at acm.org><mailto:avri at acm.org>> wrote:
Hi,
Was also noticing how little time we spend stepping through all the
comments and answering them. Was wondering how we were coming to
consensus before having done so.
Don't wee need to have a response for all the comments on this draft?
Given that we are using the process we are using, perhaps for each
recommendation we are approaching consensus on we should check against
the comments to see what we may be missing. Each recommendation as it
nears completion could be taken by a few volunteers and checked against
the comments on that recommendation. These small teams could take
responsibility for drafting the responses as well.
I do not dispute the importance of coming to agreement with the Board,
but we must also deal with the rest of the comments in an proper
manner. Especially on areas where finding an agreement point with the
Board is challenging, the comments of the community can give us
direction and an sasist.
avri
On 15-Jan-16 18:50, Robin Gross wrote:
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 <mailto:lists at nielstenoever.net>
<mailto:lists at nielstenoever.net>
<mailto:lists at nielstenoever.net><mailto: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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