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@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@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)
             +216 52 385 114
----------------------------------------------------------------------------- 

Le 17 janv. 2016 à 18:58, Avri Doria <avri@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
            +216 52 385 114
----------------------------------------------------------------------------- 

Le 17 janv. 2016 à 00:14, Avri Doria <avri@acm.org
<mailto:avri@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
          +216 52 385 114
-----------------------------------------------------------------------------







Le 16 janv. 2016 à 20:04, Schaefer, Brett
<Brett.Schaefer@heritage.org
<mailto:Brett.Schaefer@heritage.org> <mailto:Brett.Schaefer@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
heritage.org
<http://heritage.org/> <http://heritage.org/><http://heritage.org/>

On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org
<mailto:avri@acm.org>
<mailto:avri@acm.org><mailto:avri@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@nielstenoever.net <mailto:lists@nielstenoever.net>
<mailto:lists@nielstenoever.net><mailto:lists@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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