[CCWG-ACCT] Regarding mission statement and human rights

Nigel Roberts nigel at channelisles.net
Thu Jan 28 11:18:16 UTC 2016

With respect, I disagree 100% with Tatiana's position.

Whilst I have serious reservations -- based on historical behaviour of 
the then Board -- that a commitment based on a Board committment will be 
upheld, I still think that trusting the Board to deliver on this in a 
Framework/WS2 is preferable to a by-law designed by committee of the 
loudest objectors, which on a strict construction (i.e. taking a strict 
legal interpretation) complete relieves the corporation of any 
obligations to respect human rights *other than those right that have 
"domestic horizontal application") .

We need to place it at the heart of ICANN's approach to its special 
world-wide role.

I suggest WS2 may even examine the UDHR in detail and compare it to 
ICANN at s work. You will probably find that except for the three or four 
core Rights whic are REALLY important to ICANN;s work most of the others 
are either obviously inapplicable, or tritely applicable.

I am therefore surprised to find myself largely agreeing with the 
Board's approach, than the dog's breakfast that proposal seems to have 

On 28/01/16 11:02, Niels ten Oever wrote:
> I think we should indeed keep the discussion clear by discussing issues
> the board might have the current text, based on legal analysis,
> case-law, examples or otherwise.
> If the CCWG doesn't receive this, I think we should go ahead as
> concluded in the last call.
> Best,
> Niels
> PS I would of course very much welcome any concrete commitment of the
> board to human rights and I think it could strengthen the work we'll do
> in WS2 when the bylaw is in place.
> On 01/28/2016 10:51 AM, Tropina, Tatiana wrote:
>> Dear all,
>> I believe that the commitment of the board to support human rights
>> principles is indeed a great constructive move that can be
>> wholeheartedly welcome. However, if it is going to be done to divert
>> the discussion from the main question, namely: what are the risks
>> that the board sees if the bylaw text suggested on the last call
>> (dormant bylaw) will be adopted? - I don't think it can be considered
>> as a proper way forward. It has been discussed many times that
>> commitment to human rights is a community exercise, I doubt that the
>> top down commitment can replace the proper bylaw. Moreover, I am not
>> sure that a resolution to respect human rights adopted in urgency to
>> avoid the bylaw is a good substitute for the approach CCWG suggested
>> after many hours of discussions and many attempts to find a solution
>> that will address everyone's concern. If the board's resolution is
>> what we are getting as an alternative to the bylaw, I am not certain
>> it can be considered as a compromise. I am ready for constructive
>> discussions, but when top-down approach replaces the community
>> exercise I rather become cautious and concerned.
>> Best regards, Tatiana ________________________________________ From:
>> accountability-cross-community-bounces at icann.org
>> [accountability-cross-community-bounces at icann.org] on behalf of
>> Kavouss Arasteh [kavouss.arasteh at gmail.com] Sent: 28 January 2016
>> 10:04 To: accountability-cross-community at icann.org; Bruce Tonkin
>> Subject: Re: [CCWG-ACCT] Regarding mission statement and human
>> rights
>> Bruce, Your Resolution needs to capture major elements of the
>> Recommendation regarding HF WITH A CLEAR ONE OR MORE RESOLVES TO
>> provide the firm committment. Regards Kavouss
>> 2016-01-28 8:58 GMT+01:00 Kavouss Arasteh
>> <kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>>: Yes
>> You are absolutely right. I can not agree more than what you very
>> well described, But THERE ARE MAJOR DIVERGENCE OF VIEWS . We have two
>> options : One which was on the table by CCWG as a possible emerged
>> consensus Another as the Board mentioned BUT to be accompanied by a
>> strong REsolution as a firm committments to respect ,observe and
>> implement the fundamental right as you mentined, That Board's
>> Resolution yet to be drafted agreed by Board ,examined by CCWG and
>> ensorded by CCWG Regards Kavouss
>> 2016-01-28 5:42 GMT+01:00 Seth Johnson
>> <seth.p.johnson at gmail.com<mailto:seth.p.johnson at gmail.com>>:
>> Seriously need to say fundamental rights are the question.  Treaty
>> human rights are weak, and the concern has to be that the transition
>> involves a loss of the strict standard that relates to fundamental
>> rights.  This might have been the standard the NTIA would have been
>> expected to apply in its semiregular reviews of ICANN.  But note,
>> since there's no reference to the constitution (of the US, just by
>> happenstance, could have been any other country with a
>> constitutional basis for rights) but just rights like free speech,
>> the NTIA is free to just say all they would have applied would have
>> been the standards that apply internationally.
>> The UN always says "human rights" and "fundamental freedoms" rather
>> than "fundamental rights" because saying fundamental raises the
>> issue of the fact that treaty-based rights are weak.
>> The international standard is really weak.  There's no way to
>> overrule a treaty on the basis of another treaty, because even if one
>> is on human rights and another is on, say, fighting terror, both are
>> enacted by the same "body" -- participating governments.  So the
>> standard is at best how do the two treaties interact and balance
>> against each other.
>> If you just issue a statement on human rights, they've conned the
>> group again, all along keeping the discussion narrowly focused on
>> the issue of how to structure ICANN -- which never could have
>> addressed the implications of the transition, from the start -- as I
>> think you are seeing.
>> Seth Johnson
>> On Wed, Jan 27, 2016 at 4:06 PM, Bruce Tonkin
>> <Bruce.Tonkin at melbourneit.com.au<mailto:Bruce.Tonkin at melbourneit.com.au>>
>> wrote:
>>> Hello Kavouss,
>>>>> For the Human Rights issue, one suggestion was to follow the
>>>>> Board's request ( Not to include any thing about HR in the
>>>>> transitional/ intermediate Bylaws but receiving the Board's
>>>>> CCWG IMMEDIATELY) enabling CCWG whether it could endorse that
>>>>> and annex it to the Bylaws to cool down those who are worried
>>>>> about the HR.
>>> Thanks for this suggestion.   It is under active consideration by
>>> the Board.
>>> One possible option is that we pass a resolution in support of
>>> human rights principles in our meeting in Singapore next week.
>>> I will provide an update next week.
>>> Regards, Bruce Tonkin
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