[Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Tue Sep 27 18:13:54 UTC 2016

Of course ICANN should be obligated to respect all human rights.  That’s obvious.  If that’s all there is to the framework, then we can conclude our work right now.  IMHO, the important work would be to focus on which human rights are most relevant to ICANN and develop a recommendation as to the scope of ICANN’s obligation to respect those in particular.  I’m getting the impression that the objection to cherry-picking is actually an attempt to steer the working group away from any work that would actually be relevant and useful.

From: Greg Shatan [mailto:gregshatanipc at gmail.com]
Sent: Tuesday, September 27, 2016 10:56 AM
To: Daniel Appelman
Cc: Schweighofer Erich; ws2-hr at icann.org
Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

You seem to assume that the Framework will deal with rights at the granular level.  I don't think it needs to or should.  The question is "What human rights is ICANN committed to respect?"  I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman at mh-llp.com<mailto:dappelman at mh-llp.com>> wrote:
Some human rights are obviously more applicable to ICANN than others.  ICANN’s framework should focus on those in particular.  If that’s “cherry-picking” then I don’t understand how anyone could object to it.  Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities?  It’s just not logical.

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 Greg Shatan
Sent: Tuesday, September 27, 2016 10:42 AM
To: Schweighofer Erich
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that.  Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws.  The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't.  Whatever you call it, I'm opposed to it.  I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that.  But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document.   The extent of ICANN's commitment to human rights is stated in the Bylaw, --  to respect internationally recognized human rights as required by applicable law.  This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law."  ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer at univie.ac.at<mailto:erich.schweighofer at univie.ac.at>> wrote:
My clarifications „inline“. Sorry for quick drafting and being unclear.
Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>]
Gesendet: Dienstag, 27. September 2016 17:35
An: Schweighofer Erich
Cc: Niels ten Oever; ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer at univie.ac.at<mailto:erich.schweighofer at univie.ac.at>> wrote:
...

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

I tend to agree with this.

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

I'm not sure what this means.  If it means that there are Ruggie obligations that don't fit ICANN, then I agree.  Otherwise, this needs further explanation.

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

Again not sure what this means.  If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree.  ICANN can't be a human rights filter for the Internet.  If this means something else, it needs further explanation. 

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that.  Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such) they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws.  The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.
You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

An "ethical code of ICANN" is far, far beyond the mandate and scope of this subgroup.  Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

That I can agree with.

Best, Erich Schweighofer
Greg

-----Ursprüngliche Nachricht-----
Von: 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>] Im Auftrag von Niels ten Oever
Gesendet: Dienstag, 27. September 2016 11:18
An: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia
Roll call, absentees, SoIs, etc
2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

--
Niels ten Oever
Head of Digital

Article 19
www.article19.org<http://www.article19.org>

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