[Ws2-hr] Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs
McAuley, David
dmcauley at verisign.com
Wed Aug 9 20:42:10 UTC 2017
Good point, with respect to my suggested text for the drafting team I would be fine with adding “internal” to operations for the reason Anne cites.
Best regards,
David
David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154
From: Aikman-Scalese, Anne [mailto:AAikman at lrrc.com]
Sent: Wednesday, August 09, 2017 3:45 PM
To: 'Bastiaan Goslings' <bastiaan.goslings at ams-ix.net>; McAuley, David <dmcauley at Verisign.com>
Cc: ws2-hr at icann.org
Subject: [EXTERNAL] RE: [Ws2-hr] Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs
David,
It is exactly because of the arguments you make below - and specifically with respect to UNGP Principle 18 - that I think any reference to the UNGPs as an applicable "mechanism" has to make clear that this does not reach Contracted Parties relationships unless a framework is proposed by ICANN the organization to the SOs and ACs and a Policy Development Process ensues. So if we are agreeing ICANN org can take these steps using a Ruggie mechanism and that it is up to ICANN org to determine which tools are appropriate, then we had better recognize this is expressing acquiescence to the idea that the Contracted Parties relationships can get a Ruggie assessment.
Alternatively, we limit the comment to “internal operations”. Or we say, “To the extent that the foregoing assessment may impact gTLD policy, ICANN the organisation will review such mechanisms in accordance with the existing processes and protocols”.
I use the “existing processes and protocols” language because that is the section of the Considerations document we are working on.
Anne
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<http://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 Bastiaan Goslings
Sent: Wednesday, August 09, 2017 6:25 AM
To: McAuley, David
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 reviewing framework with SOs and ACs
Thanks, David - well stated. And I agree with Tijani as well.
The point I made earlier with regard to the extremely careful phrasing and therefore essentially meaningless use of the UNGPs (3.1), can also be read as a suggestion to leave out such a referral full stop.
Saying I was fine (‘agree’) with ‘suggesting in the FoI that ICANN _the organisation_ could use the UNGPs when ‘assessing its impact on Human Rights’’, was an attempt to be pragmatic and in line with what seemed to be the consensus during the call on August the 1st. And as far as I can see, having the option to consider to use a framework like the UNGPs to make an ‘assessment’ does not ‘create any obligation on ICANN outside its Mission, or beyond obligations found in applicable law’.
> On 9 Aug 2017, at 14:59, McAuley, David via Ws2-hr <ws2-hr at icann.org<mailto:ws2-hr at icann.org>> wrote:
>
> I too agree with Tijani’s well-stated contribution.
>
> In my opinion, (1) the UNGPs/Ruggie Principles are an excellent resource for businesses to use to take account of the human rights impacts of their products and services, and (2) ICANN is not an ordinary business.
>
> Principal 18 of the UNGPs describes an extraordinarily broad assessment for an organization coordinating the DNS. It says that businesses should identify and assess any actual orpotential adverse human rights impacts with which they may be involved – even if only as a result of their business relationships rather than as a result of their own actions (my emphasis).
>
> “Potential” is obviously capable of a vast reading. “Involved” could mean assessing the impact of content among other things outside ICANN’s remit, no? And Principle 13 defines “business relationships” to include “entities in its value chain” and entities “directly linked to its business operations, products or services” – so the UNGPs would require assessment down to the registrant level it seems.
>
> This strikes me as being far beyond the bylaw language saying, “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law.”
>
> If reference is made to the UNGPs in the considerations document in mandatory rather than discretionary terms then the UNGPs will be included in the considerations document and IRP panels will turn to them in cases where more explanatory context might be needed – a sort of “legislative history” to the ICANN bylaw. In my opinion that would be contrary to the bylaw itself.
>
> As part of the newly constituted drafting team, I will separately send suggested text as discussed yesterday that will be in line with these thoughts expressed here.
>
> Best regards,
> David
>
> David McAuley
> Sr International Policy & Business Development Manager Verisign Inc.
> 703-948-4154
>
> From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org] On
> Behalf Of Schaefer, Brett
> Sent: Wednesday, August 09, 2017 8:14 AM
> To: Tijani BEN JEMAA <tijani.benjemaa at topnet.tn<mailto:tijani.benjemaa at topnet.tn>>
> Cc: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
> Subject: [EXTERNAL] Re: [Ws2-hr] Redline and also excerpt from
> Considerations re ICANN.org reviewing framework with SOs and ACs
>
> 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
> __________
>
> 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:
> • 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.
> • 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
> ----------------------------------------------------------------------
> -------
>
>
> 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
>
> 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 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 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
> __________
>
> 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 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
>
> 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
> 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
>
> <image005.png>
>
>
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