[council] [Ext] Re: For your review - updated PDP Templates to facilitate consideration of impact on HR

Tue Jun 6 14:58:44 UTC 2023

Thanks Thomas.  I think you are saying the ByLaws always govern and that
the FOI is a community consensus interpretation of the ByLaws provision re
the Human Rights Core Value.  Is that correct?

I will give an example as to the reason I believe it's important to clarify
the significance of the Human Rights Framework of Interpretation to the HR
Impact Analysis:

Council will soon debate the best tool for addressing the Closed Generics
policy issue. Regardless of the tool that is chosen, it appears that Human
Rights in relation to freedom of expression will be asserted by both those
who advocate for unrestricted Closed Generics and those who advocate that
no Closed Generics be permitted.  The highly anticipated Facilitated Dialog
work on a proposed framework for Closed Generics will presumably be subject
to a Human Rights Impact Analysis.  All indications based on comments in
Council meetings are that Applicants for Closed Generics will assert that
the GAC Advice abridges Applicant freedom of expression.  End User
advocates will assert that restricting registrations in generic TLDs to a
closed set of registrants abridges end user freedom of expression.

Having participated on the Sub Team for Human Rights in Workstream 2, I can
safely say that the balance to be struck here is exactly what the Human
Rights Framework of Interpretation was meant to address.    Accordingly, I
think it would be unwise to finalize the templates for the Impact Analysis
without acknowledging directly the fact that the HR Framework of
Interpretation governs interpretation of the Human Rights Core Value in the
policy process, including the process of HR Impact Analysis.  I do agree
with you that the ByLaws always govern but the FOI itself is not a ByLaw.
It is a guide that is supposed to help establish principles for applying
the ByLaw in the policymaking context.

I would appreciate getting an extension beyond the June 7 deadline
specified by Marika so that this important subject of the templates could
be discussed in light of the upcoming work on Closed Generics.  (I know
Marika will say we can approve the templates and address that issue later
with respect to that policy work but I think it's important for Council to
address this at the template stage.)

Thank you,
Anne
Anne Aikman-Scalese
GNSO Councilor
NomCom Non-Voting 2022-2024
anneicanngnso at gmail.com

On Mon, Jun 5, 2023 at 12:26 PM Thomas Rickert | rickert.law
<thomas at rickert.law> wrote:

> Hi Anne, all,
>
> sorry for chiming in late.
>
>
>
> To be honest, I do not recall how the framework was intended to be used. I
> will offer my take on this, though, based on the documentation.
>
>
>
> The FOI is a framework of interpretation for ICANN’s human rights bylaw.
> When ICANN produces documents, we do not always refer to the bylaws to
> state that documents or policies must be compliant with ICANN’s bylaws. It
> is taken for granted.
>
> Shouldn’t the same be true for the FOI so that that document is always
> relevant as it is to be read in conjunction with the bylaws?
>
>
>
> In practical terms, I think that we do not need to explicitly reference
> the FOI, whether it is a report or something else.
>
> On the contrary, would we not create precedent by referencing it
> suggesting that when it is not applicable when not explicitly referenced?
>
>
>
> Best,
>
> Thomas
>
>
>
> *Von: *council <council-bounces at gnso.icann.org> im Auftrag von Anne ICANN
> via council <council at gnso.icann.org>
> *Antworten an: *Anne ICANN <anneicanngnso at gmail.com>
> *Datum: *Dienstag, 16. Mai 2023 um 16:50
> *An: *Marika Konings <marika.konings at icann.org>
> *Cc: *"council at gnso.icann.org" <council at gnso.icann.org>
> *Betreff: *Re: [council] [Ext] Re: For your review - updated PDP
> Templates to facilitate consideration of impact on HR
>
>
>
> Thanks Marika.  Not sure how the wiki page language was developed or why
> the FOI is referred to there as a "report".  I do know that the ByLaws
> change was not effective until the Framework of Interpretation was formally
> adopted and so we labored long to reach agreement on the language of the
> FOI.  Thomas Rickert may be in the best position to provide further comment
> on the history of this Workstream 2 work and the role of the FOI in
> assessing HR impact.
>
>
>
> Anne Aikman-Scalese
>
> GNSO Councilor
>
> NomCom Non-Voting 2022-2024
>
> anneicanngnso at gmail.com
>
>
>
>
>
> On Tue, May 16, 2023 at 7:45 AM Marika Konings <marika.konings at icann.org>
> wrote:
>
> Thanks, Anne, this is actually how it is referred to on the wiki page:
> “The ‘FOI’ is a brief report that offers consensus interpretation of bylaw
> language pertaining to human rights. This report was developed by a
> subcommittee within the CCWG-WS2”. It is definitely an important document
> in the context of the ICANN HR Bylaws, but not specific to assessing the
> impact of policy recommendations on HR as far as I understand which is what
> the additional language in the templates is focused on per the CCOICI
> recommendation.
>
>
>
> Maybe others can weigh in on whether it is viewed as essential that a
> reference to the framework is included in the templates themselves or
> whether it is sufficient that it is included together with other relevant
> materials that are intended to assist community and staff?
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *Anne ICANN <anneicanngnso at gmail.com>
> *Date: *Tuesday, 16 May 2023 at 16:07
> *To: *Marika Konings <marika.konings at icann.org>
> *Cc: *"council at gnso.icann.org" <council at gnso.icann.org>
> *Subject: *Re: [Ext] Re: [council] For your review - updated PDP
> Templates to facilitate consideration of impact on HR
>
>
>
> Thanks Marika. Certainly all the materials are relevant but I don't
> believe the Framework of Interpretation is a "report".  Having working on
> that Workstream 2 team, I am aware that the ByLaws change was specifically
> designed to only take effect after the HR Framework of Interpretation was
> adopted.  Thus, the Framework of Interpretation is quite important and is
> not just a "report."
>
>
>
> Given that the Framework was designed to effect implementation, it should
> be referred to specifically in the documents.
>
>
>
> Thank you,
>
> Anne
>
> Anne Aikman-Scalese
>
> GNSO Councilor
>
> NomCom Non-Voting 2022-2024
>
> anneicanngnso at gmail.com
>
>
>
>
>
> On Tue, May 16, 2023 at 5:56 AM Marika Konings <marika.konings at icann.org>
> wrote:
>
> Thanks, Anne. Our understanding is that the Framework of Interpretation is
> a report that offers consensus interpretation of the ICANN Bylaw language
> pertaining to human rights, it is not a tool that has been designed to
> facilitate assessing the potential impact of policy recommendations on
> human rights. The dedicated wiki page contains additional documents and
> information that may provide further guidance hence why we thought it would
> be a better approach to refer those interested to learn more there so that
> they have the range of documents and tools available to assist in this
> process.
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *Anne ICANN <anneicanngnso at gmail.com>
> *Date: *Tuesday, 16 May 2023 at 14:46
> *To: *Marika Konings <marika.konings at icann.org>
> *Cc: *"council at gnso.icann.org" <council at gnso.icann.org>
> *Subject: *Re: [Ext] Re: [council] For your review - updated PDP
> Templates to facilitate consideration of impact on HR
>
>
>
> Thanks Marika.  Sometimes these links pepper the WG with too many
> different background documents.  Here the HR-FOI is most relevant to the
> scope of the assessment of the impact so I still believe it's a good idea
> to include a reference to that in the text.  If you think including the
> link makes it too long, then I would just add "... in accordance with the
> ICANN Human Rights Framework of Interpretation."
>
>
>
> This language would make the scope of the work much more readily
> understandable.  I hope this request is not too burdensome.
>
>
>
> Thank you!
>
> Anne
>
> Anne Aikman-Scalese
>
> GNSO Councilor
>
> NomCom Non-Voting 2022-2024
>
> anneicanngnso at gmail.com
>
>
>
>
>
> On Tue, May 16, 2023 at 2:31 AM Marika Konings <marika.konings at icann.org>
> wrote:
>
> Hi Anne – thanks for your suggestion. Please note that the Framework of
> Interpretation, as well as other documents that may aid community and
> staff, can be found on the wiki page that is already referenced in the
> request for an Issue Report Template as well as Preliminary Issue Report
> template (see https://community.icann.org/x/RAPCCw). We’ll make sure to
> include the same link in the Charter Template and the Initial Report
> template.
>
>
>
> Best regards,
>
>
>
> Marika
>
>
>
> *From: *Anne ICANN <anneicanngnso at gmail.com>
> *Date: *Monday, 15 May 2023 at 19:17
> *To: *Marika Konings <marika.konings at icann.org>
> *Cc: *"council at gnso.icann.org" <council at gnso.icann.org>
> *Subject: *[Ext] Re: [council] For your review - updated PDP Templates to
> facilitate consideration of impact on HR
>
>
>
> Thanks Marika and many thanks to Ephraim!  These forms look good.  My only
> comment is that in each section in each of the forms asking whether there
> will be an impact on Human Rights, there should be a link inserted to the
> Framework of Interpretation for Human Rights(HR-FOI) that was adopted by
> the Board.  The Framework should be very helpful in the preparation of the
> Issue Report and also to the WG as it conducts the HR impact analysis on a
> recommendation by recommendation basis as specified in the Charter
> template.  (I understand that each Recommendation of the WG must be
> accompanied by an HR impact analysis.  If that is not the case, please
> advise by reply all.)
>
>
>
> The link to the FOI is here:
>
>
>
>
> https://www.icann.org/en/system/files/files/ccwg-acct-ws2-annex-3-hr-foi-final-recs-27mar18-en.pdf
>
>
>
>
>
> So, for example, in the Working Group Charter template, we should insert
> the language shown below in blue:
>
> Thank you!
>
> Anne
>
> Impact on Human Rights
> The WG is expected to consider the potential impact of any recommendations
> on human rights as set forth in the ICANN Human Rights Framework of
> Interpretation (HR-FOI) linked here:
> https://www.icann.org/en/system/files/files/ccwg-acct-ws2-annex-3-hr-foi-final-recs-27mar18-en.pdf.
>    Based
>
> on the information included in the request for an Issue Report and the
> Issue Report, the WG is
> expected to further consider whether there is a likely human rights
> impact, and if so, who are the
> groups expected to be impacted and the expected severity of the impact
> (high / medium / low). If an
> impact is anticipated, the WG is expected to address the following
> questions: 1) is the proposed action
> necessary to achieve the desired outcome, 2) is the proposed action
> proportionate, 3) is the proposed
>
> action legitimate.
>
>
> Anne Aikman-Scalese
>
> GNSO Councilor
>
> NomCom Non-Voting 2022-2024
>
> anneicanngnso at gmail.com
>
>
>
>
>
> On Mon, May 15, 2023 at 9:18 AM Marika Konings via council <
> council at gnso.icann.org> wrote:
>
> Dear All,
>
>
>
> Following the Council’s adoption of the CCOICI’s WS2 Recommendations
> Report, the staff support team has worked on:
>
>
>
> *“In relation to 3 (Framework of Interpretation for Human Rights), the
> GNSO Council directs GNSO Staff Support to work on a proposed
> implementation of the recommendations, consulting relevant community
> experts as needed. This proposed implementation is to be reviewed and
> approved by the GNSO Council before implementation”;*
>
>
>
> As a result, you will find attached updated versions of:
>
>
>
>    - The request for an Issue Report template;
>    - The Preliminary Issue Report template (proposed updates on page 6-7);
>    - The PDP WG Charter Template (proposed updates on page 2-3), and;
>    - The PDP WG Initial Report template (proposed updates on page 7).
>
>
>
> Each of these documents have been updated with a set of check-list
> questions that, as recommended by the CCOIC would provide a lightweight
> mechanism to assess whether an impact to human rights is likely or expected
> as a result of the consideration of a specific topic and/or the related
> recommendations. Flagging potential impact on human rights at an early
> stage in the process will assist in focusing attention on this topic
> throughout the deliberations as well as allowing for a more detailed human
> rights impact assessment, if an impact is expected or established.
>
>
>
> As you may note, a link is provided to a resource page that is managed by
> ICANN org where additional materials are available that may aid both staff
> as well as community in its consideration of the potential impact on human
> rights (see https://community.icann.org/x/RAPCCw). As further materials
> are developed, for example, work is underway on an ICANN Learn training
> on inclusion which is expected to present examples of protected groups,
> these will get added.
>
>
>
> It is also important to keep in mind that these documents are templates –
> it does not prevent further elaboration and/or guidance if deemed necessary
> either by Council or community working groups.
>
>
>
> A special thanks to Ephraim Percy Kenyanito for the original input he
> provided to the CCOICI as well as his review of and feedback on these
> templates.
>
>
>
> Please provide any comments or suggestions you may have *by 7 June at the
> latest*. If additional time is needed, please do not hesitate to let us
> know as well.
>
>
>
> Best regards,
>
>
>
> Ariel, Julie and Marika
>
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