[Ws2-hr] dissenting opinion - final version for transmittal to CCWG plenary
Greg Shatan
gregshatanipc at gmail.com
Tue Sep 5 20:53:57 UTC 2017
I would note the following:
First, the minority statement does not mention that the drafting team
language was *not* adopted by the Subgroup. As written, one might think
the drafting team was a vehicle by which the Report was revised while
excluding minority voices. Since the work of the drafting team came to
naught, it seems a trifle disproportionate to use a formal Minority
Statement to raise concerns about the process by which it was formed and
announced.
With regard to process, I see things somewhat differently.
The drafting team was not only announced on the call. There were two
emails to the list that same day, both mentioning the drafting team -- the
post-call notes and Niels' email. Notably, Matthew Shears missed the call
and still volunteered for the drafting team. So I don't think it's fair to
say that a review of the transcript was the only way to find out about the
drafting team.
Could Niels have sent an email expressly seeking volunteers for the
drafting team? Of course. Did that stop Matthew? Is that an offense worthy
of permanent enshrinement in the Subgroup's report? Did Niels' less direct
email and the call notes serve to exclude the "dissenter" who was not on
the call from the drafting team? Should a specific invite have been made
to certain members of the Subgroup? I would say the answer to all those
questions is no, but that is only my view.
Having been invited to check the record, at least indirectly, I did so to
the extent possible (I cannot see past versions of the Google Doc, as I
only have "view" rights). A search of the email list and the relevant
transcripts did not reveal any proposals or draft text to the text of the
Report from the "dissenters" (though one dissenting participant was
actively involved in the conversations on the list and in the calls),
either before or after the call for the drafting team (though there were
objections to the drafting team language from the two dissenting
participants). Of course, there were contributions from many other
participants in the course of these discussions.
There was also discussion of the cover email from the Subgroup, and
considerable discussion of the reference to this point in that email. The
"dissenters" did suggest alternate text for this sentence, but it did not
gain any traction in the rest of the Subgroup. Perhaps there was confusion
between the cover letter and the Report text, or perhaps the proposal were
in prior versions of the draft document. Or perhaps I just missed
something.
Overall, I have to say that I see no substantial issues of process with
relation to the consideration of the 3 comments or the objections of the 2
participants.
However, I did find a process issue in my review of the history that was
far more likely to have had an effect on the Subgroup's report: The
decision to reject the drafting team's proposal and retain existing
language took place on a single call of the Subgroup, on a call where
several of the drafting team members were not present and at least 3 other
members of the Subgroup who supported the drafting team's language on the
list were also not present. The views of these drafting team members and
other participants were not cited during the call or otherwise taken into
account. If one wanted to raise concerns about process per se, this would
seem far more meritorious.
As to the larger question of why have public comments if there are public
comments that do not change the Report? First I would note that these
particular comments were vigorously and extensively debated -- which I
think qualifies as "duly taken into account." Second and more generally,
the experience varies greatly from comment period to comment period, with
regard to changes. Sometimes there are quite a few changes that come from
comments, others not so much. An analysis of how and when comments result
in changes would take pages, since it is more art than science. In many
cases it boils down to one or both of the following -- broad support in the
group for a particular change and/or broad support across many comments for
a particular change. Of course, changes for clarity and changes of
objective fact are more likely to be adopted than those that propose a
change in position.
Regardless, the comments are always carefully reviewed and considered. But
ultimately, there is absolutely no presumption that any comment will result
in a change -- nor should there be. There is also no presumption and
little if any precedent for the idea that a group will engage in dialogue
with any of the commenters. Indeed, it would raise serious issues if some
commenters were approached and others were not. The basic precept is that
the group is where deliberations take place and where inputs are weighed,
and that much of this happens on the calls.
Finally, I see that Jorge suggests that "Our opinion is that those calls
[for a stronger recognition of the UNGP] should have been better addressed
as explained in the dissent." This could be "better addressed" by
expanding the discussion of why changes were not made in response to these
comments, though that probably doesn't belong in the body of the report.
(Maybe it could be in a response to the minority statement, if the
dissenters seek to keep the minority statement in the report beyond the
presentation to the plenary.)
However, I believe "better addressed" in the view of the dissenters means
revising the Report so that it "would reflect some if not all of the
positions and proposals made in their responses" (i.e., the comments of
Switzerland, UK and Brazil). In spite of significant discussions, there
did not seem to be such language that would retain the broad support of the
Subgroup. In other words, the comments and those that supported them did
not persuade the Subgroup to adopt such changes. Without such persuasion,
the mere fact that a comment has been made is not going to result in a
change of position, no matter how convinced any commenter is that their
view is correct. As such, I think the process was honored and it worked,
and that any criticisms of the process do not go to issues that would have
changed the position of the group.
Best regards,
Greg
On Tue, Sep 5, 2017 at 12:41 PM, <Jorge.Cancio at bakom.admin.ch> wrote:
> Hi Thomas
>
> I hope you have read all the exchanges - perhaps you have not, otherwise
> it would be clear from all the materials that I was not on the 8th of
> August call... according to Greg's investigation Kavouss attended as member
> and Mark as observer...
>
> In any case you would also know that we were not silent and that we made
> proposals, including draft text, to try addressing our concerns. These
> proposals were made on the mailing list and are on the record - please
> check. There was no email to the list, to me or other dissenters to join
> the drafting team - I would probably have joined - the same way as I was in
> the original pre-public comment drafting team devoting a lot of time to
> this effort in a minority position within that original team...please check
> the record.
>
> As to the new drafting team, I feel that I have been quite nuanced. I
> monitored the emailing list during all the period, but as shown by Greg's
> investigation, if you did not look into the transcript of the specific 8 of
> August call it was quite difficult to identify when and how the drafting
> group came into being. An email to the list inviting volunteers would have
> been fine...
>
> Anyway, I feel that the main point is about substance, and I'm happy that
> you accept that we may dissent. Being aware of such divergence of opinions
> -as we all were- would have advised, in my opinion, reaching out
> proactively to those who are now dissenting and had taken the effort of
> filing public comments (which in my case involved consulting several
> Ministries). We may disagree on that too, but it would have been probably
> been more productive and inclusive.
> kind regards
>
> Jorge
>
>
>
> ________________________________
>
> Von: Thomas Rickert <thomas at rickert.net>
> Datum: 5. September 2017 um 18:10:14 MESZ
> An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>
> Cc: t.tropina at mpicc.de <t.tropina at mpicc.de>, ws2-hr at icann.org <
> ws2-hr at icann.org>, Thomas Rickert <thomas at rickert.net>
> Betreff: Re: [Ws2-hr] dissenting opinion - final version for transmittal
> to CCWG plenary
>
> Hi Jorge,
> Let me briefly share my personal (not co-chair) thoughts on this.
>
> I have to say that I take issue with is your point on the process of
> recruitment of the DT.
>
> I understand you and your colleagues have been on the call when the call
> for volunteers for the DT was made. You remained silent.
> You even remained silent on the mailing list despite a considerable
> exchange of e-mails as shown in the e-mail Greg kindly put together.
>
> Thus, you were not only asked but subsequently given the opportunity to be
> added to the team. You chose not to do so. That is fine.
> You characterize this process as not being appropriate communication and
> outreach. I think that is not appropriate given what actually happened.
>
> Please remember: This DT is not a formal working group where formal calls
> for volunteers are published. Are you suggesting we should add that level
> of complexity to our procedures?
>
> We have managed to produce outstanding results by group members
> volunteering to take on on certain tasks without a formal process.
>
> I understand that you do not agree with the substance of the report and
> want to make that known with your statement. That is fine.
>
> All the best,
> Thomas
>
>
>
> Am 05.09.2017 um 15:09 schrieb <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>> <Jorge.Cancio at bakom.admin.ch<mailto:
> Jorge.Cancio at bakom.admin.ch>>:
>
> Dear Matthew and Tatiana,
>
> I understand your points to a certain extent. But, at the same time: what
> are public comment periods good for if we absolutely stick to the text
> subject to the consultation?
> What changed is that in the public consultation we had basically those who
> wanted to stick to the consultation text but we also heard from two
> additional Governments (UK, Brazil) that were not part of the prior
> Subgroup discussions calling for a stronger recognition of the UNGP. Our
> opinion is that those calls should have been better addressed as explained
> in the dissent…
>
> Regards
>
> Jorge
>
> Von: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:
> ws2-hr-bounces at icann.org] Im Auftrag von Dr. Tatiana Tropina
> Gesendet: Dienstag, 5. September 2017 14:31
> An: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
> Betreff: Re: [Ws2-hr] dissenting opinion - final version for transmittal
> to CCWG plenary
>
>
> 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<mailto:
> 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 8th
> 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><mailto:AAikman at lrrc.com>
> Cc: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch><mailto:
> Jorge.Cancio at bakom.admin.ch>; lists at nielstenoever.net<mailto:
> lists at nielstenoever.net>;thiago.jardim at itamaraty.gov.br<mailto:
> thiago.jardim at itamaraty.gov.br>; ws2-hr at icann.org<mailto: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>
>
> _____________________________
>
> <image001.png>
>
> 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:acco
> untability-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, Decisions, Action Items, Requests (DAIRs),
> and raw caption notes for CCWG Accountability WS2 Human Rights Subgroup -
> Meeting #32 – 29 August 2017 posted athttps://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/>
>
> <image002.png>
>
>
> 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.or
> g/download/attachments/69272111/Raw%20Transcript_%20Human%
> 20Rights_%20Meeting%2032_%2029AUG17.docx?version=1&
> modificationDate=1504045965699&api=v2>
>
> • PDF<https://community.icann.org/download/attachments/692721
> 11/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
>
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>
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