[CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 22 | 28 February 2017

Tue Feb 28 23:01:11 UTC 2017

Hello all,

Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #22 here;  https://community.icann.org/x/K6vRAw
A copy of the notes may be found below.

Thank you.

With kind regards,
Brenda Brewer, Projects & Operations Assistant
Multistakeholder Strategy & Strategic Initiatives (MSSI)
Internet Corporation for Assigned Names and Numbers (ICANN)
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Notes (including relevant portions of the chat):
14 Participants at start of call
 1. Administrivia - Roll call, absentees, SoIs, etc
Apologies:  Jorge Cancio, Herb Waye, Mathew Shears
Niels ten Oever - Audio only? (AAS). Any update to SOIs (none). May of been premature to call this a first reading but if we agree today it would allow us to have a meeting next week to have a second reading to submit to the plenary.
David McAuley (RySG): are we meeting next week?
Paul McGrady: Not everyone is going to make it to the face to face due to the way the meeting schedule turned out
Kavouss Arasteh: There is no Plenary before Copenhagen
Anne Aikman-Scalese: Next week Tuesday meeting would be hard for those travelling from far.
Tatiana Tropina: I put red tick as while I think it would be good, I am very much against excluding those who can't make this call next week
Greg Shatan: That will also be too late to submit a document for the Plenary.
Tatiana Tropina: Greg, yes.
Kavous Arasteh: There is no meeting scheduled for next week and my points have not been addressed.
Niels ten Oever - temperature check to have a meeting next week (no support). Ok will advise Co-Chairs that we will not have a document for the face to face.
Tatiana Tropina: this is of course sad but we can't compromise on the quality and inclusion :-)
Niels ten Oever - should we look at the JC document or my version?
Kavouss Arasteh - I have also sent a revised version why is not being considered?
Niels ten Oever - KA your comments have already been integrated in the document.
Anne Aikman-Scalese - I have not seen it so if we use it can you be specific.
2. First reading (of two) of the Considerations document prepared by the drafting team
Tatian Tropina - (reading document).
Paul McGrady - could we deal with one para at a time. On para 1 seems inconsistent. No definition of DECLERATION. Now we have OTHER INSTRUMENTS which are also undefined. Then we get into COVENANTS which is also undefined. We need to clean this up and call it one thing consistently throughout the document.
Greg Shatan: Maybe we should use "conventions and other instruments" as used in the "consideration".
Tatian Tropina - PM thanks this is very useful. If we use the language from Annex 12 would this meet the requirement.
Paul McGrady - The definition can be broad we use anything we want and then use it consistently it will be fine.
Tatiana Tropina: But for the substance we use the "HR conventions or other instruments" as in the Annex 12
Niels ten Oever: But for interpretation we might also use UDHR, no?
Kavouss Arasteh - Agree with PM but still have issues with the first para given agreements are one thing but declarations are something else - you cannot mix these things as states have not agreed to all these things - maybe just drop the first sentence.
Tatiana Tropina: that this means declarations, conventions, Bills, etc widely agreed internationally
avri doria: Since none of it is binding on ICANN, it really does not matter who signed or implemented.
Paul McGrady: Human Rights conventions, agreements, declarations, conventions, covenants, and instruments (collectively "Human Rights Documents")
Paul McGrady: +1 Avri
Tatiana Tropina: Paul, inserting this in the google doc - thanks much much!
Niels ten Oever - good suggestions for the drafting team.
Greg Shatan: "Documents" seems a bit too generic -- I would prefer that we use "conventions and other instruments" each time.
Markus Kummer:  "internationally agreed human rights instruments" ?
Tatiana Tropina: Greg, that's what I suggested while speaking, but we can fine tune for the next call
avri doria: i like conventions and other instruments as well
Paul McGrady: (collectively "Human Rights Cannon")
Tatiana Tropina: we have to follow the language of annex 12 but still implement Paul's corrections
Niels ten Oever: "States are parties to these document"
Markus Kummer: instrument is the usual overarching term used in international law
Greg Shatan - Need to reflect that whatever we define is aimed at States.
Tatiana Tropina - lets put all the comments in the Googledoc and the lawyer it up to make consistent.
Kavouss Arasteh - You cannot use INSTRUMENTS sometimes this is more than conventions or not. Still suggest we drop the first part.
Avri Doria - Irrelevant how many states have agreed to these things does not matter since they are not applicable to ICANN.
Greg Shatan: +1 Avri.
Paul McGrady: +1 Avri
Tatiana Tropina: + 1 Avri - very much to the point.
Janet Shih Hajek: Instead of Human Rights conventions are agreements between states,” why not just start with “ICANN, as a non-state private party, is not a party to any Human Rights convention or other human rights instrument.  However, ICANN could refer to any of the widely adopted Human Rights conventions and other instruments . . . “
Tatiana Tropina: there is nothing all countries
Kavouss Arasteh: Disagree with AD, agreed with states causes problem need to fix.
Tatiana Tropina - (reading next section). Not happy with JC proposed language but can live with it.
David McAuley (RySG): Agree w/Tatiana on this
Kavouss Arasteh - do not agree with JC language.
Greg Shatan - KA proposal not much different and we can replace CONSENSUS with AGREEMENT.
Tatiana Tropina: yes this should be fine. It makes no big difference for me, but if it's very critical for someone let's replace
Paul McGrady - do not understand how the second and third paras fit together. I think we were considering if they were binding and para should say it is not. Para 3 just says what we say in para 1 but only about 1 thing. Para 2 needs to be stronger and there does not seem to be a reason for para.
Tatiana Tropina - the problem is because of the definintion of UN guidance on HR for Business. As to para 2 the recommendation has been watered down to have a compromise because some people still think they should be binding.
David McAuley (RySG): I think paragraph 2 is fine and accurate
David McAuley (RySG): And agree w/Tatiana that the language was crafted with compromise in mind
Paul McGrady: @Tatiana - thank you.  That discussion is helpful and explains why we need paragraph 3.
Kavouss Arasteh - tend to agree with PM. If you want to maintain para 3 it should be before para 2. But do not favour keeping para 3. If kept should be reworded to show there is not consensus on the matter.
Greg Shatan: Paras 2 and 3 deal with interpretation and implementation of the Guiding Principles, respectively.
Paul McGrady: Once we ake it clear that Guiding Principles are not part of the Human Rights Documents contemplated in paragraph 1, I think paragraph 3 makes sense now.
avri doria: para 3 is important and it is the saving grace of the section.
Paul McGrady: @Avri   -  :)
Anne Aikman-Scalese - We need to be clear for the Board on the Ruggie principles other it will be a recipe for trouble.
Taiana Tropina - 3rd para was a compromise from the last version. Would be happy not to have it but it would probably cause an issue so we will keep it and fix it.
David McAuley (RySG): The interpretation of the bylaw cannot undo the bylaw – it will be binding if it is international recognized under applicable law – that may differ from place to place
Greg Shatan - Have looked up HR Instruments do not include Ruggie and would suggest that para 2 and 3 are out of scope.
avri doria: and time to time
David McAuley (RySG): agreed, @Avri
Niels ten Oever: UNGPs are a softlaw instrument
Tatiana Tropina: oooooooohhhh that's too radical even for me.
Kavouss Arasteh - if we drop para 3 then we can drop 2 also. Guiding cannot be binding.
Tatiana Tropina: Wow, I find myself in disagreement with Greg, finally! :-)
Niels ten Oever: https://en.wikipedia.org/wiki/United_Nations_Guiding_Principles_on_Business_and_Human_Rights
Niels ten Oever: And Kavouss and Greg aligned
avri doria: deletion of Ruggie comes close to some of our die in the ditch regions
avri doria: a UN agreed doc is in scope!
Paul McGrady: To say nothing about it after all this work on it, doesn't seem productive.  Greg, can you find another place in this document to address the Guiding Principles?
David McAuley (RySG): We should address Ruggie as not reaching consensus - we spent considerabl;e time on it
Tatiana Tropina - As AD has stated Ruggie principles will be die in the ditch for some. It may be best to actually deal with this in the document because it would create ambiguity going forward
Niels ten Oever: Then Paul asked a question, we explained, and now everything is up in the air
Niels ten Oever: am a bit surprised
avri doria: i think the 3 para is the right solution
avri doria: there was a sophistic twist on the matter of scope.  but denying scope to an UN aggreed document in scope abuse.
David McAuley (RySG): I agree w/Niels on this - the language was carefully put together
Greg Shatan - My suggestion to remove the paras has nothing to do with Ruggie but rather simply if it is in scope or not.
Tatiana Tropina: I think it should be treated with caution instead of leaving the things blank. remember the jurisdiction debate.
Niels ten Oever: Ruggie is an instrument - there is no doubt about that
Tatiana Tropina: David, yes. And the Ruggie principles is like elephants in the room
Tatiana Tropina: we don't have to redefine terms instruments but we have to note that they are not instruments. Yes, seems like a good suggestion
avri doria: here we go again.
Tatiana Tropina: Agree with David's last comment
Tatiana Tropina: We can't ignore Ruggie, this will be reopened at one point and we have to deliver.
Paul McGrady: "could be" is not "must be"
Kavouss Arasteh - We do not use Ruggie to interpret the Bylaw - we can use it to interpret Human Rights. What is the definition of a HR Core Value?
Paul McGrady: Let's add the caveat and save the hard work we have done on dealing with Ruggie.
Tatiana Tropina: Oh I would be happy with deleting the para 3 but many will die in the ditch for this
Greg Shatan: We are calling it the "Human Rights Core Value."
Greg Shatan: Core Value is singular and refers only to that Core Value that refers to human rights.
Tatiana Tropina: Paul, this seems like the best solution. And yes, the text has to be clarified. As I said already in all the fights about the substance we are sometimes paying more attention to compromise than the quality and clarity of the explanation
Greg Shatan: Core Values is plural and would refer to all the Core Values.
Kavouss Arasteh: Greg, it is wrong to call it Core Value
Tatiana Tropina: Paul has been our reality check - thanks so much Paul.
Greg Shatan: That is exactly what it is.
Kavouss Arasteh: Why you wish to generalize it to cover all core values
Tatiana Tropina: Avri, we have to mention them. I agree - being an opponent of Ruggie.
Paul McGrady: We need to tell the plenary about the work we did on this.  We can't just leave it blank...
Avri Doria - going at this again. Trying to use the definition to get Ruggie out is not valid. As such disagree with this.
Tatiana Tropina: Avri, yes. The para is carefully crafted consensus and we have to leave it there (may be fine tune)
David McAuley (RySG): Bylaw 27.2(a) says: The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights ("FOI-HR") ...
Tatiana Tropina: I do dislike saying this because I was against the para 3, but I think we have to take this into consideration
Niels ten Oever - should go back to the drafting group. Adjourned.

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