By Aarti Bhavana
Recommendations 6 & 12
In the weeks leading up to the ICANN 55 Meeting at Marrakech, we are doing a series of posts tracking the CCWG-Accountability process. The first post in this series, analysing Recommendations 1 & 2, can be read here. This post examines Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognised Human Rights and Recommendation #12: Committing to Further Accountability Work in Work Stream 2. It also studies the process of developments in these recommendations, since the 3rd draft proposal was opened for public comments.
Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognized Human Rights
The 3rd draft proposal recommended reaffirming ICANN’s commitment to human rights through two bylaws: one, a draft Bylaw which would clarify ICANN’s obligation to respect internationally recognised human rights, and the other, an interim bylaw that would commit to the development of a framework of interpretation for the implementation of the draft bylaw. However, this approach was met with some resistance.
a. Human Rights and the ICANN Board
In its comments, the Board stated that while it is ‘committed to upholding human rights’, it disagreed with the staged approach proposed in the 3rd draft proposal. It feared that the proposed language could be used to expand ICANN’s obligations and increase the risk of unintended consequences such initiating the Independent Review Process (IRP) or litigation on human rights grounds. Leaving issues open until the approval of the Framework of Interpretation (FOI) could result in courts and binding IRP decisions creating precedent for what ICANN’s rights commitments are. A rather surprising aspect of the Board’s comments was the reference to evaluate this recommendation on grounds of Global Public Interest, if its objections were not addressed.
The Board suggested holding off on a human rights bylaw until the FOI was approved. It also recommended developing a Human Rights Statement with the community, in a top-down manner. Crucial details such as whether a human rights commitment should be included in the bylaws or elsewhere would be discussed in Work Stream 2.
b. A shot at a compromise
Shortly after receiving the Board’s comments, the CCWG-Accountability attempted to understand the objections made, particularly with reference to Global Public Interest. Some viewed the Board’s response as a way to strong-arm the CCWG into a position acceptable by it, while others worked on ways to address these concerns without altering too much of the original text. Further, contrary to the Board’s position, the CCWG lawyers clarified that the language in the 3rd draft proposal would not create additional legal risks.
Against the backdrop of these discussions, the calls set out three ways of moving forward:
- Continuing with human rights commitment in Work Stream1 (roughly the 3rd draft proposal approach),
- Deferring the discussion to Work Stream 2 (the Board’s approach), and
- A compromise position of including a bylaw, which would take effect only after the FOI was approved (dormant bylaw).
In an effort towards cooperation, the co-chairs invited members and participants to consider option C (dormant bylaw), as it was a compromise between the Board’s position and the language set out in the 3rd draft. This was met with some disagreement, as it was felt that CCWG and WP4 had together agreed on option A when it was included in the 3rd draft proposal, and this work should not be disregarded.
In response to the Board’s objections and in the midst of much confusion over the options, it was decided that 3rd draft proposal language will be modified to make the bylaw dormant until FOI is approved. This would address the Board’s concerns over IRP and litigation risks as well, since the bylaw would not be effective until the framework of interpretation was adopted. There was consensus for the compromise option. However, the Board remained steadfast in its position of supporting option B, evoking quite a bit of frustration within the CCWG community. It was decided that unless the Board came up with a bylaw statement acceptable to the community, this compromise language would be finalised.
c. Necessity of inclusion of the HR bylaw
While comments received during the public comments period were largely supportive of the inclusion of human rights, few raised concerns about including a human rights commitment prior to the completion of the Framework of Interpretation, and some felt that this matter should be pushed to Work Stream 2. Another issue raised by a few was that a human rights commitment didn’t belong in the bylaws.
The large majority in favour of including the human rights commitment explained that in the absence of the NTIA oversight, there was no backstop for human rights obligations unless ICANN made such a commitment. This commitment was considered essential to satisfy the NTIA criteria of maintaining the openness of the internet. It was also felt necessary to include this commitment in Work Stream1 as an assurance that the work would continue in Work Stream 2.
Amidst much relief, the Board shifted its position and proposed bylaw language similar to the text agreed by the CCWG-Accountability. After a final call discussing this proposed language, CCWG accepted the Board’s proposal and the recommendation has been finalized. Final drafting is left to the lawyers, and the CCWG breathes a collective sigh of relief as the human rights commitment has been secured.
Recommendation #12: Committing to Further Accountability Work in Work Stream 2
The 3rd draft proposal proposed certain accountability topics for Work Stream 2- a timeline that extends beyond the IANA transition. These topics included mechanisms to enhance ICANN’s transparency, improve diversity at all levels, jurisdiction and accountability, developing a framework of interpretation for the bylaw on human rights, and enhancing the Ombudsman’s role and function. It also proposed an interim bylaw committing ICANN towards implementing CCWG-Accountability Work Stream 2 recommendations.
In its comments, the Board stated its concern over the interim bylaw requiring the Board to commit to implement the CCWG-Accountability Work Stream 2 recommendations in full, as it was felt that this commitment couldn’t be made without evaluating the recommendations first. It was also made it clear that while it supports Work Stream 2 efforts, this was limited only to the extent of the listed topics.
The discussion over this recommendation was fairly short, and it was the first to be finalised. The Board’s concerns were addressed through modifications to the Recommendation. Clarifications were made to the interim bylaw, ensuring that the Board’s obligations would be identical to those in Work Stream 1. The list of topics to be dealt with in Work Stream 2 has been limited to those listed. It was clarified that Work Stream 2 would follow rules similar to Work Stream 1: consensus recommendations would be endorsed by chartering organisations, and if 2/3rds of the Board agrees that a recommendation is not in the global public interest, it would have the option to initiate a special dialogue with the CCWG-Accountability.
Additionally, enhancing Ombudsman’s role and functions has been confirmed and elaborated for Work Stream 2, in response to public comments. Transparency of board deliberations have also been added, as suggested by NCSG in its comments. Finally, appropriate modifications are to be made to portions concerning human rights, keeping with the changes made to Recommendation #6, as detailed above.
 In its Resolution in October 2014, the Board committed to following certain principles when considering CCWG-Accountability recommendations. One such principle was over Global Public Interest: if, by agreement of 2/3rds of the Board, it was decided that a particular recommendation was not in the global public interest, the Board would initiate a special dialogue with the CCWG over its concerns.
 The Cross-Community Working Party on ICANN’s Corporate Social Responsibility to protect Human Rights (CCWP-HR) is currently working on providing inputs for this human rights statement, in the hopes that it will be developed through a bottom-up multistakeholder process.
 This recommendation was discussed in calls #76, #78, #80 and #83.
 This recommendation was discussed in calls #74 and #76.