Fwd: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts
Reposting to the WG as requested . . . -------- Original Message -------- Subject: Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts Date: Thu, 05 Nov 2015 14:39:48 +0000 From: Nigel Roberts <nigel@channelisles.net> Organization: CI Domain Registry To: wp4@icann.org Here's an example. ICANN takes away the management of a ccTLD from a ccTLD manager in a third world country based on false representations from a third party. The responsible person at the manager has little English and is in any event under the pressure of threatened harm to himself or his staff if he objects. ICANN locates a 12 month old copy of the registry database and passes it to the new manager who starts operations out of North America, selling the domains for profit to California startups. (NB: This is a portmanteau stitched together from various situations, so is entirely hypothetical for our purposes). ICANN has on the face of things, infringed at least on two fundamental rights here - intellectual property, and the right to a fair hearing. Your proposed wording could easily be used to eliminate any consequences from this. On 05/11/15 14:26, Nigel Roberts wrote:
I'm fine with the first sentence.
It's the subsequent qualifiers that could easily be interpreted to mean ICANN can ignore it in practice that seem problematic to me.
But no doubt others are better at expressing this than I.
On 05/11/15 14:15, Greg Shatan wrote:
Our very first sentence says that ICANN will respect Human RIghts. Still not seeing the issue.
On Thursday, November 5, 2015, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
The description for the role of private entities is "not at all, unless committed to by the private entity". So there's a major misunderstanding, as there is in the role played by ICANN as regards ccTLDs.
Here's a better formulation (from a US private corporation, no less)
"ExxonMobil actively promotes respect for human rights and is committed to complying with all applicable laws and regulations. "
On 05/11/15 13:44, Greg Shatan wrote:
Nigel,
Can you explain your issue? I can't discern it from your statement.
If it's with the "protect or enforce" language, it's my understanding that those roles are played by governments, while the descriptor for the role of private entities is "respect." I think our document makes that clear, but if it could be clearer, your suggestions are appreciated.
Thanks!
Greg
On Thursday, November 5, 2015, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
I have to say that I am rather dissatisfied with this camel.
I see it translates as
"Within its mission and in its operations, ICANN will respect internationally recognized human rights. But really it won't."
Thus qualifer, which will eviscerate any commitment whatsoever to basic standards of respect for human rights in a privatised ICANN, means that ICANN is not worthy of transition until a meaningful committment is produced.
On 03/11/15 13:58, McAuley, David wrote:
I also want to thank Tatiana, Greg, Niels, Leon, and Matthew for this.
I had a long-planned family event and did not see this final version until our CCWG call(1am my time) and so I probably surprised you by asking for a tweak. Sorry to take you by surprise like that.
Here is the paragraph I sought a tweak on:
/Within its mission and in its operations, ICANN will respect internationally recognized human rights. This commitment does not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce human rights. In particular, this does not create any obligation for ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN./
//
My concern was that the phrase */or any entity having a relationship with ICANN* / in the second sentence did not appear in the third before the words “/to respond”/.
Yes, that would add to the “clunkiness” of the wording but the concern (the usual suspect) is that complainants lawyers will pick that difference apart to the great detriment of those having a relationship with ICANN. And that is why I ask for the change – and am glad our outside counsel will have a go at this in the end.
Again, many thanks all.
David McAuley
*From:*wp4-bounces@icann.org [mailto:wp4-bounces@icann.org] *On Behalf Of *León Felipe Sánchez Ambía *Sent:* Monday, November 02, 2015 8:51 PM *To:* Greg Shatan *Cc:* acct-staff@icann.org; wp4@icann.org *Subject:* Re: [Wp4] WP4 Deliverable: Elaborating an ICANN Commitment to Human RIghts
Dear Greg,
Thank you, Tatiana, Niels, Matthew and David for this new document. I think it's a great document that, from my perspective, appropriately reflects the work done in our WP4 and suggests concrete solutions and steps forward.
Will wait for others to comment but I would say it's ok to be delivered and shared with the larger CCWG.
Thanks to all in the WP. You have all made an outstanding job!
Kind regards ,
León
El 02/11/2015, a las 7:36 p.m., Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> escribió:
All:
Attached are Word and PDF versions of a proposed final draft of the deliverable of WP4, which is intended to become part of the next Report of the CCWG.
Niels and Tatiana and Matt went through the document after our call and edited and resolved the proposed changes in the document. I followed with further edits and formatting work. I believe that all of us sought to be neutral /rapporteurs/ carrying out the sense of today's call and the work of our group.
I felt that we needed a section which specifically set out the process and results of our discussions on refining the language of the Bylaw, rather than leaving this to our recommendations in the final section of the document. Therefore, I took the liberty of creating such a section, and hope that you will find that this section reflects our work.
This document also remains available on Google Drive.
I look forward to any comments.
Best regards,
Greg
<Elaborating an ICANN Commitment to Human Rights.docx>
<Elaborating an ICANN Commitment to Human Rights.pdf>
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Hi, Again, from someone not close to this recently so feel free to ignore. On Thu, Nov 05, 2015 at 02:58:39PM +0000, Nigel Roberts wrote:
ICANN takes away the management of a ccTLD from a ccTLD manager in a third world country based on false representations from a third party.
[…] It seems to me that there may be a number of ICANN commitments, values, and bylaws that could have been violated under this hypothetical sketch. I'm assuming that the goal is to ensure the management of the TLD (cc or otherwise) remains with the legitimate party, rather than someone else. I'm trying to understand how fundamental rights help solve the operational problem. If the community mechanisms to force ICANN to behave correctly in this counterfactual situation works, then how do expressions of fundamental rights help? IF the mechanisms do _not_ work without rights, why will they work with them (at least in a way that is useful -- I guess I'm assuming that a satisfactory resolution several years and bankrupting tribunals later doesn't count as "useful"). If the problem is not operational, then I confess I don't understand why ICANN is involved at all: surely the point of the many other proposed accountability measures for ICANN is exactly to keep it appropriately limited to its critical but narrow operational job? I also wonder what one is supposed to do in the case where someone complains that ICANN is collaborating with a government that is abusing human rights. It seems to me that if one focusses on the operational questions for the _practical_ protection of rights, then keeping ICANN's range of decision limited to its responsibilities makes most of the cases where rights would be a problem go away, because ICANN already doesn't have the ability to do anything awful. Again, I don't mean to speak out of turn. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Andrew, revocation of a ccTLD does not fall under the community mechanisms, unless I am gravely mistaken. We all failed to understand some of the past revocations by ICANN , some of which form the basis of Nigel's not so hypothetical narrative. The human right issue is not whether ICANN deals with a government or actually anybody abusing human rights, but how ICANN deals with the parties affected by its actions. This, by the way, turns all back what I have already said and written in the beginning of the year we should not try and redesign a big stick to wave at ICANN so they behave, we should change ICANN so they behave without the stick. But then, perhaps this would also be against the interests of some or other national internet industry lobby. el On 2015-11-05 17:27, Andrew Sullivan wrote:
Hi,
Again, from someone not close to this recently so feel free to ignore.
On Thu, Nov 05, 2015 at 02:58:39PM +0000, Nigel Roberts wrote:
ICANN takes away the management of a ccTLD from a ccTLD manager in a third world country based on false representations from a third party.
[…]
It seems to me that there may be a number of ICANN commitments, values, and bylaws that could have been violated under this hypothetical sketch. I'm assuming that the goal is to ensure the management of the TLD (cc or otherwise) remains with the legitimate party, rather than someone else.
I'm trying to understand how fundamental rights help solve the operational problem. If the community mechanisms to force ICANN to behave correctly in this counterfactual situation works, then how do expressions of fundamental rights help? IF the mechanisms do _not_ work without rights, why will they work with them (at least in a way that is useful -- I guess I'm assuming that a satisfactory resolution several years and bankrupting tribunals later doesn't count as "useful").
If the problem is not operational, then I confess I don't understand why ICANN is involved at all: surely the point of the many other proposed accountability measures for ICANN is exactly to keep it appropriately limited to its critical but narrow operational job?
I also wonder what one is supposed to do in the case where someone complains that ICANN is collaborating with a government that is abusing human rights. It seems to me that if one focusses on the operational questions for the _practical_ protection of rights, then keeping ICANN's range of decision limited to its responsibilities makes most of the cases where rights would be a problem go away, because ICANN already doesn't have the ability to do anything awful.
Again, I don't mean to speak out of turn.
Best regards,
A
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
participants (3)
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Andrew Sullivan -
Dr Eberhard W Lisse -
Nigel Roberts