[Ws2-hr] Considerations re Ruggie Principles

[McAuley, David]

While I did not volunteer to work on analyzing which Ruggie Principles to incorporate into an ICANN respect-for-HR bylaw, I do want to help in that work and so offer these comments.

My primary concern is that we stay within the scope of the Bylaw we are interpreting (Bylaw Section 1.2(b)(viii)) irrespective of which HR compilation we are considering and despite several calls on list to be expansive. I recognize the reason and passion of others who might want us to be bold, but I respectfully disagree and believe we must remain strictly true to the Bylaw provision.

In my personal view, that means, partially paraphrasing the Bylaw, staying within the scope of ICANN's mission and other Core Values and concerning ourselves strictly with internationally recognized human rights as required by applicable law.

How that might affect consideration of the Ruggie Principles, IMO, would generally involve these points:



1.       Placing within the FoI an overarching statement regarding whichever, if any, of the Ruggie Principles sections we choose to recognize that to the extent they might conflict with ICANN's mission and other Core Values then the mission and other core values take precedence. I think such a statement would be applicable with respect to any other internationally recognized compilation of HR we might choose to cite.



2.       Under the General Principles, I think that subsection (b) (and similarly subsection 23.(a) under Corporate Responsibility) gets it exactly right with respect to business enterprises ("required to comply with all applicable laws and to respect human rights"), and that subsection (c) ("need for rights and obligations to be matched to appropriate and effective remedies when breached") would apply to ICANN insofar as remedies are available at law.



3.       It seems that no duties that States are meant to observe under Section I as well as subsections 25 - 27 of Section III should apply to ICANN.



4.       Under Section II on corporate respect for HR, commentary under paragraph 12 makes a point that is consistent with the new Bylaw ("The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions"); but makes it hard to understand the extent of "internationally recognized" HR - is it the minimum in paragraph 12 or the more broad language in the commentary. It will be good to hear from Prof. Ruggie - and also from Paul Twomey when he is again available.



5.       The provisions in Section II on Corporate Responsibility make the overarching limitation mentioned in #1 above very important as some of these provisions could be taken to require ICANN to go beyond its mission (e.g., subsection 13.(b) which could require ICANN to seek " ... to prevent or mitigate adverse human rights impacts that are directly linked to [its] operations ... even if [it has] not contributed to those impacts.") I think we may need to go through each of these in detail on the calls if we wish to adopt them.



6.       Finally, with respect to grievance mechanisms in subsection 28 and beyond, I believe we will need to tailor any such mechanisms to fit within our existing mechanisms of Ombudsman, Request for Reconsideration, and IRP as they may be modified in WS2 and decide the applicability of each level to HR.
David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

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