Comments of the Noncommercial Stakeholders Group
Non Commercial Stakeholder Group Comments on the Draft ICANN Bylaws
NCSG believes that on the whole the legal team made a good faith effort to
accurately translate the work of the CCWG on Enhanced Accountability and the
work of the CWG on IANA Stewardship into new bylaws for ICANN. In a few areas
some corrections are needed.
Regarding the "grandfathering" clauses in Section 1.1 (d) (ii), NCSG supports
the comments of the IANA Stewardship Transition Coordination Group (ICG) and
the comments of the CCWG-Accountability. We believe that the final bylaws
should remove provisions B, C, D and E of Section 1.1 (d)(ii). These were not
part of the accepted proposal, and by referencing as-yet-unwritten documents
and exempting them from challenges they create unacceptable risks.
Regarding Section 1.1 (d) (ii) A, which grandfathers the Registry Agreement
(RA) and Registrar Accreditation Agreement (RAA), NCSG believes that
grandfathering of RA and RAA renewals is acceptable only if these renewals do
not include any new terms. Any new terms would need to be within the scope and
mission of ICANN, and should be clearly and unambiguously subject to challenge
if members of the affected community believe they are outside of ICANN's
mission.
Regarding Section 27.3 (a) we endorse the comments of the CCWG-Accountability.
The language is inconsistent with the CCWG May 13, 2016 7 Proposal, Annex 6 and
may lead to some interpretations that formal approval is required from every
Chartering Organization. As it has been discussed on the CCWG Accountability
mailing list and during the last CCWG calls, the formal approval of all
chartering organisation has not been the intent of the Annex 6 of the report.
Therefore, the decision process for the Framework of Interpretation-HR should
be aligned with the approval process from the CCWG Charter, which does not
require the approval of all Chartering Organizations.
Furthermore, the language stating that the FOI-HR shall have no force of effect
unless and until a FOI is approved is inconsistent with the CCWG Proposal. The
Proposal reads: the Core Value is not in force "until" the FOI is developed. So
'unless and' should be removed.
A solution would be to draft the bylaw in the following manner, largely in line
with the language of the Annex 6 of the CCWG Accountability report. In this
regard, we support the language proposed by CCWG accountability lawyers on the
mailing list which was forwarded by Mathieu Weill on May 1 [1], as can be found
underneath, except for the removal of 'unless and' to ensure consistency with
the CCWG proposal and for the purpose of greater clarity.
Section 27.3. HUMAN RIGHTS
(a) The Core Value set forth in Section 1.2(b)(viii) shall have no force or
effect until a framework of interpretation for human rights ("FOI-HR") is (i)
approved for submission to the Board by the CCWG-Accountability as a consensus
recommendation in Work Stream 2 and (ii) approved by the Board, in each case,
using the same process and criteria as for Work Stream 1 Recommendations.
(b) No person or entity shall be entitled to invoke the reconsideration process
provided in Section 4.2, or the independent review process provided in Section
4.3, based solely on the inclusion of the Core Value set forth in Section
1.2(b)(viii) (i) until after the FOI-HR contemplated by Section 27.3(a) is in
place or (ii) for actions of ICANN or the Board that occurred prior to the
effectiveness of the FOI-HR.
Comments also attached as a pdf file.
Attachment:
NCSGCommentsontheDraftICANNBylaws.pdf |