[CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 8 | 4 October

[MSSI Secretariat]

Hello all,

The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #8 – 4 October 2016 will be available here:  https://community.icann.org/x/ZwW4Aw

A copy of the notes may be found below.

Thank you.

With kind regards,
Brenda Brewer
MSSI Projects & Operations Assistant
ICANN - Internet Corporation for Assigned Names and Numbers

NOTES:
18 participants in Adobe room at start of call.
1. Administrivia
Roll call, absentees, SoIs, etc
Niels ten Oever: Markus phone only. Changes to SOIs? (none).  Changes to agenda?
Tatiana Tropina: Is there a summary of previous discussion?
Niels ten Oever: report of the last meeting.
Brett Schaefer: Again we seem to be starting from the assumption that the RUggie Principles are our base document and we are trimming from them. Why?
Tatiana Tropina: Brett, not. At least this is NOT my assumption.
Markus ..: Should we take a step back? There are parallels with FIFA. Having Ruggie attend a meeting could be good.
Cheryl Langdon-Orr (CLO): good question  Brett
Tatiana Tropina: But there is a divergence in the views of this group. I will fight against the assumption that Ruggie is our base document
Brett Schaefer: I also remain concern that the draft FoI seems to assume that ICANN can voluntarily adopt HR obligations even though that seems in opposition to the Core Value text.
Niels ten Oever: explanation of how the document was arrived at - it is a preliminary document that was meant as a scratch pad. I may of share this prematurely. It does not represent any kind of consensus. I have been discussing our project with John Ruggie but he is a very busy man and cannot attend our call.
David McAuley: My recommendation is that the FOI it should be a separate document so everyone can see our progress.
Niels ten Oever: agree with that and will work on creating a clean document after this call.
Kavous Arasteh: Simple to criticize but hard to do. Why do we always come back to applicable law -
Tatiana Tropina: I won't also assume that the content of the FoI document is actually FoI. It's good structure-wise but content-wise it makes the assumptions that I will fight against.
Greg Shatan: Brett, whether or not ICANN can adopt voluntary obligations is beyond the scope of interpreting the Bylaw.
Brett Schaefer: @Greg, if so, then teh FoI is out of scope.
Tatiana Tropina: Niels, but this is not reflecting the discussions we had!
Anne Aikman-Scalese: Agree wtih
Greg Shatan: Agree with Tatiana, any FoI should build on our discussions.  This doesn't
Greg Shatan: Brett, this is very consistent with my concern.
Tatiana Tropina: Greg, the document is good structure wise though. So I don't want to look like I am trushing the work of others.
Tatiana Tropina: David, I agreed with you already in the comments in the doc. This will solve the problem.
Tatiana Tropina: thanks for the suggestion.
David McAuley (RySG): Thank you Niels
Cheryl Langdon-Orr (CLO): Good point David   perhaps  just start  with a Outline  frame for the FOI  discussions to come
Tatiana Tropina: because the outline is good.
Cheryl Langdon-Orr (CLO): Yes  Tatiana   the skeleton / structure is fine
matthew shears: yes, use outline but leave Ruggie for later
David McAuley (RySG): I am one of those who think "applicable law" is an important part of the bylaw we are interpreting
matthew shears: an entity respects human rights through complying with applicable law
Tatiana Tropina: David, yes.
David McAuley (RySG): One critical question we should ask about all undertakings suggested in this document is this: Are they “required by applicable law?” If not, then we should recall the following words that are a part of Bylaw Article 1.2(b)(viii): “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN … beyond obligations found in applicable law.”
Cheryl Langdon-Orr (CLO): indeed  David
David McAuley (RySG): That is why I believe any incorporation of any Ruggie Principle must be subject to an overarching statement that its impact will be subordinate to the “required by applicable law” filter.
matthew shears: david: an entity respects human rights through complying with applicable law
David McAuley (RySG): I appreciate Niels effort to get Prof Ruggie to come to a call
Greg Shatan: David, I think that filter would eliminate much of the Ruggie Principles in the context of ICANN.
Tatiana Tropina: Non-binding can still open the door for claims and court cases once ICANN commits to them
Tatiana Tropina: Greg, +1
David McAuley (RySG): I tend to agree @Greg
Jorge Cancio: Thanks to Niels for the document which will help our work. Ruggie principles are not binding for business entities but they are a benchmark internationally - We should go into this discussion with an open mind. Would be interesting to hear what mr. Ruggie explains what is behind those principles. We have to mindful that this is a core value.
Niels ten Oever: I have reached out to the UN working group but have not heard back.
Anne Aikman-Scalese: I think NIels has already acknowledged the edits were premature.  Thank you Niels for recognizing this.
Greg Shatan: We need to concentrate more on what the Bylaws say vs analyzing Ruggie principles. The document seems to assume a particular point of view which is not consensus of this group. All points of view have to be represented in this document - possibly using more columns? Applicable law is a very important limitation. Agree with JC that we need an open mind which means we do not know if Ruggie principles are usable or not.
jorge cancio (GAC Switzerland): we could have a second "descriptive" column and a third column with our different analysis of the facts
Niels ten Oever: If my draft is only causing people to participate then this is good. Re Applicable law - the only suggestion we have on this is from PM regarding looking at state and county laws that are applicable. How could we address this?
David McAuley: Applicable law is an actionable term as is and does not need to be analyzed or defined. ACTION ITEM will send his thoughts on Applicable Law to the list for the group.
jorge cancio (GAC Switzerland): on "applicable law": why don't we start with an interpretation from ICANN legal? what it means to them?
Greg Shatan: I think this is our job, not Jurisdiction.  We can
Greg Shatan: not hand it off.
Erich Schweighofer: Applicable law changes, not the term.
Tatiana Tropina: I agree with David...
jorge cancio (GAC Switzerland): on "applicable law": why don't we start with an interpretation from ICANN legal? what it means to them?
David McAuley (RySG): I will take a stab at it, Jorge, but if ICANN legal would do that then in my view that would be preferable
Niels ten Oever: will now proceed with agenda.
2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 19, 17, 18
Niels ten Oever: Due diligence and principle 19 - thoughts?
Jorge Cancio: I would leave that at this point - this is operational parts of the principles and is about implementation and not interpretation.
Tatiana Tropina: We had not consensus on what due diligence actually means. Effective Integration seems to go into enforcement - at best this is controversial.
Kavous Arasteh: There is no due diligence here - this looks good - the chapeau part seems to apply quite well.
Niels ten Oever: the section containing this principles is labelled Due Diligence in the Ruggie principles.
Greg Shatan: Principle 19 is all about implementation and beyond the scope of this group. Our job is to interpret the Bylaws.
Tatiana Tropina: I just want to say that this principle has to be read together with others. It's not a standing alone principle.
David McAuley (RySG): Mitigate would be acceptable as long as required by applicable law
Tatiana Tropina: And if Ruggie require a broad impact assessment ... this is a broad thing.
Tatiana Tropina: David, yes, as well as protect and enforce
matthew shears: @ David - even then it could be outside the scope of the bylaw
Tatiana Tropina: And yes, it is the issue of implementation
Niels Ten Oever: GS is mitigation not part of what we are doing?
Greg Shatan: corect.
Kavouss Arasteh 2: Any time and evry time we discuss an issue somebody says the issue is of implementation nature.
Kavouss Arasteh 2: How we could draw a line between policy principles and implementation principles.
Greg Shatan: anytime we are writing what people should be doing wrt HR then we have probably strayed over the line.
Jorge Cancio: I agree with what GS has said.
Anne Aikman-Scalese: I note that ICANN has not yet made policy has to HR.  This is a high level By-Law.  Policy will be made in accordance with the existing ICANN processes - including Policy Development.
Cheryl Langdon-Orr (CLO): I am in line with your thinking  Greg / Jorge
Greg Shatan: If we are talking about what ICANN is free to do, and not what it
Greg Shatan: is committed to do we are no longer interpreting a bylaw.
matthew shears: could we move on to the other princples in the agenda so that we move on from Ruggie for the next call?
Kavous Arasteh: do we need to discuss Ruggie or not? we need to resolve this.
Jorge Cancio: On principle 17 seems to be more on implementation as it explains what 15B means.
David McAuley: I would align with GS on principle 17. Ruggie are drafted to apply to all businesses while we are approaching this from the POV of ICANN which is a very specific type of business.
Niels ten Oever: We are making progress and there is light at the end of the tunnel.
Kavous Arasteh: when I look at Ruggie are all based on Assessing, evaluating and  mitigating, prevention etc....maybe we only need one or two things from this.
Anne Aikman-Scalese: ICANN will be undertaking policy-making activities with reference to the FOI-HR.  Implementation will occur after policy is adopted - in accordance with existing ICANN processes.  Agree that human rights impact assessment is implementation.  Not sure as to whether conducting due diligence is policy or implementation.  It is quite certain that if it affects registry contract obligations, it is policy.
Greg Shatan: I think we are being sloppy in using the term "policy" as if it is interchangeable with interpretation.
Cheryl Langdon-Orr (CLO): Yes I thought that was what we are doing  Niels
matthew shears: I a way Niels this has been a useful exercise for me because at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI
Brett Schaefer: +1 Matthew
Niels ten Oever: Principle 18
Cheryl Langdon-Orr (CLO): yup
Niels ten Oever: I think our opinions our converging indeed
Tatiana Tropina: Yes, Matt. Having gone through them I am not convinced to change my position that Ruggie shall be out unless we decide something is in
Anne Aikman-Scalese: As previously expressed, I favor some version of Principle 18 being added to the FOI- HR. I believe this is consistent with current ICANN processes.
Brett Schaefer: Yes, consensus seems to be that Ruggie is not a sound basis for the FoI. We should reconsider our approach.
Greg Shatan: anything that starts with IN ORDER TO is implementation and outside our scope. 3 phases, interpreting the Byalws, implementing the bylaw through policy dev. and then development.
Niels ten Oever: I think that is not what people said Brett, parts of Ruggie are useful, not wholly applicable.
jorge cancio (GAC Switzerland) 2: +1 Niels
Brett Schaefer: Really, I thought people supported Matthew who said: I a way Niels this has been a useful exercise for me because at the outset it was unclear to me whether Ruggie was in scope and suitable - but now having gone through this I am convinced that they are largely not, and certainly not as a starting point for our limited work on the FoI.
Niels ten Oever: who will take a stab at the next version of the document? GS, TT, MS, JC. Adjourned.


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