[cc-humanrights] Human Rights in CCWG on accountability

Avri Doria avri at acm.org
Wed Aug 5 15:34:37 UTC 2015


I suggest that those who are concerned with the wording of the
Accountability Work Stream 1 bylaw participate in the CCWG's Work Party 4. 

I also think getting support for the HR bylaw in the various comments
submitted by the AC/SO/SG/RALO/Cs/ALS/organizations etc we participate
in, is more important that getting a comment from the CCWP unless we can
get our various groups to endorse it.

But that is just the beginning of the work that needs to be done once we
get the bylaw.  This group can do a lot in preparation for WS2 in terms
of starting the debate on what this commitment will mean in terms of
specific implementation details.


- what processes need to be looked at?  Like: there is a placeholder for
rights impact assessments in GNSO PDPs - Is that sufficient?  How do we
get these impact assessments done?  Is this volunteer task or a
professional task, or something hybrid? Does an impact assement have the
wieght of a comment or of advice?

- what role does/should/could Corporate Social Responsibility inside
ICANN corporate have in any implementation that may respond to a
commitment to respect human rights.

I think we can use

Guiding Principles on Business and Human Rights

to guide the discussion to some extent.  It might, for example be worth working through the recommendations (appended below) to see how they may or may not relate to ICANN.  Might also be worth mapping the ones that ICANN already does, to the specifics of ICANN practice.

These excerpts are copied from a message I sent to the accountability team.

The UN text also contains explanations for each item.  But for those who do not have time to read the whole document and Holly's excellent papers on this, this list is a starting place. these guiding principles are based upon fundamental human rights as defined in the UDHR, the ICCPR and the IESCR, i.e. the International Bill of Rights and ILO Pundamental Principles and Rights at Work.

In my view, the operational policy already existing in ICANN and being added by WS1 meet many if not most of the conditions already.  The list serves as a guideline of issues to be further studied in WS2 as a means of meeting the commitment we need to include in WS1.

Given an choice I would recommend that the first activity of WS2 would be for appropriate staff to produce a mapping of each of these to the various ICANN principles and operational practices.


These Guiding Principles are grounded in recognition of:

    (a) States’ existing obligations to respect, protect and fulfil
    human rights andfundamental freedoms;
    (b) The role of business enterprises as specialized organs of
    society performing specialized functions, required to comply with
    all applicable laws and to respect human rights;
    (c) The need for rights and obligations to be matched to appropriate
    and effective remedies when breached.

(1-10 all pertain to states)

*A. Foundational principles*

11. Business enterprises should respect human rights. This means that
they should avoid infringing on the human rights of others and should
address adverse human rights impacts with which they are involved.

12. The responsibility of business enterprises to respect human rights
refers to internationally recognized human rights – understood, at a
minimum, as those expressed in the International Bill of Human Rights
and the principles concerning fundamental rights set out in the
International Labour Organization’s Declaration on Fundamental
Principles and
Rights at Work.

13. The responsibility to respect human rights requires that business

    (a) Avoid causing or contributing to adverse human rights impacts
    through their own activities, and address such impacts when they occur;
    (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.

14. The responsibility of business enterprises to respect human rights
applies to all enterprises regardless of their size, sector, operational
context, ownership and structure. Nevertheless, the scale and complexity
of the means through which enterprises meet that responsibility may vary
according to these factors and with the severity of the enterprise’s
adverse human rights 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:

    (a) A policy commitment to meet their responsibility to respect
    human rights;
    (b) A human rights due diligence process to identify, prevent,
    mitigate and account for how they address their impacts on human rights;
    (c) Processes to enable the remediation of any adverse human rights
    impacts they cause or to which they contribute.

*B. Operational principles*

16. As the basis for embedding their responsibility to respect human
rights, business enterprises should express their commitment to meet
this responsibility through a statement of policy that:

    (a) Is approved at the most senior level of the business enterprise;
    (b) Is informed by relevant internal and/or external expertise;
    (c) Stipulates the enterprise’s human rights expectations of
    personnel, business partners and other parties directly linked to
    its operations, products or services;
    (d) Is publicly available and communicated internally and externally
    to all personnel, business partners and other relevant parties;
    (e) Is reflected in operational policies and procedures necessary to
    embed it throughout the business enterprise.

*Human rights due diligence*

17. In order to identify, prevent, mitigate and account for how they
address their adverse human rights impacts, business enterprises should
carry out human rights due diligence. The process should include
assessing actual and potential human rights impacts, integrating and
acting upon the findings, tracking responses, and communicating how
impacts are addressed. Human rights due diligence:

    (a) Should cover adverse human rights impacts that the business
    enterprise may cause or contribute to through its own activities, or
    which may be directly linked to its operations, products or services
    by its business relationships;
    (b) Will vary in complexity with the size of the business
    enterprise, the risk of severe human rights impacts, and the nature
    and context of its operations;
    (c) Should be ongoing, recognizing that the human rights risks may
    change over time as the business enterprise’s operations and
    operating context evolve.

18. In order to gauge human rights risks, business enterprises should
identify and assess any actual or potential adverse human rights impacts
with which they may be involved either through their own activities or
as a result of their business relationships. This process should:

    (a) Draw on internal and/or independent external human rights expertise;
    (b) Involve meaningful consultation with potentially affected groups
    and other relevant stakeholders, as appropriate to the size of the
    business enterprise and the nature and context of the operation.

19. In order to prevent and mitigate adverse human rights impacts,
business enterprises should integrate the findings from their impact
assessments across relevant internal functions and processes, and take
appropriate action.

    (a) Effective integration requires that:

        (i) Responsibility for addressing such impacts is assigned to
        the appropriate level and function within the business enterprise;
        (ii) Internal decision-making, budget allocations and oversight
        processes enable effective responses to such impacts.

    (b) Appropriate action will vary according to:

        (i) Whether the business enterprise causes or contributes to an
        adverse impact, or whether it is involved solely because the
        impact is directly linked to its operations, products or
        services by a business relationship;
        (ii) The extent of its leverage in addressing the adverse impact.

20. In order to verify whether adverse human rights impacts are being
addressed, business enterprises should track the effectiveness of their
response. Tracking should:

    (a) Be based on appropriate qualitative and quantitative indicators;
    (b) Draw on feedback from both internal and external sources,
    including affected stakeholders.

21. In order to account for how they address their human rights impacts,
business enterprises should be prepared to communicate this externally,
particularly when concerns are raised by or on behalf of affected
stakeholders. Business enterprises whose operations or operating
contexts pose risks of severe human rights impacts should report
formally on how they address them. In all instances, communications should:

    (a) Be of a form and frequency that reflect an enterprise’s human
    rights impacts and that are accessible to its intended audiences;
    (b) Provide information that is sufficient to evaluate the adequacy
    of an enterprise’s response to the particular human rights impact
    (c) In turn not pose risks to affected stakeholders, personnel or to
    legitimate requirements of commercial confidentiality.


22. Where business enterprises identify that they have caused or
contributed to adverse impacts, they should provide for or cooperate in
their remediation through legitimate processes.

23. In all contexts, business enterprises should:

    (a) Comply with all applicable laws and respect internationally
    recognized human rights, wherever they operate;
    (b) Seek ways to honour the principles of internationally recognized
    human rights when faced with conflicting requirements;
    (c) Treat the risk of causing or contributing to gross human rights
    abuses as a legal compliance issue wherever they operate.

24. Where it is necessary to prioritize actions to address actual and
potential adverse human rights impacts, business enterprises should
first seek to prevent and mitigate those that are most severe or where
delayed response would make them irremediable.

*III. Access to remedy*

*A. Foundational principle*
25. As part of their duty to protect against business-related human
rights abuse, States must take appropriate steps to ensure, through
judicial, administrative, legislative or other appropriate means, that
when such abuses occur within their territory and/or jurisdiction those
affected have access to effective remedy.

*B. Operational principles*
*State -based grievance mechanisms*
26 & 27 refer to state obligations

*Non-State -based grievance mechanisms*

28. States should consider ways to facilitate access to effective
non-State based grievance mechanisms dealing with business-related human
rights harms.

29. To make it possible for grievances to be addressed early and
remediated directly, business enterprises should establish or
participate in effective operational-level grievance mechanisms for
individuals and communities who may be adversely impacted.

30. Industry, multi-stakeholder and other collaborative initiatives that
are based on respect for human rights-related standards should ensure
that effective grievance mechanisms are available.

*Effectiveness criteria for non-judicial grievance mechanisms*
31. In order to ensure their effectiveness, non-judicial grievance
mechanisms, both State-based and non-State-based, should be:

    (a) Legitimate: enabling trust from the stakeholder groups for whose
    use they are intended, and being accountable for the fair conduct of
    grievance processes;
    (b) Accessible: being known to all stakeholder groups for whose use
    they are intended, and providing adequate assistance for those who
    may face particular barriers to access;
    (c) Predictable: providing a clear and known procedure with an
    indicative time frame for each stage, and clarity on the types of
    process and outcome available and means of monitoring implementation;
    (d) Equitable: seeking to ensure that aggrieved parties have
    reasonable access to sources of information, advice and expertise
    necessary to engage in a grievance process on fair, informed and
    respectful terms;
    (e) Transparent: keeping parties to a grievance informed about its
    progress, and providing sufficient information about the mechanism’s
    performance to build confidence in its effectiveness and meet any
    public interest at stake;
    (f) Rights-compatible: ensuring that outcomes and remedies accord
    with internationally recognized human rights;
    (g) A source of continuous learning: drawing on relevant measures to
    identify lessons for improving the mechanism and preventing future
    grievances and harms;

    Operational-level mechanisms should also be:

    (h) Based on engagement and dialogue: consulting the stakeholder
    groups for whose use they are intended on their design and
    performance, and focusing on dialogue as the means to address and
    resolve grievances.


On 05-Aug-15 10:16, Stephanie Perrin wrote:
> AS for the strategy....I think it would be a good idea to discuss it with Avri among others who have
been in the thick of it trying to get the language into the bylaws.  The
CCWG gets quite heated and this is very controversial and close to some
government hearts, not to mention industry hearts.  I would suggest a
somewhat cautious approach, but perhaps I just find the CCWG multiple
conversations and calls overwhelming.  I would suggest you have a listen
to some of them before you wade in Niels.
> cheers Stephanie
> PS I will see if I can find and forward the email that has the list of
all who have joined the group.
> On 2015-08-05 8:46, Rafik Dammak wrote:
>> a subgroup was set to work on that and its mailing list set already.
I think participants of CCWG can join it ( the CCWG is open to
participants and observers)
>> Rafik
>> 2015-08-05 21:30 GMT+09:00 Niels ten Oever <niels at article19.org
<mailto:niels at article19.org>>:
> Thanks Marilia. Do you think it would also make sense to draft a
> public comment to the CCWG report by suggesting concrete text? Or
> would the best workflow be to work on this in the subgroup? Has the
> subgroup already been formed? Do you know when they should finish and
> whether people from this list, who are not participating in the CCWG,
> can join?
> Best,
> Niels
> Niels ten Oever
> Head of Digital
> Article 19
> www.article19.org <http://www.article19.org>
> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>                    678B 08B5 A0F2 636D 68E9
> On 08/03/2015 07:01 PM, Marilia Maciel wrote:
> > Thank you for sharing, Niels. The conclusion that a reference to
> > HR should be included it in the bylaws is a very positive
> > development. From what I can notice in the CCWG-Accountability
> > mailing list, there has been a considerable interest to join the
> > subgroup that will be created to discuss this topic.
> > Best! Marília
> > On Mon, Aug 3, 2015 at 12:59 PM, Niels ten Oever
> > <niels at article19.org <mailto:niels at article19.org>
> <mailto:niels at article19.org <mailto:niels at article19.org>>> wrote:
> > Dear all,
> > This might be of interest to you (from CCWG on Accountability
> > https://mm.icann.org/pipermail/accountability-cross-community/2015-Jul
> y/
> <https://mm.icann.org/pipermail/accountability-cross-community/2015-Jul%0Ay/>
> 004798.html
> > <https://mm.icann.org/pipermail/accountability-cross-community/2015-Ju
> ly/
> 004798.html>
> > )
> > Best,
> > Niels
> > Mathieu Weill mathieu.weill at afnic.fr <http://afnic.fr>
> <http://afnic.fr> Fri Jul
> > 31 11:49:55 UTC 2015
> > Dear Colleagues,
> > As announced during our last call, the co-Chairs have reviewed
> > where we are on this issue. Our group is tasked to work on the
> > basis of consensus, and we have focused on assessing where this
> > condition was met .
> > It is our conclusion that : 1) our group has achieved consensus on
> > including a human rights related Commitment in Icann's Bylaws. 2)
> > no particular wording currently proposed achieved consensus.
> > As a consequence, we propose to include into the public comment 2
> > report (in the Mission & Core value section, a draft is included
> > below) - this assessment and a firm commitment to add a human
> > rights related Commitment into Icann's Bylaws, - the underlying
> > requirements expressed during the debate, - the concrete language
> > proposals that were considered by our group so far, as examples
> > Finally, given the strong momentum on the issue, both during the
> > meeting and on list before and after, and taking into account the
> > high level of complexity involved, we suggest to kick off ASAP a
> > subgroup to further refine the requirements and assess potential
> > options based on further studies of the current situation and
> > "agreed-on" language.
> > We thank you all for your understanding and commitment on this
> > topic, as well as the extensive discussions both on list and during
> > the calls about this.
> > As a reminder, Minority statements filed until Saturday 12.00 UTC
> > will be incorporated into the report to be published on Monday.
> > Statements filed after this deadline will be published online but
> > not incorporated into the report.
> > Best regards, Leon, Thomas & Mathieu Co-chairs
> > ----------------------------------------------- NEW SUBSECTION IN
> > 3A Mission, Commitmennts & Core Values
> > Elaborating an Icann Commitment to Human Rights
> > The CCWG-Accountability extensively discussed the opportunity to
> > include into Icann Bylaws a Comittment related to Human Rights. The
> > group commissioned a legal analysis of whether the termination of
> > the IANA contract would induce changes into Icann's obligations
> > with regards to Human Rights (LINK). While no significant issue was
> > found to be directly linked to the termination of the IANA
> > contract, the group acknowledged the recurring debates around the
> > nature of Icann's accountability towards the respect of fundamental
> > human rights.
> > These discussions identified the following, non-exhaustive, list
> > of accountability-related requirements : - the NTIA criteria to
> > maintain the openness of the Internet, including free expression
> > and the free flow of information - the need to avoid extending
> > Icann's mission into content regulation - the importance of
> > assessing the impact of Icann policies on Human righ ts
> > Examples of language that could serve as a Commitment were as
> > follows : - Within its mission and in its operations, ICANN will be
> > committed to respect the fundamental human rights of the exercise
> > of free expression and the free flow of information. - Within its
> > mission and in it operations, ICANN will be committed to respect
> > internationally recognized fundamental human rights.
> > The group has achieved consensus on including a human rights
> > related Commitment in Icann's Bylaws. However no particular wording
> > currently proposed achieved consensus. Reiterating its commitment
> > to elaborate concrete proposals as part of its mandate,  the
> > CCWG-Accountability is calling for comments on this approach and
> > the underlying requirements.
> > _______________________________________________ cc-humanrights
> > mailing list cc-humanrights at icann.org <mailto:cc-humanrights at icann.org>
> > <mailto:cc-humanrights at icann.org <mailto:cc-humanrights at icann.org>>
> > https://mm.icann.org/mailman/listinfo/cc-humanrights
> > -- *Marília Maciel* Pesquisadora Gestora - Centro de Tecnologia e
> > Sociedade - FGV Direito Rio Researcher and Coordinator - Center for
> > Technology & Society - FGV Law School http://direitorio.fgv.br/cts
> > DiploFoundation associate - www.diplomacy.edu <http://www.diplomacy.edu>
> > <http://www.diplomacy.edu> PoliTICs Magazine Advisory Committee -
> > http://www.politics.org.br/ Subscribe "Digital Rights: Latin
> > America & the Caribbean" - http://www.digitalrightslac.net/en
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