[Ws2-hr] Report to CCWG

Fri Oct 21 09:11:39 UTC 2016

thanks Niels and Sabine

a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...

best

Jorge

Von meinem iPhone gesendet

> Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists at nielstenoever.net>:
> 
> Dear Paul,
> 
> I think we can now answer some of your questions. Sidley already made a
> 'Response to Questions Regarding ICANN’s Human Rights Obligations' in
> July 2015, you can find it attached.
> 
> Thanks a lot to Sabine Meyer for digging this up.
> 
> Best,
> 
> Niels    
> 
>> On 10/20/2016 11:53 AM, Niels ten Oever wrote:
>> Dear Paul,
>> 
>> I completely agree we should have a clear definition of applicable law,
>> which is what we are working on, and about which we also asked ICANN
>> legal a question in the call before last.
>> 
>> Where I am having a much harder time following you is when you ask:
>> 
>>> Ask ICANN Legal what
>>> Human Rights laws already apply to the organization.
>> 
>> Human rights law only binds states, so I think we have the answer to
>> that. Of course states that sign on to different treaties should reflect
>> those commitments in their bodies of law, but there is no 1:1 relation
>> between specific laws and specific human rights, and making a genealogy
>> of that would seem almost impossible, or at least a Herculean task.
>> Especially since it is hard to estimate what laws, policies and
>> regulations all potentially could have an impact on rights such as
>> freedom of expression, freedom of association, etc. So I am having a
>> hard time making this link, but maybe I am missing something.
>> 
>> All the best,
>> 
>> Niels
>> 
>> 
>> 
>>> On 10/19/2016 08:13 PM, Paul McGrady wrote:
>>> Thanks Niels.  By saying the group has reached some sort of consensus that
>>> certain Ruggie principals may apply, you are already including overviews of
>>> the various views of the members of the group.  I, for one, still have no
>>> idea if any of the Ruggie principals would apply since I do not know whether
>>> or not they are already subsumed by or preempted by California State law.  I
>>> hope your summary will be complete enough to include that at least one
>>> person in the group believes we out to start with what applicable law is
>>> already in place before we begin opining on whether or not third party
>>> sources should govern ICANN behavior, since the bylaw makes it clear that
>>> all of our work should end up with a product that is within applicable law.
>>> We simply have no hope at hitting the target if we insist on having blinders
>>> on.  Not telling the Plenary CCWG that we have decided to put on blinders is
>>> an important thing for them to know so that they can either tell us to take
>>> off the blinders and look first at what human rights requirements already
>>> exist under applicable law or they can consent to us trying to put the
>>> puzzle together in the dark.  
>>> 
>>> As far as my suggestions for next steps, they remain the same as the first
>>> (among many) times I have brought up this subject.  Ask ICANN Legal what
>>> Human Rights laws already apply to the organization.  They have been
>>> operating in California for some time now and they already know the answer
>>> to this question.  
>>> 
>>> Best,
>>> Paul
>>> 
>>> 
>>> Paul D. McGrady, Jr.
>>> policy at paulmcgrady.com
>>> 
>>> 
>>> 
>>> -----Original Message-----
>>> From: Niels ten Oever [mailto:lists at nielstenoever.net] 
>>> Sent: Wednesday, October 19, 2016 11:24 AM
>>> To: Paul McGrady <policy at paulmcgrady.com>; ws2-hr at icann.org
>>> Cc: thomas at rickert.net
>>> Subject: Re: [Ws2-hr] Report to CCWG
>>> 
>>> Hi Paul,
>>> 
>>> I am a bit hesitant to add an overview of different views of members of the
>>> group, but I will try.
>>> 
>>> In the meantime I would still be very interested to hear from you how you
>>> think we could approach this, with the limited resources of our group and in
>>> conjunction with the current understanding of applicable law we're working
>>> on.
>>> 
>>> Best,
>>> 
>>> Niels
>>> 
>>>> On 10/19/2016 05:31 PM, Paul McGrady wrote:
>>>> Thanks Niels.  I would like for your summary to include notice that I 
>>>> have consistently called for us to evaluate what human rights 
>>>> principles already apply to ICANN as a result of applicable California 
>>>> law in order to get a baseline to begin a gap analysis, but that the 
>>>> request has not been acted upon by the group.  Thanks.
>>>> 
>>>> Best,
>>>> Paul
>>>> 
>>>> 
>>>> Paul D. McGrady, Jr.
>>>> policy at paulmcgrady.com
>>>> 
>>>> 
>>>> 
>>>> -----Original Message-----
>>>> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On 
>>>> Behalf Of Niels ten Oever
>>>> Sent: Tuesday, October 18, 2016 11:24 AM
>>>> To: ws2-hr at icann.org
>>>> Subject: [Ws2-hr] Report to CCWG
>>>> 
>>>> Dear all,
>>>> 
>>>> I hope this email finds you well. Coming Friday is the deadline for me 
>>>> to report to the CCWG Plenary on the progress of our Subgroup. I 
>>>> drafted the text underneath. Your input is more than welcome before 
>>>> Friday, when I will submit it to the CCWG co-chairs.
>>>> 
>>>> All your input is of course very much appreciated.
>>>> 
>>>> Best,
>>>> 
>>>> Niels
>>>> 
>>>> 1. Executive Summary
>>>> The CCWG WS2 Human Rights Subgroup has documented the historical 
>>>> context of the discussions on ICANNs human rights bylaw, which 
>>>> together with the CCWG report (especially Annex 6 and 12) form it's 
>>>> scope of discussion, with a Framework of Interpretation of the Human
>>> Rights Bylaw as intended output.
>>>> The subgroup is currently preparing a Framework of Interpretation 
>>>> which in due time will be presented to the CCWG plenary for discussion.
>>>> 
>>>> 2. Description of the Issue
>>>> 2.1 Current State of Play
>>>> The CCWG WS2 Human Rights Subgroup started of with providing an 
>>>> overview of the discussions and agreements as they were made during 
>>>> CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN 
>>>> Guiding Principles on Business and Human Rights (UNGPs), and their 
>>>> relevance and applicability for ICANN. While there was consensus that 
>>>> some principles were relevant for the development for a Framework of 
>>>> Interpretation (such as 13a and 15a), it was also recognized that the 
>>>> UNGPs have not been designed with an organization like ICANN in mind. 
>>>> Therefore a drafting team is currently iteratively designing a draft 
>>>> Framework of Interpretation which is being discussed in weekly calls. 
>>>> It is expected, that at this rate, the subgroup will be able to achieve
>>> the set milestones.
>>>> 
>>>> 2.2 Supplemental Report
>>>> See [0]
>>>> 
>>>> 3 Recommendation
>>>> 3.1 Requirements for Recommendation
>>>> We haven't reached consensus on a recommendation yet.
>>>> 
>>>> 3.2 Rationale for Recommendation
>>>> We haven't reached consensus on a recommendation yet.
>>>> 
>>>> [0]
>>>> https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_
>>>> M_aNMo
>>>> Zb4/edit?usp=sharing
>>>> 
>>>> --
>>>> Niels ten Oever
>>>> Head of Digital
>>>> 
>>>> Article 19
>>>> www.article19.org
>>>> 
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>>> 
>>> --
>>> Niels ten Oever
>>> Head of Digital
>>> 
>>> Article 19
>>> www.article19.org
>>> 
>>> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>>>                   678B 08B5 A0F2 636D 68E9
> 
> -- 
> Niels ten Oever
> Head of Digital
> 
> Article 19
> www.article19.org
> 
> PGP fingerprint    8D9F C567 BEE4 A431 56C4
>                   678B 08B5 A0F2 636D 68E9
> <Memo_ ICANN Human Rights Obligations.docx>
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