[CCWG-ACCT] CCWG-Accountability-WS2 - 27-28 September Plenary Agenda and Materials - 1 of 2 - FoI text proposal to bridge divergences
Nigel Roberts
nigel at channelisles.net
Fri Sep 29 05:46:04 UTC 2017
Paul
It's clearly a nonsense for ICANN to reject internationally accepted
human rights principles by rejecting Ruggie whilst at the same time
accepting OFAC (becuase it's 'applicable law') - the effects on a
neutral internet being much more severe.
I personally accept that ICANN must negotiate the waters around OFAC as
a price of doing business from the chosen jurisdiction (California)
since the choice-of-jurisdiction ship sailed a long time ago.
But, as I've repeatedly said, construing applicable law to mean only the
laws that California and the Federal Government pass, is to make the
whole humnan rights bylaw a nullity.
Under this construcion, ICANN does not even have an obligation to fair
hearing!
But if David is right, and IRP forms binding precedent, then the .XXX
case provides an alternative view, which I find preferable.
On 28/09/17 22:40, Paul Twomey 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]
>> *Gesendet:* Donnerstag, 28. September 2017 23:00
>> *An:* Cancio Jorge BAKOM <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
>> <mailto: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]
>> *Gesendet:* Donnerstag, 28. September 2017 22:12
>> *An:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
>> <mailto:Jorge.Cancio at bakom.admin.ch>
>> *Cc:* Bernard Turcotte <turcotte.bernard at gmail.com>
>> <mailto:turcotte.bernard at gmail.com>;
>> accountability-cross-community at icann.org
>> <mailto: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
>> <mailto: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>
>> [mailto:accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>] *Im
>> Auftrag von *Jorge.Cancio at bakom.admin.ch
>> <mailto:Jorge.Cancio at bakom.admin.ch>
>> *Gesendet:* Montag, 25. September 2017 15:34
>> *An:* turcotte.bernard at gmail.com
>> <mailto:turcotte.bernard at gmail.com>;
>> accountability-cross-community at icann.org
>> <mailto: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>
>> [mailto: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
>> <mailto: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.
>>
>> o 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.
>>
>> o CCWG-Accountability-WS2-SOACAcct-FinalReport-20170927
>> (attached)
>> o CCWG-Accountability-WS2-SOACAcct-FinalReport-RedLine-20170927
>> (attached)
>> o CCWG-Accountability-WS2-SOACAcct-AnalysisandResponsetoPublicComments-20170927
>> (attached)
>>
>> 8.First reading of the final recommendations of the Human
>> Rights sub-group.
>>
>> o CCWG-Accountability-WS2-HumanRight-FinalReportWithAdditions-20170927
>> (attached)
>> o 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)
>>
>> o CCWG-Accountability-WS2-Ombudsman-DrafRecommendations-20170927
>> (attached in second email)
>> o CCWG-Accountability-WS2-Ombudsman-ExternalReview-Final (attached
>> in second email)
>>
>> 10.First reading of the draft recommendation of the Staff
>> Accountability sub-group.
>>
>> o CCWG-Accountability-StaffAcct-DraftReport-20170927V1.6
>> (attached in second email)
>> o 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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>>
>>
>> --
>> Dr Paul Twomey
>> Managing Director
>> Argo P at cific
>>
>> US Cell: +1 310 279 2366
>> Aust M: +61 416 238 501
>>
>> www.argopacific.com <http://www.argopacific.com>
>
> --
> Dr Paul Twomey
> Managing Director
> Argo P at cific
>
> US Cell: +1 310 279 2366
> Aust M: +61 416 238 501
>
> www.argopacific.com
>
>
>
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