[CCWG-ACCT] (no subject)

Greg Shatan gregshatanipc at gmail.com
Tue Jan 19 05:56:54 UTC 2016

The idea that ICANN would be safe from litigation or IRP (or other forms of
challenge or pressure) because it could not be held to any specific
interpretation of the Bylaw is not comforting to me.  First, I think this
is just not true.  This needs to be seen in the context of the Bylaws as a
whole.  The Bylaws are full of verbiage that has no particular
interpretation attached to it.  If ICANN is seen to be in violation of one
of these provisions, I think it's fair to say that any challenge will
involve a determination of what the proper interpretation is.  Second, if
this were true, it would actually be a bad result for the community.  If
ICANN could respond to a community challenge to any Bylaw (including the HR
Bylaw) by saying that there's no specific interpretation of the challenged
provisions, it would be much harder to hold ICANN accountable.  This
essentially gives ICANN the last word on all matters of Bylaws
interpretation.  The Board clearly has a strong role to play in
interpreting the Bylaws -- but giving them *carte blanche *to make their
own interpretation runs counter to everything we've tried to do in this
group.  If we need to accept this argument to move forward with alternative
"a," then that is another strong reason to avoid it.


On Mon, Jan 18, 2016 at 8:05 AM, Niels ten Oever <lists at nielstenoever.net>

> Hi Bruce,
> Thanks for your mail, further reply inline:
> On 01/16/2016 12:42 AM, Bruce Tonkin wrote:
> > Hello Niels,
> >
> >
> >>> First of all it would be great if Samantha could produce some
> >>> examples of caselaw or similar examples, because we have done
> >>> quite extensive research as well as the Institute for Human
> >>> Rights and Business and we didn't find any example of the risk
> >>> that Samantha is referring to.
> >
> > We don't really have any case law as it relates to the IRP panel's
> > interpretation of our bylaws in this area.
> >
> > A court will interpret the national law of the relevant country - and
> > I gather from other postings to this list that national law doesn't
> > usually apply to non-government organizations with respect to human
> > rights.    So I am not surprised that there is little case law as it
> > relates to a non-government organization that you could find.
> > Although laws against slavery etc I would assume apply to the private
> > sector as well as the government sector - so I guess some human
> > rights principles apply to all organizations.
> Governments are responsible to protect human rights, therefore they
> protect human rights by for instance creating laws which uphold them. It
> would be however simplistic to say that it's only human rights law -
> human rights principles are getting incorporated into different areas of
> law. As you note yourself, slavery is illegal in practically all
> countries because of national legislation which are in line with human
> rights. So engaging in slavery is a criminal offense in many countries
> (thus, criminal law is applicable). Such incorporation as well as
> enforcement and protection is solely a duty of the governments.
> >
> > The point Samantha is making is that for IRP purposes - we should
> > wait until our community has defined how human rights principles
> > applies to protocol parameters, domain names and IP addresses.    The
> > IRP panel is not interpreting national laws - it is interpreting
> > whether we are complaint with our bylaws.
> >
> The IRPs, as you know, are there in order to 'compare contested actions
> of the ICANN Board to the Bylaws and Articles of Incorporation and to
> declare whether the ICANN Board has acted consistent with the provisions
> of those documents'.
> In the language developed for the Third Draft report, we suggested the
> transitional bylaw requiring the development and implementation of the
> Framework of Interpretation. So as long as the framework is not in place
> but ICANN is developing it in accordance with the bylaw, ICANN cannot be
> held to a specific interpretation of human rights. An IRP will not be
> able to either reinvent or reinterpret human rights. And the commitment
> is a positive obligation which we'll frame and shape in WS2.
> > So my personal view (not a Board view) is that option (c) might be
> > workable.
> >
> I think option A also provides protection against the risk that you (and
> Samantha) are sketching.
> Happy to continue the discussion!
> Best,
> Niels
> > Regards, Bruce Tonkin
> >
> >
> > _______________________________________________
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> > Accountability-Cross-Community at icann.org
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> >
> --
> Niels ten Oever
> Head of Digital
> Article 19
> www.article19.org
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