[Ws2-hr] Proposed agenda meeting 31 - August 8 19:00 UTC

Tue Aug 8 18:34:27 UTC 2017

Niels et al,

It looks as though the language that Niels is proposing to modify as a result of some comments exists in its current form in the Considerations document as follows  :

EXISTING LANGUAGE – This is what I think the existing language says:

When examining its operations, ICANN the organization could also consider instruments such as HRIAs to assess their impact on Human Rights.  However, this is up to ICANN the organization to decide the most appropriate framework and instruments to do this.  The results of such HRIAs should be reflected in ICANN’s annual reporting.”

PROPOSED LANGUAGE WITH REDLINED CHANGES  - Below I try to create a redline of the existing language – BUT PERHAPS NIELS HIMSELF HAS A REDLINE?

When examining its operations, ICANN the organization could also consider using a framework like the UNGPs as well as specific instruments such as HRIAs to assess its (REPLACES “their”)  impact on Human Rights, and offer remediation.

However, it (REPLACES  “this”) is up to ICANN the organization to develop and implement .   TEXT WHICH APPEARS TO BE DELETED AND REPLACED IS “decide the most appropriate framework and instrument to do this”. The results of ICANN the organization's analysis (REPLACES “of such HRIAs”)  should be reflected in ICANN’s annual reporting.

In the Considerations document, we also have language which tries to protect the role of SOs and ACs  as follows:

“When developing corporate or operational policies, and executing its operations, ICANN the organization should take the Human Rights Core Value into account. In order to do so ICANN the organization should propose a framework to the community, which should include multistakeholder involvement in its development, and regular review.”

We know that one reason this language exists is that registries cannot be bound by anything inserted into a registry agreement that is not developed as Consensus Policy in the GNSO.

So my question is whether this new language conflicts in that it states that it is up to ICANN the organization to implement a framework, not just up to ICANN as to whether it uses an HRIA tool.  When we consider that this language goes well beyond “applicable law”, the risk is “top-down” policy making.  Hopefully the proposed changes to the existing language will be clarified on the call.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image002.png at 01D3103A.4A635DD0]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: Aikman-Scalese, Anne
Sent: Tuesday, August 08, 2017 10:42 AM
To: 'McAuley, David'; Niels ten Oever
Cc: ws2-hr at icann.org; 'Greg Shatan'
Subject: RE: [Ws2-hr] Proposed agenda meeting 31 - August 8 19:00 UTC

The existing language in "Considerations" is pasted below.  It's not clear to me where this new language just sent by Niels is intended to be inserted, but it appears there could be a conflict with the existing language below, as noted by Bastiaan.

With regards to the UN Guiding Principles for Business and Human

Rights , no consensus was reached as to their suitability for interpreting

the Core Value. However with regard to the implementation of the Core

Value certain aspects of the UN Guiding Principles for Business and

Human Rights could be considered as a useful guide in the process of

applying the Human Rights Core Value. There are certain Guiding

Principles that may not be suitable for ICANN and others that might be

applicable, depending on the circumstances. However, it is beyond the

scope of this document to provide a detailed analysis of the Guiding

Principles and their application, or not, in particular situations.

In any case, a conflict between any Guiding Principle and an ICANN

Bylaw provision or Article of Incorporation must be resolved in favor of

the Bylaw or Article. The use of the Guiding Principles as potential

guidance has to be carefully considered by each SO and AC as well as

ICANN the organization.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_______________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

-----Original Message-----
From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of McAuley, David via Ws2-hr
Sent: Tuesday, August 08, 2017 10:02 AM
To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] Proposed agenda meeting 31 - August 8 19:00 UTC

Hi Niels,

Thank you for these.

I looked at the latest google doc link you sent (https://docs.google.com/document/d/17AvMLBfT8BmC3gUOTvaIuTuEqMbgiporUwqNymvhWhc/edit) and did not see the proposed language of 3.1 in there and so am assuming you want to pass it by on the list first – and I see others have weighed in.

With respect, I would suggest a few edits to 3.1 as proposed – I think I am fairly in line with Tatiana’s thoughts but can also explain on the call as well:

3.1 When examining its operations, ICANN the organization could consider using a framework like the UNGPs as well as specific instruments such as HRIAs to assess its impact on Human Rights. (STRIKING "and offer remediation").

However, it is up to ICANN the organization to decide whether and how (i.e., the most appropriate framework and instrument) to do this. The results of ICANN the organization's analysis should be reflected in ICANN’s annual reporting. (ADDING the "whether and how" language).

Best regards,

David

David McAuley

Sr International Policy & Business Development Manager Verisign Inc.

703-948-4154

-----Original Message-----

From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On Behalf Of Niels ten Oever

Sent: Tuesday, August 08, 2017 8:44 AM

To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>

Subject: [EXTERNAL] Re: [Ws2-hr] Proposed agenda meeting 31 - August 8 19:00 UTC

Hi all,

I am very sorry, I made a mistake in the text I shared under 3.1  with you before. Please use this version and please accept my apologies.

You can also find the whole text as always in the Google doc:

https://docs.google.com/document/d/17AvMLBfT8BmC3gUOTvaIuTuEqMbgiporUwqNymvhWhc/edit

Dear all,

I hope this email finds you all very well. Please find the proposed agenda for the meeting of August 8, 19:00 UTC underneath:

1. Administrivia

Roll call, absentees, SoIs, etc

2. Review of last weeks changes

2.1 addition ‘, but not limited to:’ to two footnotes

3. Proposed change as follow-up to last weeks discussion

3.1 When examining its operations, ICANN the organization could consider using a framework like the UNGPs as well as specific instruments such as HRIAs to assess its impact on Human Rights, and offer remediation.

However, it is up to ICANN the organization to decide the most appropriate framework and instrument to do this. The results of ICANN the organization's analysis should be reflected in ICANN’s annual reporting.

4. Preparation of statement to CCWG

5. AOB

Looking forward to discuss on the call.

Best,

Niels

On 08/08/2017 02:22 PM, Niels ten Oever wrote:

> Dear all,

>

> I hope this email finds you all very well. Please find the proposed

> agenda for the meeting of August 8, 19:00 UTC underneath:

>

> 1. Administrivia

> Roll call, absentees, SoIs, etc

> 2. Review of last weeks changes

> 2.1 addition ‘, but not limited to:’ to two footnotes

>

> 3. Proposed change as follow-up to last weeks discussion

> 3.1 When examining its operations, ICANN the organization could

> consider using a framework like the UNGPs as well as specific

> instruments such as HRIAs to assess its impact on Human Rights, and offer remediation.

> However, it is up to ICANN the organization to decide the most

> appropriate framework and instrument to do this. The results of ICANN

> the organization's analysis should such HRIAs should be reflected in

> ICANN’s annual reporting.

>

> 4. Preparation of statement to CCWG

> 5. AOB

>

> Looking forward to discuss on the call.

>

> Best,

>

> Niels

>

>

>

>

>

>

> _______________________________________________

> Ws2-hr mailing list

> Ws2-hr at icann.org<mailto:Ws2-hr at icann.org>

> https://mm.icann.org/mailman/listinfo/ws2-hr

>

--

Niels ten Oever

Head of Digital

Article 19

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

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