[Ws2-hr] Report to CCWG

Fri Oct 21 21:00:29 UTC 2016

Dear Niels,
I think we have now sufficient elements to find our ways,
Look at Nile, Erich, MC Grady, Grec and those others who have exchanged
messages on this issue.
I suggest you to kindly look at them and take common elements of those
messages and collate them to together to create a working document,
Kavouss

2016-10-20 0:32 GMT+02:00 Schweighofer Erich <
erich.schweighofer at univie.ac.at>:

> 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
> >>>
> >>> PGP fingerprint    8D9F C567 BEE4 A431 56C4
> >>>                    678B 08B5 A0F2 636D 68E9
> >>> _______________________________________________
> >>> Ws2-hr mailing list
> >>> Ws2-hr at icann.org
> >>> https://mm.icann.org/mailman/listinfo/ws2-hr
> >>>
> >>
> >> --
> >> Niels ten Oever
> >> Head of Digital
> >>
> >> Article 19
> >> www.article19.org
> >>
> >> PGP fingerprint    8D9F C567 BEE4 A431 56C4
> >>                    678B 08B5 A0F2 636D 68E9
> >>
> >> _______________________________________________
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> >>
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>
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