With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated.

If ICANN does not accept the Human Rights principles voluntarily, there is no applicable law that requires them to. That why a commitment to do so is required, and it needs to be entrenched so that a future ICANN Board.

To understand why some of us outside the US are not convinced . .



http://business-humanrights.org/en/bringing-rights-home-four-reasons-why-the-us-must-act-to-curb-rights-abuses-by-companies-domestically-not-just-abroad






On 28/01/16 12:50, Matthew Shears wrote:

I think we need to follow our process.  We have worked very hard to get
to the point that we are at on HR.  We have, with the help of outside
counsel, addressed the concerns that have been raised by various parts
of the community.  Do we really need to pursue alternative paths that
may not satisfy the CCWG and could add additional delays to our work?
The CCWG has been discussing Human Rights in ICANN now for a
considerable period of time and should bring Rec 6 to a close.

On 28/01/2016 13:13, Kavouss Arasteh wrote:

Nigel
We do not release the Board once the framework of interpretation is
prepared-and approved as results of WS2. We mention that in the bylaw
the need that ICANN MUST RESPECT HR but we postpone the exact text
reflecting the case . In the meantime , we consider the Board,s Res.
Providing a firm commitment to fully respect, observe and implement
the referenced HR once we receive that Res. And approve with out
without amendment
Regards
Kavouss

Sent from my iPhone

On 28 Jan 2016, at 12:18, Nigel Roberts <nigel@channelisles.net> wrote:

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@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 reached.

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@icann.org
[accountability-cross-community-bounces@icann.org] on behalf of
Kavouss Arasteh [kavouss.arasteh@gmail.com] Sent: 28 January 2016
10:04 To: accountability-cross-community@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@gmail.com<mailto:kavouss.arasteh@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@gmail.com<mailto:seth.p.johnson@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@melbourneit.com.au<mailto:Bruce.Tonkin@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
FIRM Commitment IN A BOARD'S RESOLUTION APPROVED AND SENT TO
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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