[Ws2-hr] New Draft Text for FoI

Mon Oct 3 18:26:47 UTC 2016

Probably should say something like this in order to be clear and make the roles within the organization clear:

Unlike the internationally recognized human rights which legally obligate states (see below), the UNGPs do not create new international law obligations or limit or undermine any legal obligations a State may have (UNGPs, General Principles). This also means that the UNGPs do not require enterprises to enforce human rights, which is the legal duty of states.
Pursuant to the UNGPs, and consistent with existing processes and protocols, including, but not limited to, the MultiStakeholder Bottom-Up Policy Development Process, the  ICANN Empowered Community can voluntarily express its     commitment to respect human rights, and identify, prevent, mitigate and account for how it addresses adverse human rights impacts through the process of human rights due diligence. In doing so, the ICANN Empowered Community can prioritize areas of focus, such as ICANN operations, internal procedures, and/or new policy, consistent with
ICANN’s  Mission. In addition, while operational level grievance mechanisms may be established to address human rights grievances for internal matters, no such mechanism shall apply for the purpose of enforcing claims of  human rights violations  against third parties or as between one party and another party.

ICANN’s commitment to apply the UNGPs to its operations and policies in the foregoing manner is consistent with the letter and the spirit of the human rights provision of the bylaws as well as with the UNGPs.  Unless required by applicable law, all human rights policies shall be developed pursuant to the MultiStakeholder Model bottom-up process and shall be effective upon subsequent adoption by the ICANN Board.

The above assumes that my idea for a Human Rights Objection process to new gTLD applications is toast.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image002.png at 01D21D69.068CD470]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Schaefer, Brett
Sent: Monday, October 03, 2016 8:56 AM
To: Niels ten Oever; ws2-hr at icann.org
Subject: Re: [Ws2-hr] New Draft Text for FoI

Niels,

I wanted to highlight this statement in the document:

“Pursuant to the UNGPs, ICANN can voluntarily express its commitment to respect human rights, and identify, prevent, mitigate and account for how it addresses adverse human rights impacts through the process of human rights due diligence. In doing so, ICANN can prioritize areas of focus, such as its operations, internal procedures, and/or new policy, consistent with its Mission. In addition, operational level grievance mechanisms should be established to address human rights grievances.

ICANN’s commitment to apply the UNGPs to its operations and policies in the foregoing manner is consistent with the letter and the spirit of the human rights provision of the bylaws as well as with the UNGPs.”

And

“As stated above, application of the human rights Core Value does not create any legal obligation of ICANN outside its Mission. It is assumed that it is implicit in ICANN’s Mission that it will operate within the bounds of applicable laws; furthermore, it is also assumed that ICANN has the discretion to voluntarily make commitments to respect human rights and to carry out human rights due diligence.”

The text of the human rights core value states: “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.”

The text quoted above from the draft FoI seems to be proposing a that because ICANN would be “voluntarily” identifying, preventing, mitigating and accounting for adverse human rights impacts, that these commitments would not be inconsistent with the text of the new bylaws and that it would differ from an “obligation”.

Is that correct?

Brett

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>
From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of Niels ten Oever
Sent: Monday, October 03, 2016 11:07 AM
To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: [Ws2-hr] New Draft Text for FoI

Dear all,

I hope this e-mail finds you well. To ensure nothing of our constructive
discussions is getting lost, and to help us continue to be very
concrete, I would like to share with you the attached document, that can
also be found here (page 2 onwards):

https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUOsA2Q/edit

The document aims to represent a sedimentation of our discussion and
suggest a way forward, by providing potential text for the Framework of
Interpretation. Partially inspired by the reaction of John Ruggie when I
brought up our concerns with him.

I hope this proves to be useful, and I am more than happy to discuss it
with you all on the list and the call, and of course work on suggestions
and comments in the Google Doc.

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

________________________________

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/20161003/14ace13a/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 6496 bytes
Desc: image002.png
URL: <http://mm.icann.org/pipermail/ws2-hr/attachments/20161003/14ace13a/image002-0001.png>