[Ws2-hr] WG: Draft Message to CCWG

Thu Aug 17 19:00:05 UTC 2017

Dear all,

Personally I very much appreciate the active participation of GAC members in this work and want to commend in particular Jorge, Kavouss, and Mark.  For quite a long time, the GNSO has been asking the GAC to participate actively in our working groups.  Accountability is not directly a part of the GNSO policy-making process.  Nevertheless, the work of this group demonstrates how valuable early GAC participation is in the ICANN model and is MOST encouraging.

I do believe that were it not for early active participation by GAC members, the HR FOI would not be as balanced as it is at present, leaving ICANN the organization free to consider effective assessment tools such as HRIA.  Jorge was a member of the original drafting team so the FOI directly reflects his work.  I also think it must be said that Niels has tried his very best to keep the views of the governments regarding Ruggie at the forefront of our conversations (and his drafting contributions) even when government members were not able to attend.

In the end, we must accept the fact that the Workstream 1 outcome defines the scope of our work in developing the FOI and the Considerations.  We cannot change the outcome of the Workstream 1 determination regarding the applicable law because a significant minority would have preferred a different outcome of that work or a different definition of “applicable law”.  Early in our work, we asked for and received clarification of the term “applicable law.”  I have personally advocated strict adherence to that advice in part because I believe that otherwise, the fiduciary obligations of the ICANN Board are unclear and that results in organizational paralysis rather than moving forward.

Again I suggest that in the context of ICANN protocols and processes, the appropriate references in our report to the CCWG plenary are to those who participated actively in WS2 Human Rights (which was certainly open to everyone all along) and not to single out any one public commenter or any single member of the group per se.  This is the only approach that is consistent with existing ICANN processes and protocols.  So I will once again offer language for consideration by the members of WS2- Human Rights, but with an addition to be considered to accommodate the comments from Switzerland, Iran, the UK, and Brazil.

“While most of the group supports the position that there is no obligation for ICANN to adopt UNGP, there is a significant Minority View in favor of voluntary adoption of UNGP by ICANN the organization for assessment purposes, as reflected in the participation of the members from Switzerland, Iran, and the UK, as well as written public comment received from Switzerland, the UK, and Brazil.”

At this point I do think it is very important that we move the ball forward.  Steps taken may not be as aggressive as those desired by the government participants.  Nevertheless, significant progress has been made.

Thank you,

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

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] On Behalf Of Arasteh
Sent: Thursday, August 17, 2017 9:05 AM
To: Jorge.Cancio at bakom.admin.ch
Cc: thiago.jardim at itamaraty.gov.br; ws2-hr at icann.org
Subject: Re: [Ws2-hr] WG: Draft Message to CCWG

Dear All

Having considered reply from Brésil, and as I clearly and Repeatedly emphasised during the call any outcome from the so- called drafting  group needs approval of the three three Commenters.

Moreover' I support the virées from Brazil that  the drafting group should have invited Brésil, U.K. and Swiss to attend the meeting .

Thus we need to revert back to the subject with advance notice to these commenters to attend the call irrespective of their attendance status The outcome thus is does accepted by Me Kavouss

> On 17 Aug 2017, at 16:45, <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>> wrote:

>

> Fyi see below - just in case this message from our Brazilian colleague had not reached the list.

> Kind regards

> Jorge

>

> -----Ursprüngliche Nachricht-----

> Von: Thiago Braz Jardim Oliveira

> [mailto:thiago.jardim at itamaraty.gov.br]

> Gesendet: Donnerstag, 17. August 2017 14:46

> An: 'lists at nielstenoever.net' <lists at nielstenoever.net<mailto:lists at nielstenoever.net>>;

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

> Cc: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>; Mark Carvell

> (mark.carvell at culture.gov.uk<mailto:mark.carvell at culture.gov.uk>) <mark.carvell at culture.gov.uk<mailto:mark.carvell at culture.gov.uk>>; Benedicto

> Fonseca Filho <benedicto.fonseca at itamaraty.gov.br<mailto:benedicto.fonseca at itamaraty.gov.br>>

> Betreff: RE: [Ws2-hr] Draft Message to CCWG

>

> Dear Niels,

>

> It has been drawn to our attention that the comments and suggestions made by Brazil on the Framework of Interpretation of Human Rights were not accepted. Brazil examined the "answers" the subgroup provided and feels they do not adequately addresses our concerns, nor do they adequately answer the points we raised. We regret that we have not been invited to take part in the discussions leading to this outcome and would like that a disclaimer be included in whatever document is circulated with these "answers", stating that (i) Brazil was not invited to participate in the discussions where the subgroup considered Brazil's comments and that (ii) Brazil does not endorse or support the "answers" provided by the subgroup. Thank you.

>

> Best regards,

>

> Thiago Jardim

>

>

> Thiago Braz Jardim Oliveira

> Secretary, Information Society Division Ministry of Foreign Affairs,

> Brazil

> +55 61 2030 6389

>

>

>

> -----Ursprüngliche Nachricht-----

> Von: 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: Mittwoch, 16. August 2017 14:53

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

> Betreff: [Ws2-hr] Draft Message to CCWG

>

>

>

> Dear all,

>

>

>

> I hope this e-mail finds you all very well. As a follow up to yesterdays meeting Bernie and I have prepared a response to the CCWG that you can find underneath, as well as a more detailed overview attached.

>

>

>

> This is a first draft. We would very much like to hear you comments, suggestions and improvements.

>

>

>

> All the best,

>

>

>

> Niels

>

>

>

> The Cross Community Working Group on Enhancing ICANN’s Accountability Human Rights Subgroup would like to sincerely thanks those who have taken the time and effort to submit public comment to the Framework of Interpretation and Considerations document during the Public Comment Period [0].

>

>

>

> The Subgroup has analyzed and discussed the comments at great length and came to the following conclusions:

>

>

>

> The mandate of the group does not include suggesting any changes to the ICANN Bylaws, this includes the Bylaw on Human Rights. As such any comments which would require changing the Bylaws cannot be accepted.

>

> This is the case for comments recommending changes in the hierarchy of Core Values as outlined in the bylaw or for comments pertaining the use of the term “applicable law” which is part of ICANN’s Human Rights bylaw.

>

>

>

> The Subgroup does recognize that the documents mentioned in the footnotes are not necessarily an exhaustive list of human rights document, and therefore the text has been  changed from ‘including:’ to ‘including, but not limited to:’.

>

>

>

> Finally, no new references to any instrument in general or the UN Guiding Principles for Business and Human Rights in specific have been added. The group feels the current proposed wording is a balanced consensus between the different opinions held in the ICANN community, particularly concerning the remit of ICANN’s Mission.

>

>

>

> The HR sub-group has developed a document which lists a response to each of the major comments submitted to the public consultation and is including it in this email for reference by the CCWG-Accountability-WS2.

>

> This will be published on the public consultation web site as part of the standard process.

>

>

>

> As such the HR sub-group is submitting its final recommendations for an HR FoI to the CCWG-Accountability-WS2 for approval. Given the submissions made in the public comment process and the minimal changes that have been made to the document to address these the HR sub-group would not recommend this version be posted for public comment.

>

>

>

> [0] https://www.icann.org/public-comments/foi-hr-2017-05-05-en

> <https://www.icann.org/public-comments/foi-hr-2017-05-05-en>

>

>

>

>

>

>

>

> --

>

> Niels ten Oever

>

> Head of Digital

>

>

>

> Article 19

>

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

>

>

>

> PGP fingerprint    8D9F C567 BEE4 A431 56C4

>

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>

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