[CCWG-ACCT] Report on Lawyers Call re Human Rights

Greg Shatan gregshatanipc at gmail.com
Thu Jan 21 04:57:50 UTC 2016

I think this addresses a piece of the problem, and its good as far as it
goes.  However, it leaves most of the problem untouched.  Aside from the
IRP, how is ICANN supposed to determine if its conduct violates the Bylaw
before the Framework of Interpretation is available?  How is the community
(or portions of the community) supposed to determine if its conduct
violates the Bylaw before the FoI is available?  What happens if new
policies or programs or reviews are proposed based on the new HR Bylaw?
What happens when the Framework of Interpretation comes on the scene after
a year of ad hoc interpretation of the Bylaw?

While there are not an unlimited number of variables, there were sufficient
and significantly different possibilities discussed in WP4 and the CCWG
that the work of WS2, and particularly the FoI, was commissioned.

One answer is that the Human Rights bylaw simply should not be applied
until its implementation is clarified by the FoI.  But what if there is a
truly egregious Human Rights violation being considered, where there is no
disagreement in the community that it is indeed a violation, no matter what
standard or interpretation is being used?   (It's kind of hard to believe
that ICANN would consider such an egregious violation, but nothing's
impossible.)  That would seem to be an easy case.  But what if the ICANN
Board believes and demonstrates to its own satisfaction that it is not
heading into a Human Rights violation?  Does the Board get the final word
(at least until the FOI is in place)?  What if some stakeholders see a
Bylaws violation and others don't?  How is this resolved?  Does the Bylaw
change how that difference would be resolved today?

I suppose the answer could be that (1) we are reaffirming ICANN's
commitment to Human Rights, not asking it to make new and different
commitments to Human Rights, and (2) we are replacing the backstop of the
US Government (as Avri points out) rather than creating a new and different
Human Rights regime within ICANN.  Both of the tenets indicate that what
ICANN has been doing to date is consistent with its Human Rights
obligations, and thus that extensive new work is not called for.  At the
same time, it maintains ICANN's Human Rights commitments as a bulwark
against degradation of ICANN's [existing] Human Rights standards.  These
two tenets could be used to guide both WS2 and any interpretation of the
Bylaw during the interim period before the FoI is in place.  While these
two tenets seem solidly consistent with our work to date, I don't believe
they are stated as guidance in our Proposal. (If they are, that's great.)
However, if these seem controversial to some, perhaps we need to wait until
the FoI is in place and there is an agreement on how to interpret the Bylaw
before we use it at all.  I think this all feeds back into our discussion
of Options "a", "b" and "c."


On Wed, Jan 20, 2016 at 9:59 PM, León Felipe Sánchez Ambía <
leonfelipe at sanchez.mx> wrote:

> Dear Holly, dear Rosemary,
> Thank you very much for this update.
> I believe the suggested amendment does address concerns on both sides but
> I would like to, of course, hear the feedback from the larger group.
> All,
> The suggested text would, in my view, guarantee that a commitment to
> respect human rights is in place as part of WS1 and would also provide the
> safeguard to avoid the abuse of the bylaw in the meantime the FOI is
> developed.
> Please share your feedback at your earliest convenience so we can continue
> our way forward on this issue and hopefully finalize it in the next call we
> include the item as part of our agenda.
> Thanks to our legal team and ICANN’s legal team for helping us understand
> the different concerns around the issue and proposing a way forward.
> Saludos,
> León
> El 20/01/2016, a las 8:40 p.m., Gregory, Holly <holly.gregory at sidley.com>
> escribió:
> Dear CCWG-ACCT Co-Chairs, Members, Participants and ICANN Staff,
> We had a good discussion  with ICANN lawyers (Sam and John) and with Kevin
> Espinola of Jones Day today as was certified to us regarding the Board’s
> understanding of the Human Rights language that we had proposed (set forth
> below).     As we now understand the Board’s concern, while the language we
> proposed would not create any additional responsibilities beyond what
> currently exists in applicable law, providing a Human Rights commitment  in
> the Bylaws  opens the range of human rights topics to IRP challenge where
> Board action or inaction is perceived by someone to be out of line with
> human rights obligations under applicable law.   Without benefit of the
> further definition around the scope of ICANN’s human rights obligations
> (the Framework for Interpretation) planned for Work Stream 2, in the
> interim there could be a slew of IRP challenges that have little actual
> merit from a legal perspective, placing the IRP panel (which may be
> comprised of persons without significant human rights law understanding) in
> a position of arbitrating a wide range of issues that may be driven by
> divergent  interests that have little relevance to ICANN.  This could
> result in a significant use of ICANN time and attention and scarce IRP
> resources with little actual added value in holding ICANN accountable.
> This is a legitimate concern.   One solution that is in line with the
> discussion around options from the last CCWG call is to assure that the IRP
> process is not available until the Work Stream 2 effort to further
> articulate the human rights Framework for Interpretation is finished.
> The CCWG may wish to consider including in the Bylaws something along the
> following lines (the language in *red* is new; the language in black is
> essentially what we had proposed originally) :
> *Within its Mission and in its operations, ICANN will respect**internationally
> recognized Human Rights. This commitment shall  not* *in any way create
> an obligation for ICANN, or any entity having a* *relationship with
> ICANN, to protect or enforce Human Rights beyond* *what may be required
> by applicable law. In particular, this 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 **is not a valid basis for, and shall not give rise to, any
> IRP process until a Framework of Interpretation is developed as part of
> “Work Stream 2” by the CCWG-Accountability or another Cross Community
> Working Group chartered for such purpose by one or more Supporting
> Organizations or Advisory Committees. I**CANN shall  support the
> establishment and work of such a Group to facilitate development of the
> Framework of Interpretation as promptly as possible.*
> Note that if the CCWG decides to move in this direction, Annex 12 (Work
> Stream 2) should include a reference to the commitment in the last sentence.
> Kind regards,
> Holly and Rosemary
> Partner and Co-Chair
> Global Corporate Governance & Executive Compensation Practice
> *Sidley Austin LLP*+1 212 839 5853
> holly.gregory at sidley.com
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