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

[Niels ten Oever]

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA256

Hi Norbert,

Thank you for your close reading and quick reaction. I think there
might be some misunderstanstandings though which I would be happy to
explain inline:

On 12/09/2015 11:00 AM, Norbert Bollow wrote:
> 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.
> 

I would politely disagree, but I also do not understand the logic of
why not including something is better than including something. Sounds
a bit defeatist.

> 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.
> 

What you want is exactly what the bylaw says. ICANN will respect human
rights. But will not protect or enforce human rights, since this is
the role of states. I think you would appeciate the difference between
the role of ICANN and the role of states.

This is exactly the differentiation as it is made for instance in the
UN Guiding Principles for Business and Human Rights.

> 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".

That is not true, the applicable law part is only in relation to
'protect and enforce human rights'.

> After all, the proper way to view human rights is to view them as
> having higher precedence than all other laws and rights.

Agree

> 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.

Agree, that is why the commitment to respect human rights so
important, and the commitment to develop and framework for that in the
interim bylaw.

So I think we want the same, and I think this bylaw will help us get
there.

> 
> Greetings, Norbert
> 

All the best,

Niels


- -- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

PGP fingerprint    8D9F C567 BEE4 A431 56C4
                   678B 08B5 A0F2 636D 68E9
-----BEGIN PGP SIGNATURE-----
Version: GnuPG v2

iQEcBAEBCAAGBQJWaCDDAAoJEAi1oPJjbWjpD0wH/R/QkkZM0/4/YMbnahIPQtSw
8eTGvW/bbcn0vfK4PYbErYpO4Vr3+GISYLeSR7ZCvUr8amf09ACrdATCK/lHaRZ3
EY7UTxMcW2qCN6iJmE3YX2IQKEhH3FDrSephjQWRF48u4v6h49I3kUKBCH5en9SB
Nju/yCh9jz3dU+te1fTmfdo02eS7RalrRCSyCTwpMd4xLWZFZRGDp7pmtdc200p8
OxjuaJ1mHMjPhKnhMdACwEglO6KoL1oh+la5jFxVJIvS/AVDpy3hvMiuVgMBvtI9
JJUGS8hg+TdGB15RWu87MPnTZFjlfEjAw7uCj0CrUtqHiAyYdoELiRmSFEawyIQ=
=NKmc
-----END PGP SIGNATURE-----