Dear All, First of all I am sorry for the wrong référence that I have given. It is not directly BYLAWS but indirectly through the GAC Opération Princile 47 Quote "The GAC works on the basis of seeking consensus among its membership. Consistent with United Nations practice [1] <https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles#_ftn1>, consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection. Where consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board [1] <https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles#_ftnref1> In United Nations practice, *the concept of “consensus” is understood to mean the practice of adoption of resolutions or decisions by general agreement without resort to voting in the absence of any formal objection that would stand in the way of a decision being declared adopted in that manner. *....... Unquote This is an important issue to be taken into account. The term FULL CONSENSUS in the charter, if exists was based on the term " rough consensus " or simply " consensus" which does not apply on such a delicate, controversial and hot issue like jurisdiction. Kavouss 2017-01-08 11:57 GMT+01:00 James Gannon <james@cyberinvasion.net>:

That is what the CCWG Charter that we all operate under says, its not for us to change that unless we want to go back and recharter the CCWG.

-J

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Sunday, January 8, 2017 10:27 AM *To:* Greg Shatan <gregshatanipc@gmail.com> *Cc:* ws2-hr@icann.org; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] [Ws2-hr] HR subgroup question to CCWG plenary

Dear Greg,

Tks again but the definition for consensus that you have provided

Quote

*b) Consensus – a position where a small minority disagrees, but most agree"*

Unquote

Does in no way reflect the meaning of consensus .

Pls read Bylaws

Regards

Kavouss

2017-01-08 8:37 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:

The CCWG Charter contains the following definitions:

*a) Full Consensus - a position where no minority disagrees; identified by an absence of objection*

*b) Consensus – a position where a small minority disagrees, but most agree*

It would be helpful to use these terms, to reflect the Charter and to avoid miscommunication. "Agreement" is not a defined term, and should be avoided. Using the terms above, the proper course of action should read:

1.The subgroup should conduct the primary discussion and interpretation of its mandate.

2. Should Consensus (NOT simple Majority/Minority and NOT Full Consensus) be reached the subgroup should then bring the matter (i.e., the Consensus conclusion of the subgroup) to the attention of Plenary for approval.

3. Should Consensus (NOT simple Majority/Minority and NOT Full Consensus) not be reached the subgroup should then bring the matter (i.e., the alternative conclusions under consideration in the subgroup) to the attention of Plenary for advice, which may include a Consensus conclusion by the Plenary regarding the mandate of the subgroup.

4. The subgroup should proceed accordingly (i.e., follow the mandate approved or decided by the Plenary, or follow the advice of the Plenary if the Plenary only offers advice).

Greg

On Sun, Jan 8, 2017 at 1:30 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All,

With respect to Niels message:

My understanding was that Niels asked the subgroup to discuss the interpretation of its mandate .

You understood Niels message was addressed to the Plenary for which I fully agree

However, if Niels want to discuss the matter at the level of subgroup the following course of action is necessary:

1.The subgroup could start the primary discussion and interpretation of its mandate.

2. Should Agreement or Consensus ( NOT Majority / Minority and NOT Soft or Rough Consensus) is reached the subgroup should then bring the matter to the attention of Plenary for approval

3. Should Agreement or Consensus ( NOT Majority / Minority and NOT Soft or Rough Consensus) is not reached the subgroup should then bring the matter to the attention of Plenary for advice.

If the above course of action is consented,then the sub group should proceed accordingly

Regards

Kavouss

2017-01-08 1:46 GMT+01:00 Greg Shatan <gregshatanipc@gmail.com>:

Niels's email is addressed to the CCWG-Plenary.

With regard to discussions at the subgroup level, the subgroup is the proper place for the primary discussion and interpretation of the subgroup's mandate. The conclusions of the subgroup should then be brought back to the Plenary for approval. If the subgroup cannot agree on an interpretation of the mandate, or if (as here) the subgroup perceived a need for clarification from the Plenary, then (as here), the subgroup should go back to the Plenary for advice. Which is exactly what Niels has done.

Best regards,

Greg

On Sat, Jan 7, 2017 at 12:53 PM, Kavouss Arasteh < kavouss.arasteh@gmail.com> wrote:

Dear Niels,

Dear Neils,

Thank you for your message and updates

Pls kindly note that the subgroup is not eligible to interprète its mandater .The mandate was established by the higher level in other words and any interprétation requires the advice from that higher level

Homewear, you may start to discuss the issue on preliminary basis but you need to report to CCWG Plenary ,including advice from its CO- CHAIR.

Please kindly take such action to avoid another series of complex discussion pros and cones on the issue .

Regards

Kavouss

2017-01-07 18:30 GMT+01:00 Niels ten Oever <lists@nielstenoever.net>:

Dear all,

Please refer to this version of the email instead. The prior version inadvertently quoted from a draft version of the WS1 report.

We hope this email finds you all very well. As you all know we shared with you the Framework of Interpretation of the Human Rights bylaw. After this the Human Rights Subgroup worked on next steps, which led us to taking a close look at our mandate and finding that there are different ways of interpreting this. This difference stems, in part, from the different constructions of our mandate in Annex 6 and in Annex 12.

That is why we come to you for guidance to see where we are, and where we should go next.

In a bit more detail:

Paragraph 7 of Annex 6 of the CCWG reads:

Include the following in Work Stream 2 activities: Develop an FOI-HR for the Human Rights Bylaw. Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw. Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights. Consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process. Consider what effect, if any, this Bylaw will have on ICANN’s consideration of advice given by the Governmental Advisory Committee (GAC). Consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out. Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures.

Whereas Paragraph 24 of Annex 12 of the CCWG report reads:

.24 To ensure that adding the proposed Human Rights Bylaw provision into the ICANN Bylaws does not lead to an expansion of ICANN’s Mission or scope, the CCWG -Accountability will develop a Framework of Interpretation for Human Rights (FOI-HR) as a consensus recommendation in Work Stream 2 to be approved by the ICANN Board using the same process and criteria as for Work Stream 1 recommendations, and the Bylaw provision will not enter into force before the FOI-HR is in place. The CCWG-Accountability will consider the following as it develops the FOI-HR: Consider which specific Human Rights conventions or other instruments, if any, should be used by ICANN in interpreting and implementing the Human Rights Bylaw. Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights. Consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process. Consider what effect, if any, this Bylaw would have on ICANN’s

consideration of advice given by the Governmental Advisory Committee (GAC). Consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out. Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures.

Annex 6 makes it seem like each of the “bullet points” is a separate task, starting with the Framework of Interpretation. On the other hand, Annex 12 makes it seem like the “bullet points” are not really separate tasks, but only items to be considered as we prepare the Framework of Interpretation. This makes a significant difference in how we determine what work lies before us, and also how we look at the Framework of Interpretation we have completed.

In our initial work we focused on providing a Framework of Interpretation of the Bylaw, clearly stating how it should be interpreted, and we did not focus on how the Bylaw could be “operationalized”, even though of course we considered the potential consequences this might have.

The question is now, what are the next steps? We see different options:

1. We're done. The FoI is developed, and under consideration by the plenary. 2. We need to have a second look at the FoI and make potential amendments to the FoI to give more guidance based on the considerations listed in Annex 6. 3. We need to produce a new document that responds directly to each of the “bullet points,” which could include examples and recommendations on what potential next steps could be 4. We need to test specific cases on a hypothetical basis to see whether the FoI suffices. (in this regard, hypothetical cases suggested by the plenary would be helpful.)

We've have made first steps into the direction of step 3, but this led us into quite detailed discussions on recommending the use of Human Rights Impact Assessments and how and where these could be integrated in PDPs and ICANN operations. In these discussions, it felt as though we were going into too much detail, and stepping outside of the mandate of our Subgroup.

5. A fifth option could be (and this might be a mix between option 1 and 3) to issue high-level recommendations on how ICANN and the SO’s and AC’s could best operationalize the core value contained in the Human Rights Bylaw. These recommendations could include (a) chartering a GNSO Working Group on Human Rights to consider and recommend how the Bylaw should be taken into account in gTLD policy development and implementation, and/or (b) chartering Working Groups in each of the other SO’s and AC’s for purposes relevant to their remit, and/or (c) chartering a new CCWG on Human Rights to specifically consider the steps needed to make the Bylaw operational, and provide guidance to each of the SO's and AC's on how they could incorporate the CCWG’s output in their processes, as well as discussing measures that could be adopted by ICANN, the corporation, with respect to its own internal human resources, employment, and contracting practices based on the Bylaw.

We would like to bring these five options in front of the plenary, and we would greatly appreciate your thoughts on these and potentially other options.

The Human Rights Subgroup wishes you a revitalizing festive season and we're greatly looking forward to completing our work in Workstream 2 with you all in 2017.

All the best,

The CCWG Accountability Human Rights Subgroup

PS Thanks Greg and Brett for finding this error and for helping to correct it. -- Niels ten Oever Head of Digital

Article 19 www.article19.org

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