[cc-humanrights] Human Rights in CCWG on accountability

Stephanie Perrin stephanie.perrin at mail.utoronto.ca
Wed Aug 5 15:41:37 UTC 2015

Thanks Avri, very helpful to get us started!

On 2015-08-05 11:34, Avri Doria wrote:
> Hi,
> 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.
> E.g.
> - 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
>     <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf>
> <http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf>*
> 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
> enterprises:
>      (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
>      involved;
>      (c) In turn not pose risks to affected stakeholders, personnel or to
>      legitimate requirements of commercial confidentiality.
> *Remediation*
> 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.
> avri
> 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
>>>      _______________________________________________
>>>      cc-humanrights mailing list
>>>      cc-humanrights at icann.org <mailto:cc-humanrights at icann.org>
>>>      https://mm.icann.org/mailman/listinfo/cc-humanrights
>>> _______________________________________________
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