Two items on draft bylaws
Dear Leon, Mathieu, and Thomas: In response to your request for participant feedback on the draft bylaws I would like to mention two items: First, about the IRP (Section 4.3). The draft bylaws give the IRP panel the right to change rules of procedure (Section 4.3.(n)(ii)). In this respect the panel seems unconstrained, only having to publish revisions and possibly to get a consensus (not clear of whom - the COs, the EC, the panel, other?). As I recall, the final proposal did not give the panel this right. It seems to me that the community and Board need to retain some oversight here. Annex 07, paragraph 63, indicates that rules of procedure are to be created by the community and approved by the Board. It is true that Annex 07, paragraph 55 says that, "Panel decisions would be determined by a simple majority. Alternatively, this could be included in the category of procedures that the IRP Panel itself should be empowered to set." But this indirect reference to setting rules does not appear to justify displacing the community-development and Board-approval rights when it comes to rules of procedure. And second, about human rights, specifically an implication in Article 27.3.(c) that HR claims might be a proper subject for RR or IRP after the FOI is developed. This implication is not in the Annex 06 bylaw text (paragraph 23), although it appears in explanatory text (paragraph 19). But both bylaw text and explanatory text say that acceptance of the FOI will depend on the same processes followed in WS1, and bylaw text makes clear that the FOI has to be approved by the Board after it follows the same process and criteria it used in WS1. In my opinion it is a mistake to insert this implication in "real" bylaws as the issue is important as well as complex and the WS2 FOI group should have a chance to debate the merits. Thank you, David McAuley
David +1 Kavouss Sent from my iPhone
On 7 Apr 2016, at 23:07, McAuley, David <dmcauley@verisign.com> wrote:
Dear Leon, Mathieu, and Thomas:
In response to your request for participant feedback on the draft bylaws I would like to mention two items:
First, about the IRP (Section 4.3).
The draft bylaws give the IRP panel the right to change rules of procedure (Section 4.3.(n)(ii)). In this respect the panel seems unconstrained, only having to publish revisions and possibly to get a consensus (not clear of whom – the COs, the EC, the panel, other?).
As I recall, the final proposal did not give the panel this right. It seems to me that the community and Board need to retain some oversight here. Annex 07, paragraph 63, indicates that rules of procedure are to be created by the community and approved by the Board.
It is true that Annex 07, paragraph 55 says that, “Panel decisions would be determined by a simple majority. Alternatively, this could be included in the category of procedures that the IRP Panel itself should be empowered to set.”
But this indirect reference to setting rules does not appear to justify displacing the community-development and Board-approval rights when it comes to rules of procedure.
And second, about human rights, specifically an implication in Article 27.3.(c) that HR claims might be a proper subject for RR or IRP after the FOI is developed.
This implication is not in the Annex 06 bylaw text (paragraph 23), although it appears in explanatory text (paragraph 19). But both bylaw text and explanatory text say that acceptance of the FOI will depend on the same processes followed in WS1, and bylaw text makes clear that the FOI has to be approved by the Board after it follows the same process and criteria it used in WS1.
In my opinion it is a mistake to insert this implication in “real” bylaws as the issue is important as well as complex and the WS2 FOI group should have a chance to debate the merits.
Thank you,
David McAuley
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi David, And second, about human rights, specifically an implication in Article 27.3.(c) that HR claims might be a proper subject for RR or IRP after the FOI is developed. This implication is not in the Annex 06 bylaw text (paragraph 23), although it appears in explanatory text (paragraph 19). But both bylaw text and explanatory text say that acceptance of the FOI will depend on the same processes followed in WS1, and bylaw text makes clear that the FOI has to be approved by the Board after it follows the same process and criteria it used in WS1. In my opinion it is a mistake to insert this implication in "real" bylaws as the issue is important as well as complex and the WS2 FOI group should have a chance to debate the merits. I share your concerns regarding section 27.3, but for an entirely different and perhaps philosophically opposite reason. I am of the opinion, supported by the IRP decision in the matter of ICM Registry, LLC v. ICANN ( ICDR Case No. 50 117 T 00224 08, 19 February 2010), that ICANN is currently already obligated to respect and, indeed, to operate in accordance with many of, if not all, human rights laws and principles that may be under consideration for inclusion in the FOI. This obligation springs from Article 4 of ICANN's Articles of Incorporation which oblige ICANN to carry "out its activities in conformity with relevant principles of international law and applicable international conventions". It was specifically held in the ICM case that ICANN is required to "to operate in conformity with relevant general principles of law (such as good faith) as well as relevant principles of international law, applicable international conventions, and the law of the State of California." In support of this holding, due process is a specifically cited as a right ICANN has assumed as a result of this Article (paragraph 58 of ICM v ICANN). My purpose here is not to generate a substantive discussion of my view in this matter but rather is to suggest that it was not the intent of the community to draw back in any way ICANN's current human right commitment through inclusion of the language of section 27.3. My fear is the limiting language of 27.3.c could be read to prohibit recourse to reconsideration or IRP processes to enforce rights already existing under Article 4 of the Articles of Incorporation. If we are to keep 27.3.c I would ask that consideration be given to including clarifying language therein stating that 27.3.c is not intended to limit the ability of parties to refer to other aspects of ICANN's legal acquis that may arguably involve human rights but merely prohibits any reliance on section 27.3 itself in reconsideration requests or independent review processes until such time as the FOI is approved per section 27.3.b. Thanks, Ed Morris
Dear David, We agreed on a interpretation of this in the explanatory text, so I would disagree with changing the interpretation and implementation of that now. Best, Niels On 04/07/2016 11:07 PM, McAuley, David wrote:
And second, about human rights, specificallyan implication in Article 27.3.(c) that HR claims might be a proper subject for RR or IRP after the FOI is developed.
This implication is not in the Annex 06 bylaw text (paragraph 23), although it appears in explanatory text (paragraph 19). But both bylaw text and explanatory text say that acceptance of the FOI will depend on the same processes followed in WS1, and bylaw text makes clear that the FOI has to be approved by the Board after it follows the same process and criteria it used in WS1.
In my opinion it is a mistake to insert this implication in “real” bylaws as the issue is important as well as complex and the WS2 FOI group should have a chance to debate the merits.
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
participants (4)
-
Edward Morris -
Kavouss Arasteh -
McAuley, David -
Niels ten Oever