[Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC

Tue Feb 28 20:17:48 UTC 2017

Dear Niels,
I have to disagree that we cannot refer to a balancing of Human Rights considerations that we already recognize must be done.  We are to comment on how the FOI affects ICANN processes and protocols.  Policy-making will be affected by this particular need to balance and it is not at all an exercise in " implementation" to add the few words in the Considerations document to say so.

The same comment applies with respect to the discussion and consideration by our group of the ICANN processes and protocols known as Request for Reconsideration and Independent Review Process.  The question is whether and how these processes apply to Board decisions after the Board has made decisions which contain potentially conflicting advice (e.g. from the GSNO and the GAC and the ALAC) in relation to Human Rights or gTLD policies having an effect on Human Rights.

Annex 12 tells us to consider the effect on ICANN's processes and protocols.  Both of the above are quite relevant and within scope of our work - in fact, we neglect our charge if we do not fully consider and discuss them.  I am almost certain I raised this RFR/IRP issue early on.  David McCauley commented we had not yet discussed whether RFR and IRP would apply in relation to challenging Board decisions on Human Rights.    Thus, this remains an open question and well within scope.

I look forward to meeting in person in Copenhagen.  My personal belief is that much more substantive progress can be made in a face-to-face meeting.  And I do hope that everyone will consider the dilemma which may be posed for each member of the Board if the guidelines for the Board's decision-making in relation to  Human Rights policy are not sufficiently clear.  It is inevitable that the Board will be resolving differences in policy recommendations - this is clearly seen through the history of ICANN and nothing about the new Accountability structure changes this fact.
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: Niels ten Oever [mailto:lists at nielstenoever.net]
Sent: Tuesday, February 28, 2017 4:48 AM
To: Aikman-Scalese, Anne; ws2-hr at icann.org
Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC

Dear Anne,

On 02/28/2017 02:59 AM, Aikman-Scalese, Anne wrote:
> Hi Niels,
>
> Thanks for sending this out.  I have four comments:
>
>
>
> 1. RUGGIE PRINCIPLES: I don't recall a consensus in the drafting group
> regarding the statements about the UN Guiding Principles.
>
>

I don't think we called consensus on this.

>
> 2.  THE NEED TO BALANCE CONSIDERATIONS AMONG HUMAN RIGHTS ONE IN
> RELATION TO ANOTHER.  I don't recall any response in relation to my
> continued insistence on the principle that each SO and AC will need to
> take into consideration an equitable balancing of Human Rights in
> addition to taking into a balancing of the Core Values.   I will once
> again show where I made the suggested change in the text in red below
> point #4.
>
>
We discussed this in two calls. The balancing of rights would be part of the implementation of the bylaw, and defining that process (and what should all be part of that) is outside our mandate.

>
> 3. “COMMITMENT” AS A TERM OF ART IN THE BYLAWS: It was  agreed on a
> previous call that the term "commitment" is a term of art in the
> ByLaws and thus we need to refer to “Core Value” or “obligation”
> rather than "commitment" when referring to Human Rights.  Once again,
> this is about making the obligations of the Board of Directors very
> clear.  Language is important in the context of possible Requests for
> Reconsideration or IRPs around Board-adopted policy that may be
> alleged to violate this ByLaw.  Perhaps there is a simple typo: the
> margin language in at least one section of the draft still refers on
> the left hand side to "commitment".  This word should be changed to “obligation”.
>
>

The language in the left hand column comes straight from Annex 12 of the CCWG Final Report, we cannot change that.

>
> 4. RECOURSE AGAINST THE BOARD IN RELATION TO ALLEGED VIOLATION OF THE
> HUMAN RIGHTS BYLAW – RFR or IRP or BOTH?  In relation to the Annex 12
> questions,  I am not sure the group has actually fully discussed
> whether and how a challenge of not complying with the Human Rights
> ByLaw may be made against the Board of Directors?  Have we fully
> considered and discussed whether a Request for Reconsideration or
> Independent Review Process is available to the Community here?  If it
> is, what are the implications for ICANN’s processes and procedures?
> (In this regard, I think a First Reading is premature.)
>
>

I don't think we're asked to consider this.

Best,

Niels

>
> Below I paste once again a recommendation (change shown in red) that I
> have asked several times be considered and discussed in the group.
> (Or perhaps I missed this discussion?)  The Board will necessarily
> have to do such balancing in its own adoption of policies impacting
> Human Rights.  Therefore, we should not ignore this additional
> balancing exercise that must go on.
>
>
>
> "Each SO and AC should take the Core Value into consideration in its
> policy development or advisory role. It is up to each SO and AC, and
> ICANN the organisation, as applicable, to develop their own policies
> and frameworks to fulfill this Core Value. In doing so, the SOs and
> ACs, as well as ICANN the organization, should also take into account
> the requirement to balance the Core Values, as well as the need to
> balance the various Human Rights considerations, one in relation to
> another, in the policy-making process."
>
>
>
> Thank you,
>
> Anne
>
>
>
>
>
>
>
>
>
>
>
>
>
> The policies and frameworks, if any, that ICANN needs to develop or
> enhance in order to fulfill its obligation to respect Human Rights
>
>
>
> In order to put the Human Rights bylaw into practice, ICANN the
> community as well as the organization will need to consider how to
> reflect this Core Value in its policy and operation processes. Each SO
> and AC should take the Core Value into consideration in its policy
> development or advisory role. It is up to each SO and AC, and ICANN
> the organisation, as applicable, to develop their own policies and
> frameworks to fulfill this Core Value. In doing so, the SOs and ACs,
> as well as ICANN the organization, should also take into account the
> requirement to balance the Core Values, as well as the possible need
> to balance Human Rights considerations in the policy-making process.
>
>
>
>
>
>
>
>
>
>
>
> 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 Niels ten Oever
>
> Sent: Monday, February 27, 2017 5:15 PM
>
> To: ws2-hr at icann.org
>
> Subject: [Ws2-hr] Proposed Agenda FIRST READING considerations
> document Feb 28 19:00 UTC
>
>
>
> Dear all,
>
>
>
> It is with great pleasure that I can share with you the draft agenda
> for the meeting of February 28, 19:00 UTC.
>
>
>
> The drafting group worked hard after the constructive session last week.
>
> With this document we might have arrived at a new milestone.
>
>
>
> I am very much looking forward to have a first reading of the
> Considerations document with you in the call. As previously discussed,
> the Consideration document will be merged into one document with the
> FoI upon approval by the subgroup.
>
>
>
> I am greatly looking forward to discuss this with you on the call.
>
>
>
> Please find the proposed agenda underneath and attached, as well as
> the document.
>
>
>
> 1. Administrivia
>
> Roll call, absentees, SoIs, etc
>
> 2. First reading (of two) of the Considerations document prepared by
> the drafting team 3. AOB
>
>
>
> The document can also be found here:
>
> https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYw
> N4AItZjkY/edit
>
>
>
> Please let me know if you have any question or suggestions.
>
>
>
> All the best,
>
>
>
> Niels
>
> --
>
> Niels ten Oever
>
> Head of Digital
>
>
>
> Article 19
>
> www.article19.org
>
>
>
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>
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>
>
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--
Niels ten Oever
Head of Digital

Article 19
www.article19.org

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This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.