[Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights questions
Greg Shatan
gregshatanipc at gmail.com
Wed Dec 14 21:53:52 UTC 2016
Anne,
In my view, the short answer to your questions is that a Human Rights
Impact Assessment is not required by applicable law. Thus, the bylaw could
not be violated if ICANN did not undertake a HRIA. If ICANN adopted a
policy requiring an HRIA under certain circumstances and then violated that
policy, that would still not violate the Bylaw, since applicable law
doesn't require an HRIA. So that policy violation would be dealt with in
whatever way a policy (but not a Consensus Policy) violation would be dealt
with.
Right now, the HRIA idea is barely sketched out. I'm guessing there are
other sources to use a platform for constructing such an assessment, but
many choices would need to be made and significant work done, if an HRIA
were to be put on ICANN's plate.
I'm still far from convinced that it is within the remit of this group to
even raise the concept of the HRIA; I'm still trying to figure that out.
Greg
*Gregory S. Shatan | Partner *McCARTER & ENGLISH, LLP
245 Park Avenue, 27th Floor | New York, New York 10167
T: 212-609-6873
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gshatan at mccarter.com | www.mccarter.com
BOSTON | HARTFORD | STAMFORD | NEW YORK | NEWARK
EAST BRUNSWICK | PHILADELPHIA | WILMINGTON | WASHINGTON, DC
On Wed, Dec 14, 2016 at 3:51 PM, Aikman-Scalese, Anne <AAikman at lrrc.com>
wrote:
> Thank you Leon. It is good to know that ICANN Legal believes the draft
> definition of “applicable law” is accurate, although it may have been
> helpful to have more information on the laws that apply due to ICANN’s
> status as a California non-profit corporation. I do consider that there
> are laws that apply outside the U.S. to California non-profits who are
> doing business abroad, most notably by way of having opened offices in
> those jurisdictions.
>
>
>
> Regarding the word “respect”, ICANN Legal states that the primary meaning
> of this word is that ICANN has no obligation to enforce Human Rights as
> against third parties. So we still need to determine as a subgroup what
> this word might require that is short of enforcement. For example, is the
> Bylaw violated if ICANN does not undertake a Human Rights Impact
> Assessment? Who decides the scope of that assessment and how much it
> should cost? Is the assessment meant to be part of a Human Rights policy
> development process or is it in the form of an “Expert Report” delivered to
> the ICANN Board? What happens if the ICANN Board does not take action
> based on each recommendation made in such an Expert Report? Is ICANN then
> subject to administrative and judicial proceedings for failing to do so?
> Are directors subject to removal for violating the Bylaw? (How are these
> risks to be addressed in recommendations coming from our subteam?)
>
>
>
> I personally cannot answer these questions but wanted to raise them by
> way of example since the document we are working on at present refers to
> this specific Human Rights Impact Assessment tool. Would failure to
> conduct an HRIA mean that ICANN is failing to respect Human Rights? What
> if the community disagrees with an Expert HRIA report provided to the Board
> on this subject?
>
>
>
> As previously stated, I believe that the applicable definition of
> “respect” in this Bylaw falls somewhere in the realm of “to fully consider
> and balance Human Rights considerations among each other and as against
> other Core Values when making policy”.
>
>
>
> In light of some previous comments I have made, I also wanted to mention
> that I looked back at the Objection Procedures for new gTLDs and realized
> that Human Rights is a listed basis for the Limited Public Interest
> Objection. Thus, when we consider how the new Bylaw and HR-FOI interact
> with existing ICANN processes, we may need to look specifically at the
> Limited Public Interest Objection Procedure.
>
>
>
> Thank you,
>
> Anne
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 <(520)%20629-4428> office
>
> 520.879.4725 <(520)%20879-4725> fax
>
> AAikman at lrrc.com
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> lrrc.com
>
>
>
> *From:* ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] *On
> Behalf Of *León Felipe Sánchez Ambía
> *Sent:* Tuesday, December 13, 2016 7:05 PM
> *To:* ws2-hr at icann.org; ccwg-accountability5 at icann.org;
> mssi-secretariat at icann.org
> *Subject:* [Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights
> questions
>
>
>
> Dear Niels and HR subgroup members. I'm forwarding the replies from ICANN
> legal to the HR questions.
>
>
>
> These replies haven't been reviewed by the legal committee but in order to
> expedite processes we can review in parallel.
>
>
>
> If you have any comments or questions, we will be happy to help.
>
>
>
> Kind regards,
>
>
>
>
>
> León
>
> Enviado desde mi iPhone
>
>
> Inicio del mensaje reenviado:
>
> *De:* Samantha Eisner <Samantha.Eisner at icann.org>
> *Fecha:* 13 de diciembre de 2016, 7:59:40 PM CST
> *Para:* León Felipe Sánchez Ambía <leonfelipe at sanchez.mx>, John Jeffrey <
> JJ at ICANN.org>
> *Cc:* "ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>,
> "MSSI Secretariat" <mssi-secretariat at icann.org>
> *Asunto:* *Re: [EXTERNAL] Re: Request for input on Human Rights questions*
>
> Dear Léon,
>
>
>
> Here are ICANN’s responses:
>
>
>
>
>
> As part of the CCWG-Legal Committee works, we hereby request for your
> answers to the following questions related to the HRs subgroup:
>
>
>
> 1. With respect to ICANN legal’s understanding of the definition
> of “applicable law”:
>
> a. Has ICANN legal developed an understanding of the meaning of
> the term “applicable law”?
>
> Yes. ICANN’s understanding of the term “applicable law” is largely
> consistent with the CCWG WS2 Sub-Team on Human Rights excerpt that is found
> below. Applicable law could also mean laws that are applicable and binding
> upon others, and not just ICANN, based on the facts and circumstances of
> any individual situation. Applicable law can also be agreed upon by parties
> to a contract, such as identifying what law will apply in the event of a
> dispute.
>
>
>
> b. If so, does that understanding apply in the context of the new
> bylaw at Article 1.2(b)(viii)?
>
> The concept of “applicable law” does not change dependent upon whether the
> term is used in Bylaws or elsewhere.
>
>
>
> c. Would the following definition of “applicable law,” currently
> under consideration by the CCWG WS2 Sub-Team on Human Rights, be
> consistent with either or both of those?:
>
> <quote>: Applicable law refers to the body of law that binds
> ICANN at any given time, in any given circumstance and in any relevant
> jurisdiction. It consists of statutes, rules, regulations, etcetera,
> as well as judicial opinions, where appropriate. It is a dynamic
> concept inasmuch as laws, regulations, etcetera, change over time.
> Applicable law can have disparate impacts on ICANN around the globe:
> for example, if ICANN employs personnel in different jurisdictions
> then it must observe the appropriate labour laws in those various
> locales. Applicable law is thus a large body of law that eludes our
> ability to catalogue, but it is ascertainable in the context of a
> specific question or issue. </quote>
>
> d. Please share the applicable understanding(s).
>
> See above.
>
>
>
> 2. In the view of ICANN legal, what does the term “Respect” mean
> according to the bylaws (in relation to Core Values)?
>
> As supported through the CCWG-Accountability WS1 conversations, “respect”
> denotes that ICANN is not in an enforcement role, but that – as ICANN does
> today – respects the laws and regulations to which it is bound and acts
> within them.
>
>
>
> 3. In the view of ICANN legal, what is the relationship between
> core values and commitments in general; and the HR core value and
> commitments in particular?
>
> The ICANN Bylaws are clear on the relationship between core values and
> commitments: "(c) The Commitments and Core Values are intended to apply
> in the broadest possible range of circumstances. The Commitments reflect
> ICANN's fundamental compact with the global Internet community and are
> intended to apply consistently and comprehensively to ICANN's activities.
> The specific way in which Core Values are applied, individually and
> collectively, to any given situation may depend on many factors that cannot
> be fully anticipated or enumerated. Situations may arise in which perfect
> fidelity to all Core Values simultaneously is not possible. Accordingly, in
> any situation where one Core Value must be balanced with another,
> potentially competing Core Value, the result of the balancing must serve a
> policy developed through the bottom-up multistakeholder process or
> otherwise best serve ICANN's Mission."
>
>
>
> It should be noted that to the extent the HR Core Value relies on ICANN
> adhering to relevant obligations of applicable law, ICANN is not authorized
> to violate laws.
>
> 4. In the view of ICANN legal, how does the balancing process
> between core values, as described in the bylaws, take place? Is it
> documented?
>
>
>
> There is not yet a documented process for the balancing of core values,
> however ICANN continues to refine its practice of producing rationales in
> support of decisions of the Board that identify the core values guiding a
> particular decision. Community groups producing recommendations for the
> Board to consider are also encouraged to begin documenting the core values
> supporting their recommendations. It is important to note that many of the
> items identified under the revised core values section are well integrated
> across all of ICANN’s work today, for example, the recognition of where
> ICANN’s policy roles start and stop; and seeking and supporting diverse
> participation in policy development at ICANN. As set out in the Bylaws,
> ICANN is always striving to achieve a reasonable balance between the
> interests of different stakeholders, which could impact how competition in
> the registration of domain names is introduced and promoted, for example.
> As discussed above, the balancing test cannot be used to support an outcome
> in violation of applicable laws.
>
>
>
>
>
> —
>
> Samantha Eisner
>
> Deputy General Counsel, ICANN
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, California 90094
>
> USA
>
> Direct Dial: +1 310 578 8631 <(310)%20578-8631>
>
>
>
> *From: *León Sánchez Ambía <leonfelipe at sanchez.mx>
> *Date: *Monday, December 12, 2016 at 5:59 AM
> *To: *Samantha Eisner <samantha.eisner at icann.org>, John Jeffrey <
> JJ at ICANN.org>
> *Cc: *"ccwg-accountability5 at icann.org" <ccwg-accountability5 at icann.org>,
> MSSI Secretariat <mssi-secretariat at icann.org>
> *Subject: *[EXTERNAL] Re: Request for input on Human Rights questions
>
>
>
> Dear Sam and John,
>
>
>
> I believe we have not had either confirmation of reception nor reply to
> the questions below. If you have in fact replied, I might have missed it.
>
>
>
> Could you please update us on the status of the replies for these
> questions? When can we expect to have the answers?
>
>
>
> As you may be aware we have a plenary call tomorrow and this will be an
> agenda item so we appreciate any information you can provide.
>
>
>
> Best regards,
>
>
>
>
>
> León
>
>
>
> El 30/11/2016, a las 09:24, León Felipe Sánchez Ambía <
> leonfelipe at sanchez.mx> escribió:
>
>
>
> Dear John and Sam,
>
>
>
>
>
> As part of the CCWG-Legal Committee works, we hereby request for your
> answers to the following questions related to the HRs subgroup:
>
>
>
> 1. With respect to ICANN legal’s understanding of the definition
> of “applicable law”:
>
> a. Has ICANN legal developed an understanding of the meaning of
> the term “applicable law”?
>
> b. If so, does that understanding apply in the context of the new
> bylaw at Article 1.2(b)(viii)?
>
> c. Would the following definition of “applicable law,” currently
> under consideration by the CCWG WS2 Sub-Team on Human Rights, be
> consistent with either or both of those?:
>
> <quote>: Applicable law refers to the body of law that binds
> ICANN at any given time, in any given circumstance and in any relevant
> jurisdiction. It consists of statutes, rules, regulations, etcetera,
> as well as judicial opinions, where appropriate. It is a dynamic
> concept inasmuch as laws, regulations, etcetera, change over time.
> Applicable law can have disparate impacts on ICANN around the globe:
> for example, if ICANN employs personnel in different jurisdictions
> then it must observe the appropriate labour laws in those various
> locales. Applicable law is thus a large body of law that eludes our
> ability to catalogue, but it is ascertainable in the context of a
> specific question or issue. </quote>
>
> d. Please share the applicable understanding(s).
>
> 2. In the view of ICANN legal, what does the term “Respect” mean
> according to the bylaws (in relation to Core Values)?
>
> 3. In the view of ICANN legal, what is the relationship between
> core values and commitments in general; and the HR core value and
> commitments in particular?
>
> 4. In the view of ICANN legal, how does the balancing process
> between core values, as described in the bylaws, take place? Is it
> documented?
>
> Saludos,
>
>
>
> As the answers to these questions will enable to continue the work of the
> Human Rights sub-group on different topics, we would kindly ask to have an
> answer to them at your earliest convenience.
>
>
>
> Kind regards,
>
>
>
>
>
>
>
> León
>
>
>
>
>
>
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