[CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting #12 | 15NOV16

[MSSI Secretariat]

Hello all,

Please see the notes and details for the CCWG Accountability WS2 - Human Rights Subgroup Meeting #12 here;   https://community.icann.org/x/jI7DAw
The notes are also listed below.

Thank you!

Kind Regards,
Yvette Guigneaux
Multi-Stakeholder & Strategic Initiative Assistant
ICANN | Internet Corporation for Assigned Names & Numbers
12025 Waterfront Drive, Playa Vista, CA 90094
yvette.guigneaux at icann.org<mailto:yvette.guigneaux at icann.org> | www.icann.org<http://www.icann.org/>


Notes

Human Rights Meeting #12   (15 November @ 19:00 UTC)

Notes (including relevant parts of chat):
1. Administrivia
·        Apologies: Anne Aikman-Scalese, Matthew Shears, Tatiana Tropina
·        Roll call will be taken from AC room.
·        No audio only participants.
·        3 open questions to ICANN legal.
ACTION (Staff): follow-up with ICANN Legal - Karen: Answers will be provided next week.
·        Cheryl Langdon-Orr (CLO): small update to SOI  mine is yet to reflect my new role as ALAC Liaison to the GNSO Council  update later today
·        David McAuley: I think I will need to update my SOI as well as I am taking over as Rapporteur of IRP IoT - not sure if that will require a new SOI but should mention it here just in case
2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI
  a.‘within the scope of its Mission’
·        "core value" should be capitalized
·        David McAuley: My comment - this section appears fine
·        No other comments from the group on this section.
  b.‘within the scope of other Core Values’
·        Discussed the balancing process:
·        avri doria: In this balancing can a core value be violated?
·        The FoI says: "The result of a balancing-test cannot cause ICANN to violate any Commitment, as Commitments are binding."
·        David McAuley: where one core value is honored another might be partially honored or not honored in a balancing test it seems.
·        Chris LaHatte: the usual test for breaches of human rights is one of proportionality.
·        Jorge Cancio (GAC Switzerland): Normally in a balancing test you need to address each and every factor (here each core value) and motivate how this is done and with what result.
·        John Laprise: So, on a given decision/issue. could the community demand of ICANN an explanation of how a particular core value was weighed/applied/respected?
·        Pending response from ICANN legal on how the balancing works
·        Jorge Cancio (GAC Switzerland): Let's also wait for ICANN Legal and their take on how commitments and core values are meant to work together
·        Might require additional text, after responses are received from Legal ICANN.
·        Suggestion to change "cannot" into "may not" / ""should not" / "shall not" / "must not" . "Must not" is retained, to be further discussed on the list if necessary.
·        Suggestion to add references next to quotations.
  c.‘respecting’
·        No comments from the group.
  d. ‘internationally recognized human rights’
·        No comments from the group.
  e. ‘as required by applicable law’
·        Daniel Appelman: When read with the "respecting" explanation, this implies that ICANN has no obligation to respect human rights except where national laws directly place ICANN under those obligations.
·        avri doria: David does that not make this meaningless?  or rather it just says forget about HR, just obey the law?
·        Jorge Cancio (GAC Switzerland): I had similar concerns to those expressed by Avri. But I feel the Core Value not only restricts ICANN to avoid violating HR. It also brings with it a positive element to be guided by internationally recognised human rights in its actions
·        Greg Shatan: The point is to abide by the laws but still respect Human Rights.
·        Daniel Appelman: ICANN respecting human rights "as required by applicable law" makes little sense when the next section says that mostly only States are required to respect human rights.
·        avri doria: if there is no law protecting a hr, do we still need to care about the hr.
·        David McAuley: it's not a matter of not caring, but a matter of observing the law
·        Erich Schweighofer: ICANN's policies should respect human rights ... but implementation may conflict with applicable law. Sad but reality, contradictions have to be solved by HR institutions.
·        Jorge: other areas of the FoI cover the obligation of ICANN to respect HR.
·        Markus: suggestion to refer to the OECD guidelines.
  f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’
·        not discussed
  g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’
·        not discussed
3. AOB
·        WIll continue this reading on the list and next week.
·
Action Items
ACTION (Staff): follow-up with ICANN Legal - Karen: Answers will be provided next week.



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