[Ws2-hr] Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs

Wed Aug 9 12:13:47 UTC 2017

I agree with Tijani.

________________________________
Brett Schaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>

__________

On Aug 9, 2017, at 7:53 AM, Tijani BEN JEMAA <tijani.benjemaa at topnet.tn<mailto:tijani.benjemaa at topnet.tn>> wrote:

Dear Anne and all,

I understand that we try to integrate the comments received in our text, but there are 2 main things that I believe important to take into considération:

  1.  The Ruggie Principles were discussed in length from the very beginning, and the decision inside the sub-group was not to use them for the main reason that they are for business entreprises and ICANN is not a business entreprise. Yes, I know Anne that we are speaking about the consideration document and not the FoI itself. But can you please tell me what will be the use of those « considerations »? They will accompany the FoI we are proposing and thus will be taken into consideration. The « UNGPs » are exactly the « Ruggie Principles ». Bringing them back on the table is not appropriate in my opinion.
  2.  I agree with Tatiana that it is not in our remit to tell ICANN the org whether it should offer remediation, which is related to implementation, not interpretation.

-----------------------------------------------------------------------------
Tijani BEN JEMAA
Executive Director
Mediterranean Federation of Internet Associations (FMAI)
Phone: +216 98 330 114
            +216 52 385 114
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Le 8 août 2017 à 23:57, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> a écrit :

Hi Brett and Steve,
First I want to note that the change being discussed relates to the “Considerations” document and not to the FOI itself.

I was quite vocal on today’s call about not imposing any particular tool on the PDP process and about the idea that if ICANN org wants to propose a Human Rights “framework”, the Board would need to present that idea to the SOs and ACs for PDP work.  (Our Considerations doc already says this.)  So several of us expressed the view that the use of the word “Framework” in connection with what ICANN Org can do regarding its own internal operations is not appropriate.

As later clarified by Niels, he was trying to accommodate public comment by the governments of the UK, Brazil, and Switzerland by talking about the availability of certain of the tools suggested in Ruggie to gauge IMPACT on the organization.  This is a much narrower change which deals with assessment tools rather than frameworks for addressing Human Rights concerns.  (I think there was no objection to deleting “for further remediation” from the proposed language.)

This is why I suggested the compromise of referring to “tools” (instead of “frameworks”) in the Considerations document and gave the specific example of Principle 18 of Ruggie as a possible assessment tool available to ICANN the organization.

Principle 18 provides as shown below.  Principle 18(b) appears to me to be quite consistent with the Multi-Stakeholder Model and actually preferable to the use of an HRIA tool alone since the folks who conduct HRIAs are not used to the ICANN Model and are not used to balancing Core Values as ICANN is required to do by the ByLaw.  Nor are they at all used to according each Human Right equal weight so I think Principle 18)b) is particularly useful in this exercise.

Concerning the use of the word “business relationships” in Principle 18, I think it would have to be clarified that we are not talking about Contracted Party business relationships.  Any assessment of or changes to those contracts would have to be the subject of Consensus Policy developed via PDP.

18.
In order to gauge human rights risks, business enterprises should identify
and assess any actual or potential adverse human rights impacts with
which they may be involved either through their own activities or as a
result of their business relationships. This process should:
(a)
Draw on internal and/or independent external human rights
expertise;
(b)
Involve meaningful consultation with potentially affected groups
and other relevant stakeholders, as appropriate to the size of the
business enterprise and the nature and context of the operation.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

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

_____________________________

<image002.png>

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

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

From: Steve DelBianco [mailto:sdelbianco at netchoice.org]
Sent: Tuesday, August 08, 2017 3:35 PM
To: Schaefer, Brett; Aikman-Scalese, Anne
Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Re: [Ws2-hr] Redline and also excerpt from Considerations re ICANN.org<http://icann.org/> reviewing framework with SOs and ACs

Agree with Brett on this: we will not have consensus to impose any particular HR instrument on the policy development process in gNSO and ccNSO.

From: <ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org>> on behalf of "Schaefer, Brett" <Brett.Schaefer at heritage.org<mailto:Brett.Schaefer at heritage.org>>
Date: Tuesday, August 8, 2017 at 4:50 PM
To: "Aikman-Scalese, Anne" <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Cc: "ws2-hr at icann.org<mailto:ws2-hr at icann.org>" <ws2-hr at icann.org<mailto:ws2-hr at icann.org>>
Subject: Re: [Ws2-hr] Redline and also excerpt from Considerations re ICANN.org<http://icann.org/> reviewing framework with SOs and ACs

Granted, I have not been active lately, but the last I knew specific references to any HR instrument or the UNGPs had been deemed outside of consensus. How does this keep coming back into the text?
________________________________
BrettSchaefer
Jay Kingham Senior Research Fellow in International Regulatory Affairs
Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy
The Heritage Foundation
214 Massachusetts Avenue, NE
Washington, DC 20002
202-608-6097
heritage.org<http://heritage.org/>
__________

On Aug 8, 2017, at 4:06 PM, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Personally, I agree with Niels that if ICANN.org<http://icann.org/> decides by a vote of the Board of Directors to use Ruggie as an assessment tool and then presents those results to the SOs and ACs for further consideration in the policy development processes, that is fine.   Don’t know whether the cost of such an assessment would create a budgetary issue. I also think we should be careful not to create possible liability or evidence that would be used to support action against the ICANN Board/organization.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

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

_____________________________

<image001.png>

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 1:01 PM
To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Subject: Redline and also excerpt from Considerations re ICANN.org<http://icann.org/> reviewing framework with SOs and ACs

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.”

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

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

_____________________________

<image004.png>

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

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

<image005.png>

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