[Wp4] Fwd: Re: [] Variety of formulation for Human Rights bylaw that were made. - corrected

Thu Aug 13 15:06:21 UTC 2015

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But as said earlier, I still think we should go with a high level
reference to human rights, which seems to be the approach most people
agree to if I am not mistaken. If one really would like to tie it
further down, I suggest we include a reference to UDHR, ICCPR and ICESR.

Best,

Niels

- -- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

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On 08/13/2015 03:08 PM, Niels ten Oever wrote:
> Hi Greg and others,
> 
> Thanks for your welcoming words, happy to be here. I think a light
>  touch, high level statement mentioning the UDHR, ICCPR and ICESR 
> would make most sense.
> 
> I mentioned the UDHR and ICCPR because I mostly refer to first 
> generation human rights, but I agree that including second 
> generation human rights is relevant.
> 
> Third generation human rights are often seen as aspirational 
> soft-law, so I would be hesitant to include them.
> 
> Are these criteria / categories you can work with? The body of 
> human rights law has been pretty narrowly defined.
> 
> I also don't think that would actually be an expansion of ICANNs 
> commitment because in article 4 of ICANNs articles of incorporation
> already states:
> 
> [quote[ 4. The Corporation shall operate for the benefit of the 
> Internet community as a whole, carrying out its activities in 
> conformity with relevant principles of international law and 
> applicable international conventions and local law and, to the 
> extent appropriate and consistent with these Articles and its 
> Bylaws, through open and transparent processes that enable 
> competition and open entry in Internet-related markets. To this 
> effect, the Corporation shall cooperate as appropriate with 
> relevant international organizations. [/quote]
> 
> This specification in the bylaws therefore doesn't entail an 
> expansion of commitments, therefore I don't think we would need to 
> design a stress test for this.
> 
> I think we can use the UN Guiding Principles and the Global Compact
> for designing the actual implementation in WS2, but I would say we
> shouldn't discuss the implementation in this part of the process.
> 
> Happy to discuss.
> 
> Best,
> 
> Niels
> 
> 
> 
> On 08/12/2015 05:02 PM, Greg Shatan wrote:
>> Niels,
> 
>> First, welcome to the CCWG on Enhancing ICANN's Accountability. I
>> suppose it's never to late to join in.  I look forward to your 
>> contributions on a wide variety of issues.  My responses to your 
>> email are inline below.
> 
>> On Fri, Aug 7, 2015 at 4:44 AM, Niels ten Oever 
>> <lists at digitaldissidents.org 
>> <mailto:lists at digitaldissidents.org>> wrote:
> 
>> Hi Greg,
> 
>> Thanks for this. I think many of these issues can be relatively 
>> simple resolved.
> 
> 
>>> GS: I tend to agree; of course, our definitions of simple may 
>>> be somewhat different....
> 
> 
> 
>> Underlying documents to human rights:
> 
>> - Universal Declaration of Human Rights - International Covenant
>>  on Civil and Political Rights
> 
> 
>>> GS: This is one possible list, and it has the virtue of being 
>>> short and manageable.
> 
>>> We've discussed a number of other underlying documents on this 
>>> and other lists.  I see that you mention two of them below: 
>>> the UN Guiding Principles for Business and Human Rights , and 
>>> the  ICT Sector Guide on Implementing the UN Guiding 
>>> Principles on Business  and Human Rights .  I understand
>>> that these are less foundational and more
>>> implementation-oriented than the first two documents you
>>> mention, but from the point of considering what we are doing,
>>> these are (or rather, could be, if we adopt them) underlying
>>> documents.  The Cisco report you cite also mentions "eight
>>> Core Labor Conventions developed by the International Labor
>>> Organization (ILO), and the United Nations Global Compact."
> 
>>> The AGB mentions the following as examples of "international 
>>> law" (though not specifically as examples of human rights 
>>> laws):
> 
>>> - The Universal Declaration of Human Rights (UDHR)
> 
>>> - The International Covenant on Civil and Political Rights 
>>> (ICCPR)
> 
>>> - The Convention on the Elimination of All Forms of 
>>> Discrimination Against Women (CEDAW)
> 
>>> - The International Convention on the Elimination of All Forms
>>>  of Racial Discrimination
> 
>>> - Declaration on the Elimination of Violence against Women
> 
>>> -  The International Covenant on Economic, Social, and
>>> Cultural Rights
> 
>>> - The Convention against Torture and Other Cruel, Inhuman, or 
>>> Degrading Treatment or Punishment
> 
>>> - The International Convention on the Protection of the Rights
>>>  of all Migrant Workers and Members of their Families
> 
>>> -  Slavery Convention
> 
>>> - Convention on the Prevention and Punishment of the Crime of 
>>> Genocide
> 
>>> -  Convention on the Rights of the Child
> 
> 
>> I honestly don't know which if any of these have relevance to 
>> fundamental human rights and ICANN's mission.  I suppose we
>> could wait until Workstream 2 to determine which if any of these 
>> should be explicitly seen as helping to define the Human Rights 
>> to which ICANN is committing.
> 
> 
> 
>> 
> 
>> These have been agreed upon by practically all states and are 
>> inherent part of the body of international law. I don't think we 
>> would need to re-discuss their validity, universality or 
>> applicability here.
> 
>> I also don't think that a detailed discussion of the actual 
>> implementation of this work needs to be discussed here. Detailed 
>> implementation of policy does not belong in the bylaws.
> 
> 
>>> GS: I agree with your second sentence but not your first.  I 
>>> don't think anyone has suggested that detailed implementation 
>>> of policy belongs /in/ the Bylaws.  But the Bylaws are the tip 
>>> of the iceberg.  We do need reasonably detailed discussion to 
>>> come to a common understanding of what ICANN is committing to 
>>> and what the results and consequences of that commitment are. 
>>> ICANN does not adopt or amend bylaws without relatively 
>>> detailed rationales and underlying work.  This should and must 
>>> be the same for this, especially since it is being adopted as a
>>> "Core Value."
> 
> 
> 
>> If you want to read more about it, I think the reports that 
>> Article19 produced for the CCWP on ICANNs Corporate and Social 
>> Responsibility to Respect Human Rights could be a good starter. 
>> [0] As well as of course the UN Guiding Principles for Business 
>> and Human Rights [1] and the ICT Sector Guide on Implementing the
>> UN Guiding Principles on Business and Human Rights [2].
> 
>> This is not something that we are reinventing here, but a 
>> practice that many companies have already adopted, look for 
>> instance at Cisco [3][4].
> 
> 
>>> GS: Clearly, we are not starting from scratch.  However, I 
>>> don't think ICANN can be directly compared to a company like 
>>> Cisco. Cisco runs a business; it doesn't make policy or set 
>>> norms. ICANN may have a corporation with employees at its core
>>>  (or arguably, not at the core), but it is more than that --
>>> it is a multistakeholder governance ecosystem.  I may be
>>> wrong, but I expect that the primary concern relating to ICANN
>>> and Human Rights relates to policy matters (and resulting 
>>> implementation matters) and not to how ICANN run itself as a 
>>> business (e.g., hiring, pay, benefits and other employee 
>>> matters; purchasing decisions; etc.).  As such, we really are 
>>> breaking new ground here.  As mentioned in my bullet point 
>>> list, it would be interesting to know how other more
>>> comparable organizations have dealt with Human Rights
>>> commitments (e.g., the I* organizations, standard-setting
>>> NGO's, self-regulatory industry bodies, multistakeholder
>>> organizations, etc.)
> 
>>> Greg
> 
> 
>> Best,
> 
>> Niels
> 
> 
>> [0] tinyurl.com/cchumanrights <http://tinyurl.com/cchumanrights> 
>> [1] http://business-humanrights.org/en/un-guiding-principles [2]
>> 
>> http://www.ihrb.org/pdf/eu-sector-guidance/EC-Guides/ICT/EC-Guide_ICT
.
>
>>
>> 
pd
> 
> 
> 
> f
>> <http://www.ihrb.org/pdf/eu-sector-guidance/EC-Guides/ICT/EC-Guide_IC
T
>
>>
>> 
.pdf>
> 
> 
> 
> [3]
>> http://csr.cisco.com/cdnorigin/media/documents/Human-Rights_129973805
7
>
>>
>> 
81
> 
> 
> 
> 330000.pdf
>> <http://csr.cisco.com/cdnorigin/media/documents/Human-Rights_12997380
5
>
>>
>> 
781330000.pdf>
> 
> 
> 
> [4] http://www.cisco.com/assets/csr/pdf/CSR_Report_2014.pdf
> 
> 
>> On 08/06/2015 11:35 PM, Greg Shatan wrote:
>>> In terms of next steps, here is a list I put in an email about 
>>> a week ago, slightly adapted for the current context.
> 
>>> * study/analysis/discussion of the underlying documents 
>>> (treaties, conventions, guidelines, standards, etc.) (which in 
>>> turn requires determining which documents are relevant -- there
>>> have been several helpful suggestions but that can't 
>>> automatically be taken as exhaustive or on-target), o 
>>> understanding the rights put forth in these documents ( and 
>>>  any other rights  put forth as human rights in the WG) , o 
>>> understanding whether all rights under discussion are in fact 
>>> "human rights", o understanding how these rights may interact 
>>> and be balanced amongst themselves,
> 
>>> * understanding how these rights relate to and interact with 
>>> ICANN's mission and activities, o understanding how these 
>>> rights interact with other rights and obligations in play at 
>>> ICANN (including the range of possible outcomes of such 
>>> interactions and how these interactions would take place and
>>> be resolved in the ICANN framework), o understanding how these 
>>> rights interact with ICANN's existing obligations under US 
>>> federal, state and local laws and regulations (some of which 
>>> embody, in differing fashions and degrees, relevant 
>>> international treaties and conventions) o  how this relates 
>>> (if at all) to ICANN's Corporate Social Responsibility and
>>> what efforts have been made or need to be made in that regard 
>>> , * find out  how other organizations similar to ICANN 
>>> (e.g., I* organizations) have dealt with these issues, *
>>> determining  which Bylaws amendment is the most appropriate
>>> outcome relating to this issue (and noting that various
>>> proposals have been floated in recent weeks), * understanding
>>> the interaction between such an amendment and other B ylaws
>>> and the Articles of Incorporation, and other normative and
>>> operative ICANN documents, *  determining what efforts may
>>> need to take place  and what groups may need to be formed as
>>> a result of a Bylaw  amendment (including without limitation
>>> PDP (or non-PDP) GNSO Working Groups or Cross-Community Working
>>> Groups ) ,   *  understanding and integrating with
>>> other efforts taking place in and around ICANN (GAC WG,
>>> "Working Party"), * what an "impact analysis" would entail
>>> (who, when, how, what criteria, what deliverable, what scope,
>>> what triggers, etc.), * whether there are other "impact
>>> analyses" that should also be put in place at this time or
>>> which are already in place, * what the result, effects and
>>> consequences (intentional and unintentional) of various impact
>>> analysis outcomes would be (either on present policy and 
>>> implementation, on future policy and implementation and on 
>>> other ICANN activities).
> 
>>> I think the last 4 points can be left to WS2. For the rest, 
>>> we'll need to balance work in WS1 vs. WS2, but I think each 
>>> requires some work in WS1 to have a framework of understanding 
>>> the meaning and consequences of a Bylaws amendment, and to 
>>> determine the best way forward in WS1.  A number of these
>>> could (and probably should) generate (or be recast as) "Stress 
>>> Tests."
> 
>>> This is very much a first draft (or 1.1, since I did revisit
>>> it once), so further contributions and revisions are welcomed.
> 
>>> Greg
> 
> 
>>> On Thu, Aug 6, 2015 at 4:17 PM, Greg Shatan 
>>> <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>
>> <mailto:gregshatanipc at gmail.com 
>> <mailto:gregshatanipc at gmail.com>>> wrote:
> 
>>> Nope.  Nothing hidden and nefarious here.  I'll leave that to 
>>> this guy: Greg Satan Twitter Page 
>>> <https://twitter.com/GregShatan>
> 
>>> On Thu, Aug 6, 2015 at 3:52 PM, Dr Eberhard W Lisse 
>>> <el at lisse.na <mailto:el at lisse.na> <mailto:el at lisse.na 
>>> <mailto:el at lisse.na>>> wrote:
> 
>>> Avri,
> 
>>> same tactics as usual.
> 
>>> Not unexpected.
> 
> 
>>> el
> 
>>> -- Sent from Dr Lisse's iPad mini
> 
>>> On Aug 6, 2015, at 20:44, Greg Shatan <gregshatanipc at gmail.com 
>>> <mailto:gregshatanipc at gmail.com> 
>>> <mailto:gregshatanipc at gmail.com 
>>> <mailto:gregshatanipc at gmail.com>>> wrote:
> 
>>>> Avri,
>>>> 
>>>> You are certainly entitled to express yourself, and I look 
>>>> forward to a robust and productive discussion.  Again, there 
>>>> is no intention to obfuscate.  The intention is to clarify, 
>>>> which I believe will build a stronger consensus.
>>>> 
>>>> Greg
>>>> 
>>>> On Thu, Aug 6, 2015 at 3:38 PM, Avri Doria <avri at acm.org 
>>>> <mailto:avri at acm.org> <mailto:avri at acm.org 
>>>> <mailto:avri at acm.org>>> wrote:
>>>> 
>>>> Hi,
>>>> 
>>>> Freedom of expression allows me to object to the statements 
>>>> you make. I asked nicely, with a please even.  I did not 
>>>> attempt to regulate you speech.
>>>> 
>>>> I am objecting to what I perceive to be tactics to obfuscate 
>>>> and make things seem hidden and nefarious. That too is 
>>>> freedom of expression.
>>>> 
>>>> avri
>>>> 
>>>> 
>>>> On 06-Aug-15 15:34, Greg Shatan wrote:
>>>>> I really don't think using a 500 year old colloquialism 
>>>>> "cheapens the discussion."  I also find it ironic to find 
>>>>> this admonition in a discussion about, inter alia, freedom 
>>>>> of expression.  Political correctness, trigger words, and 
>>>>> other such stuff are a not inconsequential threat to 
>>>>> freedom of expression and freedom of ideas -- starting
>>>>> with a kernel of good intentions, and then becoming quite 
>>>>> damaging....
>>>>> 
>>>>> On Thu, Aug 6, 2015 at 3:05 PM, Avri Doria <avri at acm.org 
>>>>> <mailto:avri at acm.org> <mailto:avri at acm.org 
>>>>> <mailto:avri at acm.org>> <mailto:avri at acm.org
>> <mailto:avri at acm.org>
>>>>> <mailto:avri at acm.org <mailto:avri at acm.org>>>> wrote:
>>>>> 
>>>>> 
>>>>> 
>>>>> On 06-Aug-15 14:28, Greg Shatan wrote:
>>>>>> Otherwise, we are just buying a pig in a poke.
>>>>> 
>>>>> 
>>>>> I really have trouble with such a reference to human 
>>>>> rights. Please do not cheapen this discussion.
>>>>> 
>>>>> avri
>>>>> 
>>>>> 
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>>>>> 
>>>>> 
>>>>> 
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> 
> 
> 
> 
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- -- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

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