[Ws2-hr] Report to CCWG

Wed Oct 19 22:32:22 UTC 2016

I agree with this analysis of Paul McGrady and Nigel Roberts. 
ICANN has to respect laws in the countries it is operating. Human rights standards differ and it is not the obligation of ICANN to enforce these. This is the role of human rights bodies. 
BUT: ICANN is operating also at the international level (as some sui generis organisation) and as such it has accepted to respect international human rights law (e.g. the Universal Declaration on Human Rights, the human right conventions, without any reservations, with a sufficiently strong ratification status, e.g. more than 80 countries etc.). ICANN has also to respect regional human rights law (e.g. European Convention on Human Rights, American Convention on Human Rights) and other instruments like the Cairo Declaration on Human Rights in Islam (CDHRI). 
Thus: ICANN as an organisation respects human rights, maybe also in some ethical version (like the "Ruggie Principles", but I remain sceptical). As long as local jurisdictions respect ICANN's autonomy, it is fine. Otherwise, local jurisdiction superposes ICANN's obligations. ICANN may report to human rights bodies and they have to take on this issue. 

Best regards, Erich Schweighofer  

-----Ursprüngliche Nachricht-----
Von: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] Im Auftrag von Paul McGrady
Gesendet: Mittwoch, 19. Oktober 2016 22:20
An: 'Nigel Roberts'; ws2-hr at icann.org
Cc: thomas at rickert.net
Betreff: Re: [Ws2-hr] Report to CCWG

Thanks Nigel.  So from this I take it that you would like for us to rely on
your conclusory statement rather than asking ICANN Legal how the free speech
components of California's constitution affect the ICANN runs its business?
I'm sorry that I can't willingly go along with developing a framework based
on ignorance of what is already out there.

Again, I'm not asking that   (for today's purposes) that everyone agree with
me, I'm just asking that Niels include my objection to this unfruitful
approach in his report to the CCWG.

Best,
Paul

-----Original Message-----
From: Nigel Roberts [mailto:nigel at channelisles.net] 
Sent: Wednesday, October 19, 2016 2:50 PM
To: Paul McGrady <policy at paulmcgrady.com>; ws2-hr at icann.org
Cc: thomas at rickert.net
Subject: Re: [Ws2-hr] Report to CCWG

What applicable law requires a private company to respect free expression?

None.

On 19/10/16 19:57, Paul McGrady wrote:
> Thanks Nigel.
>
> I guess I just don't understand how the human rights obligations that 
> ICANN has are no longer applicable law just because they happen to be 
> applicable under the law.  Sorry for not being able to get on board 
> with the circular argument and dismissing the body of laws that 
> actually already apply to ICANN before we go out looking for gap 
> fillers.  What you appear to be proposing is that we build a wall out 
> of spackle without looking to see if a wall already exists and seeing if
it might have some holes to patch.
>
> I'm not suggesting (for today's purposes) that everyone agree with me, 
> I'm just asking that Niels include my objection to this unfruitful 
> approach in his report to the CCWG so that they can decide if they 
> want a pile of spackle or a patch wall at the end of our process.
>
> Best,
> Paul
>
>
>
> -----Original Message-----
> From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On 
> Behalf Of Nigel Roberts
> Sent: Wednesday, October 19, 2016 1:49 PM
> To: ws2-hr at icann.org
> Subject: Re: [Ws2-hr] Report to CCWG
>
> Paul
>
> This is where you and I part company.
>
> On a strict construction, there is no applicable law which says ICANN 
> has to respect any of the human rights.  The law just says "ICANN has 
> to follow the law" (e.g of California).
>
> Of course this may include obligations that the the State (i.e the 
> United
> States) and the state (i.e. California) place on private parties as a 
> result of its own obligation to respect human rights, but this does 
> not engage ICANN with fundamental rights PER SE, but with the domestic 
> implementation thereof.
>
> Avri had it right.
>
> She said that 'all this ACTUALLY means is that ICANN must follow the 
> law', if I am not misquoting.
>
>
>
> HOWEVER, as I have repeatedly reminded everyone, and I am beginning to 
> feel that the lack of dealing with it is intentional . . .
>
> whilst true, (and the reason I argued strongly against that 
> formulation in WS1) that is not /necessarily/ the end of the story.
>
> 'Applicable law' can include international law (which does not 
> normally bind domestically) that ICANN voluntarily agrees to be bound by.
>
> And ICANN has, it appears, done so.
>
> The analysis I prefer, which engages ICANN squarely in fundamental 
> rights obligations is that of the learned Panellist, Judge Schwbel in 
> ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in 
> paragraphs 57-58.
>
>  From which it is clear that ICANN's founders have bound ICANN in law 
> (i.e. California law) to respect international law.
>
> Unless someone wishes to advance a different legal authority for 
> "applicable law".
>
>
>
> On 19/10/16 19:13, 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_rNkjMVJPOmYwmdr5B
>>> 1_
>>> M_aNMo
>>> Zb4/edit?usp=sharing
>>>
>>> --
>>> Niels ten Oever
>>> Head of Digital
>>>
>>> Article 19
>>> www.article19.org
>>>
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>>> _______________________________________________
>>> Ws2-hr mailing list
>>> Ws2-hr at icann.org
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>>>
>>
>> --
>> Niels ten Oever
>> Head of Digital
>>
>> Article 19
>> www.article19.org
>>
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>>                    678B 08B5 A0F2 636D 68E9
>>
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