[Ws2-hr] New Draft Text for FoI

Tue Oct 4 07:52:07 UTC 2016

H all,

I do not have the time to respond to this in detail, and I probably am not able to attend today’s call, at least not on time. But I want to echo the concerns stated by Tatiana and Matthew at

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

I too am confused, euphemistically speaking, that this document takes Ruggie’s UNGPs as a base line: seemingly because a.o. ’the application of the UNGPs to ICANN’s operations and policies does not create legal obligation beyond those found in laws applicable to ICANN.’ 

First of all, from my perspective, we do not have consensus that (a subset of) the UNGPs are applicable to ICANN. Not even close. As a comment from Tatiana illustrates: ‘the text suggested in this document is inconsistent with what we are discussing on the calls and depends on the results of the Ruggie discussion. To put the Ruggie in the draft without respecting the outcome of the Ruggie discussion would be careless.’

More importantly, I think Ruggie is very explicit with regard to what ‘business enterprises should respect human rights’ means. For example, from the explanatory notes for article 11: 

‘The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. (…) And it exists over and above compliance with national laws and regulations protecting human rights’. 

That is IMO way beyond the scope of the bylaw- and mission text…. 

-Bastiaan

> On 03 Oct 2016, at 20:26, Aikman-Scalese, Anne <AAikman at lrrc.com> wrote:
> 
> 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
> _____________________________
> <image002.png>
> Lewis Roca Rothgerber Christie LLP
> One South Church Avenue, Suite 700
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> 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
> From: 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
> 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
> 
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