[Ws2-hr] Outcomes of todays call

Thu Aug 24 19:02:02 UTC 2017

Dear Niels, Jorge, and members of the HR Subgroup,

First, thank you, Jorge, for the explanation of your position in the note below.

Since I have consistently on our calls favored not mentioning the UNGP in our report, it seems fair to explain myself on list as well.

I applaud the desire to bolster ICANN’s HR efforts with reference to the UNGP – after all the Ruggie Principles represent a principled attempt to get “businesses” to take positive HR steps.

My concern is that the UNGP are written for typical businesses and do not take account of ICANN’s unique mission – in fact strict application of the UNGP could undermine ICANN’s mission, in my opinion.

I have expressed several concerns along the way but here will just focus on one.

Under the UNGP, the responsibility to respect human rights requires that businesses, among other things, seek to mitigate adverse human rights impacts that are directly linked to their operations or services by their “business relationships,” even if they have not contributed to those impacts.

“Business relationships” is a very broad term in the UNGP - including relationships with business partners, entities in its value chain, and any other entity directly linked to its business operations, products or services. That must include registrants, among others.

And while the UNGP try to accommodate various complexities, they nonetheless provide that If the business enterprise has leverage to prevent or mitigate the adverse impact, it should exercise it.

It seems to me this aspect of the UNGP will inappropriately force ICANN into content issues outside its narrow mission.

We have to keep in mind that HR-based claims will almost inevitably wind up in front of our new IRP panel. These (at least) seven new panelists will be drawn from legal circles independent of ICANN. There is simply no way to envision how they would interpret reference to the UNGP and no guarantee that this new precedent-setting body might not try to stretch ICANN’s mission to accommodate the UNGP.

ICANN has just taken a significant step by explicitly adopting a core value aimed at respecting HR. In my opinion, there is no demonstrable need at present to make reference to the UNGP. If the community in the future discerns that such a need has subsequently arisen, then steps can be taken at that time to consider such a reference as appropriately tailored to take account of ICANN’s uniqueness. By that time, presumably, the IRP panel will have taken shape and have become a little more predictable than it is at the moment.

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] On Behalf Of Jorge.Cancio at bakom.admin.ch
Sent: Thursday, August 24, 2017 3:06 AM
To: lists at nielstenoever.net; ws2-hr at icann.org
Cc: thomas at rickert.net; thiago.jardim at itamaraty.gov.br
Subject: [EXTERNAL] Re: [Ws2-hr] Outcomes of todays call

Dear Niels, and dear all,

thanks very much for your message, Niels.

I would like to take this opportunity to clarify the reasons for our disagreement, which are twofold.

From a substantive point of view, we disagree with the treatment of the inputs coming from Governments during the public comment period. In our view, a balanced result would need to reflect at least some of the legitimate points made in those inputs. Instead what we have as a result is that we stick to the previous status quo and that those inputs are answered quite laconically. In particular, given the fact that the three Government inputs received were in line regarding a stronger mention and recognition of the UNGP, which after all is the most relevant international voluntary standard, we think that a compromise text should have been sought and found by the Subgroup addressing these inputs.

From a procedural point of view I will not reiterate the detailed points made before. Simply put, I am of the view that the process to treat those inputs was not satisfactory in terms of transparence and stakeholder balance/inclusivity, which in particular led to no Government rep being part of the “drafting team” where the answers to the public comment were substantively discussed.

Hence, I feel that calling this result of reverting to a status quo ante a “consensus” or a “careful balance” is not really an accurate description of the divergence of opinions expressed in this Subgroup nor a reflection of wider community feedback (as recorded in the public comment inputs).

Therefore, in my view, it would be fairer to say that we agree to disagree on how to address the mentioned Government inputs and that according to common practice in the CCWG we essentially revert to the prior text adopted by the Subgroup.

Hope this helps

Best regards

Jorge

-----Ursprüngliche Nachricht-----
Von: Niels ten Oever [mailto:lists at nielstenoever.net]
Gesendet: Mittwoch, 23. August 2017 14:07
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>; ws2-hr at icann.org<mailto:ws2-hr at icann.org>
Cc: thiago.jardim at itamaraty.gov.br<mailto:thiago.jardim at itamaraty.gov.br>; mark.carvell at culture.gov.uk<mailto:mark.carvell at culture.gov.uk>; mcastanon at rree.gob.pe<mailto:mcastanon at rree.gob.pe>; kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>; jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>; thomas at rickert.net<mailto:thomas at rickert.net>; leonfelipe at sanchez.mx<mailto:leonfelipe at sanchez.mx>
Betreff: Re: AW: AW: AW: [Ws2-hr] Outcomes of todays call

Thanks Jorge.

The original text to which you objected was:

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 text that was then adapted (also based on your comments) and which was discussed in the call was:

The conclusion of the Subgroup is that the current proposed wording is a careful balance between the different opinions held in the ICANN community, particularly considering the remit of ICANN’s Mission.

The text you propose is:

The group feels the current proposed wording is a minimum common denominator text between the different opinions held in the ICANN community.

Let's hear what other on the list think about this proposed text.

Best,

Niels

On 08/23/2017 01:18 PM, Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> wrote:

> As to how you presented *my alternative* text to paragraph 5 of the

> draft message to the CCWG /(//" The group feels the current proposed

> wording is a minimum common denominator text between the different

> opinions held in the ICANN community./”, see in my Emails sent on

> August 16^th to the list and sent again yesterday before the call)the

> "adobe call replay" shows that _it was not mentioned and therefore not

> handled as an alternative_.

--

Niels ten Oever

Head of Digital

Article 19

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

PGP fingerprint    8D9F C567 BEE4 A431 56C4

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