[Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary
Dr. Tatiana Tropina
t.tropina at mpicc.de
Tue Sep 5 12:31:26 UTC 2017
I find myself in agreement with Matt.
Also - unless my memory fails me - Jorge was a part of the team which
drafted the text Matt cites. We went back to the text we agreed after
hours of drafting and discussions. The text included UNGP and reflected
the fact that we don't have consensus. I don't understand what changed
since then? We still have no consensus on further endorsement of UNGP
but they are included in the text as a possible reference.
I think the current text is balanced and takes into account all the
positions. Let me also remind, that some of us - those who were against
Ruggie at all - also compromised during the drafting exercise and agreed
to include the Ruggie reference.
Warm regards,
Tanya
On 05/09/17 14:11, Matthew Shears wrote:
>
> Hi
>
> This dissenting opinion does not reflect the inclusive and extensive
> discussion, and multiple rounds of drafting, on the matter of the UNGP
> prior to the public comment.
>
> The result of that significant discussion and drafting was the
> following in the Considerations document:
>
> /With regards to the UN Guiding Principles for Business and Human//
> //Rights, no consensus was reached as to their suitability for
> interpreting//
> //the Core Value. However with regard to the implementation of the Core//
> //Value certain aspects of the UN Guiding Principles for Business and//
> //Human Rights could be considered as a useful guide in the process of//
> //applying the Human Rights Core Value. There are certain Guiding//
> //Principles that may not be suitable for ICANN and others that might be//
> //applicable, depending on the circumstances. However, it is beyond the//
> //scope of this document to provide a detailed analysis of the Guiding//
> //Principles and their application, or not, in particular situations.//
> //In any case, a conflict between any Guiding Principle and an ICANN//
> //Bylaw provision or Article of Incorporation must be resolved in
> favor of//
> //the Bylaw or Article. 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./
>
> This text was very carefully worded so as to not preclude the UNGP nor
> endorse it, which was agreed at the time to be the appropriate
> treatment of the matter. As is clearly stated there was no
> consensus. And, the final sentence allows for future consideration of
> the UNGP by the SOs and ACs and the ICANN the org.
>
> Matthew
>
>
> On 05/09/2017 11:33, Jorge.Cancio at bakom.admin.ch wrote:
>>
>> Thanks to Greg for this thorough investigation to the origins of the
>> „drafting team“. Apparently only the transcript of the call on August
>> 8^th provides some clarity on how the drafting team was constituted,
>> as the agenda, the notes of the call, and the subsequent emails did
>> not contain an open call for participating in such a drafting team.
>>
>>
>>
>> Nonetheless, and recognizing that at least in the call itself there
>> was such a call for forming the drafting team, I would like to
>> slightly amend the dissenting opinion as follows:
>>
>>
>>
>> ==
>>
>> "This dissenting opinion is based on serious concerns about the
>> Sub-Group's treatment of the substantial comments and proposals
>> submitted during the public comment period by the Governments of
>> Brazil, Switzerland and the United Kingdom (who are all active
>> members of the GAC's Human Rights and International Law Working Group).
>>
>> Their expectation was that a properly balanced result would reflect
>> some if not all of the positions and proposals made in their
>> responses. The governments are dismayed to note, however, that there
>> are no changes of any significance to the draft FoI and
>> Considerations documents that addresses any of the substantial
>> issues//which they raised.
>>
>> In particular, the three Governments were in full agreement that the
>> FOI text should make stronger reference to the UN Guiding Principles
>> as the most relevant voluntary international standard. However, the
>> Subgroup did not undertake an inclusive effort to determine if a
>> compromise text could be formulated that would accommodate this
>> position of the three governments.
>>
>> Furthermore, the drafting team which was created by the Sub-Group in
>> order to develop changes to the draft texts following consideration
>> of the inputs received, lacked appropriate stakeholder balance as in
>> our view there was not an appropriate communication and outreach on
>> its constitution open invitation to participate in the drafting team,
>> which contributed to having no Government representation on this team.
>>
>> This dissenting opinion is supported by Jorge Cancio (Switzerland)
>> and Kavouss Arasteh (Iran), members of this Subgroup, and the
>> representatives of the Governments of Brazil and UK who are observers
>> on this Subgroup, and the representative of the Government of Peru.”
>>
>> ==
>>
>>
>>
>> Kind regards
>>
>>
>>
>> Jorge
>>
>>
>>
>> *Von:*Greg Shatan [mailto:gregshatanipc at gmail.com]
>> *Gesendet:* Dienstag, 5. September 2017 08:21
>> *An:* Aikman-Scalese, Anne <AAikman at lrrc.com>
>> *Cc:* Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>;
>> lists at nielstenoever.net; thiago.jardim at itamaraty.gov.br; ws2-hr at icann.org
>> *Betreff:* Re: [Ws2-hr] dissenting opinion - final version for
>> transmittal to CCWG plenary
>>
>>
>>
>> All,
>>
>>
>>
>> I think it would be helpful to review the course of events under
>> discussion here and in the minority statement. I've taken the time
>> to comb through the email list and the relevant meeting transcripts,
>> and as far as I can determine, this is what took place. I'll provide
>> this without further comment, but I hope it is useful to all members
>> of the Subgroup.
>>
>>
>>
>> 1. Niels made a request for volunteers to join a drafting team on
>> the August 8, 2017 Working Group call. Attendance records show that
>> Kavouss Arasteh and Mark Carvell were on the call (the latter as an
>> Observer). Three people on the call (David Macauley, myself and
>> Tatiana Tropina) volunteered for the drafting team. Anne also
>> apparently volunteered, but this was not noted in the call notes;
>> this was subsequently clarified.
>>
>>
>>
>> 2. Almost directly after the call (or possibly even during the end
>> of the call), Niels sent to the subgroup list an email with two
>> versions of the paragraph in question ("Original text" and "Text
>> proposed by me on the call"), and said "I am greatly looking forward
>> to the suggestion of the drafting team."
>>
>>
>>
>> 3. Matthew Shears replied to that thread a couple of hours later and
>> volunteered to be on the drafting team. Rudy Daniel, Anne
>> Aikman-Scalese and Kavouss Arasteh also replied to that thread, with
>> contributions. Rudy also sent a follow-on email with further
>> observations; David responded to this.
>>
>>
>>
>> 4. Within a few hours after that, MSSI Secretariat sent an email to
>> both the CCWG and ws2-hr lists with Action Items and raw captioning
>> from the August 8 meeting. The second Action Item from the meeting was:
>>
>>
>>
>> * *DM, GS, TT volunteer for drafting team for the two elements of
>> text which were discussed on the call this week
>> for consideration at the next meeting.*
>>
>>
>>
>> 5. The next day, David sent another email on the topic, again to the
>> full subgroup list. Kavouss, Anne and Steve DelBianco all replied to
>> this email, discussing various aspects and options for the text.
>>
>>
>>
>> 6. Meanwhile, Anne sent an email directly after the call with some
>> thoughts on the language of this paragraph, to which there were
>> numerous responses by eight different members of the subgroup
>> (Kavouss, Tijani, Steve, Rudy, Brett, Bastiaan, Seun and David) over
>> the next couple of days.
>>
>>
>>
>> 7. Members of the drafting team took note of these discussions on
>> the list and then put together a suggested revised text to be
>> discussed by the Subgroup.
>>
>>
>>
>> 8. On August 15, the date set to return a text to the list, David
>> Macauley on behalf of the Drafting Team sent a suggested text to the
>> full list for the Subgroup to consider. Brett and Anne (who had not
>> yet seen the very final suggested text due to time zone differences)
>> responded in support of the suggested text. Jorge and Kavouss
>> responded, objecting to the suggested text.
>>
>>
>>
>> 9. There were also responses to Niels' agenda email to the list,
>> commenting on the suggested text -- Brett, Matthew, Rudy, and Anne in
>> support; Jorge and Kavouss objecting.
>>
>>
>>
>> 10. This suggested text was then discussed on the August 15 call.
>> The decision on that call, as reported in the post-call email from
>> MSSI Secretariat, was:
>>
>>
>>
>> * The modifications proposed by the drafting team were not
>> supported and as such are rejected. The original text used in the
>> public consultation will be used.
>>
>>
>>
>> Only David Macauley and Tatiana Tropina were present from the
>> drafting team. Anne, Matthew and I were unable to attend. Kavouss
>> was on the call and participated actively in the discussion of
>> the revised text. Mark Carvell was present as an Observer.
>>
>>
>>
>> 11. At the following meeting on August 22, there was no further
>> discussion of the drafting team's text. There was a second reading
>> of the cover email to be sent to the Plenary with the Subgroup's
>> report, including the language used to characterize the Subgroup's
>> response to comments suggesting that the UNGP be expressly
>> mentioned. There was also a lengthy discussion of procedural matters
>> relating to the minority statement submitted by Jorge.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Greg
>>
>>
>>
>>
>>
>> On Thu, Aug 31, 2017 at 1:24 PM, Aikman-Scalese, Anne
>> <AAikman at lrrc.com <mailto:AAikman at lrrc.com>> wrote:
>>
>> Thanks Jorge. You may recall that in one version of the revised
>> “Considerations” language proposed by me on the list, I included
>> a specific reference to ICANN the organisation using the
>> assessment tool specified in Ruggie Principle 18(b). This
>> suggestion was rejected by the rest of the drafting team. As far
>> as I know, there were not separate drafting team calls and
>> everyone participated on the list and proposed language on the
>> general list.
>>
>>
>>
>> I am not certain how the final language arose, but in the end I
>> elected to support it. I do think that if either Kavouss or you
>> as active members would have chosen to become drafting team
>> members, the language might have been better.
>>
>>
>>
>> Thank you
>>
>> Anne
>>
>>
>>
>> *Anne E. Aikman-Scalese*
>>
>> Of Counsel
>>
>> 520.629.4428 <tel:%28520%29%20629-4428> office
>>
>>
>> 520.879.4725 <tel:%28520%29%20879-4725> 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 <http://lrrc.com/>
>>
>>
>>
>>
>> *From:*ws2-hr-bounces at icann.org <mailto:ws2-hr-bounces at icann.org>
>> [mailto:ws2-hr-bounces at icann.org
>> <mailto:ws2-hr-bounces at icann.org>] *On Behalf Of
>> *Jorge.Cancio at bakom.admin.ch <mailto:Jorge.Cancio at bakom.admin.ch>
>> *Sent:* Thursday, August 31, 2017 9:04 AM
>> *To:* lists at nielstenoever.net <mailto:lists at nielstenoever.net>
>> *Cc:* thiago.jardim at itamaraty.gov.br
>> <mailto:thiago.jardim at itamaraty.gov.br>; ws2-hr at icann.org
>> <mailto:ws2-hr at icann.org>
>> *Subject:* [Ws2-hr] dissenting opinion - final version for
>> transmittal to CCWG plenary
>>
>>
>>
>> Dear Niels,
>>
>>
>>
>> As anticipated, please find hereunder the final version of the
>> dissenting opinion I would like to file to the report from the
>> Subgroup:
>>
>>
>>
>> ==
>>
>> "This dissenting opinion is based on serious concerns about the
>> Sub-Group's treatment of the substantial comments and proposals
>> submitted during the public comment period by the Governments of
>> Brazil, Switzerland and the United Kingdom (who are all active
>> members of the GAC's Human Rights and International Law Working
>> Group).
>>
>> Their expectation was that a properly balanced result would
>> reflect some if not all of the positions and proposals made in
>> their responses. The governments are dismayed to note, however,
>> that there are no changes of any significance to the draft FoI
>> and Considerations documents that addresses any of the
>> substantial issues//which they raised.
>>
>> In particular, the three Governments were in full agreement that
>> the FOI text should make stronger reference to the UN Guiding
>> Principles as the most relevant voluntary international standard.
>> However, the Subgroup did not undertake an inclusive effort to
>> determine if a compromise text could be formulated that would
>> accommodate this position of the three governments.
>>
>> Furthermore, the drafting team which was created by the Sub-Group
>> in order to develop changes to the draft texts following
>> consideration of the inputs received, lacked appropriate
>> stakeholder balance as there was no open invitation to
>> participate in the drafting team, which contributed to having no
>> Government representation on this team.
>>
>> This dissenting opinion is supported by Jorge Cancio
>> (Switzerland) and Kavouss Arasteh (Iran), members of this
>> Subgroup, and the representatives of the Governments of Brazil
>> and UK who are observers on this Subgroup, and the representative
>> of the Government of Peru.”
>>
>> ==
>>
>>
>>
>> Thanks for including it in the final report to be transmitted to
>> the CCWG Plenary for its consideration.
>>
>>
>>
>> Kind regards
>>
>>
>>
>> Jorge
>>
>>
>>
>>
>>
>> *Von:*accountability-cross-community-bounces at icann.org
>> <mailto:accountability-cross-community-bounces at icann.org>
>> [mailto:accountability-cross-community-bounces at icann.org] *Im
>> Auftrag von *MSSI Secretariat
>> *Gesendet:* Mittwoch, 30. August 2017 00:54
>> *An:* CCWG Accountability
>> <accountability-cross-community at icann.org
>> <mailto:accountability-cross-community at icann.org>>
>> *Cc:* ws2-hr at icann.org <mailto:ws2-hr at icann.org>
>> *Betreff:* [CCWG-ACCT] Recordings, DAIRs, Raw Caption Notes for
>> Human Rights Subgroup Meeting #32 | 29 August 2017
>>
>>
>>
>> Hello all,
>>
>>
>>
>> You may find the recordings, _D_ecisions, _A_ction _I_tems,
>> _R_equests (DAIRs), and raw caption notes for CCWG Accountability
>> WS2 *Human Rights Subgroup - Meeting #32 *– *29 August 2017*
>> posted at https://community.icann.org/x/LwIhB
>>
>>
>>
>> The transcript will be posted on when it becomes available
>> (usually in 3 to 5 business days after the call).
>>
>>
>>
>> A copy of the DAIRs and raw caption notes may be found below.
>>
>>
>>
>> Thank you.
>>
>>
>>
>> Kind Regards,
>>
>> *Yvette Guigneaux*
>>
>> *(MSSI) Multistakeholder Strategy & Strategic Initiatives *
>>
>> Projects & Operations Assistant.
>>
>>
>>
>> *ICANN – Internet Corporation for Assigned Names and Numbers*
>>
>> Email: yvette.guigneaux at icann.org
>> <mailto:yvette.guigneaux at icann.org>
>>
>> Cell: +1-310-460-8432 <tel:%28310%29%20460-8432>
>>
>> Skype: yvette.guigneaux.icann
>>
>> www.icann.org <http://www.icann.org/>
>>
>>
>>
>>
>>
>>
>>
>> *Raw Captioning Notes*
>>
>> /Disclaimer: This rough edit transcript, which may contain
>> missing, misspelled or paraphrased words, is only provided for
>> your immediate review and is not certified as verbatim and is not
>> to be cited in any way. /
>>
>> · *Word Doc
>> <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.docx?version=1&modificationDate=1504045965699&api=v2>*
>>
>> · *PDF
>> <https://community.icann.org/download/attachments/69272111/Raw%20Transcript_%20Human%20Rights_%20Meeting%2032_%2029AUG17.pdf?version=1&modificationDate=1504045991224&api=v2>*
>>
>> *Decisions: *Decision taken to proceed with submitting the
>> revised report for CCWG-Plenary’s consideration.
>>
>> *Action Items: *NTO to submit the revised report for
>> CCWG-Plenary’s consideration.
>>
>> *Requests: *Members of the subgroup are seeking clarification on
>> who has rights to file a Minority Statement, per the CCWG
>> charter, and what has been done in the past:
>>
>> · Has an Observer filed a Minority Statement in CCWG
>> Accountability before?
>>
>> · Has anyone who wasn't an official Member (appointed
>> from an SOAC) filed a Minority Statement in CCWG before?
>>
>> · What the CCWG Charter say about who has rights to file
>> a Minority Statement?
>>
>> *Documents - Revisions to HR Subgroup email to CCWG Plenary
>> <https://community.icann.org/download/attachments/69272111/Revisions%20to%20HR%20Subgroup%20email%20to%20CCWG%20Plenary%5B1%5D.pdf?version=1&modificationDate=1504013260000&api=v2>*
>>
>>
>>
>>
>>
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> --
>
>
> Matthew Shears
> matthew at intpolicy.com
> +447712472987
> Skype:mshears
>
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