[Ws2-hr] HR subgroup question to CCWG plenary

[Niels ten Oever]

Dear all,

Please refer to this version of the email instead.  The prior version
inadvertently quoted from a draft version of the WS1 report.


We hope this email finds you all very well. As you all know we shared
with you the Framework of Interpretation of the Human Rights bylaw.
After this the Human Rights Subgroup worked on next steps, which led us
to taking a close look at our mandate and finding that there are
different ways of interpreting this.  This difference stems, in part,
from the different constructions of our mandate in Annex 6 and in Annex 12.

That is why we come to you for guidance to see where we are, and where
we should go next.

In a bit more detail:

Paragraph 7 of Annex 6 of the CCWG reads:

Include the following in Work Stream 2 activities:
Develop an FOI-HR for the Human Rights Bylaw.
Consider which specific Human Rights conventions or other instruments,
if any, should be used by ICANN in interpreting and implementing the
Human Rights Bylaw.
Consider the policies and frameworks, if any, that ICANN needs to
develop or enhance in order to fulfill its commitment to respect Human
Rights.
Consistent with ICANN’s existing processes and protocols, consider how
these new frameworks should be discussed and drafted to ensure broad
multistakeholder involvement in the process.
Consider what effect, if any, this Bylaw will have on ICANN’s
consideration of advice given by the Governmental Advisory Committee (GAC).
Consider how, if at all, this Bylaw will affect how ICANN’s operations
are carried out.
Consider how the interpretation and implementation of this Bylaw will
interact with existing and future ICANN policies and procedures.

Whereas Paragraph 24 of Annex 12 of the CCWG report reads:

.24  To ensure that adding the proposed Human Rights Bylaw provision
into the ICANN Bylaws does not lead to an expansion of ICANN’s Mission
or scope, the CCWG -Accountability will develop a Framework of
Interpretation for Human Rights (FOI-HR) as a consensus recommendation
in Work Stream 2 to be approved by the ICANN Board using the same
process and criteria as for Work Stream 1 recommendations, and the Bylaw
provision will not enter into force before the FOI-HR is in place. The
CCWG-Accountability will consider the following as it develops the FOI-HR:
Consider which specific Human Rights conventions or other instruments,
if any, should be used by ICANN in interpreting and implementing the
Human Rights Bylaw.
Consider the policies and frameworks, if any, that ICANN needs to
develop or enhance in order to fulfill its commitment to respect Human
Rights.
Consistent with ICANN’s existing processes and protocols, consider how
these new frameworks should be discussed and drafted to ensure broad
multistakeholder involvement in the process.
Consider what effect, if any, this Bylaw would have on ICANN’s
consideration of advice given by the Governmental Advisory Committee (GAC).
Consider how, if at all, this Bylaw will affect how ICANN’s operations
are carried out.
Consider how the interpretation and implementation of this Bylaw will
interact with existing and future ICANN policies and procedures.

Annex 6 makes it seem like each of the “bullet points” is a separate
task, starting with the Framework of Interpretation.  On the other hand,
Annex 12 makes it seem like the “bullet points” are not really separate
tasks, but only items to be considered as we prepare the Framework of
Interpretation.  This makes a significant difference in how we determine
what work lies before us, and also how we look at the Framework of
Interpretation we have completed.

In our initial work we focused on providing a Framework of
Interpretation of the Bylaw, clearly stating how it should be
interpreted, and we did not focus on how the Bylaw could be
“operationalized”, even though of course we considered the potential
consequences this might have.

The question is now, what are the next steps? We see different options:

1. We're done. The FoI is developed, and under consideration by the plenary.
2. We need to have a second look at the FoI and make potential
amendments to the FoI to give more guidance based on the considerations
listed in Annex 6.
3. We  need to produce a new document that responds directly to each of
the “bullet points,” which could include examples and recommendations on
what potential next steps could be
4. We need to  test  specific cases on a hypothetical basis  to see
whether the FoI suffices.  (in this regard, hypothetical cases suggested
by the plenary would be helpful.)

We've have made first steps into the direction of step 3, but this led
us into quite detailed discussions on recommending  the use of Human
Rights Impact Assessments and how and where these could be integrated in
PDPs and ICANN operations. In these discussions,  it felt as though  we
were going into too much detail, and stepping outside of the mandate of
our Subgroup.

5. A fifth  option could be (and this might be a mix between option 1
and 3) to issue high-level recommendations on how ICANN and the SO’s and
AC’s could best operationalize the core value contained in  the Human
Rights Bylaw.  These recommendations could include (a) chartering a GNSO
Working Group on Human Rights to consider and recommend how the Bylaw
should be taken into account in gTLD policy development and
implementation, and/or (b) chartering Working Groups in each of the
other SO’s and AC’s for purposes relevant to their remit, and/or (c)
chartering a new CCWG on Human Rights to specifically consider the steps
needed to make the Bylaw operational, and provide guidance to each of
the SO's and AC's on how they could incorporate  the CCWG’s output in
their processes, as well as discussing measures that could be adopted by
ICANN, the corporation, with respect to its own internal human
resources, employment, and contracting practices  based on the Bylaw.

We would like to bring these five options in front of the plenary, and
we would greatly appreciate your thoughts on these and potentially other
options.

The Human Rights Subgroup wishes you a revitalizing festive season and
we're greatly looking forward to completing our work in Workstream 2
with you all in 2017.

All the best,

The CCWG Accountability Human Rights Subgroup

PS Thanks Greg and Brett for finding this error and for helping to
correct it.
-- 
Niels ten Oever
Head of Digital

Article 19
www.article19.org

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