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

Tue Sep 27 18:51:24 UTC 2016

Anne, I think this formulation is right (about PDP).

The FoI itself will simply be a framework of interpretation regarding ICANN’s commitment to respect HR. It will not reach beyond ICANN, as I see it.

Whatever FoI is ultimately developed could, I presume, be considered by any PDP process – I agree that a PDP process may not be required to do so by applicable law but the process certainly could consider the FoI as a matter of good practice.  

David

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

-----Original Message-----
From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Tuesday, September 27, 2016 2:34 PM
To: 'Bastiaan Goslings'; Greg Shatan
Cc: ws2-hr at icann.org
Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

It is not true that "some human rights are more important than others".  I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task.   This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.

I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars.  Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.)

As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process.  That would be wholly voluntary.  Some may feel this is beyond scope and mission as to what the Bylaw requires.  Would like to know others thoughts on this point.

Anne

Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman at lrrc.com
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-----Original Message-----
From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Bastiaan Goslings
Sent: Tuesday, September 27, 2016 11:20 AM
To: Greg Shatan
Cc: ws2-hr at icann.org
Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.

Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.

(The ‘also’ refers to the commitments in section 1.2)

-Bastiaan

> On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
> 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> 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] On Behalf Of Greg Shatan
> Sent: Tuesday, September 27, 2016 10:42 AM
> To: Schweighofer Erich
> Cc: 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> wrote:
>
> My clarifications „inline“. Sorry for quick drafting and being unclear.
>
> Erich Schweighofer
>
>
>
> Von: Greg Shatan [mailto:gregshatanipc at gmail.com]
> Gesendet: Dienstag, 27. September 2016 17:35
> An: Schweighofer Erich
> Cc: Niels ten Oever; 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> 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.
>
>
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> It is good to work on an idealistic world but we have to realistic, too.
>
>
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> 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] Im Auftrag von Niels ten Oever
> Gesendet: Dienstag, 27. September 2016 11:18
> An: 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
>
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