[Ws2-hr] Report to CCWG

Arasteh kavouss.arasteh at gmail.com
Sat Oct 22 14:47:12 UTC 2016 

Dear Niels
I do not find Sidley Note regarding applicable law.
May you pls forward it to me
Regards
Kavouss araasteh

Sent from my iPhone

> On 21 Oct 2016, at 23:39, Rudolph Daniel <rudi.daniel at gmail.com> wrote:
> 
> 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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