[CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences

[Greg Shatan]

Perhaps Jorge's point is that none of that involves ICANN's activities "as
a business."  Then the question becomes what part of ICANN's activities are
part of the "business" and which are part of its sui generis role as
coordinator, and thus beyond the intended scope of the requested change?

I agree that ccTLD relations generally are on the coordinator side.
The SO/ACs are all clearly on the coordinator side as well.
Registry agreements and relationships?  Well, they are contracts with
business entities.  But it still seems to fit with the coordinator role
quite comfortably.
Registrar agreements and relationships?  Same.
New gTLD applications?  Same.

How about choosing where to have ICANN meetings?  That seems pretty
business-like, but then again the meetings are held as part of the
coordinator role.  Also, the community recently debated whether to heighten
human rights concerns in connection with meeting venues and the result (if
I recall) were to make no change.  So, coordinator again.

Choosing where to have ICANN offices (both the location and the landlord)?
Even more business-like.  Should ICANN not have offices in states with a
bad human rights track record? One could have that discussion.  One could
avoid the dilemma by saying that this is part of the coordinator role, and
that office location is a form of global outreach.  On the other hand, it's
just a real estate deal....  Is this the "break point" where ICANN needs to
"consider" whether locating their next office in Country X violates the
Bylaws?  (After all, that's what's at stake if this is in the FoI portion
of the document.)

Vendor relations?  We might have to parse that.
Captioning service = coordination.
Office cleaning = business.
Catering = do we need to look at the subject matter of the meeting to see
if it's coordination or business?
Break Room Supplies = might be "business, " but does it matter who's
drinking the coffee? What if a stakeholder visits the office in their SO/AC
role and has a cup of coffee?
Rest Room Supplies = business-related (in more ways than one); but is the
analysis that different from those above?

Employees?  Maybe.
Do we separate policy employees from other employees?
Do we separate policy contractors from policy employees?
Do we parse the org chart?  Do we parse Goran?

What is absolutely, unquestionably "business" and not "coordination"?

Apologies for having so many questions and so few answers.

Best regards,

Greg

On Thu, Sep 28, 2017 at 5:40 PM, Paul Twomey <paul.twomey at argopacific.com>
wrote:

> Thanks Jorge
>
>
>
> At this late stage let me be somewhat blunt to be clear.
>
>
>
> The sort of language in the Ruggie Principles which worry me is:
>
>
>
> 13. The responsibility to respect human rights requires that business
> enterprises: …
>
> (b) Seek to prevent or mitigate adverse human rights impacts that are
> directly linked to their operations, products or services by their business
> relationships, even if they have not contributed to those impacts.
>
>
>
> 15. In order to meet their responsibility to respect human rights,
> business enterprises should have in place policies and processes
> appropriate to their size and circumstances, including: (c) Processes to
> enable the remediation of any adverse human rights impacts they cause or to
> which they contribute.
>
>
>
> My concern is not to ensure that ICANN can continue to coordinate with all
> the relevant technical organizations around the world (many of which are
> government run) which enable the operate of the Domain Name System, the IP
> address allocation and the Protocol Parameter responsibilities of the IANA
> functions.
>
>
>
> Just to give one example, let us look at ccTLD operators. ICANN does have
> a range of agreements within around 86 ccTLD operators, (See:
> https://www.icann.org/resources/pages/cctlds/cctlds-en) I do not think we
> intend to establish wording which would result in dissident groups from
> various countries going to a US court arguing that ICANN is in breach of
> its bylaws by having an explicit or implied agreement with a ccTLD operator
> recognized as part of the IANA process, especially where the dissident
> group alleges that the ccTLD operator is breaching human rights by
> following its government’s instructions on registrations.   You can think
> of several examples where this may happen.     Having the sections above
> applying to ICANN (even where it operates as a business) would put at risk
> ICANN’s ability to be a global coordinator as per its mission.   By
> definition, it has to be able to serve every ccTLD.
>
>
> Furthermore, any court or other group thinking that ICANN should under
> principle 15 take action to remediate the adverse human rights impact would
> have to consider ICANN breaking off links with that ccTLD.  Which brings me
> back to my global coordinator challenge.
>
>
>
> I hope this helps
>
>
>
> Paul
>
>
>
>
>
>
>
>
>
>
> On 9/28/17 5:07 PM, Jorge.Cancio at bakom.admin.ch wrote:
>
> Dear Paul,
>
>
>
> I would appreciate your being more specific, and elaborating what wording
> in my proposal gives rise to such fears, and what is exactly which is so
> distinct from the prior FoI text.
>
>
>
> For your convenience, here is again the proposed change in red:
>
> “*By committing to one or more of these international instruments, nation
> states are expected to embed human rights in their national legislation. *
>
> *The UN Guiding Principles on Businesses and Human Rights are relevant for
> business organizations. Insofar ICANN the Organization is concerned, it
> should consider, as a business, the UN Guiding Principles on Businesses and
> Human Rights as a useful guide when applying the Human Rights Core Value.*
> *“*
>
> Thanks for your help in understanding your position.
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
> *Von:* Paul Twomey [mailto:paul.twomey at argopacific.com
> <paul.twomey at argopacific.com>]
> *Gesendet:* Donnerstag, 28. September 2017 23:00
> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> <Jorge.Cancio at bakom.admin.ch>; turcotte.bernard at gmail.com;
> accountability-cross-community at icann.org
> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September
> Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge
> divergences
>
>
>
> Dear Jorge
>
> I have to say that I agree with Greg on this.   My interventions on the HR
> working group have consistently focused on the ability of ICANN to operate
> its IANA and other technical functions under policy and/or numerous
> agreements with numerous technical bodies (such as ccTLD operators, Root
> Zone operators etc) in support of a global, interoperable Internet.   The
> wording you propose would in my view put this at risk - as I have point
> several times over the last years the Rugge Principles, especially as those
> principles which apply to supply chains and contractors, are well suited to
> a mining company which can decide whether or not to do business in certain
> circumstance in certain countries.   ICANN does not have that luxury.   It
> is charged with supporting a Global Internet and hence has to be able to
> deal with every relevant ccTLD operator, Root Zone Operator, RIR etc, many
> of which it has agreements.    In that sense ICANN is not like a private
> company at all.
>
> Paul
>
> On 9/28/17 4:38 PM, Jorge.Cancio at bakom.admin.ch wrote:
>
> Dear Greg, dear all,
>
>
>
> The UNGP are an international instrument endorsed by the United Nations.
> As other declarations mentioned in the FoI, it is not as such a legally
> binding document, but it was unanimously endorsed in 2011 by the United
> Nations Human Rights Council through a formal resolution. Therefore,
> locating it under instruments makes sense.
>
>
>
> There is no contradiction with the “considerations”, as those refer to the
> application of the UNGP to *all of ICANN in general*. In contrast, and
> taking into consideration the concerns expressed by some in the Subgroup,
> the text we propose *only refers to ICANN “Organization”* and not to
> SO/ACs.
>
>
>
> This is a common ground proposal that differs, by being significantly less
> ambitious, from the public comment proposals filed by the Governments of
> Switzerland, UK and Brazil – which have at various time been supported by a
> number of other countries and participants.
>
>
>
> Therefore, I hope that the CCWG Plenary will work on a CCWG broader
> consensus text on this basis, giving consideration and being inclusive of
> at least a minimal part of the named public comment inputs.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
>
>
> *Von:* Greg Shatan [mailto:gregshatanipc at gmail.com
> <gregshatanipc at gmail.com>]
> *Gesendet:* Donnerstag, 28. September 2017 22:12
> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> <Jorge.Cancio at bakom.admin.ch>
> *Cc:* Bernard Turcotte <turcotte.bernard at gmail.com>
> <turcotte.bernard at gmail.com>; accountability-cross-community at icann.org
> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September
> Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge
> divergences
>
>
>
> Unfortunately, I cannot support this suggestion.
>
>
>
> First, this statement is partially redundant of and partially contradicts
> another section of the Report, under "Consider which specific Human Rights
> conventions or other instruments, if any, should be used by ICANN in
> interpreting and implementing the Human Rights Bylaw":
>
>
>
> With regards to the UN Guiding Principles for Business and Human Rights,
> no consensus was reached as to their suitability for interpreting the Core
> Value. However with regard to the implementation of the Core Value certain
> aspects of the UN Guiding Principles for Business and Human Rights could be
> considered as a useful guide in the process of applying the Human Rights
> Core Value. There are certain Guiding Principles that may not be suitable
> for ICANN and others that might be applicable, depending on the
> circumstances. However, it is beyond the scope of this document to provide
> a detailed analysis of the Guiding Principles and their application, or
> not, in particular situations.
>
>
>
> In any case, a conflict between any Guiding Principle and an ICANN Bylaw
> provision or Article of Incorporation must be resolved in favor of the
> Bylaw or Article. The use of the Guiding Principles as potential guidance
> has to be carefully considered by each SO and AC as well as ICANN the
> organization.
>
>
>
> The suggested language absolutely contradicts the conclusion that "
>
> With regards to the UN Guiding Principles for Business and Human Rights,
> no consensus was reached as to their suitability for interpreting the Core
> Value.
>
> ​"  This was carefully balanced language, in itself a compromise.
> Further the language goes on to indicate how the UNGP could be considered
> during *implementation* of the Bylaw. ​
>
> ​With the conclusion that no conThis section, for which no revision is
> suggested, states quite appropriately why the UNGP should be treated as it
> is in the report.
>
>
>
> ​Second,  this is being inserted into the interpretation of the term
>
> "internationally recognized human rights
>
> ​​
>
> "
>
> ​ as stated in the Core Value.​
>
> ​  This is troublesome.  The UNGP is not a human rights declaration, so
> it should not be mentioned here.  Aside from covenants and declarations,
> this section of the FoI discusses only international law.  So the UNGP does
> not belong here.  Also, the proposal would drop this statement into the
> middle of a discussion of international human rights instruments (which
> apply to states, not to ICANN), completely disrupting the analysis.
>
>
>
> Unfortunately, we were not supplied with the entire text, which would have
> made this more clear.  Here it is, without the suggested addition:
>
>
>
> There are a range of international human-rights declarations and covenants
> that could be relevant to ICANN’s Human Rights Core Value. However, none of
> these instruments has a direct application to ICANN, because they only
> create obligations for States. By committing to one or more of these
> international instruments, nation states are expected to embed human rights
> in their national legislation.
>
>
>
> The reference to “internationally recognized human rights” in the bylaw
> should not be read in isolation; rather it must be considered together
> with, and limited by, the reference “as required by applicable law.”  As a
> consequence, under the Human Rights Core Value, international human rights
> instruments are not directly applicable to ICANN beyond what is provided
> for in applicable law.  Rather, only those human rights that are “required
> by applicable law” will be relevant to ICANN.
>
>
>
> Furthermore, depending on the jurisdiction in which ICANN operates, the
> law applicable to its operations may vary and thus the human rights
> applicable to ICANN’s operations will vary as well.
>
>
>
> Nevertheless, ICANN understands that internationally recognised human
> rights, including those expressed in the Universal Declaration of Human
> Rights, can guide its decisions and actions.
>
>
>
> ​Finally, I will note my view that the Subgroup fully, fairly,
> comprehensively and inclusively considered all of the Public Comments and
> held numerous discussions on this very topic.  As such, I think that
> without persuasive arguments on substance, sufficient to convince the
> Plenary to take a different view, there is no reason to change the Report.
>
>
>
>
>
>
>
> On Thu, Sep 28, 2017 at 8:21 AM, <Jorge.Cancio at bakom.admin.ch> wrote:
>
> Dear all,
>
>
>
> Further to my Email below, I would like to share with you the following
> proposal that would constitute in my view an acceptable outcome of the
> public consultation on the Framework of Interpretation, and build on the
> wording proposals made by Switzerland in its public comment input (see
> attached) and the exchanges had thereafter in the Subgroup.
>
>
>
> Specifically, I would like to propose that the following paragraph on page
> 6 (under “internationally recognized human rights”) be reworded as follows (changes
> in red):
>
>
>
> “*By committing to one or more of these international instruments, nation
> states are expected to embed human rights in their national legislation. *
>
> *The UN Guiding Principles on Businesses and Human Rights are relevant for
> business organizations. Insofar ICANN the Organization is concerned, it
> should consider, as a business, the UN Guiding Principles on Businesses and
> Human Rights as a useful guide when applying the Human Rights Core Value.*
> *“*
>
>
>
> The UN Guiding Principles on Businesses and Human Rights (UNGP) are the
> universally accepted voluntary standard for business organizations.
> Therefore, we feel that it should be mentioned under the instruments
> regarding “internationally recognized human rights”. In order to avoid any
> extension of the UNGP to the non-business elements of ICANN (SO/ACs) there
> is specific mention that the UNGP would be relevant only for ICANN the
> Organization. In addition, the mention is constrained to having to
> “consider” the UNGP “as a useful guide” – which, in our view, eliminates
> any perceived danger of creating any obligation whatsoever through this
> mention.
>
>
>
> I hope that this compromise proposal may be positively considered by all
> of you. Please note that it is made only by me with the aim of arriving at
> a common ground and that it has not been possible to coordinate due to time
> constraints with the other participants joining the dissent.
>
>
>
> Best regards
>
>
>
> Jorge
>
>
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *Im Auftrag von *
> Jorge.Cancio at bakom.admin.ch
> *Gesendet:* Montag, 25. September 2017 15:34
> *An:* turcotte.bernard at gmail.com; accountability-cross-community at icann.org
> *Betreff:* Re: [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September
> Plenary Agenda and Materials - 1 of 2
>
>
>
> Dear all,
>
>
>
> Regarding *agenda point 8* and specifically the *dissenting opinion*
> attached to the Report from the Subgroup dealing with the Framework of
> Interpretation (FOI) of the Human Rights Core Value (see p. 2 of the
> attached document), which I have filed together with a number of
> colleagues, I would like to share some thoughts and a suggested path
> forward with the CCWG Plenary before the calls scheduled to discuss this.
>
>
>
> The main point of the dissent is, in my view, that we feel that the public
> comment period showed the existence of two schools of thought: some that
> favored maintaining the text sent to public comment “as is” (ALAC to a
> certain extent, and a number of different GNSO constituencies) and those
> (UK, BRZ, and CH) proposing some steps forward, especially in the
> recognition of the UN Guiding Principles (Ruggie Principles).
>
>
>
> However, again in our view, the discussions in the Subgroup did not yield
> a properly balanced result, which would have reflected at least some if not
> all of the positions and proposals made by the named Governments. This
> relates in particular, *that the FOI text should make stronger reference
> to the UN Guiding Principles as the most relevant voluntary international
> standard*. In our view, the Subgroup did not undertake an inclusive
> enough effort to determine if a compromise text could be formulated that
> would accommodate this position of the three governments.
>
>
>
> Therefore, I would like to *suggest that the CCWG Plenary could decide
> that some additional efforts to reaching a broader consensus on this
> important issue should be made* – a broader consensus that could be more
> inclusive of all views expressed during the public comment period.
>
>
>
> Hence, I would *suggest that the CCWG decides that the Report together
> with the dissent are sent back to the Subgroup with the request that a
> broader consensus solution is quickly sought within the coming e.g. 2 weeks
> after the Plenary call*.
>
>
>
> I hope this way to proceed may seem reasonable to you and obtain your
> support during the abovementioned call. I would be happy to answer any
> questions you may have and look forward to your feedback.
>
>
>
> For my part I’ll try hard to attend the Wednesday call, but I’m
> (physically) attending at the same time *the UN CSTD Working Group on
> Enhanced Cooperation*. Hence, I would be very thankful if this issue
> could be discussed on the Thursday call instead if possible.
>
>
>
> Kind regards
>
>
>
> Jorge
>
>
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *Im Auftrag von *Bernard
> Turcotte
> *Gesendet:* Donnerstag, 21. September 2017 18:05
> *An:* Accountability Cross Community <accountability-cross-
> community at icann.org>
> *Betreff:* [CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary
> Agenda and Materials - 1 of 2
>
>
>
> All,
>
>
>
> Please fins below and attached the agenda for the 27-28 September plenary.
>
>
>
> As noted in an earlier email the Co-Chairs do not believe the plenary can
> get through all of these materials in a single two hour session and that it
> is imperative we do so this week given the timing constraints we are
> working under. As such an additional 2 hour plenary session has been added
> 28 September 1900 UTC (the original plenary meeting scheduled for 27
> September 1300 UTC still stands).
>
>
>
> Also please note that given the large volume of documents we will be
> including these in two separate emails to avoid size limit issues for
> participants.
>
>
>
> Please do not hesitate to contact me if you have any questions or problems
> with the documents.
>
>
>
>
>
> Bernard Turcotte
>
> ICANN Staff Support to the CCWG-Accountability-WS2
>
>
>
> *Agenda for the CCWG-Accountability-WS2 Plenary of 27 and 28 September*
>
>
>
> 1.     Introduction, update to SOIs, reminder on standards of behavior
>
> 2.     Review of Agenda
>
> 3.     Administration
>
> 3.1. Review timeline.
>
> 3.2. Reminder of 27 October face to face in Abu Dhabi.
>
> 3.3. Reminder of High Interest sessions in Abu Dhabi
>
> 4.     Legal Committee Update
>
> 4.1. ​         Question sent to ICANN Legal on Ombudsman recommendation 8
> regarding the independence of the proposed Ombuds Advisory Panel (questions
> sent directly to ICANN legal on approval of Co-chairs).
>
> 4.2. Transparency – at the 13 September meeting of the sub-group updated
> language for recommendations 2, 15 and 16 were considered. ICANN Legal
> advised that they would consider these and provide written feedback to the
> sub-group.
>
> 5.     Point on Quorum (held over from last plenary)
>
> 6.     Second Reading of the draft recommendations of the Diversity
> sub-group.
>
>    - CCWG-Accountability-WS2-Diversity-DrafRecommendations-20170927
>       (attached - same document as distributed to the 30 August plenary)
>
> 7.     First reading of the final recommendations of the SOAC
> Accountability sub-group.
>
>    - CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927 (attached)
>       - CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927
>       (attached)
>       - CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927
>       (attached)
>
> 8.     First reading of the final recommendations of the Human Rights
> sub-group.
>
>    - CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927
>       (attached)
>       - CCWG-Accountability-WS2-HumanRights-PublicConsultation-May2017-Responses
>       (attached)
>
> 9.     First reading of the draft recommendation of the Ombuds sub-group
> (please note that the final report of the external review is provided as a
> separate file due to size issues)
>
>    - CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927
>       (attached in second email)
>       - CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached
>       in second email)
>
> 10. First reading of the draft recommendation of the Staff Accountability
> sub-group.
>
>    - CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6 (attached in
>       second email)
>       - CCWG-Accountability-StaffAcct-DraftReport-TrnasmissionLetter-20170927
>       (attached in second email)
>
> 11. AOB
>
> 12. ​Next Plenaries
>
> 12.1.               Thursday 28 September 19:00UTC​
>
> 12.2.               Wednesday 4 October 0500 UTC (optional but please
> schedule)
>
> 12.3.               Wednesday 11 October 1300 UTC (optional but please
> schedule)
>
> 12.4.               Wednesday 18 October 1900UTC
>
> 13. Adjournment
>
>
>
>
>
>
>
>
> _______________________________________________
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>
>
>
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>
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>
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>
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>
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>
>
>
> --
>
> Dr Paul Twomey
>
> Managing Director
>
> Argo P at cific
>
>
>
> US Cell: +1 310 279 2366 <(310)%20279-2366>
>
> Aust M: +61 416 238 501 <+61%20416%20238%20501>
>
>
>
> www.argopacific.com
>
>
> --
> Dr Paul Twomey
> Managing Director
> Argo P at cific
>
> US Cell: +1 310 279 2366 <(310)%20279-2366>
> Aust M: +61 416 238 501 <+61%20416%20238%20501>
> www.argopacific.com
>
>
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