[Ws2-hr] Report to CCWG

Fri Oct 21 21:39:54 UTC 2016

Reading the Sidley  note on applicable law , I now remember it well.
It may be a guide in some aspects, but I was of the opinion (sorry if I am
repeating) that applicable law is to be defined in a post contract world
where ICANN operates on an international stage and we see that the term
'applicable law' does have some rank in private international law. I am no
lawyer, so I have to be happy to take advice on ICANN, s relationship to
the international law.
rd

On Oct 21, 2016 7:35 AM, "Niels ten Oever" <lists at nielstenoever.net> wrote:

> True. It seems that Sidley has used another concept of applicable law
> than we currently have in our definition. Therefore it will be very
> interesting to see the answers of ICANN legal to our questions re: our
> definition.
>
> Best,
>
> Niels
>
> On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio at bakom.admin.ch wrote:
> > 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
> > >>>>
> > >>>> 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
> > >
> > > --
> > > 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>
> > > _______________________________________________
> > > Ws2-hr mailing list
> > > Ws2-hr at icann.org
> > > https://mm.icann.org/mailman/listinfo/ws2-hr
>
>
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