[Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human Rights questions

[Greg Shatan]

The point is that the Bylaw can only require what is required by applicable
law.  So unless there's a determination that "respecting" human rights
within the bounds of applicable law requires an HRIA, a failure to conduct
an HRIA could not be a violation of the Bylaw.  And I see no basis for such
a determination.

Greg









*Gregory S. Shatan | Partner *McCARTER & ENGLISH, LLP

245 Park Avenue, 27th Floor | New York, New York 10167
T: 212-609-6873
C: 917-816-6428
F: 212-416-7613
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 4:59 PM, Aikman-Scalese, Anne <AAikman at lrrc.com>
wrote:

> Thanks Greg.  I certainly did not mean that the HRIA would be required by
> applicable law.  I think it is clear that it is not. I was discussing the
> meaning of the word “respect”, not the meaning of applicable law.
>
>
>
> My question was whether the Board could be accused  (in the context of
> Ombudsperson or Empowered Community action, for example)  of violating the
> Bylaw itself by failing to conduct an HRIA – in other words whether failure
> to conduct an HRIA constitutes a failure to “respect” Human Rights and
> separately, if an Expert Report on Human Rights Impact were commissioned,
> would the Board be subject to an IRP if it did not follow every
> recommendation in such a report.
>
>
>
> This is back to the notion of analyzing what our recommendations and our
> language may mean in terms of practical consequences.   But in this case,
> the hypothetical that is given, the HRIA, is relative to “respect” not to
> “applicable law”.
>
>
>
> 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:* Greg Shatan [mailto:gregshatanipc at gmail.com]
> *Sent:* Wednesday, December 14, 2016 2:54 PM
> *To:* Aikman-Scalese, Anne
> *Cc:* León Felipe Sánchez Ambía; ws2-hr at icann.org;
> ccwg-accountability5 at icann.org; mssi-secretariat at icann.org
> *Subject:* Re: [Ws2-hr] Fwd: [EXTERNAL] Re: Request for input on Human
> Rights questions
>
>
>
> 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 <(212)%20609-6873>
> C: 917-816-6428 <(917)%20816-6428>
> F: 212-416-7613 <(212)%20416-7613>
> 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
>
>
>
>
>
>
> ------------------------------
>
>
> This message and any attachments are intended only for the use of the
> individual or entity to which they are addressed. If the reader of this
> message or an attachment is not the intended recipient or the employee or
> agent responsible for delivering the message or attachment to the intended
> recipient you are hereby notified that any dissemination, distribution or
> copying of this message or any attachment is strictly prohibited. If you
> have received this communication in error, please notify us immediately by
> replying to the sender. The information transmitted in this message and any
> attachments may be privileged, is intended only for the personal and
> confidential use of the intended recipients, and is covered by the
> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
>
>
> _______________________________________________
> Ws2-hr mailing list
> Ws2-hr at icann.org
> https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
>
> ------------------------------
>
> This message and any attachments are intended only for the use of the
> individual or entity to which they are addressed. If the reader of this
> message or an attachment is not the intended recipient or the employee or
> agent responsible for delivering the message or attachment to the intended
> recipient you are hereby notified that any dissemination, distribution or
> copying of this message or any attachment is strictly prohibited. If you
> have received this communication in error, please notify us immediately by
> replying to the sender. The information transmitted in this message and any
> attachments may be privileged, is intended only for the personal and
> confidential use of the intended recipients, and is covered by the
> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20161214/2644d8f2/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image004.png
Type: image/png
Size: 6488 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20161214/2644d8f2/image004-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 6496 bytes
Desc: not available
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20161214/2644d8f2/image003-0001.png>