[CCWG-ACCT] Fwd: Human Rights Transition Provision: Bylaws Section 27.3(a)
Seun Ojedeji
seun.ojedeji at gmail.com
Mon May 2 21:49:11 UTC 2016
I think we can just agree that paragraph 6(which you referenced) poorly
summarised paragraph 23, a section of which I quote below :
"...This Bylaw provision will not enter into force until (1) a Framework of
Interpretation for Human Rights (FOI-HR) is developed by the
CCWG-Accountability as a
consensus recommendation in Work Stream 2 (including Chartering
Organizations’ approval)
and (2) the FOI-HR is approved by the ICANN Board using the same process
and criteria it has
committed to use to consider the Work Stream 1 recommendations.”
OR the summary was indeed referring to the approval process to be used by
the board as I think that was quite a huge debate during the discussion and
bullet point 6 of paragraph 28 of the report confirms that. Below:
"Considering how, if at all, this Bylaw will affect how ICANN’s operations
are carried outonce an FOI-HR is developed by the CCWG-Accountability as a
consensus recommendation in Work Stream 2 *(including Chartering
Organizations’ approval)* and the *FOI-HR is approved by the ICANN Board
using the same process and criteria it has committed to use to consider the
Work Stream 1 recommendations*"
Pay attention to the sections stared! Again that same bullet point repeated
the phrase "(including Chartering Organizations’ approval)". You may also
want to note that paragraph 23 was actually a proposed bylaw text and not
just one of those texts that can be taken lightly.
I hope that is "clear and unequivocal" enough
Regards
Sent from my LG G4
Kindly excuse brevity and typos
On 2 May 2016 9:20 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
I am also referring to what we [said/wrote]* in the report, which is the
following:
"The proposed draft Bylaw also clarifies that no IRP challenges can be made
on the grounds of this Bylaw until a Framework of Interpretation on Human
Rights (FOI-HR) is developed and approved as part of Work Stream 2
activities. It further clarifies that *acceptance of the **FOI**-HR will
require the same process as for Work Stream 1 recommendations* (as agreed
for all Work Stream 2 recommendations)."
We said ... er sorry .. wrote this *three* times in the report, and we need
to give this effect. The language in the draft circulated for comment is
inconsistent with this statement, to the extent that it appears to require
the positive approval of all Chartering Organizations, which would be a
*different* process than the one used for Work Stream 1 recommendations.
As such, the draft needs to be corrected.
I was on the calls and email exchanges when the parenthetical about the
chartering organizations was inserted in the "bylaws" language in the
Proposal. All that was meant by the insertion was to clarify that the FoI
did not go straight from Working Group approval to the Board, but had to be
reviewed by the Chartering Organizations first, just as the WS1
recommendations were reviewed. There was never any discussion or intent to
imply that a higher standard of approval was needed for the FoI vs. all
other CCWG recommendations.
If anyone can find a clear and unequivocal statement that shows the CCWG
meant to have a heightened standard for the FoI, I'll reconsider my view.
However, I'm confident there is no such statement. We spent many, many
hours of discussing and drafting sections on levels of approval for the
Empowered Community and relating to levels of approval within the GAC. As
such, it defies logic to claim that the simple insertion of a
parenthetical, without any specific discussion or explanation of a
heightened standard, created a requirement for unanimous and/or positive
approval.
Greg
______
* You are inventing a dichotomy where there is none. In either case, I was
referring to the report, not to some verbal utterance. I'm sorry if my
somewhat colloquial use of "said" confused you. It's perfectly acceptable
to use "said" to refer to a written document, at least in everyday usage.
On Mon, May 2, 2016 at 11:10 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
wrote:
> Depends on how you are interpreting the word "bundle"; the WS1 was
> presented as a single document, while some COs decided to approve/respond
> recommendation by recommendation, others approved the document as a whole.
> Perhaps a simple application of the report(if you want to avoid round trips
> proposed in the report without distorting the intent) will be to highlight
> FoI as a single recommendation in WS2 which gives the COs the option to
> approve/reject it out rightly and then the CCWG can determine what to do
> with the FoI based on the outcome of the COs approval process.
>
> On your second point, at this juncture I am not talking about what we said
> but rather about what we WROTE in the report, which is what anyone who have
> not followed the process would rely upon. So do you want to reflect "what
> we said" or "what we wrote" either of them is fine by me but we should be
> clear on the path we have chosen, knowing it's implications as well.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
> On 2 May 2016 3:51 p.m., "Greg Shatan" <gregshatanipc at gmail.com> wrote:
>
>> At no point did we say that the FoI would be bundled with other WS2
>> recommendations as a complete package. Indeed, we've never said that any
>> of the WS2 projects had to be bundled with others.
>>
>> At no point did we say that there would be a special process for
>> approving the FoI. It should be the same as WS1, which contemplates a
>> review by the Chartering Organizations, and then allows the CCWG to forward
>> recommendation to the Board even if less than all of the COs approve of the
>> recommendation.
>>
>> As long as we can find ways to reflect that clearly, we will be carrying
>> out the intent of the Proposal.
>>
>> Greg
>>
>> On Mon, May 2, 2016 at 10:43 AM, Seun Ojedeji <seun.ojedeji at gmail.com>
>> wrote:
>>
>>> Hello Thomas,
>>>
>>> If I process this correctly, it implies approval of the FoI will be done
>>> based on ratification process in the CCWG charter, which is different from
>>> approval of the whole WS2 package as per the charter.
>>>
>>> If that is it, then I will say it's somewhat closer to what was proposed
>>> in the report (even though the report did not mention that CO ratification
>>> of FoI is based on the charter).
>>>
>>> Regards
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>> On 2 May 2016 3:24 p.m., "Thomas Rickert" <thomas at rickert.net> wrote:
>>>
>>>> Hi all,
>>>> Tijani has proposed a solution at the end of his latest e-mail:
>>>>
>>>> I understand that the first proposal made the approval of all the
>>>> chartering organizations necessary, The modification should keep the
>>>> reference to the ratification of the chartering organizations and add "as
>>>> defined in the CCWG charter“.
>>>>
>>>> Would that be a way forward?
>>>>
>>>> Best,
>>>> Thomas
>>>>
>>>>
>>>>
>>>> Am 02.05.2016 um 16:19 schrieb Seun Ojedeji <seun.ojedeji at gmail.com>:
>>>>
>>>> Hello Niels,
>>>>
>>>> I think we may just be playing around with words here, definitely you
>>>> understand Tijani's concern ;-). Let me attempt to spell out(even though I
>>>> have done this before) my understanding of the report which I must say is
>>>> obvious:
>>>>
>>>> 1. The report clearly used the phrase "...*including* approval of
>>>> chartering organisations"
>>>>
>>>> 2. Equating that to mean that it's equivalent to the CO approval within
>>>> CCWG may be out of order because as per the charter irrespective of number
>>>> of support from CO, the package goes to board for approval.
>>>>
>>>> 3. The intent of item 2 above is not the same thing as item 1; What I
>>>> understand is that the FoI as a critical document it is needs to be
>>>> developed during WS2, approved by the CO and incoporated into the WS2
>>>> proposal which is then sent to COs for approval as a complete package.
>>>>
>>>> That said, i will again say that if the goal is to reflect what was
>>>> written in the report then we are out of order. However we may just agree
>>>> that what we have done is correcting a *mistake* in the report through the
>>>> bylaw. In that case, we should present it as such and not on claims that
>>>> the report did not say approval of CO is required.
>>>>
>>>> Regards
>>>>
>>>> Sent from my LG G4
>>>> Kindly excuse brevity and typos
>>>> On 2 May 2016 9:40 a.m., "Niels ten Oever" <lists at nielstenoever.net>
>>>> wrote:
>>>>
>>>>> Hi Tijani,
>>>>>
>>>>> But the chartering organizations are mentioned in the charter of the
>>>>> CCWG, so am not sure if I understand your concern.
>>>>>
>>>>> Best,
>>>>>
>>>>> Niels
>>>>>
>>>>> On 05/02/2016 10:22 AM, Tijani BEN JEMAA wrote:
>>>>> > Hi Niels,
>>>>> >
>>>>> > The last modification of the bylaws proposed by the lawyers didn’t
>>>>> make
>>>>> > any reference to the chartering organizations approval while it is
>>>>> > clearly mentioned in the CCWG last proposal ratified by the
>>>>> chartering
>>>>> > organizations.
>>>>> >
>>>>> > Have a nice day
>>>>> >
>>>>> >
>>>>> -----------------------------------------------------------------------------
>>>>> > *Tijani BEN JEMAA*
>>>>> > Executive Director
>>>>> > Mediterranean Federation of Internet Associations (*FMAI*)
>>>>> > Phone: +216 98 330 114
>>>>> > +216 52 385 114
>>>>> >
>>>>> -----------------------------------------------------------------------------
>>>>> >
>>>>> >
>>>>> >> Le 2 mai 2016 à 09:11, Niels ten Oever <lists at nielstenoever.net
>>>>> >> <mailto:lists at nielstenoever.net>> a écrit :
>>>>> >>
>>>>> >> Dear Tijani and Kavouss,
>>>>> >>
>>>>> >> Could you please indicate where the proposed text is not consistent
>>>>> with
>>>>> >> the report? Concrete references would be helpful for me to better
>>>>> >> understand your point.
>>>>> >>
>>>>> >> Thanks in advance,
>>>>> >>
>>>>> >> Niels
>>>>> >>
>>>>> >>
>>>>> >>
>>>>> >> On 05/02/2016 09:38 AM, Kavouss Arasteh wrote:
>>>>> >>> Tijani +1
>>>>> >>> I fully agree with Tijani
>>>>> >>> People misuse the opportunity to make modifications that were not
>>>>> agreed
>>>>> >>> during the lkast 16 months
>>>>> >>> NO CHANGE NO MODIFICATIONS.
>>>>> >>> During the WSIS I WILL tell everybody that there is no supervision
>>>>> nor
>>>>> >>> control on what we have agreed and the people will make whatever
>>>>> change
>>>>> >>> they wish without the agreements of the others
>>>>> >>>
>>>>> >>> KAVOUSS
>>>>> >>>
>>>>> >>> 2016-05-02 8:14 GMT+02:00 Tijani BEN JEMAA <
>>>>> tijani.benjemaa at topnet.tn
>>>>> >>> <mailto:tijani.benjemaa at topnet.tn>
>>>>> >>> <mailto:tijani.benjemaa at topnet.tn>>:
>>>>> >>>
>>>>> >>> Mathieu and all,
>>>>> >>>
>>>>> >>> The modification proposed doesn’t reflect the CCWG last proposal
>>>>> >>> approved by the chartering organization. I don’t think we are
>>>>> >>> allowed to write bylaws that are not the exact interpretation
>>>>> of the
>>>>> >>> approved document that had the CCWG consensus and the charting
>>>>> >>> organizations ratification.
>>>>> >>>
>>>>> >>>
>>>>> -----------------------------------------------------------------------------
>>>>> >>> *Tijani BEN JEMAA*
>>>>> >>> Executive Director
>>>>> >>> Mediterranean Federation of Internet Associations (*FMAI*)
>>>>> >>> Phone: +216 98 330 114
>>>>> >>> +216 52 385 114
>>>>> >>>
>>>>> -----------------------------------------------------------------------------
>>>>> >>>
>>>>> >>>
>>>>> >>>> Le 2 mai 2016 à 04:23, Kavouss Arasteh <
>>>>> kavouss.arasteh at gmail.com
>>>>> >>>> <mailto:kavouss.arasteh at gmail.com>
>>>>> >>>> <mailto:kavouss.arasteh at gmail.com>> a écrit :
>>>>> >>>>
>>>>> >>>> Mathieu,
>>>>> >>>> Tks
>>>>> >>>> Pls NOTE MY SERIOUS OBJECTIONS to:
>>>>> >>>> 1.NOT MENTIONING REFERNCE TO THE APPROVAL OF CHARTERING
>>>>> >>>> ORGANIZATIONBS in HR
>>>>> >>>> 2. GIVE GIVE A BLANKET AGREEMENT TO THE DOCUMENTS WHICH YET TO
>>>>> BE
>>>>> >>>> DRAFTED.
>>>>> >>>> 3. Making so many changes to the Third proposals . We must
>>>>> avoid
>>>>> >>>> having a new proposal
>>>>> >>>> Kavouss
>>>>> >>>>
>>>>> >>>>
>>>>> >>>> 2016-05-01 22:42 GMT+02:00 Mathieu Weill <
>>>>> mathieu.weill at afnic.fr
>>>>> >>>> <mailto:mathieu.weill at afnic.fr>
>>>>> >>>> <mailto:mathieu.weill at afnic.fr>>:
>>>>> >>>>
>>>>> >>>> Dear colleagues,
>>>>> >>>>
>>>>> >>>> Please find below for your consideration some suggestions
>>>>> from
>>>>> >>>> our lawyers for clarification of the bylaw language
>>>>> regarding
>>>>> >>>> the Human rights FoI. This follows our request during the
>>>>> >>>> previous call.
>>>>> >>>>
>>>>> >>>> Best,
>>>>> >>>>
>>>>> >>>> Mathieu Weill
>>>>> >>>> ---------------
>>>>> >>>> Depuis mon mobile, désolé pour le style
>>>>> >>>>
>>>>> >>>> Début du message transféré :
>>>>> >>>>
>>>>> >>>>> *Expéditeur:* "Gregory, Holly" <holly.gregory at sidley.com
>>>>> >>>>> <mailto:holly.gregory at sidley.com>
>>>>> >>>>> <mailto:holly.gregory at sidley.com>>
>>>>> >>>>> *Date:* 1 mai 2016 19:10:53 UTC+2
>>>>> >>>>> *Destinataire:* "'Mathieu Weill'" <mathieu.weill at afnic.fr
>>>>> >>>>> <mailto:mathieu.weill at afnic.fr>
>>>>> >>>>> <mailto:mathieu.weill at afnic.fr>>, "'Thomas Rickert'"
>>>>> >>>>> <thomas at rickert.net
>>>>> >>>>> <mailto:thomas at rickert.net> <mailto:thomas at rickert.net>>, León
>>>>> Felipe
>>>>> >>>>> Sánchez Ambía <leonfelipe at sanchez.mx
>>>>> >>>>> <mailto:leonfelipe at sanchez.mx>
>>>>> >>>>> <mailto:leonfelipe at sanchez.mx>>, "bylaws-coord at icann.org
>>>>> >>>>> <mailto:bylaws-coord at icann.org>
>>>>> >>>>> <mailto:bylaws-coord at icann.org>" <bylaws-coord at icann.org
>>>>> >>>>> <mailto:bylaws-coord at icann.org>
>>>>> >>>>> <mailto:bylaws-coord at icann.org>>
>>>>> >>>>> *Cc:* ACCT-Staff <acct-staff at icann.org
>>>>> >>>>> <mailto:acct-staff at icann.org>
>>>>> >>>>> <mailto:acct-staff at icann.org>>, "Rosemary E. Fei"
>>>>> >>>>> <rfei at adlercolvin.com
>>>>> >>>>> <mailto:rfei at adlercolvin.com> <mailto:rfei at adlercolvin.com>>,
>>>>> >>>>> "ICANN at adlercolvin.com
>>>>> >>>>> <mailto:ICANN at adlercolvin.com> <mailto:ICANN at adlercolvin.com>"
>>>>> >>>>> <ICANN at adlercolvin.com
>>>>> >>>>> <mailto:ICANN at adlercolvin.com> <mailto:ICANN at adlercolvin.com>>,
>>>>> >>>>> Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>>>>> >>>>> <mailto:sidleyicannccwg at sidley.com>
>>>>> >>>>> <mailto:sidleyicannccwg at sidley.com>>,
>>>>> >>>>> "Samantha.Eisner at icann.org <mailto:
>>>>> Samantha.Eisner at icann.org>
>>>>> >>>>> <mailto:Samantha.Eisner at icann.org>"
>>>>> >>>>> <Samantha.Eisner at icann.org
>>>>> >>>>> <mailto:Samantha.Eisner at icann.org> <mailto:
>>>>> Samantha.Eisner at icann.org>>
>>>>> >>>>> *Objet:* *Human Rights Transition Provision: Bylaws
>>>>> Section
>>>>> >>>>> 27.3(a)*
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>> Dear Co-Chairs and Bylaws Coordinating Group:
>>>>> >>>>>
>>>>> >>>>> On the CCWG call last week, there was a discussion of the
>>>>> >>>>> Bylaws language regarding the transition provision on
>>>>> Human
>>>>> >>>>> Rights*//*[27.3(a)] and it was suggested that the
>>>>> language be
>>>>> >>>>> clarified to ensure that the same approval process used
>>>>> for
>>>>> >>>>> Work Stream 1 would apply. We propose the following
>>>>> >>>>> clarifying edits. We suggest that you share this with the
>>>>> >>>>> CCWG and if there is agreement, the following proposed
>>>>> edit
>>>>> >>>>> should be included in the CCWG’s public comment:____
>>>>> >>>>>
>>>>> >>>>> Redline:____
>>>>> >>>>>
>>>>> >>>>> *Section 27.3. HUMAN RIGHTS____*
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> (a) The Core Value set forth in Section 1.2(b)(viii) shall
>>>>> >>>>> have no force or effect unless and until a framework of
>>>>> >>>>> interpretation for human rights (“*FOI-HR*”) is approved
>>>>> by
>>>>> >>>>> (i) approved for submission to the Board by the
>>>>> >>>>> CCWG-Accountability as a consensus recommendation in Work
>>>>> >>>>> Stream 2, and (ii) approved by each of the
>>>>> >>>>> CCWG-Accountability’s chartering organizations and (iii)
>>>>> the
>>>>> >>>>> Board, (in each thecase of the Board, using the same
>>>>> process
>>>>> >>>>> and criteria used by the Boardto consider the as for Work
>>>>> >>>>> Stream 1 Recommendations).____
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> (b) No person or entity shall be entitled to invoke the
>>>>> >>>>> reconsideration process provided in Section 4.2, or the
>>>>> >>>>> independent review process provided in Section 4.3, based
>>>>> >>>>> solely on the inclusion of the Core Value set forth in
>>>>> >>>>> Section 1.2(b)(viii) (i) until after the FOI-HR
>>>>> contemplated
>>>>> >>>>> by Section 27.3(a) is in place or (ii) for actions of
>>>>> ICANN
>>>>> >>>>> or the Board that occurred prior to the____
>>>>> >>>>>
>>>>> >>>>> effectiveness of the FOI-HR.____
>>>>> >>>>>
>>>>> >>>>> Clean:____
>>>>> >>>>>
>>>>> >>>>> *Section 27.3. HUMAN RIGHTS____*
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> (a) The Core Value set forth in Section 1.2(b)(viii) shall
>>>>> >>>>> have no force or effect unless and until a framework of
>>>>> >>>>> interpretation for human rights (“*FOI-HR*”) is (i)
>>>>> approved
>>>>> >>>>> for submission to the Board by the CCWG-Accountability as
>>>>> a
>>>>> >>>>> consensus recommendation in Work Stream 2 and (ii)
>>>>> approved
>>>>> >>>>> by the Board, in each case, using the same process and
>>>>> >>>>> criteria as for Work Stream 1 Recommendations.____
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> (b) No person or entity shall be entitled to invoke the
>>>>> >>>>> reconsideration process provided in Section 4.2, or the
>>>>> >>>>> independent review process provided in Section 4.3, based
>>>>> >>>>> solely on the inclusion of the Core Value set forth in
>>>>> >>>>> Section 1.2(b)(viii) (i) until after the FOI-HR
>>>>> contemplated
>>>>> >>>>> by Section 27.3(a) is in place or (ii) for actions of
>>>>> ICANN
>>>>> >>>>> or the Board that occurred prior to the____
>>>>> >>>>>
>>>>> >>>>> effectiveness of the FOI-HR.____
>>>>> >>>>>
>>>>> >>>>> Kind regards, ____
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> Holly and Rosemary____
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>> *HOLLY* *J. GREGORY*
>>>>> >>>>> Partner and Co-Chair
>>>>> >>>>> Corporate Governance & Executive Compensation Practice
>>>>> Group____
>>>>> >>>>>
>>>>> >>>>> *Sidley Austin LLP*
>>>>> >>>>> 787 Seventh Avenue
>>>>> >>>>> New York, NY 10019
>>>>> >>>>> +1 212 839 5853
>>>>> >>>>> holly.gregory at sidley.com
>>>>> >>>>> <mailto:holly.gregory at sidley.com> <mailto:
>>>>> holly.gregory at sidley.com>
>>>>> >>>>> www.sidley.com
>>>>> >>>>> <http://www.sidley.com/> <http://www.sidley.com/>____
>>>>> >>>>>
>>>>> >>>>>
>>>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>>>>> >>>>> <http://www.sidley.com/> *SIDLEY AUSTIN LLP*____
>>>>> >>>>>
>>>>> >>>>> __ __
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>>
>>>>> ****************************************************************************************************
>>>>> >>>>> This e-mail is sent by a law firm and may contain
>>>>> information
>>>>> >>>>> that is privileged or confidential.
>>>>> >>>>> If you are not the intended recipient, please delete the
>>>>> >>>>> e-mail and any attachments and notify us
>>>>> >>>>> immediately.
>>>>> >>>>>
>>>>> >>>>>
>>>>> >>>>>
>>>>> ****************************************************************************************************
>>>>> >>>>>
>>>>> >>>>
>>>>> >>>> _______________________________________________
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>>>>> >>
>>>>> >> --
>>>>> >> Niels ten Oever
>>>>> >> Head of Digital
>>>>> >>
>>>>> >> Article 19
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>>>>> >>
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>>>>>
>>>>> --
>>>>> Niels ten Oever
>>>>> Head of Digital
>>>>>
>>>>> Article 19
>>>>> www.article19.org
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