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>:
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>:
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> 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss I'm not entirely sure, but I THINK we are in violent agreement. I am content if there is a high-level statement in the by-laws. I am most certainly objecting loudly if either by accident or clever drafting (I beleive the latter more likely) the UDHR rights do not have to be respected by the Corporation. On 28/01/16 12:13, 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Nigel, Yes we should be careful . Kavouss 2016-01-28 13:46 GMT+01:00 Nigel Roberts <nigel@channelisles.net>:
Kavouss
I'm not entirely sure, but I THINK we are in violent agreement.
I am content if there is a high-level statement in the by-laws. I am most certainly objecting loudly if either by accident or clever drafting (I beleive the latter more likely) the UDHR rights do not have to be respected by the Corporation.
On 28/01/16 12:13, 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
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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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Matthew Shears | Director, Global Internet Policy & Human Rights Project Center for Democracy & Technology | cdt.org E: mshears@cdt.org | T: +44.771.247.2987 CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner. --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
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... 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Nigel, with all respect, I think Holly and others were trying to reply the question of applicable law. I will try again. There are three possible ways to commit to human rights: - respect - protect - enforce. The latter two are reserved for the governments. The bylaw is constructed in the following way: - the first part means the full commitment to *respecting* human rights. - the second part says that those functions reserved for the governmental intervention (enforce+protect) are outside of the scope of the ICANN commitment *unless *there is applicable law. The second part doesn't exclude the full commitment to respect. ICANN can't really protect and enforce, in my opinion anyway. It's not the governmental body, it is not a regulator. But it can fully commit to respect. And this is what the proposed bylaw does. The applicable law clause is not applicable to the "respect" obligation. I am very much against making ICANN a human rights watchdog and what I am getting from your emails is that you are insisting on it. This is a clear no-go as we discussed at WP4 and CCWG. Best regards Tatiana On 28/01/16 14:14, Nigel Roberts wrote:
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...
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 > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> > > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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That is entirely wrong. ICANN must simply respect human rights. That's it. On 28/01/16 13:22, Dr. Tatiana Tropina wrote:
I am very much against making ICANN a human rights watchdog and what I am getting from your emails is that you are insisting on it. This is a clear no-go as we discussed at WP4 and CCWG.
Best regards Tatiana
On 28/01/16 14:14, Nigel Roberts wrote:
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...
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 >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> >> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Nigel, it means we are on the same page concerning the distinction between respect and enforcement/protection. Then I fail to understand where is the problem. Though I am happy to agree to disagree at this point. Again, the commitment to *respect* human rights is not restricted by any clause of the applicable law in the proposed text of the bylaw. It is a full commitment. In the text of the bylaw. The applicable law clause belongs the sentence, which aims to restrict enforcement and protection - and it will be entirely wrong if ICANN will be force to protect and enforce. It does not restrict the obligation to respect. This is well explained in the note to the proposed bylaw in the Third Draft report. However, my main message was not even about the bylaw text. My message was about the process we decided to follow on the call, the process that can be diverted without the reasonable ground. If there will be a reasonable ground, like e.g. explanation of further risks that the dormant bylaw might entail, I am more than happy to admit that this needs further consideration. Replacing the compromise solution with resolution without explanation and discussion, in my humble opinion, is not the approach to follow. Best regards Tatiana On 28/01/16 15:05, Nigel Roberts wrote:
That is entirely wrong.
ICANN must simply respect human rights. That's it.
On 28/01/16 13:22, Dr. Tatiana Tropina wrote:
I am very much against making ICANN a human rights watchdog and what I am getting from your emails is that you are insisting on it. This is a clear no-go as we discussed at WP4 and CCWG.
Best regards Tatiana
On 28/01/16 14:14, Nigel Roberts wrote:
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...
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 >>> _______________________________________________ >>> Accountability-Cross-Community mailing list >>> Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> >>> >>> >>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote:
ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. (That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.) Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Hi Andrew, For inspiration you could have a look at the lastest report of the CCWP HR: http://is.gd/Uh4gbs Best, Niels On 01/28/2016 03:25 PM, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote:
ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. (That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
Best regards,
A
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Hi, On Thu, Jan 28, 2016 at 03:35:49PM +0100, Niels ten Oever wrote:
For inspiration you could have a look at the lastest report of the CCWP HR: http://is.gd/Uh4gbs
Thanks. I had a look at that before Dublin. As I said in my previous message, I don't especially care how this commitment gets enshrined. I am extremely sceptical that there is any practical difference that flows from it (more on that below). I think therefore that those who are insisting on this or that approach to how the commitment gets expressed (and I include the board in this, but not them exclusively) need to offer a clear example of how one approach makes a difference over the other. As to why I am sceptical: the report you mention seems to suggest a great deal of subsequent report preparation by ICANN. The report also seems to be a little unclear about ICANN's legitimate range of action -- a common problem that has led this CCWG to considerable discussion about ICANN's real mission, and which is (IMO correctly) being clarified in the mission statement as a result of this CCWG's work. What I cannot suss out from the report, though, is an occasion where an explicit commitment to human rights would make any difference to the sort of decision ICANN would in fact make in respect of any ICANN policy. I suppose if I squint I can come up with some sort of new privacy right consideration in the registry data service discussions, but that trade-off (against things like law enforcement considerations) has been a feature of the discussions approximately forever. Most of the free speech considerations are not actually things ICANN has any control over. Those issues are mostly lower in the DNS tree[1]. While ICANN can conceivably influence the behaviour of registrars and registries in that regard, I have a hard time seeing how any of the contemplated rights affirmations would change any actual ICANN policy, because of ICANN's limited mission. Best regards, A [1] I concede that future rounds of root zone expansion could increase ICANN's direct interaction with registrants of names. The difference between a brand owner registering examplecorp.com. (in the com zone) and examplecorp. (in the root zone) boils down to the amount of money the registrant is willing to spend, plus the registrant's willingness to accept that the latter won't work with email. So "brand" TLDs mean that ICANN is dealing directly with registrants of those TLDs. -- Andrew Sullivan ajs@anvilwalrusden.com
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote:
ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval. Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue. Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
On Thu, Jan 28, 2016 at 10:33:59AM -0500, Avri Doria wrote:
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet.
It is a sign of my dimness that I didn't understand that practical goal as the real consequence. Does this mean that a bylaw -- fundamental, whatever -- that specified that any proposed policy that is the result of a PDP must have an analysis for its effects on [list of rights] would satisfy the goal? I wonder if something narrower and more tailored like that would also be attractive to the board.
And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
They're part of the transition for ICANN, but not for the IANA transition for the other communities. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Well, if we are going by similarity of PDP development to legislation, an analogous procedure is exactly how the House of Commons/HMS legislate! I can provide examples. On 28/01/16 15:49, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 10:33:59AM -0500, Avri Doria wrote:
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet.
It is a sign of my dimness that I didn't understand that practical goal as the real consequence. Does this mean that a bylaw -- fundamental, whatever -- that specified that any proposed policy that is the result of a PDP must have an analysis for its effects on [list of rights] would satisfy the goal? I wonder if something narrower and more tailored like that would also be attractive to the board.
And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
They're part of the transition for ICANN, but not for the IANA transition for the other communities.
Best regards,
A
Very well put. On 28/01/16 15:33, Avri Doria wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote:
ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss . Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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Hi, The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process. Without the bylaw, there is no guarantee. avri On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.) I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore? You can only pick one. On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.) I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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Nigel, I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them. What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2. Greg On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net> wrote:
But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an
opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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MAYBE, just maybe, we can put this to bed. Can you construe (deconstruct) the latest language for me, the way you see it, please? As an aside, whilst I have no issue with the word enforcement, since ICANN will not employ blue helmets, I am not sure that IP interests would be that keen on relieving ICANN of its obligation to protect the right to property (on matters properly within mission). On 28/01/16 17:51, Greg Shatan wrote:
Nigel,
I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them.
What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2.
Greg
On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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The "respect/protect/enforce" rubric being used here is lifted from the UN Guiding Principles on Business and Human Rights (aka the Ruggie Principles), which are meant to implement the UN's "protect, respect and remedy" framework. http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.p... In that division of responsibilities, it is the role of governments to protect against human rights abuses and to engage in enforcement (i.e., "prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication") in order to protect against human rights abuses. Meanwhile, business enterprises have the role of respecting human rights, i.e., they should avoid infringing on the internationally recognized human rights of others and should address adverse human rights impacts with which they are involved. That is not to say that ICANN should adopt those exact definitions or that ICANN should adopt the Ruggie Principles at all. There have been concerns expressed regarding how a number of provisions fit ICANN's role, in particular concern about the second prong of "respect": addressing adverse human rights impacts with which they are involved, since that could obligate ICANN to take actions with regard to all of its contractual counterparties and even with regard to ccTLDs. One could argue that ICANN does not fit the mould of a "business enterprise" at all, and that it's role should be different from "respect", at least as laid out in the Ruggie Principles. In other words, mapping the "respect/protect/enforce" concepts against ICANN's Bylaws and activities may not work so well. There are others who would say that the Ruggie Principles work quite well and that any modifications are minor and don't disqualify Ruggie as the starting point for considering ICANN's obligations. This is all food for thought for Work Stream 2, I guess. Greg On Thu, Jan 28, 2016 at 12:59 PM, Nigel Roberts <nigel@channelisles.net> wrote:
MAYBE, just maybe, we can put this to bed.
Can you construe (deconstruct) the latest language for me, the way you see it, please?
As an aside, whilst I have no issue with the word enforcement, since ICANN will not employ blue helmets, I am not sure that IP interests would be that keen on relieving ICANN of its obligation to protect the right to property (on matters properly within mission).
On 28/01/16 17:51, Greg Shatan wrote:
Nigel,
I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them.
What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2.
Greg
On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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+1 This is not an easy fit and does need careful and exhaustive working through in Work Stream 2 Paul T On 1/30/16 8:01 AM, Greg Shatan wrote:
The "respect/protect/enforce" rubric being used here is lifted from the UN Guiding Principles on Business and Human Rights (aka the Ruggie Principles), which are meant to implement the UN's "protect, respect and remedy" framework. http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.p...
In that division of responsibilities, it is the role of governments to protect against human rights abuses and to engage in enforcement (i.e., "prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication") in order to protect against human rights abuses.
Meanwhile, business enterprises have the role of respecting human rights, i.e., they should avoid infringing on the internationally recognized human rights of others and should address adverse human rights impacts with which they are involved.
That is not to say that ICANN should adopt those exact definitions or that ICANN should adopt the Ruggie Principles at all. There have been concerns expressed regarding how a number of provisions fit ICANN's role, in particular concern about the second prong of "respect": addressing adverse human rights impacts with which they are involved, since that could obligate ICANN to take actions with regard to all of its contractual counterparties and even with regard to ccTLDs.
One could argue that ICANN does not fit the mould of a "business enterprise" at all, and that it's role should be different from "respect", at least as laid out in the Ruggie Principles. In other words, mapping the "respect/protect/enforce" concepts against ICANN's Bylaws and activities may not work so well.
There are others who would say that the Ruggie Principles work quite well and that any modifications are minor and don't disqualify Ruggie as the starting point for considering ICANN's obligations.
This is all food for thought for Work Stream 2, I guess.
Greg
On Thu, Jan 28, 2016 at 12:59 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
MAYBE, just maybe, we can put this to bed.
Can you construe (deconstruct) the latest language for me, the way you see it, please?
As an aside, whilst I have no issue with the word enforcement, since ICANN will not employ blue helmets, I am not sure that IP interests would be that keen on relieving ICANN of its obligation to protect the right to property (on matters properly within mission).
On 28/01/16 17:51, Greg Shatan wrote:
Nigel,
I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them.
What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2.
Greg
On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> <mailto:nigel@channelisles.net <mailto:nigel@channelisles.net>>> wrote:
But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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Nigel, I'll give it a shot: Within its Mission and in its operations, ICANN will respect internationally recognized Human Rights. ICANN would be obligated to respect internationally recognized Human Rights, but only to the extent consistent with its mission. Respect might be defined at least in part according to the Ruggie principles, i.e., avoid infringing on the internationally recognized human rights of others), but that is going to require work in Work Stream 2. Again, if we use Ruggie, "internationally recognized Human Rights" would mean "at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work." The reference to the ILO Declaration shows a bit of a mis-fit with ICANN as a business enterprise, since Ruggie is aimed primarily at business's relationship with employees, supply chain, etc., and may not fit so well with an organization whose "product" is technical coordination and the implementation of global policy set by non-employee stakeholders. So this might be good for ICANN's overworked policy staff! Of course, that is a Work Steam 2 discussion.... This commitment shall not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce Human Rights beyond what may be required by applicable law. The key here is that it does not "create an obligation" for ICANN. In other words, it doesn't add any new "protection or enforcement" obligations for ICANN. However, there is nothing in this language that is in any way preventative, nor does it take away (or "relieve") any obligations ICANN may have -- whether in law, ICANN policy, or in contract. As such, it does not prevent ICANN from choosing to do anything within its mission that could be viewed as protecting or enforcing Human Rights regardless of whether its part of applicable law. (I'll save my response on the "applicable law" discussion for a different email.) This sentence also acknowledges that ICANN does have an obligation to follow all applicable laws (including those that protect Human Rights). Ruggie classifies "protecting" and "enforcing" as inherent the powers (and duties) of government, not of a private company. In explaining "protecting" Human Rights, Ruggie refers to a duty to "prevent, investigate, punish and redress [Human Rights] abuse through effective policies, legislation, regulations and adjudication." This implies that "protecting and enforcing" is not merely doing something that might qualify as protecting, enforcing or preventing, etc. Human Rights; it is using the power of the state to do so. (The rest of the Ruggie definition is even more oriented toward what states can do.) Of course, a private company can (and should) try to "prevent [Human Rights] abuse" in its workplace "through effective policies." If I follow Ruggie's logic, that would still be considered "respecting" Human Rights and not protecting or enforcing Human Rights. As such, if you follow Ruggie literally, it could be said that ICANN (not having the power of the state) could not "protect or enforce" Human Rights even if it tried. Of course, ICANN has powers that are different from those of a typical "business enterprise." And "protect and enforce" can be construed more broadly than Ruggie does, so that things businesses do could be called "protecting" and "enforcing." In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request, or demand seeking the enforcement of Human Rights by ICANN. This is intended to insulate ICANN from claims that the new Bylaw creates a new job for ICANN -- Human Rights "enforcer." Again, ICANN could "enforce" Human Rights, if it chose to do so, and if you don't read "enforce" so narrowly that it is only the power of a sovereign state. (If you do read "enforce" narrowly, ICANN couldn't "enforce" anything even if it tried, since it is a private entity -- but that gets us back to the issue that ICANN is not a typical "business enterprise".) This Bylaw provision will not enter into force until a Framework of Interpretation is developed as part of “Work Stream 2” by the CCWG-Accountability or another Cross Community Working Group chartered for such purpose by one or more Supporting Organizations or Advisory Committees. One could say this means the Bylaw is merely symbolic, and does nothing until the FoI is developed and adopted, and is itself "in force." However, it does a little more than that, for better or worse -- it creates a presumption that the particular words of the Bylaw are the rights words for the Bylaw, regardless of where Work Stream 2 takes us. So, if the work of the CCWG-WS2 concludes that these words have "issues" and we'd all be better off with variations, additions, subtractions or wholesale changes, it will be a bit of an uphill battle to remove the "not-yet-in-force-but-already-adopted" language and replace it with "new and improved" language. It may also tend to force WS2 to try and deal with these words and make the best of it, rather than coming out at the end of the process with both a FoI and a matching bylaw. But c'est la vie.... ICANN shall support the establishment and work of such a Group to facilitate development of the Framework of Interpretation as promptly as possible. To paraphrase Warren Zevon, "Give us lawyers, guns and money." Hope that helps, and is not too stultifying. Some may disagree with some of what I've said, but hey! that's what Work Stream 2 is for. [I should add that the usual caveat applies, as it always does (this is not legal advice, this does not form a lawyer-client relationship, (but feel free to send money), etc.).] Greg On Thu, Jan 28, 2016 at 12:59 PM, Nigel Roberts <nigel@channelisles.net> wrote:
MAYBE, just maybe, we can put this to bed.
Can you construe (deconstruct) the latest language for me, the way you see it, please?
As an aside, whilst I have no issue with the word enforcement, since ICANN will not employ blue helmets, I am not sure that IP interests would be that keen on relieving ICANN of its obligation to protect the right to property (on matters properly within mission).
On 28/01/16 17:51, Greg Shatan wrote:
Nigel,
I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them.
What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2.
Greg
On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:
But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote:
HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote:
On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it.
I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything.
As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.)
I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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People playing with "words" "Protect and enforce" versus"respect" What is meant by these differentiation? Tks Kavousd Sent from my iPhone
On 28 Jan 2016, at 18:51, Greg Shatan <gregshatanipc@gmail.com> wrote:
Nigel,
I have to disagree with your interpretation of the proposed bylaw. The "applicable law" restriction only applies to ICANN's obligation (if any) to "protect" and "enforce" human rights. It does not apply to ICANN's obligation to "respect" human rights. As such, ICANN would be required to take into account human rights from the posture of "respecting" them.
What exactly does that mean? Well, that's what will be determined in WS2. Avri believes that it would include a human rights impact assessment. Is she right? Wait for WS2. Some think the Ruggie Principles should apply, while others believe that there are significant problems with that idea. Who is right? Wait for WS2. Is this intended to change how ICANN operates (including policy development) or is just a backstop to prevent ICANN from backsliding from its current level of commitment (arguably enforced by the NTIA relationship)? Wait for WS2. Are sequels better than the original or do they tend to be unimaginative, bloody and trite? Wait for WS2.
Greg
On Thu, Jan 28, 2016 at 12:38 PM, Nigel Roberts <nigel@channelisles.net> wrote: But do you want a cleverly drafted by-law that guarantees that human rights are not required to be taken into account (whilst appearing to say the contrary), or a word-is-my-bond committment from the current Board, who are at least, a lot more trustworthy than some Boards that there were heretofore?
You can only pick one.
On 28/01/16 17:25, Avri Doria wrote: Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote: HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
> On 28-Jan-16 09:25, Andrew Sullivan wrote: > On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: > ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.) I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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Agree Von meinem iPhone gesendet
Am 28.01.2016 um 18:28 schrieb Avri Doria <avri@acm.org>:
Hi,
The problem with a firm commitment by the Board is that it something that can be undone or changed by a future Board with ease and at their will. Unlike a bylaw which involves a multistakeholder process.
Without the bylaw, there is no guarantee.
avri
On 28-Jan-16 11:21, Kavouss Arasteh wrote: HR should be referenced in intermediate Bylaws and drafted at WS2. Based on our dis discussions and REC . once FOI is ready the final legal text shall be approved and included in the Definitive Bylaws. In the meantime Board,s firm commitment once approved by CCWG shall apply Kabouss .
Sent from my iPhone
On 28 Jan 2016, at 16:33, Avri Doria <avri@acm.org> wrote:
On 28-Jan-16 09:25, Andrew Sullivan wrote: On Thu, Jan 28, 2016 at 02:05:26PM +0000, Nigel Roberts wrote: ICANN must simply respect human rights. That's it. I wish I knew what this is supposed to mean for ICANN action, though. I'm trying to imagine something where ICANN would act differently in the presence or absence of the bylaw, and I've been unable to come up with anything. As I have mentioned before, for me the prime issue is that human rights impact analysis be done as part of the PDP process as opposed to just waiting to see if some government agency slaps our wrist afterwards for not having considered the impact of, e.g., freedom of expression or an open internet. At this point we just do stuff and then wait to see if NTIA, or any other federal agency, or the GAC lets us know that we have messed up. Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
Without the bylaw such considerations remain out of scope in a future where there is no backstop for our actions. i believe that taking on this responsibility is our only reliable response to the NTIA requirement. And I believe that the fears of such a bylaw have been shown to be emotional and not fact based.
(That's also, I suppose, why I don't really have an opinion about what ought to be done here, except that we should come to a speedy conclusion so that the document can ship and we can get the transition over with.) I see this as a gating issue.
Though I do not think our work can ever be called speedy, even if we were to reach consensus this week. And this is just the start of the transition, unless you also believe that implementation and WS2 are not part of the transition.
avri
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No
That is totally misunderstood due to the fact test once the Resolution agreed/endorsed by CCWG and cross referenced in the intermediateBylaws it could not be changed by ICANN without the agreement of the COMMUNITY .this could be mentioned in the endorsement text. Tks Kavouss
Hello Avri,
Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval.
That makes sense, although I thought it already was in scope. The non-commercial stakeholder group (NCSG) in the GNSO has a long history of raising issues of freedom of expression or an open internet. The gTLD domain name registries and registrars in the GNSO are usually persuaded by such discussions. I am not aware of it ever being ruled out of scope. Why do you think it would be out of scope currently or in the future in the policy development process? I am also not aware of NTIA ever raising this issue in their public policy advice through the GAC . They must think the NCSG is doing a good job already. So not sure how a future ICANN without the NTIA contract would be any different. The NTIA contract itself has no provisions for this topic. The NTIA both before and after transition still retains its ability to raise these public policy issues in the GAC, along with other Governments that support human rights. So I am a little puzzled how the existence of a bylaw helps or hinders the ability for a stakeholder group, supporting organization, or advisory committee to raise the topic as part of the consideration of policy within a PDP. I can see that a bylaw makes it possible to raise an IRP - I just don't understand the policy development aspect. Regards, Brue Tonkin
Avri, Bruce, Colleagues, Avri wrote that respect for Human Rights requires its [Human Rights] being in scope during policy development. Bruce replied that this is sensible, and in his view, already in scope, and cite the NCSG's history of advocacy for freedom of expression or an open internet, and the persuasion of the GNSO on these issues. I'm joining in Bruce's observation that the GNSO has been persuaded in the past (one may insert one or more rationals here), and independent of the NCSG's advocacy for freedom of expression or an open internet, the GNSO's PDP has resulted in, or not greatly encumbered, allocations of namespaces to applicants for linguistic and cultural, municipal, and regional registries. However, Bruce expresses a little puzzlement "how the existence of a bylaw helps or hinders the ability for a stakeholder group, supporting organization, or advisory committee to raise the topic as part of the consideration of policy within a PDP." While there have been some small efforts to involve two ACs I'm familiar with, one by prior participation, one by observation, in GNSO policy development, the usual reading of the Bylaws leave these two ACs, and others, both ACs and SOs, reacting to policy proposals late in the policy development process. However, fixing that, assuming it needs fixing, isn't quite what we have been asked to do -- improve accountability, etc. Eric Brunner-Williams Eugene, Oregon
Hi Bruce. First I cannot count the number of times I have been told that Human Rights considerations were out of scope in ICANN. Certainly NCSG has been tilting at this windmill for a while now, and losing - ever if we were able to put together a Working party on this topic (not even worthy of being a Working Group). I will have to go through the replies we have received on our various Reconsideration requests or pre-IRP discussions to see if those words, or analogous words were ever used. The fact that we keep pushing for it should not be mistaken for ICANN corporate having accepted that human rights is formally in scope. And if it is the case, no reason not to say so in the Bylaws. BTW: I have never been committed to any particular wording of that bylaw, have just accepted the various compromise wording that people have come with. Yet I speak affirmatively of the human rights bylaw. We have people invvoled in this group who have expressed comments to the extent that there is no way that human rights have any relevance for technology or a tech based process - that is it is out of scope for ICANN. In fact I think I read that from comment the Board has made over time on this bylaw. I would need to spend time searching on whether any board member had ever said this directly. As for NTIA and intervention, as I said they oversee ICANN with a very gentle hand. But they are always among us speaking gently about various normative ideals. Given their power of contract renewal, If ICANN were to take overt steps that infringed on the US First amendment rights or even any of the internationally accepted human rights that the US accepts, I have no doubt that it would be a consideration in contract renewal. Incidentally, we are not subject to the first amendment either, that is about the state and the citizen. As a US citizen, I trust NTIA to make sure ICANN does not infringe the first amendment or freedom of expression however it is known. And I trust them to not renew the contract if we ever deviated from the path of respecting human rights. avri On 29-Jan-16 03:33, Bruce Tonkin wrote:
Hello Avri,
Requiring that we respect Human Rights includes it being in scope as a consideration that is understood and discussed when policy is made and considered for approval. That makes sense, although I thought it already was in scope.
The non-commercial stakeholder group (NCSG) in the GNSO has a long history of raising issues of freedom of expression or an open internet. The gTLD domain name registries and registrars in the GNSO are usually persuaded by such discussions. I am not aware of it ever being ruled out of scope. Why do you think it would be out of scope currently or in the future in the policy development process?
I am also not aware of NTIA ever raising this issue in their public policy advice through the GAC . They must think the NCSG is doing a good job already. So not sure how a future ICANN without the NTIA contract would be any different. The NTIA contract itself has no provisions for this topic. The NTIA both before and after transition still retains its ability to raise these public policy issues in the GAC, along with other Governments that support human rights.
So I am a little puzzled how the existence of a bylaw helps or hinders the ability for a stakeholder group, supporting organization, or advisory committee to raise the topic as part of the consideration of policy within a PDP.
I can see that a bylaw makes it possible to raise an IRP - I just don't understand the policy development aspect.
Regards, Brue Tonkin
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Hello Avri,
We have people involved in this group who have expressed comments to the extent that there is no way that human rights have any relevance for technology or a tech based process - that is it is out of scope for ICANN.
Well we have evidence of a policy that was developed by the GNSO and was approved by the Board that these issues have been taken into account in the past. I haven't heard anyone say this shouldn't continue. From: http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm " The string evaluation process must not infringe the applicant's freedom of expression rights that are protected under internationally recognized principles of law." " Strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law. Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS)." " The use of personal data must be limited to the purpose for which it is collected." The multi-stakeholder process has been quite effective I my view in debating topics that take into account some of the principles of human rights. Regards, Bruce Tonkin
Hello Nigel,
With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated.
I think fundamentally as a global organization built on the multi-stakeholder model - the "applicable" law should be the rules we put in our bylaws. This is why we think that the effort should be on identifying the rules that ARE applicable to Internet protocol parameters (including IP addresses and domain names) and building those into the bylaws through a framework of interpretation. The "court" will then be the IRP to make sure that ICANN is abiding by the rules in the bylaws. I gather the reluctance to follow this path is a concern that this work will not happen. The Board can do what it can to commit to working with the community to develop the set of rules, assuming we can all reach agreement on what those rules are. Regards, Bruce Tonkin
On 29/01/16 01:16, Bruce Tonkin wrote:
Hello Nigel,
With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated.
I think fundamentally as a global organization built on the multi-stakeholder model - the "applicable" law should be the rules we put in our bylaws.
Finally! Thank you for this! This is the point exactly. There is no other law applicable to human and fundamental rights other than te corporation adopts voluntarily, such as in its by laws. This is because the corporation is a private sector body. Thus any reference to applicable law in the by law is entirely disingenouus as there is none applican;e to private companies. I would sugges, technically, the only 'applicable law' that could creates any binding obligation in respect of human rigths can only be the California company statutes that make the corporation legally bound to follow what decides and agrees to put in its by-laws and Articles. There's passing previous judicial examination of this -- see the Report of the .XXX IRP. So, it seems to me, what is needed is simply be a more detailed exploration of what the corporation committed to in by its original adoption of Article 4. What is needed is an overarching committment to the corporation carrying out its work with full respect for human rights. What is not needed are technical reservations and derogations, which on past form (see ICANN's submissions in the .XXX case) will be used by ICANN Legal to try weasel out of the corporations' basic obligations, instead of embracing them.
This is why we think that the effort should be on identifying the rules that ARE applicable to Internet protocol parameters (including IP addresses and domain names) and building those into the bylaws through a framework of interpretation.
The "court" will then be the IRP to make sure that ICANN is abiding by the rules in the bylaws.
I gather the reluctance to follow this path is a concern that this work will not happen. The Board can do what it can to commit to working with the community to develop the set of rules, assuming we can all reach agreement on what those rules are.
Regards, Bruce Tonkin
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My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country. So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt. el -- Sent from Dr Lisse's iPad mini 4
On 29 Jan 2016, at 10:52, Nigel Roberts <nigel@channelisles.net> wrote:
On 29/01/16 01:16, Bruce Tonkin wrote: Hello Nigel,
With respect, the point that there is no applicable law has NOT been addressed, it has been ignored repeated.
I think fundamentally as a global organization built on the multi-stakeholder model - the "applicable" law should be the rules we put in our bylaws.
Finally! Thank you for this!
This is the point exactly.
There is no other law applicable to human and fundamental rights other than te corporation adopts voluntarily, such as in its by laws. This is because the corporation is a private sector body. Thus any reference to applicable law in the by law is entirely disingenouus as there is none applican;e to private companies.
I would sugges, technically, the only 'applicable law' that could creates any binding obligation in respect of human rigths can only be the California company statutes that make the corporation legally bound to follow what decides and agrees to put in its by-laws and Articles.
There's passing previous judicial examination of this -- see the Report of the .XXX IRP.
So, it seems to me, what is needed is simply be a more detailed exploration of what the corporation committed to in by its original adoption of Article 4.
What is needed is an overarching committment to the corporation carrying out its work with full respect for human rights.
What is not needed are technical reservations and derogations, which on past form (see ICANN's submissions in the .XXX case) will be used by ICANN Legal to try weasel out of the corporations' basic obligations, instead of embracing them.
This is why we think that the effort should be on identifying the rules that ARE applicable to Internet protocol parameters (including IP addresses and domain names) and building those into the bylaws through a framework of interpretation.
The "court" will then be the IRP to make sure that ICANN is abiding by the rules in the bylaws.
I gather the reluctance to follow this path is a concern that this work will not happen. The Board can do what it can to commit to working with the community to develop the set of rules, assuming we can all reach agreement on what those rules are.
Regards, Bruce Tonkin
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My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws. So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant. Regards, Bruce Tonkin
EXACTLY! We are doing well here. On 29/01/16 12:07, Bruce Tonkin wrote:
My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws.
So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant.
Regards, Bruce Tonkin
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Do you believe that applicable law would be understood as the Californian or US Federal Law? Tks Kavouss Sent from my iPhone
On 29 Jan 2016, at 13:10, Nigel Roberts <nigel@channelisles.net> wrote:
EXACTLY!
We are doing well here.
On 29/01/16 12:07, Bruce Tonkin wrote:
My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws.
So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant.
Regards, Bruce Tonkin
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No, I'm afraid not. Human rights law is generally not a matter of domestic law at all. Certainly not in dualist legal systems (such as the US and the UK) unless there is explicit domestic legislation (as in the UK) and even then is only applicable to 'emanations of the state', not private sector bodies. So, as Bruch puts it, there's no applicable law, except that which ICANN adopts voluntarily (e.g. Article 4, the By-Laws, etc). These apply because California law makes California corporations abide by their own constitutions. On 29/01/16 12:21, Kavouss Arasteh wrote:
Do you believe that applicable law would be understood as the Californian or US Federal Law? Tks Kavouss
Sent from my iPhone
On 29 Jan 2016, at 13:10, Nigel Roberts <nigel@channelisles.net> wrote:
EXACTLY!
We are doing well here.
On 29/01/16 12:07, Bruce Tonkin wrote:
My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws.
So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant.
Regards, Bruce Tonkin
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Bruce, The term "applicable law" shows up in many different types of US legal documents. I am sure there are legal opinions, regulations and other sources that can provide a formal legal understanding of that. I'm sure our counsel would be happy to prepare a memo on "applicable law" if we want one. I'll just speak from the experience gained in 28 years of practicing law in the US. I have always understood it to mean all of the laws that apply to a particular entity or to a particular transaction. I have always understood "laws" to refer to laws made by governmental authorities. I'm quite confident that the other attorneys working on these matters, and their clients, had the same understanding. I'd go so far as to say that this is understanding is the common legal understanding. This would mean that ICANN, at a minimum is subject to US federal law, California state law and also to any local laws in Los Angeles. (No matter where you are in the US, you are always subject to US federal law, the arguments of some armed occupiers in Oregon notwithstanding.) I don't think we have any latitude whatsoever to declare that "applicable laws" in the ICANN Articles of Incorporation or Bylaws refers to the ICANN Bylaws. I have not seen "laws" construed to include corporate bylaws, much less be limited to corporate bylaws. This line of thinking should be discarded as unsupportable. There are certainly US federal, state and local laws that protect human rights, starting with the US Constitution. (I tend to suspect that California has more such laws at the state and local laws than most other states.) Federal, California and Los Angeles laws that protect human rights would obviously apply to ICANN. I believe our counsel has given us a few examples of such laws and I'm sure a long list could be made -- wage and hour laws, privacy laws, laws against unlawful imprisonment, etc., etc. Greg On Fri, Jan 29, 2016 at 7:07 AM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws.
So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant.
Regards, Bruce Tonkin
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Grec I fully agree with you in your snalysis of what " applicable law" means However, since ICANN also take actions outside US or its action /inaction could have bearing on other States to which those actions may impact, then the applicable law on those countries are relevant should the case under consideration has any impact/ bearing in those States due to the fact that yo deal with a case that involve country "a"one can not legally apply any law other than the law applicable in county"a" Regards Kavouss Sent from my iPhone
On 1 Feb 2016, at 07:50, Greg Shatan <gregshatanipc@gmail.com> wrote:
Bruce,
The term "applicable law" shows up in many different types of US legal documents. I am sure there are legal opinions, regulations and other sources that can provide a formal legal understanding of that. I'm sure our counsel would be happy to prepare a memo on "applicable law" if we want one.
I'll just speak from the experience gained in 28 years of practicing law in the US. I have always understood it to mean all of the laws that apply to a particular entity or to a particular transaction. I have always understood "laws" to refer to laws made by governmental authorities. I'm quite confident that the other attorneys working on these matters, and their clients, had the same understanding. I'd go so far as to say that this is understanding is the common legal understanding.
This would mean that ICANN, at a minimum is subject to US federal law, California state law and also to any local laws in Los Angeles. (No matter where you are in the US, you are always subject to US federal law, the arguments of some armed occupiers in Oregon notwithstanding.)
I don't think we have any latitude whatsoever to declare that "applicable laws" in the ICANN Articles of Incorporation or Bylaws refers to the ICANN Bylaws. I have not seen "laws" construed to include corporate bylaws, much less be limited to corporate bylaws. This line of thinking should be discarded as unsupportable.
There are certainly US federal, state and local laws that protect human rights, starting with the US Constitution. (I tend to suspect that California has more such laws at the state and local laws than most other states.) Federal, California and Los Angeles laws that protect human rights would obviously apply to ICANN. I believe our counsel has given us a few examples of such laws and I'm sure a long list could be made -- wage and hour laws, privacy laws, laws against unlawful imprisonment, etc., etc.
Greg
On Fri, Jan 29, 2016 at 7:07 AM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
My problem with "applicable law" is that Human Rights are fundamental, whereas laws differ from country to country. And Human Rights can not be "diminished", for the lack of a better word, by the laws of a country.
So, if "applicable law" mean the Bylaws and not the law of any country or countries, lets's put this in, if only for avoidance of doubt.
I would also expect that ICANN is already subject to "applicable" national laws - whether or not they are in the bylaws.
So a bylaw that states that ICANN is subject to applicable laws seems somewhat redundant.
Regards, Bruce Tonkin
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Matthew, + 1 That's exactly my point. There is a community process, which involved a lot of work. Replacing it with top-down resolution adopted as an urgent measure to avoid implementation of the approach proposed by community is what is worrying me. I understand that many can be unhappy with the current bylaw text. Those who wanted stronger commitment are unhappy as well as those who didn't want any commitment at all. However, as it was said on the CCWG call we reach the compromise - and sometimes compromise means that no one is absolutely happy but the community can proceed with the solution. I think we decided that we want to see argumentation of the board on how the current solution creates the risks. I still don't see any risks anymore. Lawyers - thanks again Holly for the excellent intervention on the last call - confirmed that there are no risks. We need an explanation from the ICANN, which risks the proposed text can entail. May be I am failing to see something. However, if instead of the explanation we get a resolution - well, it will be a major diversion of the process we decided to follow. Best regards Tatiana On 28/01/16 13:50, 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.
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Yes If we do not receive the Board,s Res. And do not approve it then we go ahead with what is on the table Regards Kavousd Sent from my iPhone
On 28 Jan 2016, at 12:02, Niels ten Oever <lists@nielstenoever.net> 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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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participants (14)
-
Andrew Sullivan -
Avri Doria -
Bruce Tonkin -
Dr Eberhard W Lisse -
Dr. Tatiana Tropina -
Eric (Maule) Brunner-Williams -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
Matthew Shears -
Niels ten Oever -
Nigel Roberts -
Paul Twomey -
Tropina, Tatiana