[Ws2-hr] FW: Proposed Agenda Call Sept 6 19:00 UTC
Aikman-Scalese, Anne
AAikman at lrrc.com
Tue Sep 20 17:44:20 UTC 2016
Thanks Greg. I thought Samantha was saying it is a Commitment “for which the balancing test has changed” and “The balancing test now requires that all of the commitments be met…”
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman at lrrc.com<mailto:AAikman at lrrc.com>
_____________________________
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Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 700
Tucson, Arizona 85701-1611
lrrc.com<http://lrrc.com/>
From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Tuesday, September 20, 2016 10:40 AM
To: Aikman-Scalese, Anne
Cc: Karen Mulberry; ws2-hr at icann.org
Subject: Re: [Ws2-hr] FW: Proposed Agenda Call Sept 6 19:00 UTC
Anne,
Human Rights is in the Core Values section of the new Bylaws and is thus subject to the balancing test.
Greg
On Tue, Sep 20, 2016 at 1:34 PM, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Thanks Samantha. It seems the most important “takeaway” is:
The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.
You mention human trafficking. What are the implications for ICANN being asked to award a registry contract in an application for a Top Level Domain .legalizesexslaves.
Are you advising there is no longer a “balancing” act when considering this application and ICANN must deny the award of the registry contract? (Or are you saying that this would be beyond mission and scope (since ICANN is not a content regulator), and therefore there is no Commitment operating and no obligation to consider Human Rights?)
I ask this because the Ruggie principles we are examining would require ICANN to avoid adverse impact to Human Rights in all its business relationships. Clearly the primary business relationship of ICANN is to enter into contracts awarding registries.
Thank you,
Anne
Anne E. Aikman-Scalese
Of Counsel
520.629.4428<tel:520.629.4428> office
520.879.4725<tel:520.879.4725> fax
AAikman at lrrc.com<mailto:AAikman at lrrc.com>
_____________________________
[cid:image004.png at 01D2132B.F0D9C210]
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 700
Tucson, Arizona 85701-1611
lrrc.com<http://lrrc.com/>
From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org>] On Behalf Of Karen Mulberry
Sent: Tuesday, September 20, 2016 10:19 AM
To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: [Ws2-hr] FW: Proposed Agenda Call Sept 6 19:00 UTC
On behalf of ICANN Legal
Karen Mulberry
Multistakeholder Strategy and Strategic Initiatives
ICANN
From: Samantha Eisner <Samantha.Eisner at icann.org<mailto:Samantha.Eisner at icann.org>>
Date: Tuesday, September 20, 2016 at 11:01 AM
To: Karen Mulberry <karen.mulberry at icann.org<mailto:karen.mulberry at icann.org>>
Subject: FW: [Ws2-hr] Proposed Agenda Call Sept 6 19:00 UTC
Can you please provide this to the HR subgroup?
Dear HR-Subgroup members,
I understand that the question posed was "'What is the rationale for the addition of 'core values' to the ICANN bylaws, and what are its legal and non-legal implications in your opinion, especially for the human rights bylaw?”
The Core Values have historically been part of the ICANN Bylaws, introduced after the ICANN evolution and reform effort in 2002, https://www.icann.org/en/about/governance/bylaws/bylaws-15dec02-en.htm. From 2002 through the Bylaws as they exist today, the Core Values remained unchanged, with the following as guidance for the application of Core Values: "These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.”
With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.
The inclusion of the Human Rights commitment as a Core Value, which was expressly required in Annex 6 of the WS1 report, assures that it is an item that is considered while ICANN is performing its Mission. The implication of this is strong, particularly where the FOI considers how to guide the interpretation of this obligation. Of course, there are already legal obligations that are tethered to human rights obligations (for example, observing laws against human trafficking) that ICANN is already following.
Given the long-standing nature of the Core Values section of the ICANN Bylaws, this is a key tool in guiding ICANN’s operations. They are part of a near 15-year history of ICANN acting within its Mission.
If there are more specific questions that you have on this topic, please let us know.
—
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631<tel:%2B1%20310%20578%208631>
On 9/6/16, 11:47 AM, "ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> on behalf of Niels ten Oever" <ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> on behalf of lists at nielstenoever.net<mailto:lists at nielstenoever.net>> wrote:
Dear Jorge,
The question has been forwarded to ICANN legal and we are awaiting a
response.
Best,
Niels
On 09/07/2016 03:22 AM, Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> wrote:
Dear Niels
May I kindly request clarification on the status of our inquiry into the
(legal) effects that the HR commitment we are talking about is a "core
value"?
According to the new Bylaws "core values" are “guidance” (“should also
guide the decisions and actions of ICANN…”) and are subject to a
specific balancing and interpretation clause:
"(c) The Commitments and Core Values are intended to apply in the broadest
possible range of circumstances. The Commitments reflect ICANN’s
fundamental compact with the global Internet community and are intended to
apply consistently and comprehensively to ICANN’s activities. The specific
way in which Core Values are applied, individually and collectively, to any
given situation may depend on many factors that cannot be fully anticipated
or enumerated. Situations may arise in which perfect fidelity to all Core
Values simultaneously is not possible. Accordingly, in any situation where
one Core Value must be balanced with another, potentially competing Core
Value, the result of the balancing must serve a policy developed through the
bottom-up multistakeholder process or otherwise best serve ICANN’s Mission."
I feel this is quite relevant for our discussions, as it sets the frame
of the effect of the new HR "core value".
Best and looking forward to your guidance and apologies if I have missed
any relevant message on this issue
Jorge
-----Ursprüngliche Nachricht-----
Von: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] Im
Auftrag von Niels ten Oever
Gesendet: Dienstag, 6. September 2016 00:19
An: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: [Ws2-hr] Proposed Agenda Call Sept 6 19:00 UTC
Dear all,
Please find underneath and attached the proposed agenda for our call of
Sept 6 19:00 UTC.
Also please find attached a rather advanced version of the document
mentioned under agenda point 2, the summary of the Human Rights work
under Workstream 1.
1. Administrivia
Roll call, absentees, SoIs, etc
2. Discussion on: the Summary on what was agreed and discussed on human
rights during WS1
https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMoZb4/edit?usp=sharing
3. Discussion on: Concerns on possible impacts of Human Rights bylaw and
FoI
https://docs.google.com/document/d/1KcKGRJjuhKEzCh2AZ8PPR_MofOQFBN8CMuJqTG_h9h4/edit?usp=sharing
4. Discussion on FoI draft document
https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUOsA2Q/edit
5. AOB
ICANN staff informed me that they are working on providing more real
time collaboration methods, but currently they do not offer such
services. So until that time I am afraid we are stuck with Google Docs.
As always feel free to suggest addition or changes to the points above.
Best,
Niels
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org> <http://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<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9
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