[bestbits] Request for comments on ICANN's CCWG Accountability draft proposal

[Norbert Bollow]

On Wed, 9 Dec 2015 01:19:17 +0100
Niels ten Oever <lists at digitaldissidents.org> wrote:

> With a lot of hard work from the civil society people in ICANN, and in
> collaboration with other constituencies, we have managed to include in
> the proposed plan.a change to ICANN's bylaws to include a commitment
> to respect human rights, as well as an interim bylaw which demands the
> development of a framework for interpretation and implementation of
> ICANN's human rights commitment.

Alas this commitment is extremely weak, so weak in fact that it appears
to me that including it with that particular wording may be well worse
than not including anything at all on human rights.

Specifically, the proposed human rights bylaw reads:

“*Within* *its* *mission* *and* *in* *its* *operations*, ICANN will
respect internationally recognized human rights. This commitment does
not in any way create an obligation for ICANN, or any entity having a
relationship with ICANN, to protect or enforce human rights _beyond_
_what_ _may_ _be_ _required_ _by_ _applicable_ _law_. 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.” (boldface and underlinings for emphasis in the
original)

In my view, the main point of a human rights article in the bylaws
would be to ensure that ICANN recognizes and respects an obligation
regarding human rights that goes beyond the obligations that all
California corporations have anyway under applicable law.

Further, I find the language in that draft bylaw highly inappropriate
insofar it suggests that human rights obligations can possibly be
limited to what is "required by applicable law". After all, the
proper way to view human rights is to view them as having higher
precedence than all other laws and rights. This must be looked at in
the context of ICANN being under US jurisdiction and the interpretation
of many fundamental rights by US courts being so much worse than e.g.
the work of the UN human rights rapporteurs -- especially when human
rights of people are concerned who are neither citizens nor residents
of the US.

Greetings,
Norbert