[Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC
Aikman-Scalese, Anne
AAikman at lrrc.com
Wed Mar 1 16:59:04 UTC 2017
Thanks Bastiaan. The only reason I suggested that "obligation" replace "commitment" in the Annex 12 language originally given to us is that the obligation is in fact limited to applicable law as you point out. There is in fact such an obligation being undertaken. However, I am just as happy (and even happier) with your suggested language re Core Value. Niels says we cannot change anything given to us by the full group but I do think we must point out to the full group that "Commitment" is a term of art in the ByLaws and so I agree with your suggested change:
(‘Obligation’ is in the google doc in stead of ‘commitment’ as used by Annex 12. I agree with the Greg’s comment in the doc to use the original Annex 12 text.)
From your e-mail below.
"Maybe not within our remit, however to be honest I am slightly confused by the term ‘commitment’ used in Annex 12 as this is about a Core Value as opposed to the commitments in section 1.2 (a) of the bylaws.
A suggestion for an alternative second ‘consideration’ text in Annex 12, if I may:
‘Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order for the Human Rights Core Value, together and simultaneously with the other core values, to guide the decisions and actions of ICANN’"
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: Bastiaan Goslings [mailto:bastiaan.goslings at ams-ix.net]
Sent: Wednesday, March 01, 2017 4:43 AM
To: Aikman-Scalese, Anne
Cc: Bastiaan Goslings; Niels ten Oever; ws2-hr at icann.org
Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC
Hi all,
It has been a while, so first of all my apologies for the radio silence - I have been swamped by other issues, which a.o. led to a situation of not being able to attend the calls.
I trust you don’t mind me sharing a couple of reflections on the ‘considerations’ google doc. I am hesitant to include these directly in the draft as I might be rehashing arguments made by others previously and do not want to make a mess or create confusion.
A couple of remarks:
- With regard to ‘which specific Human Rights conventions or other instruments, if any, should be used’:
I agree that, as the current draft version reflects, ‘consensus could not be reached’ on ‘whether the UN Guiding Principles for Business and Human Rights could be applicable in the process of interpreting the bylaw’. However I do not understand the following statement, that ‘With regard to implementation of the Bylaw, the UN Guiding Principles for Business and Human Rights, or at least certain aspects of the Guiding Principles, could be considered as a useful guide in the process of applying the Human Rights Core Value’.
Besides the fact that the second part does not refer to an e.g. consensus -it just says in very general terms ‘could be considered’ but leaves out by whom- I do not see how the UNGPs are not to be used for interpretation but are potentially (partly) useful for implementation purposes.
That then also means to me that we cannot say ’The use of the Guiding Principles as potential guidance has to be carefully considered by each SO and AC as well as ICANN the organization’. We have no consensus on using the UNGPs for interpretation, and it seems unclear whether we have it in terms of considering these principles a useful guide for implementation. How can we then say ‘use of the Guiding Principles (…) has to be carefully considered’ (etc)?
A clarifying question, just so I understand: does this also mean that we are suggesting SO’s, AC’s and ICANN individually, on an ad hoc basis, should (‘has to be’) decide whether to use (parts of) the UNGPs as ‘potential guidance’? See also the ‘It is up to each SO and AC, and ICANN the organisation, as applicable, to develop their own policies and frameworks to fulfil 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’. If so, how is all of this aligned? Could we see diverging (conflicting?) approaches? And how does that relate to the ‘as required by applicable law’ in the Core Value?
The HR Core Value is clear IMO when it comes to the term ‘as required by applicable law’, i.e. as described in the FoI produced by this subgroup. I wonder what sense it would make to closely analyse and disect for instance the UNGPs, and cherrypick what elements might be relevant for ICANN constituencies. So I am happy with the ‘it is beyond the scope of this document to provide a detailed analysis of the Guiding Principles and their application or not, in whole or in part, in particular situations.’ I am saying this because even as the situation is now, without the HR Core value being effective until the Board has approved the associated FoI, ICANN has to abide at all times by all ‘applicable law’, ‘as required’, within the different jurisdictions it operates. In theory that tells me there could be a conflict between local ‘applicable law’ and whatever ‘specific Human Rights conventions or other instruments’ we suggest to be ‘used by ICANN in interpreting and implementing the Human Rights Bylaw’. While ICANN might perfectly well be operating within a jurisdiction ‘as required by applicable law’. That could lead to a situation where ‘one Core Value must be balanced with another, potentially competing Core Value’ and the HR core value might loose, so to speak. I’d assume we want to avoid being confronted with such a situation ex ante. The balancing of Core Values should take place in a specific unforeseen cases, depending on circumstances and context. As section 1.2 (c) of the bylaws says: ‘The specific way in which Core Values are applied, individually and collectively, to any given situation may depend on many factors that cannot be fully anticipated or enumerated.’
- ‘obligation’ vs ‘commitment’ as used in Annex 12 paragraph 24
I do not know where the ‘obligation’ comes from that Anne refers to (‘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’). The way I read the ‘"Core Values" should also guide the decisions and actions of ICANN’, is that there is no ‘obligation’ when ‘referring to Human Rights’. IMO the only mandatory element here is that this Core Value ‘should’ be considered a guiding principle.
(‘Obligation’ is in the google doc in stead of ‘commitment’ as used by Annex 12. I agree with the Greg’s comment in the doc to use the original Annex 12 text.)
Maybe not within our remit, however to be honest I am slightly confused by the term ‘commitment’ used in Annex 12 as this is about a Core Value as opposed to the commitments in section 1.2 (a) of the bylaws.
A suggestion for an alternative second ‘consideration’ text in Annex 12, if I may:
‘Consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order for the Human Rights Core Value, together and simultaneously with the other core values, to guide the decisions and actions of ICANN’
- With regard to the ‘Consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures’
The draft doc says ‘It is expected that the Bylaw will be taken into account when future ICANN policies and procedures are developed, and interpreted in accordance with the Framework of Interpretation.’ Does the ‘expected’ mean that we are not sure that the HR Core Value will indeed become effective? If not then I’d suggest a stronger text:
‘The Core Value will be a guiding principle when future ICANN policies and procedures are developed’ (etc)
When it comes to Human Rights’ Impact Assesments (HRIAs), I do not understand the ‘this could include an assessment of the impact of a proposed policy on human rights. If the assessment identifies potential impact(s) on human rights, an HRIA could be triggered and would be undertaken during the drafting of the WG’s Initial Report.’
‘An assessment of the impact of a proposed policy on human rights’ sounds to me like an HRIA itself. How can a HRIA trigger another HRIA?
Hope this is useful,
Thanks, and with regards,
Bastiaan
> On 28 Feb 2017, at 21:17, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
>
> 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<mailto: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<mailto: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<mailto: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> [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<mailto: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/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NY
>> w
>> 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<http://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<http://www.article19.org>
>
> PGP fingerprint 8D9F C567 BEE4 A431 56C4
> 678B 08B5 A0F2 636D 68E9
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