[Wp4] New report on ICANN and Human Rights

[Dr. Tatiana Tropina]

Dear Paul, dear Niels 

Sorry for intervening your conversation.

I think there has been a bit of misunderstanding or miscommunication
concerning the new report of the CCWP-HR on ICANN's Corporate
Responsibility to respect Human Rights. I would like to make a bit of
clarification, which hopefully will solve this. 

The main aim of this new CCWP report was to analyse and map current
human rights policies (not only Ruggie principles, but such standards
as, for example, transparency reporting) to see what the CCWP and
broader community can further use in developing/suggesting HR policies
and frameworks for the ICANN. 

In no way this report was going to suggest to commit (blindly) to Ruggie
principles or to make ICANN a human rights watchdog. While drafting this
report, the working party was always bearing in mind that ICANN is not
like any other business and we need a unique set of policies to keep a
careful balance and not to impose any obligation to enforce human
rights. The Ruggie in this sense are guiding principles by no means
absolute in themselves, they can only help us to explore the options and
think about a proper human rights policy. 

This report is just a first step (but a big progress for the CCWP) in
the development of this unique set of standards. CCWP is committed to
carry out analysis of these standards and best practices and to reveal
the possible risks and impact for the ICANN. The possible risks pointed
out by Paul are actually some of the risks we are going to take into
account,  among many others that are to be analysed further. This
analysis and development of frameworks is still a long road to walk, and
CCWP is just one of the contributors, and we are going to work with all
the interested parties and ICANN community: there are many things that
have to be taken into account, such ICANN processes, etc. etc. So this
report is just a set of policy/standards mapping and some specific
recommendations, but to make it reality there is no quick off the cuff
solution or blind commitment, and I think we all understand this. 

Furthermore, because of  ICANN's unique mission, any principles and
standards, including Ruggie, need a very careful consideration. I think
that we all agree here (well, may be not all, but majority of us :)), at
WP4, as well at the CCWP, that our goal is to develop bylaws language
and policies that will commit ICANN only to respecting human rights and
only within its mission, but not to human rights enforcement or anything
like this. We all want to avoid any commitment that will turn ICANN to
watchdog or can disturb its main mission. 

Thus, I think it shall be pointed out once again that one should treat
this report as an analysis, which points out to different policies and
standards – Ruggie might be among them, but there is much more in this
report, actually, - as a first step in developing unique HR policies and
frameworks for ICANN. 

I hope this clarifies the situation with Ruggie and with the aim of the
report. The debate that Paul and Niels have is a very valuable one, but
it rather has to deal with the future discussions in the HR frameworks
development. Every concern pointed by Paul should and will be taken into
account, as well as any concerns of any other members of the ICANN
community. 

Caveat: I am speaking in my individual capacity, not on behalf on CCWP.
So if I got anything wrong concerning CCWP goals or missed any important
point, I hope Niels can follow and clarify.

Best regards

Tanya


On 28/10/15 22:39, Paul Twomey wrote:
> HI Niels > > Thanks for your reply. > > I think the best I can do is ask for
some time on Friday to explain the practical steps involved in changes
of tld operator (especially a cctld operator) both through requests for
redelegation and also requests for changes in the zone file through the
IANA process.   Because it is several of these where I see ICANN being
practically engaged in recognizing end empowering a related party which
could be guilty of human rights abuse. > > As for the Ruggie Principles,
let me point again to principle 13 and its commentary (and that of
principle 19): > > 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. > > (/Emphasis added - this is the nature of the IANA
functions relationship with ccTLDs) // > / > > > Commentary > > Business
enterprises may be involved with adverse human rights impacts either > >
through their own activities or as a result of their business
relationships with > > other parties. Guiding Principle 19 elaborates
further on the implications for > > how business enterprises should
address these situations. For the purpose of > > these Guiding
Principles a business enterprise’s “activities” are understood > > to
include both actions and omissions; and its “business relationships” are
> > understood to include relationships with business partners, entities
in its > > value chain, and any other non-State or State entity directly
linked to its > > business operations, products or services > >  > >  >
> Commentary on Principle 19 > >  > > The more complex the situation and
its implications for human rights, the > > stronger is the case for the
enterprise to draw on independent expert advice > > in deciding how to
respond.  */(ICANN is the body to make decisions on tlds - there is not
another expert body)/* > > If the business enterprise has leverage to
prevent or mitigate the adverse > > impact, it should exercise it. And
if it lacks leverage there may be ways for > > the enterprise to
increase it. Leverage may be increased by, for example, > > offering
capacity-building or other incentives to the related entity, or > >
collaborating with other actors.  */(ICANN should not be asked to put
political leverage on a government - it will destroy its apolitical
role)/**//* > > *//* > > There are situations in which the enterprise
lacks the leverage to prevent > > or mitigate adverse impacts and is
unable to increase its leverage. Here, > > the enterprise should
consider ending the relationship, taking into account > > credible
assessments of potential adverse human rights impacts of doing so. 
*(ICANN cannot consider ending a relationship with a cctld and still
operate the IANA functions )*** > > ** * > ** > *It seems to me that
Ruggie Principles basically are saying if another party in which you are
in a business relationship continues to breach human rights you should
consider ending the relationship. > > this is just what ICANN can NOT do
with a ccTLD or even some TLD operators if it is going to continue to be
the protocol coordinator of a single Interoperable Internet. > > But if
it does not breach these relationships one can just see the level of
litigation from human rights and dissident groups which could be brought
against ICANN if it does adopt these principles without amendment. > >
Paul  > > > > On 10/27/15 3:34 AM, Niels ten Oever wrote:
> Hi Paul,
>
> I'm sorry for responding this late. Please find my response inline:
>
> On 10/20/2015 04:09 AM, Paul Twomey wrote:
> >>> Niels
> >>>
> >>> I am again confronted with the challenge of understanding exactly
> >>> what these broadly stated proposals mean.
> >>>
> We did our best to be precise, but maybe we haven't sufficiently
> succeeded. Could you please point our which proposals or
> recommendation (in the report) you mean with 'these broadly stated
> proposals'?
>
> >>> Does your paper just refer to the process within ICANN of creating
> >>> policy - or does it apply to the application of that policy?
> >>>
> As the paper described, a human rights review could be part of the
> Policy Develop Process. But to have a full human rights report, the
> impact of ICANN's policies and operations should be assessed.
>
> >>> For instance, concerning specific ICANN necessary functions would
> >>> you be able to tell me how the process recommended in this paper
> >>> would apply to the GAC principles on redelgation of ccTLDs or the
> >>> ccNSO process which has been underway on redelgations?  These are
> >>> both products of policy making processes.
> >>>
> The report recommends a way forward, based on international best
> practices, for creating a human rights policy, the content of the
> policy and how it would be implemented is of course up for discussion
> in an appropriate process.
>
> >>> Does it mean that freedom of expression has to be an overriding
> >>> principle in these cases - and if so how do you see
> >>> operationalizing that?
> I don't think this was mentioned or implied anywhere in the report.
> Rights need to be balanced, the challenge is to come up with a
> framework to do this in the best way.
>
> >>> If a government, operating clearly under its laws, requests the
> >>> redelegation of ccTLD from one body to another because the new law
> >>> empowers the government to get information about domain name
> >>> registrants from the new body and to order the new body to remove
> >>> registrations on instructions from the government  (I know of at
> >>> least 2 examples just like this happening in the last 10 years) and
> >>> if such a request is consistent with the GAC principles etc, it
> >>> seems to me that your paper implies that ICANN would be required to
> >>> either deny this request or require that the existing policy
> >>> processes be changed.
> >>>
> >>> Have I got it right?  Or is it just that in the policy development
> >>> process all who wanted to participate had the freedom to express
> >>> their views?
> >>>
> The latter is the case.
>
> >>> Please understand that I also think that we should try to hold
> >>> ICANN to human rights standards but I remain concerned that as soon
> >>> as the Ruggles Principles emerge as the answer I keep finding
> >>> related party issues which could really destabilize the whole ICANN
> >>> mission.
> >>>
> Am very happy to discuss this with you, you mentioned this before, but
> I am still a bit unclear which part of the Ruggie principles could
> potentially destabilize ICANN.
>
> >>> The bottom line is that ICANN has to support EVERY ccTLD and TLD
> >>> operator if we are going to have a single interoperable Internet.
> >>> It is not like a business - a business can agree not to do business
> >>> in a particular country.   ICANN will not be able to do so and
> >>> fulfill its mission.
> I think it is crucial for an organization to know and show where there
> are (risk for) human rights abuses in relation to their operations and
> think about ways how these can be re-mediated or improved upon, this
> by no way automatically means that ICANN cannot do x or y or engage
> with a specific country or business.
>
> There are also other bodies that have done this, such as the
> International Bar Association.
>
> >>> I look forward to your response.
> >>>
> Again, sorry for the late reply, am looking forward to your thoughts.
>
> Best,
>
> Niels
>
>
> >>> Best
> >>>
> >>> Paul
> >>>
> >>>
> >>>
> >>> On 10/19/15 9:26 PM, Niels ten Oever wrote: Dear Paul,
> >>>
> >>> This was indeed meant to inform WP4 on the activity in the CCWP-HR
> >>> and give an example of what the considerations and work in WS2
> >>> might look like.
> >>>
> >>> Looking forward to hear your comments and/or questions.
> >>>
> >>> Best,
> >>>
> >>> Niels
> >>>
> >>> On 10/19/2015 09:10 AM, Avri Doria wrote:
> >>>>>> Hi,
> >>>>>>
> >>>>>>
> >>>>>> I think it is informational. Explains many of the things we
> >>>>>> have been discussing.
> >>>>>>
> >>>>>> It is the output of a parallel work effort and is meant to
> >>>>>> inform.
> >>>>>>
> >>>>>> avri
> >>>>>>
> >>>>>> On 19-Oct-15 00:58, Paul Twomey wrote:
> >>>>>>> Sorry Niels
> >>>>>>>
> >>>>>>> I am not attending Dublin.   Can you please inform me how
> >>>>>>> this document fits within the work of Working Party 4?
> >>>>>>>
> >>>>>>> Paul
> >>>>>>>
> >>>>>>> On 10/18/15 2:19 AM, Niels ten Oever wrote:
> >>>>>>>> Dear WP4 members,
> >>>>>>>>
> >>>>>>>> It's with great pleasure that I send you the the report
> >>>>>>>> prepared by the CCWP-HR on ICANN’s Corporate
> >>>>>>>> Responsibility to respect Human Rights: Recommendations
> >>>>>>>> for developing Human Rights Review Process and
> >>>>>>>> Reporting.
> >>>>>>>>
> >>>>>>>> The report will be presented and discussed during our
> >>>>>>>> session on Wednesday October 21 at 9:00 in Wicklow MR5 or
> >>>>>>>> via remote participation [0] for which you all have been
> >>>>>>>> invited.
> >>>>>>>>
> >>>>>>>> I trust this report will help further the discussion on
> >>>>>>>> how ICANN can live up to its responsibility to respect
> >>>>>>>> human rights.
> >>>>>>>>
> >>>>>>>> Looking forward to discuss.
> >>>>>>>>
> >>>>>>>> Best,
> >>>>>>>>
> >>>>>>>> Niels
> >>>>>>>>
> >>>>>>>> PS Feel free to spread the report widely. it can also be
> >>>>>>>> found on the website of the CCWP-HR:
> >>>>>>>> https://tinyurl.com/cchumanrights
> >>>>>>>>
> >>>>>>>> [0]
> >>>>>>>> https://meetings.icann.org/en/dublin54/schedule/wed-ccwp-human-ri
> ght
> s-morning
> >>>>>>>>
> >>>>>>>>
> >>>>>>>>
> >>> _______________________________________________
> >>>>>>>> Wp4 mailing list Wp4 at icann.org
> >>>>>>>> https://mm.icann.org/mailman/listinfo/wp4
> >>>>>>> -- Dr Paul Twomey Managing Director Argo P at cific
> >>>>>>>
> >>>>>>> US Cell: +1 310 279 2366 Aust M: +61 416 238 501
> >>>>>>>
> >>>>>>> www.argopacific.com
> >>>>>>>
> >>>>>>>
> >>>>>>> _______________________________________________ Wp4 mailing
> >>>>>>> list Wp4 at icann.org
> >>>>>>> https://mm.icann.org/mailman/listinfo/wp4
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> >>>>>>
> >>>>>> _______________________________________________ Wp4 mailing
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> >>>>>>
> >>> -- Niels ten Oever Head of Digital
> >>>
> >>> Article 19 www.article19.org
> >>>
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>> _______________________________________________ >> Wp4 mailing list >> Wp4 at icann.org >>
https://mm.icann.org/mailman/listinfo/wp4 > > -- > 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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